                                       2015 IL App (1st) 131632
                                            No. 1-13-1632
                                             June 30, 2015

                                                                                 SECOND DIVISION


                                                 IN THE

                                 APPELLATE COURT OF ILLINOIS

                                           FIRST DISTRICT


     THE PEOPLE OF THE STATE OF ILLINOIS, )                  Appeal from the Circuit Court
                                          )                  Of Cook County.
               Plaintiff-Appellee,        )
                                          )
               v.                         )                  No. 07 CR 01779
                                          )
     HENRY ULLOA,                         )                  The Honorable
                                          )                  Rickey Jones,
               Defendant-Appellant.       )                  Judge Presiding.



                  JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                  Justice Pierce specially concurred, with opinion.
                  Justice Liu concurred in the judgment and opinion.


                                             OPINION

¶1        A jury found Henry Ulloa guilty of conspiring to deliver cocaine. In this appeal, we find

       that the State presented sufficient evidence to sustain the conviction, but the trial court's use

       of an instruction which misstated the applicable law amounted to plain error. Accordingly,

       we reverse and remand for a new trial.

¶2                                         BACKGROUND

¶3        On December 16, 2006, Ulloa flew to Chicago, where he rented a white Dodge and a

       room at a hotel in Bedford Park for two nights. On December 18, 2006, Officer Thomas
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        Cunningham of the Chicago police department, while conducting surveillance, watched as

        Jose Lopez left the hotel in Bedford Park, got in the white Dodge Ulloa rented, and drove off.

        Cunningham followed Lopez to another hotel, the Carlton, a few miles away. Lopez, who

        did not live near Chicago, had rented a room in the Carlton only for the night of December

        17, 2006. Lopez went empty handed into a room at the Carlton and came back out carrying a

        black bag. Efrain Alamo came out of another room in the Carlton and joined Lopez. Lopez

        drove with Alamo to a restaurant on Pulaski and parked the Dodge. A green Honda parked

        near the white Dodge. Benigno Flores and Eduardo Chavez-Sanchez got out of the Honda

        and spoke with Lopez and Alamo in the restaurant's parking lot. Alamo opened the door to

        the Dodge. Flores took out the black bag and put it in the Honda. Lopez and Alamo drove

        off in the Dodge.

¶4         As Flores and Chavez-Sanchez got back in the Honda, police drove into the parking lot.

        The Honda sped off down Pulaski with police cars in pursuit. The officers saw a black bag

        thrown out of the Honda's window.        One officer retrieved the black bag while others

        successfully stopped the Honda and arrested Flores and Chavez-Sanchez. The black bag held

        two packages, each weighing about one kilogram, and each containing some cocaine. Later

        that day, police officers also stopped the white Dodge. The officers arrested Lopez and

        Alamo and took their cell phones.

¶5         Cunningham returned to the hotel in Bedford Park where he found Ulloa. Ulloa told

        Cunningham he did not know Lopez or Alamo, and he had not rented a car. Cunningham

        asked whether Ulloa had much cash. Ulloa admitted that he had about $60,000 in cash in a


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        shopping bag. Cunningham arrested Ulloa. Prosecutors charged Ulloa with conspiracy to

        deliver more than 900 grams of a substance containing cocaine in violation of section 405.1

        of the Illinois Controlled Substances Act (Act) (720 ILCS 570/405.1 (West 2006)).

        Prosecutors did not charge Ulloa with any other offenses.

¶6         At the jury trial, Cunningham testified, over Ulloa's objection, that on January 9, 2006, 11

        months before the encounter at issue, Cunningham saw Ulloa purchase a heat-sealing

        machine and a money counter from a store in Cicero. Cunningham testified about the

        surveillance that led to the arrests of Flores, Chavez-Sanchez, Lopez, and Alamo.

        Cunningham also recounted the discussion with Ulloa that preceded Ulloa's arrest.

        Cunningham said he took four cell phones from Chavez-Sanchez at the time of his arrest and

        two from Ulloa. In Ulloa's room, Cunningham found a box labeled "Protégé." Cunningham

        said the black bag thrown from the Honda bore a "Protégé" insignia. Cunningham also found

        a piece of paper in Ulloa's room, and the paper bore a list of names and numbers that seemed

        to represent dollar amounts.

¶7         Officer Patrick Keating testified that Lopez carried one cell phone and Alamo had two at

        the time of their arrest. Keating checked the phones' memories and discovered that Lopez

        used his phone to connect with one of Ulloa's phones around 11 a.m. on December 18, 2006.

        Lopez then connected with Alamo's phone. Chavez-Sanchez connected with Ulloa's phone

        around 12:15 p.m. that day, near the time that Flores and Chavez-Sanchez took possession of

        the black bag and put it in the Honda. Lopez and then Alamo both connected with Ulloa's

        phone a few minutes later.


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¶8           Ulloa testified that he flew from his home in California to Chicago on December 16,

          2006, to see his girlfriend. He did not see his girlfriend during the trip. He ran into Lopez at

          a bar on December 17, and brought Lopez back to the hotel in Bedford Park, where they

          stayed overnight.     When Ulloa woke the next morning, both Lopez and the white Dodge

          Ulloa rented were gone. Lopez had left more than $65,000 in cash in the room. Ulloa tried

          to call Lopez but got no answer. Ulloa also tried to call Alamo because he knew Lopez

          sometimes visited Alamo. Ulloa admitted that he lied to Cunningham about whether he

          knew Lopez and Alamo and whether he rented the car.

¶9           The State impeached Ulloa with the transcript of his testimony from a related proceeding.

          According to the transcript, Ulloa said that when he called Lopez on December 18, 2006,

          Lopez answered the phone and told Ulloa he would return with the Dodge.

¶ 10      The trial court gave the following instructions to the jury:

                       "A person is legally responsible for the conduct of another person[]

                 when[,] either before or during the commission of an offense, and with the

                 intent to promote or facilitate the commission of the offense, he knowingly

                 solicits, aids, abets, agrees to aid[,] or attempts to aid the other person in the

                 planning or commission of the offense.

                                                        ***

                       An agreement may be implied from the conduct of the parties, although

                 they acted separately or by different means and did not come together or enter

                 into an expressed agreement, and a person commits the offense of possession


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         with intent to deliver a controlled substance when he knowingly possesses

         with intent to deliver a substance containing a controlled substance, cocaine,

         and the substance containing the controlled substance weighs 900 grams or

         more.

                A person commits the offense of delivery of a controlled substance,

         cocaine, when he knowingly delivers a substance containing a controlled

         substance, cocaine, and the substance containing the controlled substance

         weighed 900 grams or more.

                A person commits the offense of criminal drug conspiracy when he, with

         intent that the offense of possession of a controlled substance, with intent to

         deliver and delivery of a controlled substance be committed, agrees with

         others to the commission of the offenses of the possession of a controlled

         substance with intent to deliver and delivery of a controlled substance. And

         an act [in] furtherance of the agreement is performed by any party to the

         agreement to constitute the offense of criminal drug conspiracy. And it is not

         necessary that the conspirators succeed in committing the offense of

         possession of a controlled substance with delivery and delivery of a controlled

         substance.

                To sustain the charge of criminal drug conspiracy the State must prove the

         following propositions: First, that the defendant[,] or one whose conduct [he]

         is legally responsible for[,] agreed with Jose Angel Lopez, Effrain Sanchez


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                 Alamo, Benigno Delgado Flores, Eduardo Chavez-Sanchez to the commission

                 of the offenses of possession of a controlled substance with intent to deliver

                 and delivery of a controlled substance be committed [sic]. And second, that

                 the defendant did so with the intent that the offenses of possession of a

                 controlled substance with intent to deliver and delivery of a controlled

                 substance be committed.        And third, that an act in furtherance of the

                 agreement was performed by any party to the agreement."

¶ 11         Ulloa's attorney did not object to the accountability instruction or to the inclusion of

          accountability language in the issues instruction.

¶ 12         The jury found Ulloa guilty of participating in a criminal drug conspiracy to deliver

          cocaine. The trial court denied Ulloa's motion for a new trial and sentenced him to 20 years

          in prison. Ulloa now appeals.

¶ 13                                             ANALYSIS

¶ 14         Ulloa argues that (1) the evidence did not prove him guilty; (2) the court erred by

          instructing the jury on accountability; (3) the instructions did not require the jury to find all

          the necessary elements of the crime charged; and (4) the court should not have permitted the

          State to introduce evidence that Ulloa bought a heat sealer and a money counter about a year

          before the transaction at issue.

¶ 15                                      Sufficiency of the Evidence

¶ 16         When a defendant challenges the sufficiency of the evidence, this court must determine

          whether any rational trier of fact could have found that the State proved all of the elements of


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          the crime beyond a reasonable doubt. People v. Rivera, 2011 IL App (2d) 091060, ¶ 24. To

          prove the charged offense of conspiracy to deliver more than 900 grams of a substance

          containing cocaine, the State needed to prove that Ulloa agreed with at least one other person

          to deliver more than 900 grams of a substance containing cocaine, and either Ulloa or a co-

          conspirator committed an act in furtherance of the agreement. 720 ILCS 570/405.1 (West

          2006) ("A person commits criminal drug conspiracy when *** he agrees with another to the

          commission of that offense."); 720 ILCS 570/401(a)(2)(D) (West 2006); People v. Stroud,

          392 Ill. App. 3d 776, 799-800 (2009). The trier of fact may use circumstantial evidence to

          infer that two persons agreed to commit a crime. People v. Garth, 353 Ill. App. 3d 108, 121

          (2004).

¶ 17         Ulloa points out that the State did not show that Ulloa ever possessed the cocaine. Ulloa

          did not go to the Carlton, where Lopez picked up the black bag that apparently contained the

          cocaine. Ulloa did not drive the Dodge on the day of the transaction. Ullloa did not meet

          with Alamo, Flores or Chavez-Sanchez. The State presented no evidence of what the parties

          said during the phone calls. The State presented no direct evidence that Ulloa directed or

          instructed any of the participants in the transaction in any way.

¶ 18         However, the circumstantial evidence supports inferences that on December 18, 2006,

          Lopez and Ulloa spent some time together in a hotel room that Ulloa rented in Bedford Park.

          Lopez left $65,000 in cash in the room and drove to the Carlton in a Dodge Ulloa rented. At

          the Carlton, Lopez picked up a bag that held almost two kilograms of a substance containing

          cocaine. Alamo joined Lopez, and they went together to a restaurant where they met Flores


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          and Chavez-Sanchez. Flores took the bag with the cocaine and put it in his Honda. Within

          minutes of the transfer of the cocaine to Flores, Lopez and Alamo both contacted Ulloa on

          their cell phones. A piece of paper in Ulloa's hotel room bore names and numbers that

          appeared to record sales information. The circumstantial evidence supports the inference that

          Ulloa agreed to participate in the plan to sell two kilograms of cocaine to Flores and Chavez-

          Sanchez. Therefore, we find the evidence closely balanced, but sufficient to sustain the

          conviction. See United States v. Casamento, 887 F.2d 1141, 1159-60, 1167 (2d Cir. 1989).

¶ 19                                      Accountability Instruction

¶ 20         To prove Ulloa guilty of conspiring to deliver cocaine, the State needed to prove that

          Ulloa himself agreed to the delivery. 720 ILCS 570/405.1 (West 2006); People v. Shimkus,

          135 Ill. App. 3d 981, 989-90 (1985); People v. Biers, 41 Ill. App. 3d 576, 580 (1976). The

          trial court instructed the jurors to find Ulloa guilty if they found that Ulloa "or one for whose

          conduct [he] is legally responsible" agreed to the delivery. Ulloa now argues that the

          instruction requires reversal. Because Ulloa's attorney did not object to the instruction at

          trial, we review the issue only for plain error. People v. Lewis, 234 Ill. 2d 32, 42-43 (2009).

¶ 21         The State argues that the court properly instructed the jury on accountability because the

          jurors could hold Ulloa accountable for Flores's possession of cocaine with intent to deliver.

          The State's argument highlights the problem with the instruction. The State did not charge

          Ulloa with possession of cocaine with intent to deliver. Instead, the State charged Ulloa only

          with conspiracy to possess and deliver cocaine. The instruction conflates two distinct crimes:

          the crime of delivering cocaine and the crime of conspiring to deliver cocaine. See Pinkerton


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          v. United States, 328 U.S. 640, 643 (1946); People v. Williams, 161 Ill. 2d 1, 51 (1994). The

          State charged Ulloa with agreeing to the delivery. The State cannot prove the charge by

          showing that someone for whom Ulloa bore legal responsibility agreed to the delivery, if

          Ulloa himself did not agree to the delivery. But the court's instruction told the jurors to find

          Ulloa guilty even if he did not agree to the delivery, as long as someone for whom he bore

          legal responsibility agreed to the delivery.

¶ 22         The pattern issues instruction for criminal drug conspiracy requires the State to prove

          "[t]hat the defendant agreed with _______ to the commission of the offense of _______; and

          *** [t]hat the defendant did so with the intent that the offense of _______ be committed; and

          *** [t]hat an act in furtherance of the agreement was performed by any party to the

          agreement." Illinois Pattern Jury Instructions, Criminal, No. 17.32 (4th ed. 2000). The

          pattern instruction does not include the accountability language the court added here. See

          Illinois Pattern Jury Instructions, Criminal, No. 17.32 (4th ed. 2000).            Because the

          accountability instruction does not apply to the conspiracy charge, and the trial court's

          revision of the pattern issues instruction misstated the applicable law, the trial court erred by

          giving those instructions. See People v. Pendleton, 307 Ill. App. 3d 966, 968-69 (1999);

          Biers, 41 Ill. App. 3d at 580.

¶ 23         Forfeited errors may require reversal in two circumstances: "First, where the evidence in

          a case is so closely balanced that the jury's guilty verdict may have resulted from the error

          and not the evidence, a reviewing court may consider a forfeited error in order to preclude an

          argument that an innocent person was wrongly convicted. [Citation.] Second, where the error


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          is so serious that the defendant was denied a substantial right, and thus a fair trial, a

          reviewing court may consider a forfeited error in order to preserve the integrity of the judicial

          process." People v. Herron, 215 Ill. 2d 167, 178-79 (2005). In this case with closely

          balanced evidence, we find that the use of the inapplicable accountability instruction and the

          misstatement of the law in the issues instruction amounted to plain error. See Herron, 215

          Ill. 2d at 178-79.

¶ 24          Moreover, the trial court committed a grave error when it used a nonpattern instruction

          that misstated the elements of the charge. Jurors, following the instructions could have

          returned the guilty verdict without finding that Ulloa himself agreed to the delivery of the

          cocaine. Our supreme court stated the applicable principles in People v. Ogunsola, 87 Ill. 2d

          216, 222 (1981), where the court said:

                       "The interests of justice demand that the rule of waiver be modified, in

                  criminal cases, where necessary to ensure the fundamental fairness of the trial.

                  [Citations.] Fundamental fairness includes, among other things, seeing to it

                  that certain basic instructions *** are given. Instructions on the elements of

                  the offense are among these basic instructions, and we have recognized that

                  the trial court has responsibility for ensuring that they are given. [Citation.]

                  The failure correctly to inform the jury of the elements of the crime charged

                  has been held to be error so grave and fundamental that the waiver rule should

                  not apply."




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¶ 25         The misstatement of the applicable law here, including a misstatement of the elements of

          the offense of conspiracy, is a grave error, affecting the fundamental fairness of the trial and

          the integrity of the judicial process. Due to the plain error, we must reverse the conviction

          and remand for a new trial. See Herron, 215 Ill. 2d at 178-79.

¶ 26                                          Issues Instruction

¶ 27         We address Ulloa's remaining issues only insofar as the issues may arise again on

          remand. The State charged Ulloa with conspiring to deliver more than 900 grams of a

          substance containing cocaine. The amount of the substance determined the sentencing range

          for the offense. See 720 ILCS 570/401(a)(2)(D), 570/405.1(c) (West 2006). Thus, on

          remand, the court must instruct the jurors that to find Ulloa guilty as charged, they must find

          that he agreed to the delivery of more than 900 grams of a substance containing cocaine. See

          United States v. Cotton, 535 U.S. 625, 632 (2002); Apprendi v. New Jersey, 530 U.S. 466,

          490 (2000).

¶ 28                                  Money Counter and Heat Sealer

¶ 29         Finally, Ulloa contends that the trial court should not have permitted Cunningham to

          testify that he saw Ulloa purchase a money counter and a heat sealing machine in January

          2006. We review the trial court's evidentiary rulings for abuse of discretion. People v.

          Santos, 211 Ill. 2d 395, 401 (2004); see United States v. Sawyer, 85 F.3d 713, 739 (1st Cir.

          1996) (using abuse of discretion standard to review evidentiary ruling when judgment

          reversed and case remanded on a different basis). Several courts have admitted into evidence

          testimony that a defendant had a money counter, to help prove a charge that the defendant


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          possessed narcotics with intent to deliver, even when the investigators found no drugs near

          the money counter. See United States v. Solorio, 337 F.3d 580, 599 (6th Cir. 2003); United

          States v. Fowlie, 24 F.3d 1059, 1063 (9th Cir. 1994). Testimony that defendants had heat

          sealers also supported findings of participation in drug transactions in several cases. See

          Fowlie, 24 F.3d at 1063; United States v. Cruz, 785 F.2d 399, 403 (2d Cir. 1986).

¶ 30         Ulloa's purchase of two items often associated with transactions involving illegal

          narcotics has some probative value to show that Ulloa intended to participate in narcotics

          transactions. The purchases occurred almost a year before the transaction at issue, and no

          evidence connected either the heat sealer or the money counter to the specific transaction that

          led to Ulloa's arrest. However, we cannot say that the trial court abused its discretion by

          permitting Cunningham to testify about the purchases.

¶ 31                                           CONCLUSION

¶ 32         The State presented sufficient evidence to support the conviction of Ulloa for criminal

          drug conspiracy. However, in this case with closely balanced evidence, the court's

          misstatement of the applicable law by its use of the accountability instruction and insertion of

          accountability language in the issues instruction amounted to plain error requiring reversal.

          On remand, the court must instruct the jurors that to find Ulloa guilty as charged, they must

          find that he personally agreed to the delivery of more than 900 grams of a substance

          containing cocaine. We cannot say the trial court abused its discretion by admitting into

          evidence testimony that Ulloa bought a money counter and a heat sealer in Cicero in January

          2006. Accordingly, we reverse the conviction and remand for a new trial.


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¶ 33         Reversed and remanded.

¶ 34         JUSTICE PIERCE, specially concurring.

¶ 35         I concur with the judgment in this case. I write separately to address the issue of the

          admission of other-crimes evidence. I believe the trial court seriously overestimated the

          relevance of, and underestimated the danger of unfair prejudice from, the testimony

          concerning defendant's purchase of a heat sealer and the money counter, items sold openly

          and lawfully by a national retailer. In my judgment, the prosecution did not provide any

          evidence that logically connected these items to the events giving rise to defendant's arrest or

          his conspiracy charge.

¶ 36         Prior to trial the State filed a motion in limine to admit evidence of defendant's purchase

          of a money counter and heat sealing machine at a Sam's Club on January 9, 2006. The State

          argued that defendant's purchase of these items was admissible other-crimes evidence to

          show defendant’s plan, intent and knowledge. The trial court granted the State's motion over

          defendant's objection.

¶ 37         Here, defendant argued that the trial court abused its discretion by admitting this other-

          crimes evidence. Although defendant has forfeited this issue by not including it in his

          posttrial motion, the majority chose to address this issue without considering plain error on

          the basis that it was not dispositive here and would likely occur on retrial. Forfeiture aside, I

          believe that, on retrial, should the State seek to introduce similar evidence dealing with the

          purchase of these items 11 months before the offense charged, the trial court should exercise

          its discretion and exclude this testimony.


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¶ 38          Other-crimes evidence is relevant and admissible when it "has any tendency to make the

          existence of any fact that is of consequence to the determination of an action more or less

          probable than it would be without the evidence." People v. Illgen, 145 Ill. 2d 353, 365-66

          (1991): Ill. R. Evid. 402 (eff. Jan. 1, 2011). Other-crimes evidence may be admitted to

          establish modus operandi, intent, identity, plan, motive, and common scheme or design. Ill.

          R. Evid. 404(b) (eff. Jan. 1, 2011); Illgen, 145 Ill. 2d at 364-65. It is well established that

          evidence of other-crimes is not admissible to demonstrate a defendant's propensity to commit

          a crime. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011); Illgen, 145 Ill. 2d at 364.

¶ 39          In deciding whether to allow other-crimes evidence, the trial court must also weigh the

          probative value of the evidence sought to be introduced against its prejudicial effect. People

          v. Haley, 2011 IL App (1st) 093585, ¶ 57. If the prejudicial nature of the evidence outweighs

          its probative effect, the evidence should be excluded. Id.; Ill. R. Evid. 403 (eff. Jan. 1, 2011).

          The trial court's ruling on the admission of other-crimes evidence is reviewed for an abuse of

          discretion. Haley, 2011 IL App (1st) 093585, ¶ 57.

¶ 40          I agree with the State that "[i]t is well established in Illinois that drug paraphernalia such

          as scales and heat sealers are indicia of intent to deliver" (see People v. McDonald, 227 Ill.

          App. 3d 92 (1992); People v. Williams, 200 Ill. App. 3d 503 (1990)), yet a review of the facts

          of these cases supports my position that an "indicia of intent to deliver" was warranted

          because of the facts involved in those cases. In McDonald, the paraphernalia evidence was

          found in defendant's living room at the time of defendant's arrest and in proximity to the

          recovered narcotics. McDonald, 227 Ill. App. 3d at 99. In Williams, the defendant was


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          arrested in the presence of a substantial amount of narcotics in an apartment he admitted he

          rented. Williams, 200 Ill. App. 3d at 518.

¶ 41         I also agree with the majority that courts frequently admit evidence of money counters

          and heat sealers in delivery cases; however, this is another proposition that should be put in

          context with the facts of the cases cited in support of the proposition. The majority relies on

          decisions that show a reasonable connection between the "paraphernalia" and the offense

          charged. For example, in United States v. Solorio, 337 F.3d 580, 599 (6th Cir. 2003), the

          defendant was seen leaving his apartment with a large quantity of drugs and was arrested a

          short time later after a drug deal. The apartment was searched shortly after his arrest and the

          money counter was recovered. Clearly a jury could make an inference connecting the money

          counter to the operable facts to conclude the defendant had the intent to deliver narcotics. In

          United States v. Fowlie, 24 F.3d 1059, 1063 (9th Cir. 1994), there was no issue raised about

          the admissibility or relevance of a heat sealing machine or a money counter found pursuant

          to a search warrant. Thus, although the majority is correct that these items were in evidence, I

          do not believe this decision supports admission of the subject items in this case. In United

          States v. Cruz, 785 F.2d 399, 403 (2d Cir. 1986), the defendant was arrested in his apartment

          in the presence of drugs and paraphernalia, including a heat sealer. Again, probative value

          existed because there was an obvious connection between the defendant, the circumstances

          of the arrest, the drugs, the charged offense and the heat sealer.

¶ 42         A review of this record shows this evidence had little, if any, probative value tending to

          prove defendant's participation in the drug conspiracy charged in this indictment. Officer


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   Cunningham testified that he saw defendant purchase the heat sealer and the money counter

   in January 2006, 11 months before the incident that led to defendant's arrest. The large sum

   of cash recovered from defendant's hotel room, the "Protégé" bag and the cell phone

   evidence clearly had probative value because a reasonable juror could make a connection

   between these items and the conspiracy charge. The State elicited no evidence connecting

   either the heat sealer or the money counter to any transaction between Lopez or Chavez-

   Sanchez or Alamo or Flores, or any of the events testified to at trial. This purchase is remote

   in time and is not probative of whether Ulloa conspired to deliver cocaine. The purchase of

   the heat sealer and the money counter amounted to little more than propensity evidence used

   to lead the jury to speculate that this remote purchase somehow connected defendant to the

   charged drug conspiracy. Prosecutors rightly press for every opportunity to present evidence

   they believe proves their case but not every fact known to the advocate is as probative as they

   believe. Judges must insist that a sound legal basis, an evidentiary connection, exists before

   improper evidence is allowed, otherwise the rigorous standard of proof beyond a reasonable

   doubt will quickly erode. The prejudicial effect of this evidence, in my judgment, clearly

   outweighs its probative value and should be excluded on remand.




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