                                Illinois Official Reports

                                        Appellate Court



                           People v. McGee, 2015 IL App (1st) 122000



Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                   DARRYL McGEE, Defendant-Appellant.



District & No.            First District, Sixth Division
                          Docket No. 1-12-2000



Filed                     January 23, 2015
Rehearing denied          February 18, 2015


Held                       Defendant’s conviction for stalking a Chicago Transit Authority
(Note: This syllabus employee was reversed and the cause was remanded for a new trial
constitutes no part of the where the trial court erred in admitting, pursuant to the State’s motion,
opinion of the court but evidence with respect to an incident in which defendant and the
has been prepared by the alleged victim’s husband engaged in a violent encounter shortly after
Reporter of Decisions defendant appeared at the station where the wife worked and
for the convenience of defendant cut the husband’s arm, leaving a wound requiring 100
the reader.)               stitches, since the husband declined to bring charges against defendant
                           and evidence related to the altercation between defendant and the
                           husband was not part of defendant’s alleged course of stalking
                           conduct and was not relevant to prove his intentions toward his alleged
                           victim.



Decision Under            Appeal from the Circuit Court of Cook County, No. 10-CR-19970; the
Review                    Hon. Lauren Gottainer Edidin, Judge, presiding.

Judgment                  Reversed and remanded.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Melinda Grace Palacio, all
     Appeal                   of State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Matthew Connors, and Noah Montague, Assistant State’s Attorneys,
                              of counsel), for the People.



     Panel                    PRESIDING JUSTICE HOFFMAN delivered the judgment of the
                              court, with opinion.
                              Justices Lampkin and Rochford concurred in the judgment and
                              opinion.


                                               OPINION

¶1         After a jury trial, the defendant, Darryl McGee, was convicted of stalking (720 ILCS
       5/12-7.3(a)(1) (West 2010)) a Chicago Transit Authority (CTA) employee and sentenced to a
       term of 30 months in prison. On appeal, he contends his conviction should be reversed where
       the State failed to prove his guilt beyond a reasonable doubt. Alternatively, he argues that he
       is entitled to a new trial where the circuit court erred in admitting highly prejudicial evidence
       of other crimes and failing to comply with Illinois Supreme Court Rule 431(b) (eff. May 1,
       2007). For the reasons that follow, we reverse and remand the cause for a new trial.
¶2         In November 2010, the defendant was indicted on two counts of stalking. Count I alleged
       that, on October 4, 2010, and continuing through October 8, 2010, the defendant knowingly
       engaged in a course of conduct directed at Vicki Glanz, “to wit: repeatedly arrived at [her]
       place of employment yelling obscenities, and he knew or should have known” that his
       conduct would cause a reasonable person to fear for her safety. 720 ILCS 5/12-7.3(a)(1)
       (West 2010). Count II alleged the same conduct in violation of section 12-7.3(a)(2) of the
       Criminal Code of 1961 (Code) (720 ILCS 5/12-7.3(a)(2) (West 2010) (knew or should have
       known conduct would cause a reasonable person to suffer other emotional distress)).
¶3         On August 2, 2011, the State filed a motion in limine seeking to admit evidence of other
       crimes by the defendant. Specifically, the State sought to admit evidence of an altercation
       between the defendant and Vicki’s husband, Christopher Glanz, which occurred on
       October 8, 2010. According to the State’s motion, Christopher confronted the defendant
       about his harassment of Vicki and a physical altercation ensued which resulted in the
       defendant stabbing Christopher in his arm with a box cutter and the defendant requiring
       hospitalization for his injuries. The State asserted that, while Christopher declined to press
       charges for his injury, evidence of the altercation was relevant to prove the defendant’s
       violent intent toward Vicki. The State further argued that the altercation corroborated Vicki’s
       concerns for her safety and showed the defendant’s “continuing narrative which began with
       the harassment and threats to Vicki Glanz and ended with the assault on her husband.” The
       defendant objected to the admission of the evidence, arguing that Christopher was the


                                                   -2-
     aggressor in the altercation and that the altercation was unrelated to his alleged conduct
     directed at Vicki.
¶4        The circuit court granted the State’s motion, finding that the indictment covered
     October 8, 2010, which was the date of the altercation. The court also stated that whether the
     altercation constituted part of the course of stalking conduct was a matter for the trier of fact.
¶5        On June 13, 2012, the defendant’s trial commenced with a different presiding judge than
     the judge that granted the State’s previous motion in limine. Although the defendant renewed
     his objection to the other-crimes evidence, the circuit court allowed the previous judge’s
     ruling to stand.
¶6        Vicki, a CTA combined rail operator, testified that, in October 2010, she was assigned to
     work at the Evanston Central Street Purple Line station, where she had been working for
     several years. On days she did not operate a train, she worked in the station’s customer
     service kiosk, which was located near the turnstiles where customers entered to board the
     train or exit the station. Vicki stated that customers often approached the kiosk to ask her
     questions and that she was the only CTA employee working at that location to assist
     customers.
¶7        According to Vicki, around 3 p.m. on October 4, 2010, the defendant entered the station
     and stood near the turnstile. Because his train pass was not working, the defendant asked
     Vicki for assistance. She testified that she used her access card to allow the defendant
     through the turnstile because his card was damaged. After the defendant walked through the
     turnstile, Vicki returned to the other customers that she had been speaking with. However,
     she noticed that the defendant never walked upstairs to the train platform but remained
     standing in her vicinity. Vicki asked if he needed any other assistance, and the defendant
     asked her where the “201 bus” was located. She told him that bus was outside, pointing
     toward the doors that open to Central Street. Again, the defendant did not move, but instead
     asked Vicki where he could find the 201 bus to which she gave him the same answer. When
     the defendant asked her the same question a third time, another customer answered “[d]ude,
     it’s right outside. You have to go outside to get the bus.” The train then approached and the
     crowd near Vicki ran upstairs to board it, but the defendant did not move. At that point, Vicki
     noticed that another customer needed assistance, so she walked to that person near the
     turnstile. She stated that the defendant walked behind her and stood “very close” to her. She
     asked him whether he needed anything else, and he repeated the same question about the 201
     bus. Vicki testified that she told him that she had answered that question and that there was
     nothing more for them to discuss. She turned and walked toward her kiosk, but the defendant
     started “cursing and calling [her] names,” such as “nigga bitch.” Vicki entered her kiosk and
     called the CTA control center.
¶8        According to Vicki, the controller heard the defendant yelling in the background and
     asked her whether she was okay. She told the controller what happened and asked for the
     police to be called. Vicki testified that the defendant was “cursing[ and] banging on the
     windows” of her kiosk while she was on the phone. After she hung up the phone, the
     defendant ran upstairs and then returned, continuing to call her names and stating that he
     would “get her schedule,” “find her,” and that he was “going to get [her].” The defendant
     then went back upstairs, and the police arrived. Vicki told the officer that the defendant went
     upstairs and the officer proceeded to look for him. When the officer returned alone, Vicki
     asked about the defendant, and the officer told her that she allowed him to board the train.

                                                 -3-
       Vicki asked the officer why she allowed that, and the officer stated that he did not do
       anything wrong. At that point, Vicki informed the officer that the defendant had threatened
       her. The officer told Vicki that she did not have that information beforehand and told her to
       call the police if the defendant returned.
¶9         No surveillance video from October 4, 2010, was admitted into evidence. However,
       Evanston police officer Conley testified that she responded to the October 4 dispatch, but she
       was not informed of any specific threats made to an individual. When she arrived at the
       scene, Vicki immediately stated that the defendant “went upstairs, go get him,” but she did
       not mention any physical threats. Officer Conley located the defendant, told him to leave the
       CTA employee alone, and allowed him to get on the train. When Officer Conley told Vicki
       that she let the defendant board the train, Vicki informed her that he had threatened her and
       said that he was “going to kick her ass or beat her ass.” Officer Conley advised Vicki to call
       the police if the defendant returned.
¶ 10       Vicki testified that around 3 p.m. on October 8, 2010, she was sweeping outside her kiosk
       when the defendant appeared “in [her] face,” asking where he could find the 201 bus. Vicki
       turned around, entered her kiosk, and called the CTA control center. The defendant “started
       banging on the windows and calling [her] names again, calling [her] bitch.” Turning away
       from the defendant, Vicki began to cry and asked the controller to remain on the phone with
       her until the police arrived. While waiting for the police, Vicki used her cell phone to call her
       husband and left him a message; she also called an Evanston police officer whom she knew
       personally. According to Vicki, it seemed like the incident went on for “maybe 20 minutes.”
       The controller, who was watching through the security cameras, told Vicki that the defendant
       had left. But he returned shortly thereafter and continued banging on her window and calling
       her “a bitch.” The defendant left again, and the police arrived minutes later. Vicki told the
       officer that the defendant went outside. Shortly thereafter, the officer returned without the
       defendant and told Vicki to call the police if he returned.
¶ 11       The surveillance video of October 8 was admitted into evidence and published to the
       jury. The video does not contain any audio. Vicki testified as the video played, confirming
       the accuracy of the depiction of the incident around 3 p.m. The video depicts Vicki inside her
       kiosk and the defendant standing outside of it, speaking to her through the glass. The
       defendant, who is carrying a backpack, then repeatedly knocks on the window with his
       knuckles for a few minutes, walks away, then returns, again knocking on the window until he
       finally leaves the station a few minutes later. An officer arrives, speaks to Vicki, and leaves
       the scene. The incident does not exceed 10 minutes in duration.
¶ 12       Vicki further testified that, around 4:30 p.m. on October 8, her husband, Christopher,
       arrived at the station. Around 5 p.m., the defendant walked into the station. When Vicki saw
       him, she “was afraid” and “went silent.” Christopher asked her if that was the man harassing
       her, and Vicki told him that it was. She went into her kiosk to call the CTA control center,
       and Christopher confronted the defendant. Vicki testified that she did not hear their
       conversation, but she heard that their voices were loud and she saw that their faces were
       close to one another. The two men then began fist-fighting. She stated that both Christopher
       and the defendant were throwing punches, and she saw that Christopher was bleeding.
       However, Vicki testified that she did not see a weapon.
¶ 13       Vicki testified that she reported both the October 4 and October 8 occurrences to her
       manager and documented them in “the daily reports.” She stated that, after the October 4

                                                   -4-
       occurrence, she felt “scared” and “afraid” of the possibility that the defendant would return to
       the station while she was working. When he did return on October 8, she testified that she
       felt “very scared,” “helpless,” “embarrassed,” and “weak.” She stated again that she “was
       afraid of the defendant,” and that she feared that he would harm her.
¶ 14       On cross-examination, Vicki clarified that, on October 4, the defendant “banged” on the
       kiosk window with his “fists,” but on October 8, he “banged” on the window with his
       “knuckles.” When asked whether the defendant said that he was “going to hurt” her on
       October 4, Vicki answered that she “should have said it before, but [the defendant] said he
       was going to kick my ass.” She explained that she did not testify to that fact on her direct
       examination because she “was just shaken up.” Further on cross-examination, Vicki admitted
       that when the defendant returned on October 8, he did not “kick [her] ass,” touch her, or pull
       a weapon on her, and when he returned later that day, he did not speak to her or walk toward
       her kiosk. Rather, she admitted that Christopher initiated contact with the defendant.
¶ 15       Christopher testified that, on October 8, 2010, Vicki left a voicemail message on his cell
       phone around 3 p.m., prompting him to drive to her workplace. Around 5 p.m., the defendant
       walked into the station and Vicki “turned pale,” telling Christopher that he was the passenger
       that had harassed her that day. Christopher testified that he immediately confronted the
       defendant, yelling at him to leave the station and to leave Vicki alone. He said that the
       defendant responded by stating that he was just trying to catch the train and that he had only
       asked Vicki where the 201 bus could be found. Christopher stated that he continued “cussing
       and hollering” at the defendant, who then responded by parroting his words. According to
       Christopher, their faces were very close and, when their noses touched, the defendant tried to
       bite him. Within that moment, Christopher shoved the defendant, and the defendant cut
       Christopher’s arm. He testified that, after he was cut, he punched the defendant in the face
       repeatedly and continued punching him and kicking him while he was on the ground. After
       the fight, Christopher used his shirt to wrap his arm and began to walk down the block to the
       hospital. However, he returned to the station when he saw the defendant standing at the bus
       stop because he wanted to “protect his wife.” Christopher identified a photograph of his
       wound, which required over 100 stitches, and he displayed the scar on his arm for the jury to
       view. In addition, Christopher identified photographs of the defendant’s backpack and the
       box cutter later retrieved from the backpack that day.
¶ 16       Defense counsel thoroughly cross-examined Christopher on the fact that he initiated the
       fight with the defendant. On redirect examination, the State asked Christopher whether he
       declined to press charges against the defendant for aggravated battery, which he responded
       that he did. Defense counsel objected to the question and moved for a mistrial, arguing that
       the fact no additional charges were filed in connection to the fight was beyond the scope of
       his cross-examination and highly prejudicial because the jury could speculate as to whether
       there might have been an additional charge filed against the defendant. The circuit court
       denied the defendant’s motion for a mistrial and overruled the objection, finding that the
       other-crimes evidence motion had been granted and the State mentioned that Christopher
       declined to press charges in its opening statement, with no objection. Indeed, the assistant
       State’s Attorney stated during her opening argument that Christopher “told the police, ‘Look,
       I got my justice of the street, you don’t have to charge him with anything.’ ”
¶ 17       The October 8 surveillance video depicting the altercation between the defendant and
       Christopher was published to the jury. In the video, the defendant, who is carrying a

                                                  -5-
       backpack, walks into the station and attempts to use his CTA card to pass through the
       turnstile while Christopher, who is standing near the turnstile, speaks to Vicki through the
       window of her kiosk. As the defendant’s card fails to let him through the turnstile,
       Christopher confronts him. Although there is no audio, the men appear to be yelling at each
       other, and they are standing very close together. When their faces are nearly touching, the
       defendant makes a motion toward Christopher’s face with his head, and Christopher shoves
       the defendant backward. The defendant then reaches into his pocket and pulls out a small
       item with his hand. The two men continue yelling at each other, and Vicki exits her kiosk for
       a moment to watch the fight. Christopher repeatedly punches the defendant until he falls to
       the ground. He then repeatedly kicks the defendant. As Christopher walks away from the
       defendant, he wraps his arm with his shirt, and the defendant attempts to stand up, but falls
       down in the background.
¶ 18       Evanston police officer Nicholas Demos testified that he responded to the initial
       October 8 dispatch in which Vicki told him that she was being harassed by someone and that
       the individual was “pounding on the glass of her booth.” Officer Demos searched the area but
       did not find anyone fitting the defendant’s description. Later that day, he returned to the
       station to respond to the altercation between the defendant and Christopher. Upon arriving at
       the station, Officer Demos found the defendant’s backpack in the lobby and retrieved a box
       cutter from the inside of it. He identified the photos of the backpack and box cutter.
¶ 19       The defendant testified in his defense, stating that, on October 4, 2010, he was traveling
       to a job interview with the Vector Company in Skokie. He was not familiar with the CTA
       schedule, so when he arrived at the station, he approached Vicki to ask about the 201 bus
       schedule. According to the defendant, Vicki was “very ambiguous and very rude and very
       bitter and inattentive.” She told him the bus was “over that way.” The defendant walked
       around for a minute, but he was confused so he returned and knocked on the kiosk window.
       He denied that he “banged” on the window. Again, Vicki told him vaguely that the bus was
       “over there.” The defendant testified that he eventually left, returned, and then again asked
       Vicki about the bus. He stated that she remained rude and ambiguous, so he left and walked
       up to the train platform at which time Officer Conley approached him. The defendant denied
       admitting to Officer Conley that he called Vicki a “bitch.” He also denied ever threatening
       Vicki or stating that he would “kick her ass.” The State called Officer Conley in rebuttal, and
       she testified that the defendant admitted to her that he called Vicki a “bitch.” The defendant
       testified that, in the evening, he reported Vicki’s unprofessional behavior by calling the
       CTA’s 888 phone number.
¶ 20       The defendant testified that, on October 8, 2010, he returned to the CTA station to travel
       to his interview at the Vector Company, which had been rescheduled from October 4. He
       asked Vicki about the 201 bus, hoping she would be more helpful, but she again responded
       rudely and ambiguously. He left for his interview. He denied that he called Vicki names or
       banged on her window. When he returned to the station, his CTA card did not work because
       it was damaged. The defendant testified that, as he began to look up from the turnstile,
       Christopher confronted him by “yelling and cursing” at him. According to the defendant, he
       told Christopher that he was simply trying to catch the train, but Christopher pushed him
       backward and attacked him. The defendant stated that Christopher punched him multiple
       times and kicked him several times while he was lying on the ground. As a result of the fight,
       the defendant was hospitalized for internal head injuries and cracked ribs.


                                                  -6-
¶ 21        On cross-examination, the defendant admitted he arrived for his interview late on
       October 4 and that the company rescheduled it for October 8. However, he denied that he
       was angry about having been late. The defendant further denied that he had a box cutter in
       his possession on October 8, that he used it to cut Christopher, or that it was found in his
       backpack. However, he identified the backpack in the photograph as the one that he had been
       carrying that day.
¶ 22        The jury found the defendant guilty of both stalking counts, and the circuit court denied
       the defendant’s motion for a new trial. After a hearing, the court sentenced the defendant to
       30 months’ imprisonment on one count of stalking, finding the second count merged
       pursuant to the one-act, one-crime rule. This appeal followed.
¶ 23        We first address the defendant’s argument that the circuit court erred in admitting
       evidence of his altercation with Christopher. At the outset, we reject the State’s argument that
       the defendant forfeited this evidentiary issue because he failed to preserve it in a posttrial
       motion. The record demonstrates that the defendant objected to the State’s motion in limine
       to introduce the evidence, renewed the objection before the new trial judge, and raised the
       issue sufficiently in his motion for a new trial. Thus, we find that the defendant properly
       preserved the issue for review.
¶ 24        The defendant contends that the evidence of his altercation with Christopher was not part
       of his alleged course of stalking conduct and was not relevant to prove his intent toward
       Vicki. Even if the evidence was relevant to the stalking offense, the defendant argues that the
       court erred in allowing the altercation to become the focal point of the trial. Accordingly, he
       maintains that the introduction of this highly prejudicial evidence requires reversal. The State
       counters that the evidence of the defendant’s altercation with Christopher, including his
       indigent responses to Christopher’s requests that he leave Vicki alone and his possession of a
       “deadly weapon,” showed that his “intent throughout the entire course of conduct” was not
       merely his lack of understanding the public transit system schedule. We agree with the
       defendant and, for the reasons that follow, we reverse and remand for a new trial.
¶ 25        Evidence of a crime or other bad acts for which a defendant is not on trial is inadmissible
       if relevant merely to establish the defendant’s propensity to commit crime. People v. Placek,
       184 Ill. 2d 370, 385 (1998). “Such other-crimes evidence is objectionable because a jury,
       upon hearing this evidence, might convict the defendant merely because it feels that the
       defendant is a bad person who deserves punishment.” Id. Exceptions exist, of course, to
       allow the admission of other-crimes evidence when it is relevant to establish any material
       question other than the defendant’s propensity to commit a crime. Id. For instance, our courts
       have deemed other-crimes evidence admissible if relevant to demonstrate knowledge, intent,
       motive, design, plan or identification. People v. Lindgren, 79 Ill. 2d 129, 137 (1980).
       Other-crimes evidence has also been deemed admissible when the evidence: was relevant in
       placing a defendant in proximity to the time and place of the presently charged offense;
       tended to prove a fact in issue; rebutted an alibi defense; or demonstrated a consciousness of
       guilt. People v. Diaz, 78 Ill. App. 3d 277, 279-80 (1979). However, even where other-crimes
       evidence is relevant for a permissible purpose, the circuit court must weigh the prejudicial
       effect of admitting the other-crimes evidence against its probative value. Placek, 184 Ill. 2d
       at 385. The court should exclude evidence of other crimes where its prejudicial effect
       substantially outweighs its probative value. Id. The admissibility of other-crimes evidence


                                                  -7-
       rests within the sound discretion of the circuit court, and we will not overturn its decision
       absent a clear abuse of that discretion. Id.
¶ 26        In Lindgren, the supreme court affirmed the appellate court’s decision reversing the
       defendant’s armed robbery and murder convictions and remanding for a new trial because the
       trial court erroneously admitted highly prejudicial evidence of a subsequent arson crime
       which was unrelated to the charged crime. Lindgren, 79 Ill. 2d at 132-33. The defendant was
       charged with the armed robbery and murder of Arthur Lewis which took place around
       midnight on April 17-18, 1977. Id. At trial, witness Ina Lewis testified that, about an hour
       after the defendant returned from the murder scene, he drove her to his ex-wife’s home and
       set the home on fire. Id. at 134-35. Lewis testified that the defendant had stated that he
       warned his ex-wife earlier that day that he would burn the home down if she was not home
       when he returned. Id. at 134. After they left the ex-wife’s home, the car that they were
       traveling in got stuck in a ditch. Id. The next morning, while waiting near the incapacitated
       vehicle, both Lewis and the defendant were arrested. Id. at 135. Just before the arrest, the
       defendant asked Lewis to “ ‘ditch’ ” his gun and wallet, which she did. Id.
¶ 27        The defendant objected to the admission of the arson evidence, arguing that it was
       unrelated to his charges for which he was on trial. Id. The State contended that the evidence
       was relevant to demonstrate a consciousness of guilt, because under its theory, the defendant
       stole the gun from his ex-wife’s home earlier in the day and burned the home down after
       using the gun in the murder in order to conceal the fact the gun was missing. Id. at 137-38.
       The supreme court rejected the State’s “strained interpretation of events,” noting that: metal
       does not burn; Lewis testified that the defendant did not ask her to conceal the weapon until
       after the arson; and the defendant provided a different reason for burning his ex-wife’s home
       down. Id.
¶ 28        The supreme court also rejected the State’s argument that the arson evidence was
       admissible because it established his presence near the scene of the crime. Id. at 138-39. The
       court stated that “[g]enerally, time and place proximity, without more, is an insufficient basis
       for permitting other-crimes evidence.” Id. at 139. The court noted that proximity plus
       additional reasons, such as relevance to the defendant’s knowledge, common design or
       scheme, or identity, may support the admissibility of other-crimes evidence, but that none of
       these reasons were present in its case. Id. The supreme court explained that the arson
       evidence added nothing to the State’s case as Lewis already testified to the defendant’s
       presence at the robbery and murder scene, establishing time and place proximity. Id. For
       similar reasons, the court rejected the State’s contention that the arson evidence was
       admissible as part of a “continuing narrative of [the] crime.” Id. at 139-40. The supreme
       court found that the arson was a “distinct crime undertaken for different reasons at a different
       place at a separate time.” Id. at 140.
¶ 29        While the supreme court acknowledged that the admission of prejudicial evidence may be
       deemed harmless, the “extensive discussion of the collateral crime of arson” was not
       harmless. Id. at 141. The court stated that the arson evidence “could have influenced the jury
       to convict him only out of a belief that he deserves punishment.” Id. The court acknowledged
       that its opinion was not a finding of the defendant’s innocence and that an uncontaminated
       jury could find Lewis’s testimony regarding the robbery and murder credible. Id. at 142.
       However, it is the jury’s function as the fact finder to determine witness credibility and
       resolve conflicts in the testimony. Id. Thus, the court remanded the cause for a new trial. Id.

                                                  -8-
¶ 30       We find the facts of Lindgren comparable to the facts of the case at bar. Like in Lindgren,
       we do not accept the State’s contention that the defendant’s altercation with Christopher
       constituted a continuing narrative of his alleged stalking offense toward Vicki as the
       altercation was a “distinct” event “undertaken for different reasons” at a different time. See
       Lindgren, 79 Ill. 2d at 140. Other-crimes evidence is admissible if it is part of a continuing
       narrative of the event giving rise to the offense or is intertwined with the offense charged.
       People v. Abernathy, 402 Ill. App. 3d 736, 751 (2010). Stated otherwise, when facts
       concerning the uncharged criminal conduct are part of a continuing narrative of the charged
       criminal conduct, they do not concern separate, distinct, and unconnected crimes. Id. (finding
       evidence of fire at the home where the charged domestic battery offense occurred minutes
       before was part of continuing narrative surrounding the domestic violence incident).
¶ 31       In this case, the defendant allegedly stabbed Christopher for a distinct reason and after
       the time the charged offense was completed. The defendant was charged with stalking Vicki
       under sections 12-7.3(a)(1) and (a)(2) of the Code by “repeatedly arriv[ing] at [her] place of
       employment yelling obscenities” when he knew or should have known that his conduct
       would cause a reasonable person to fear for her safety or suffer other emotional distress. The
       altercation between the defendant and Christopher occurred approximately two hours after
       the defendant’s October 8 interaction with Vicki and did not involve any contact with Vicki.
       Rather, Vicki, Christopher and the defendant all testified that, when the defendant returned to
       the station on October 8, he said nothing to Vicki and did not approach her; rather, he walked
       to the turnstile at which time Christopher confronted and attacked him. Christopher admitted
       that he initiated contact with the defendant and admitted that the defendant never approached
       Vicki at that time, but had stated that he was only trying to ride the train. The surveillance
       video substantiates the witnesses’ testimony in this regard. Thus, we cannot find that the
       altercation constituted a continuing narrative of the defendant’s alleged stalking conduct
       directed at Vicki.
¶ 32       Similarly, we reject the State’s argument that the evidence proves the defendant’s intent
       to harm Vicki by showing that he arrived at her workplace with a “deadly weapon.” Like the
       court in Lindgren determined that the arson crime was not necessary to establish the
       defendant’s time and proximity to the murder scene, evidence of the altercation did not need
       to be admitted in this case in order to bring in evidence that the box cutter was retrieved from
       his backpack later in the day when he was arrested. See People v. Fauntleroy, 224 Ill. App.
       3d 140, 149 (1991) (reference to evidence related to the defendant’s arrest on an outstanding
       warrant was deemed admissible as part of narrative testimony regarding circumstances
       surrounding the arrest for the charged offense). Thus, even though evidence of the box cutter
       may have been admissible, it was not necessary to discuss the altercation in order to admit it.
¶ 33       We further find that no other exceptions to the other-crimes rule apply here. Contrary to
       the State’s argument that the altercation proves the defendant’s intent to harm Vicki, we
       cannot conclude that his mere presence at the train station the second time on October 8
       demonstrated his intent to stalk Vicki. The version of the stalking statute under which the
       defendant was charged provides:
                    “(a) A person commits stalking when he or she knowingly engages in a course of
               conduct directed at a specific person, and he or she knows or should know that this
               course of conduct would cause a reasonable person to:
                        (1) fear for his or her safety or the safety of a third person; or

                                                  -9-
                       (2) suffer other emotional distress.” 720 ILCS 5/12-7.3(a) (West 2010).
       Section 12-7.3(c) of the Code (720 ILCS 5/12-7.3(c) (West 2010)) also defines several
       relevant terms, including:
                   “(1) ‘Course of conduct’ means 2 or more acts, including but not limited to acts in
               which a defendant directly, indirectly, or through third parties, by any action, method,
               device, or means follows, monitors, observes, surveils, threatens, or communicates to
               or about, a person, engages in other non-consensual contact, or interferes with or
               damages a person’s property or pet. A course of conduct may include contact via
               electronic communications.
                                                    ***
                   (6) ‘Non-consensual contact’ means any contact with the victim that is initiated or
               continued without the victim’s consent, including but not limited to being in the
               physical presence of the victim; appearing within the sight of the victim; approaching
               or confronting the victim in a public place or on private property; appearing at the
               workplace or residence of the victim; entering onto or remaining on property owned,
               leased, or occupied by the victim; or placing an object on, or delivering an object to,
               property owned, leased, or occupied by the victim.” 720 ILCS 5/12-7.3(c) (West
               2010).
¶ 34       We cannot conclude that the defendant’s physical presence within Vicki’s sight at the
       train station constituted “non-consensual contact” under the Code when there is no evidence
       that he knew she would be present at the time he returned from his interview on October 8.
       Moreover, the altercation did not tend to prove a fact in issue, such as identity or motive, of
       the stalking offense nor did it rebut an alibi or demonstrate a consciousness of guilt as to his
       earlier conduct with Vicki. See Diaz, 78 Ill. App. 3d at 279-80 (stating exceptions to rule
       barring other-crimes evidence include when evidence is relevant to establish time and place
       proximity, prove a fact in issue, rebut an alibi or demonstrate a consciousness of guilt). The
       defendant’s identity and presence were undisputed; the nature of his contact with Vicki on
       October 4 and October 8 around 3 p.m. was the only disputed fact.
¶ 35       The State’s reliance on People v. Ranstrom, 304 Ill. App. 3d 664 (1999), is also
       unpersuasive. In Ranstrom, the court determined that evidence of the defendant’s numerous
       violations of orders of protection obtained by his ex-girlfriend was relevant in proving the
       State’s theory that he was motivated by his obsession with the woman when he attacked her
       new boyfriend. Id. at 675. Unlike in Ranstrom, the defendant’s stabbing of Christopher does
       not help establish whether his earlier conduct toward Vicki violated the stalking statute.
       Further, while the circuit court was correct that the indictment included the date of the
       altercation, it does not follow that the evidence is per se admissible. Thus, based on the
       record before us, we find that the circuit court abused its discretion when it granted the
       State’s motion to admit the evidence of the altercation between the defendant and
       Christopher.
¶ 36       As the Lindgren court observed, improper admission of other-crimes evidence does not
       automatically require reversal if the error is deemed harmless. However, like in Lindgren, we
       find that the admission of the other-crimes evidence in this case was not harmless where its
       use was so pervasive during the defendant’s trial that it nearly became unclear as to whether
       he was being tried for stalking Vicki or stabbing Christopher.


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¶ 37        Evidence of the altercation did not come in merely through the questioning of a single
       witness like the arson evidence did in Lindgren. Instead, testimony about the altercation was
       adduced from Vicki, Christopher, Officer Demos, and the defendant. Additionally, the State
       specifically argued that Christopher did not press charges against the defendant for the
       stabbing, insinuating that the defendant should have or could have been charged with a crime
       related to the altercation. The jury was also shown the surveillance video depicting the
       altercation and photographs of the box cutter, the defendant’s backpack, and Christopher’s
       wound, and Christopher displayed his scar for the jury to view.
¶ 38        The evidence adduced at the defendant’s trial went far beyond the reasons the State
       claimed it wanted to use the evidence; that is, to establish that the defendant continually
       stalked Vicki or possessed a weapon at her place of employment. We see no other reason for
       the evidence of the altercation with Christopher to be admitted other than to prove the
       defendant was a bad person deserving of punishment. Given the highly prejudicial nature of
       other-crimes evidence and the manner in which the State used the evidence in this case, we
       cannot find that the evidence did not contribute to the jury’s verdict. We caution, as the court
       did in Lindgren, that our decision does not hold that the defendant is innocent. Rather, the
       stalking case boiled down to the credibility of the witnesses and credibility determinations
       are within the province of the jury, not the reviewing court. Lindgren, 79 Ill. 2d at 142. A
       jury may conclude, following a trial without the admission of the highly prejudicial evidence,
       that the State’s witnesses are credible, but that is not our decision to make.
¶ 39        Although our decision effectively disposes of the case, we must also consider the
       defendant’s insufficiency-of-the-evidence argument or else risk subjecting him to double
       jeopardy at a new trial upon remand. People v. Bovio, 118 Ill. App. 3d 836, 843 (1983). A
       judgment of conviction will not be reversed unless the evidence is so unsatisfactory or
       improbable that a reasonable doubt as to the guilt of the defendant remains. Id. As we stated
       earlier, the State’s case rested on the credibility of its witnesses along with the weight to be
       placed upon the surveillance video of the defendant’s October 8 interaction with Vicki. Vicki
       testified to the events of October 4 and October 8, 2010, stating that the defendant verbally
       threatened her, yelled obscenities at her, and menacingly pounded on the glass window of her
       kiosk. The October 8 surveillance video recorded her interaction with the defendant, and
       Officer Conley testified that the defendant admitted calling Vicki a “bitch” on October 4. If
       an uncontaminated jury finds the State’s witnesses to be credible, the evidence would be
       sufficient to prove the defendant guilty of stalking beyond a reasonable doubt. Id. (“it is
       within the province of the jury to determine the credibility of witnesses”).
¶ 40        Having concluded that the erroneous admission of other-crimes evidence warrants a new
       trial in this case, we need not address the defendant’s remaining argument pertaining to
       Rule 431(b).
¶ 41        Based on the foregoing reasons, we reverse the judgment of the circuit court of Cook
       County and remand the cause for a new trial.

¶ 42      Reversed and remanded.




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