                       Illinois Official Reports

                              Appellate Court



                   People v. Ulloa, 2015 IL App (1st) 131632



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



District & No.    First District, Second Division
                  Docket No. 1-13-1632



Filed             June 30, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 07-CR-01779; the
Review            Hon. Rickey Jones, Judge, presiding.



Judgment          Reversed and remanded.



Counsel on        Kathleen T. Zellner & Associates, P.C., of Downers Grove (Douglas
Appeal            H. Johnson and Frank A. Richter, of counsel), for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Yvette Loizon, and Brian A. Levitsky, Assistant State’s Attorneys, of
                  counsel), for the People.



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



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¶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.
¶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 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 Alamo, Benigno


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               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
       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. Ulloa 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 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


                                                     -4-
       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 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
       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,


                                                    -5-
       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.”
¶ 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), 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 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.


                                                    -6-
       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.

¶ 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.
¶ 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


                                                     -7-
       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 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
       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

                                                     -8-
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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