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                               Appellate Court                        Date: 2016.12.12
                                                                      09:51:04 -06'00'




                  People v. Jacobs, 2016 IL App (1st) 133881



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



District & No.    First District, Fourth Division
                  Docket No. 1-13-3881



Filed             September 29, 2016



Decision Under    Appeal from the Circuit Court of Cook County, No. 13-CR-2733; the
Review            Hon. Joseph G. Kazmierski, Judge, presiding.



Judgment          Vacated and remanded.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Byron M. Reina, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  John E. Nowak, and Brandon Hudson, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             PRESIDING JUSTICE ELLIS delivered the judgment of the court,
                  with opinion.
                  Justices McBride and Howse concurred in the judgment and opinion.
                                              OPINION

¶1        After being arrested in Chicago while driving a car that had been stolen in Peoria by an
     individual named Brian Lamb, defendant Eric Jacobs was convicted of possession of a stolen
     motor vehicle (PSMV) and sentenced to nine years’ incarceration. On appeal, he raises several
     issues: (1) that the State did not prove beyond a reasonable doubt that he knew the vehicle was
     stolen; (2) that the trial court erroneously admitted the testimony of Jason Fox, the son of the
     car’s owner, because that testimony included a unreliable identification of defendant and
     improper other-crimes evidence; (3) that the trial court denied defendant his right to present a
     defense when it excluded evidence that Lamb had been arrested for, and confessed to, the theft
     of the vehicle; (4) that the prosecutors trying the case engaged in misconduct by violating the
     trial court’s evidentiary rulings and making improper closing arguments; and (5) that the trial
     court erred in denying defendant’s request for an instruction on the lesser-included offense of
     criminal trespass to a vehicle.
¶2        We agree that the trial court erred in admitting Jason Fox’s testimony to the extent it
     contained improper other-crimes evidence. Jason testified that his parents’ home was
     burglarized and that the burglar stole his father’s car and his mother’s jewelry. He then testified
     that, while searching local pawn shops for his mother’s jewelry, he saw defendant come out of
     a pawn shop and enter his father’s car. That testimony carried with it the clear inference that
     defendant was somehow involved with the burglary of the Fox home, a crime for which
     defendant was not on trial and with which he could not be linked.
¶3        And the trial court improperly precluded defendant from introducing evidence that
     someone else—Brian Lamb—had been arrested for the burglary. Thus, defendant was left
     unable to counter the prejudicial effect created by Jason’s testimony. Because of the unfair
     prejudice created by this evidence, the trial court abused its discretion in admitting it, and
     defendant is entitled to a new trial.

¶4                                        I. BACKGROUND
¶5       In January 2013, James Fox’s 2005 Kia was stolen from his Peoria, Illinois, home while he
     and his wife were on vacation in Florida. Brian Lamb was eventually arrested for the theft and,
     according to police reports in the record, confessed to breaking into James’s house. Lamb also
     took jewelry during the break-in. On January 20, 2013, police saw defendant driving the Kia in
     Chicago and arrested him. The only contested issue at defendant’s trial was whether he knew
     that the car was stolen.

¶6                                      A. Pretrial Proceedings
¶7       Prior to his trial, defendant moved to exclude evidence that Jason Fox, James’s son, had
     seen defendant in the car in the parking lot of a Peoria pawn shop on January 19, 2013.
     Defendant argued that any in-court or prior identification by Jason would be unreliable
     because the police showed Jason a single photograph of defendant and Jason identified
     defendant as the person he had seen on January 19. Defendant added that no physical lineup or
     photo array had been performed.
¶8       At the hearing on defendant’s motion, the State explained that Jason saw a photograph of
     defendant at the police station on January 21, 2013, and told the police that the photograph


                                                  -2-
       looked like the person he had seen in his father’s car two days earlier. The State indicated that
       it did not plan to introduce any evidence regarding Jason’s identification of the photograph.
       But, the State argued, it “may ask him to make an in-court identification,” which the State did
       not know if Jason would be able to make. The trial court barred any testimony regarding
       Jason’s identification of defendant in the single photograph but did not preclude an in-court
       identification.
¶9         After the trial court made its ruling, defense counsel argued that permitting the State “to
       ask [Jason] to identify a person who is the only black guy who is sitting at counsel table is
       extremely suggestive.” Defense counsel added that, without a prior identification, the in-court
       identification would be unreliable. The trial court said that it would not prohibit an attempt at
       an in-court identification, stating, “If [the identification] is sketchy, the jury can make that
       determination and disregard it if they wish.”
¶ 10       Defendant also moved to exclude “[a]ny mention of other property that was stolen in the
       *** burglary of *** Jason Fox’s home” and “[a]ny insinuation that [defendant was]
       responsible for the residential burglary of the Fox home.” The trial court granted those
       requests.
¶ 11       The State moved to exclude testimony, from the police officer who arrested Lamb, that
       Lamb had confessed to taking the car. The trial court excluded that testimony, finding that it
       would be inadmissible hearsay. Defense counsel asked for permission to introduce testimony
       that the officer had arrested Lamb for the burglary of the Fox home, but the trial court ruled
       that that evidence would also be hearsay.
¶ 12       The trial court also permitted the State to introduce, for impeachment purposes, evidence
       that defendant had been convicted of residential burglary in 2009.

¶ 13                                 B. Trial and Posttrial Proceedings
¶ 14       In its opening statement, the State described the burglary of James’s home:
                    “In January of this year, *** Mr. and Mrs. Fox were in Florida. And while they
                were there enjoying their retired life, their home in Peoria, Illinois, was being
                burglarized. Because they were out of state, their son Jason responded to the burglary
                and when he arrived at their house, he went through the home with the Peoria Police
                Department looking to see what, if anything, had been stolen. And Jason and the police
                discovered a basement window that had been broken into the home and they noticed
                that Mrs. Fox’s jewelry had been stolen as well as the couple’s car, a Kia SUV.
                    Well, the Foxes assumed that their car was long gone and probably their jewelry
                and they would never see these time [sic] again that they worked hard to acquire.”
       Defense counsel objected to this statement, but the trial court overruled the objection. The
       State then added, “Jason decided he would do his best to see if he could find his mother’s
       jewelry. And so he went to different pawn shops in Peoria looking for his mom’s jewelry.” The
       State said that, while in the parking lot of a pawn shop, he saw his parents’ car.
¶ 15       James Fox testified that he was 82 years old at the time of the trial and that he lived in
       Peoria with his wife. He owned a silver 2005 Kia sport utility vehicle (SUV). In January 2013,
       James and his wife went to Florida. James left the Kia in the garage and the keys to the car on
       the kitchen counter. James testified that he had not given defendant, or anyone else, permission
       to drive his car while he was gone.

                                                   -3-
¶ 16       On January 14, 2013, James received word that his house had been burglarized and that his
       car had been stolen. When James returned from Florida in March 2013, his car had been
       returned to the garage. James did not notice any damage to the car.
¶ 17       Jason Fox testified that, on January 14, 2013, he received a call from his mother and went
       to his parents’ house. The police were already in the house. Jason noticed a window to the
       basement of the house had been broken and that the Kia was missing from the garage. Jason
       also testified that some of his mother’s jewelry had gone missing. Defense counsel objected to
       the reference to the jewelry, but the trial court overruled the objection.
¶ 18       Jason testified that, on the afternoon of January 19, 2013, he went to a pawn shop in Peoria
       to see if he could find any of his mother’s jewelry. In the parking lot, he noticed a car that
       looked like his father’s. Jason got out of his car, walked behind the other car, and saw that the
       license plate number matched his father’s car’s license plate number. Jason walked back to his
       car and called 911.
¶ 19       Jason testified that he saw a man in the backseat of his father’s car. The man got out of the
       Kia and knocked on Jason’s window. Jason held up his hand and said, “I’m on the phone. One
       moment.” The man knocked on the window again, and Jason said, “Dude, I’m on the phone.”
       The man got back into the Kia.
¶ 20       Jason testified that, after the man knocked on his window, another man and a woman came
       out of the pawn shop together. Jason described the man as African-American, standing
       between six feet and six feet, two inches tall, with long, curly hair and a medium build. Jason
       described the woman as African-American and “stocky” with a fair complexion. The man got
       into the driver’s seat of the Kia, the woman got into the front passenger’s seat, and they drove
       away. Jason estimated that he was able to see the man’s face for about 30 seconds before he got
       in the car.
¶ 21       The State asked Jason if he saw anyone in court that he had seen in the parking lot of the
       pawn shop. Defendant objected to the question, but the court overruled the objection. Jason
       identified defendant as the man he saw leave the pawn shop and drive his father’s car away.
¶ 22       Jason testified that the Kia left the parking lot at a speed “higher than the posted speed
       limit.” Jason followed the Kia for about four blocks in an area where the speed limit was 30
       miles per hour. Jason estimated that, as he followed it, the Kia was traveling about 50 or 55
       miles per hour.
¶ 23       Jason testified that, on January 20, 2013, he learned that his father’s car was recovered in
       Chicago. He went to the police station in Chicago, where he saw his father’s car. He did not
       notice any damage to the car, but the interior smelled like cigarettes, though neither of his
       parents smoked. He testified that the steering column was intact and that the radio was still in
       the car. Jason drove the car back to Peoria. Before his parents returned, Jason got the alignment
       of the car repaired because he noticed it was pulling to the left.
¶ 24       At a sidebar during Jason’s testimony, defense counsel asked for permission to question
       Jason regarding statements the Chicago police made to him that undermined his identification
       of defendant. The court denied counsel’s request to question Jason about the circumstances of
       his prior identification but permitted counsel to make an offer of proof outside the jury’s
       presence.
¶ 25       At the offer of proof, Jason testified that, on January 20, 2013, he spoke to Officer Bill
       Caro of the Chicago police over the phone. Jason described the people he had seen leaving the


                                                   -4-
       pawn shop, and Caro “said that looks like the same people we have in custody.” Jason also
       testified that, while he was in the reception area of the police station in Chicago, he “saw a
       picture of *** defendant.” Jason told Caro that he thought the photograph depicted “the
       gentleman [he] saw in Peoria driving [James’s] car.” Jason said that, in response, Caro
       “mentioned” defendant’s name. After making the offer of proof, the court asked defense
       counsel if she wanted to ask Jason about “the picture he saw at the police station in front of the
       jury,” but defense counsel declined.
¶ 26       After Jason finished testifying, defense counsel argued that the State had violated the
       ruling on the defense motion in limine by bringing up the jewelry taken from the Fox home
       both in its opening statement and through Jason’s testimony. Defense counsel asserted that she
       should be able to introduce evidence to rebut any inference that defendant was responsible for
       the theft of the jewelry—specifically, evidence that Lamb was the burglar. The court
       maintained its ruling precluding defense counsel from eliciting such evidence.
¶ 27       Detective Randall Schweigert of the Peoria police department, 1 who investigated the
       burglary of James Fox’s house, testified that he never charged defendant with the burglary and
       that he “never charged [defendant] with *** stealing any jewelry from that residence.”
       Schweigert also testified that, when Jason described the man he saw at the pawn shop, he
       simply described him as a black man; Jason did not describe the man’s hair, height,
       complexion, or weight to Schweigert. The court again denied defense counsel’s request to ask
       Schweigert about his arrest of Lamb, and defense counsel made the following offer of proof:
                “Officer Schweigert if called to testify would testify that he arrested a person in this
                case for the residential burglary of the [Foxes’ home], that if shown a picture marked as
                Defense Exhibit No. 1 that he would identify that person as Brian Lamb as a person that
                he arrested for the residential burglary ***, that after he arrested this person, Brian
                Lamb, for the residential burglary that he closed the case.”
¶ 28       On the next day of the trial, defendant moved for a mistrial. Defense counsel argued that,
       by introducing evidence of the jewelry taken during the burglary along with evidence that
       defendant was at the pawn shop five days later, the State created an “insinuation *** that
       [defendant was] responsible for those crimes when he has not been charged.” Defense counsel
       added that she had been deprived of the opportunity to rebut that insinuation with evidence
       “[t]hat [there was] another person who took sole responsibility for this.”
¶ 29       The State responded that it needed to introduce evidence of the stolen jewelry in order “to
       explain why Jason Fox [was] at a pawn shop.” And, the State added, the testimony that the
       defense intended to elicit regarding Lamb’s confession would be through a police officer,
       making that evidence inadmissible hearsay. The State also noted that Schweigert had testified
       that he did not charge defendant with anything relating to the burglary.
¶ 30       The trial court denied the motion for a mistrial. The court noted that defendant was not
       charged with anything other than PSMV and that the evidence that defendant was at the pawn
       shop was relevant “[t]o show that the car was probably stolen or possibly stolen.”
¶ 31       When the State resumed its case, Officer Caro testified that, on the afternoon of January 20,
       2013, he was driving south on Sacramento Boulevard near Roosevelt Road in Chicago. Caro’s
       car had “an automatic plate reader,” which automatically scanned the license plates of passing

           For scheduling reasons, the defense called Schweigert out of order, while the State’s case-in-chief
           1

       remained open.

                                                      -5-
       cars and told Caro if they had been reported stolen. The reader alerted Caro to a Kia SUV that
       he passed on Sacramento Boulevard, with the license plate No. 9920777.
¶ 32       Caro sent out a flash message describing the car and relaying the plate number, pulled a
       U-turn, and followed the Kia. Caro stayed about two blocks behind the Kia to avoid letting the
       driver know that he was following him. Eventually, Caro got stuck in traffic, and the Kia
       turned out of sight. Caro heard a message that another officer had begun to follow the Kia
       along Madison Street.
¶ 33       Caro eventually caught up to the Kia again, when he saw two other police cars pull it over.
       An officer ordered the driver, whom Caro identified as defendant, out of the car. Defendant did
       not try to run after he got out. Caro testified that a black woman was still sitting in the front
       passenger’s seat of the Kia.
¶ 34       Caro testified that, while on the side of the road, he asked defendant who owned the car,
       and defendant said that “it belonged to a friend of his.” Caro asked defendant his friend’s
       name, and defendant replied, “I don’t know.” The prosecutor asked Caro if defendant gave him
       any details about his friend, including his name, and Caro said that defendant did not. After the
       roadside questioning, Caro arrested defendant and took him to the police station.
¶ 35       At the police station, Caro read defendant his Miranda rights (Miranda v. Arizona, 384
       U.S. 436 (1966)). After defendant agreed to speak with him, Caro asked defendant who owned
       the car and how he got it. Caro testified, “[Defendant] told me that he rented it from a hype for
       $40 so he could drive into Chicago.” Caro testified that the term “hype” was “a street term for
       a person who is addicted [to] drugs.” Caro testified that defendant did not give him the name of
       the hype and did not say that he rented the car from Lamb, specifically. Caro also testified that
       he asked defendant when he was supposed to return the car and that defendant “couldn’t
       answer” that question. Defendant objected to that testimony, and the trial court sustained the
       objection. The State again asked Caro what defendant said in response to the question of when
       he was supposed to return the car, Caro said defendant “couldn’t answer,” and the trial court
       again sustained defendant’s objection to that testimony.
¶ 36       Caro testified that the Kia was in generally good condition. He testified that the car’s
       steering column was not peeled, the ignition was not pulled out, and there were no wires
       hanging out to suggest that the car had been hot-wired. Caro also testified that the car’s
       windows were not broken, that no locks had been pulled off of any of the doors, and that the
       radio had not been removed. The outside of the car had no visible damage.
¶ 37       Caro testified that, after he arrested defendant, he called Jason Fox to tell him that the
       police had the car. Caro testified that, when he spoke to Jason on the phone, Jason described
       the person he had seen at the pawn shop as “a male Black, about six feet [tall] with braids.”
       Caro’s reports did not contain any description of the person whom Jason Fox had allegedly
       seen at the pawn shop on January 19, 2013. Caro did not conduct any physical lineup or photo
       array for Jason.
¶ 38       At a sidebar, defense counsel requested permission to ask Caro whether Jason had viewed a
       report listing defendant’s name as the arrestee in order to show that Jason’s identification of
       defendant was suggested. The court denied defense counsel’s request.
¶ 39       Defendant testified in his own defense. He stated that, on January 20, 2013, he planned to
       travel to Chicago from his house in Peoria to visit his grandmother. A man that defendant knew



                                                   -6-
       only as “Q” picked him up in a silver SUV. Defendant described Q as being 5 feet, 10 inches or
       5 feet, 11 inches tall, with “short-medium” dreadlocks.
¶ 40        Defendant said that Q drove him to a house where he met with a man named Brian. Q was
       a friend of defendant’s cousin. Defendant had met Brian about a month earlier, through Q. On
       cross-examination, defendant testified that Brian was a drug addict.
¶ 41        Defendant testified that he gave Brian $40 to use his car, and Brian gave defendant his
       keys. Defendant said that he had seen Brian driving the car for about three or four days before
       January 20, so he thought that Brian owned the car. Defendant testified that he was supposed to
       return the car to Brian by 9:30 p.m. on the same day he rented it, January 20. He also admitted
       that he did not have a driver’s license at the time.
¶ 42        When defendant got in the car, he did not notice any damage to the steering column, the
       interior, the locks, the windows, or the radio. He testified that the keys he had received from
       Brian worked in the car.
¶ 43        Defendant and his girlfriend drove to Chicago and stopped at a restaurant on Western
       Avenue. After they got their food, they began driving again, eating as they drove. The police
       pulled defendant over on Madison Street and ordered him out of the car.
¶ 44        Defendant testified that, once he got out of the car, a police officer asked where he got the
       car from, and defendant said, “I rented it from a hype for $40.” Defendant testified that a hype
       was “[a] person that get[s] high.” He testified that the police never asked him the hype’s name.
       Defendant said that he did not find out that the car had been stolen until the police told him he
       was being charged with PSMV.
¶ 45        Defendant testified that he had never been to the pawn shop in Peoria where Jason said he
       saw defendant. Defendant testified that he had been convicted of residential burglary in 2009
       and a “narcotics offense” in 2005.
¶ 46        On cross-examination, the State asked defendant if he ever told the police when he was
       supposed to return the car, and defendant replied, “He never asked, ma’am.” Defendant gave
       the same answer when the State asked whether he told the police Brian’s phone number.
¶ 47        At the close of the defense case, defendant again moved for a mistrial, this time on the basis
       that the State had elicited other-crimes evidence when it asked if defendant had a driver’s
       license when he rented the car from Brian. The trial court denied the motion.
¶ 48        During the jury-instructions conference, defendant requested an instruction on the lesser
       offense of criminal trespass to a vehicle. The trial court denied the request because, if the jury
       believed defendant’s testimony, “then it wouldn’t even fall under the provision of the criminal
       trespass to vehicle.”
¶ 49        After closing arguments, the jury found defendant guilty of PSMV. The trial court denied
       defendant’s motion for a new trial and sentenced defendant to nine years’ incarceration.
       Defendant filed this appeal.

¶ 50                                          II. ANALYSIS
¶ 51                                       A. Reasonable Doubt
¶ 52       Defendant first argues that the State failed to prove beyond a reasonable doubt that he knew
       that the car he was arrested in was stolen. In assessing the sufficiency of the evidence, we
       determine whether a rational trier of fact, viewing the evidence in the light most favorable to
       the State, could have found the essential elements of the crime beyond a reasonable doubt.

                                                    -7-
       People v. Ross, 229 Ill. 2d 255, 272 (2008). We will not substitute our judgment for that of the
       trier of fact with regard to the credibility of witnesses, the weight to be given to each witness’s
       testimony, or the reasonable inferences to be drawn from the evidence. Id. A defendant’s
       conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it
       creates a reasonable doubt as to his guilt. People v. Siguenza-Brito, 235 Ill. 2d 213, 225 (2009).
¶ 53        The PSMV statute requires the State to prove that a defendant possessed a stolen vehicle
       with knowledge that it had been stolen. 625 ILCS 5/4-103(a)(1) (West 2012). Knowledge is a
       question of fact for the jury. People v. Abdullah, 220 Ill. App. 3d 687, 690 (1991). Direct proof
       of knowledge is not necessary; it may be proven by “circumstances that would induce a belief
       in a reasonable mind that the property was stolen.” Id. A defendant’s exclusive, unexplained
       possession of a stolen car gives rise to an inference that the defendant knew that the vehicle
       was stolen. 625 ILCS 5/4-103(a)(1) (West 2012); People v. Gentry, 192 Ill. App. 3d 774,
       775-79 (1989). The defendant “may attempt to rebut the inference of guilty knowledge which
       arises from the possession of a stolen vehicle, but the defendant must offer a reasonable story
       or be judged by its improbabilities.” Abdullah, 220 Ill. App. 3d at 691. Nor is the trier of fact
       required to accept the defendant’s version of the facts. Id.
¶ 54        In this case, it was undisputed that defendant was arrested while driving James Fox’s Kia,
       and that the Kia had been stolen from Fox’s garage. Thus, the jury could permissibly draw an
       inference that defendant knew the car was stolen.
¶ 55        While defendant testified that he had rented the car for $40 from an acquaintance for a
       one-day, round-trip drive from Peoria to Chicago and back, the jury was not required to accept
       his explanation of his possession of the stolen car. Officer Caro testified that defendant gave
       him different explanations for his possession of the car: he first said that he borrowed the car
       from a friend whose name he did not know, then said that he rented the car from an unnamed
       drug addict.
¶ 56        There was thus sufficient evidence on which the jury could rely to reject defendant’s
       explanation for his possession of the stolen car. It was the jury’s prerogative to assess the
       credibility of defendant’s story, and, in light of the evidence supporting the jury’s rejection of
       his testimony, we will not second-guess its assessment.
¶ 57        Defendant cites People v. Gordon, 204 Ill. App. 3d 123, 128 (1990), where this court held
       that the State failed to prove a defendant’s knowledge in a PSMV case, alleging that this case is
       factually similar. In Gordon, the evidence showed that the owner of the car had previously
       loaned it to his friend, Chris Jackson, although the owner had not loaned the car to Jackson on
       the day in question. Id. at 124. The owner said that, if he knew that Jackson had taken the car,
       he would not have reported it stolen. Id. The defendant was arrested while driving the car with
       Jackson. Id. The keys were in the ignition. Id. at 127. The defendant testified that he had seen
       Jackson drive the car before, that he thought it belonged to Jackson, and that Jackson had asked
       him to fix the radio of the car. Id. at 125. Other witnesses testified that the defendant had
       repaired their car radios in the past. Id. When the defendant was pulled over in the car, he did
       not try to flee, and there “were no signs of unauthorized entry into the vehicle.” Id. at 128.
¶ 58        We do not agree that Gordon compels us to reverse defendant’s conviction in this case.
       Unlike Gordon, where there was evidence that the car’s owner had previously loaned the car to
       one of the individuals found in it, there was no evidence in this case the James Fox had ever
       given the car to Brian or defendant before. And there was evidence in Gordon corroborating
       the defendant’s explanation that he had been hired to fix the car’s radio: other witnesses

                                                    -8-
       testified that they had previously hired the defendant to do such work. Here, there was no
       evidence to corroborate the notion that Brian had rented his car out to defendant or anyone else
       before.
¶ 59       We acknowledge that the pristine condition of the vehicle, at the time that defendant was
       caught driving it, was not suggestive in any way that the car had been stolen. That is not
       surprising, given that it was not stolen off the street, but rather when the car keys were stolen
       from the Foxes’ kitchen counter. Still, it is an evidentiary point in defendant’s favor. See
       Abdullah, 220 Ill. App. 3d at 691 (“[t]he condition of the vehicle is one of the most significant
       factors which courts consider in determining whether or not the defendant had knowledge of
       the vehicle’s theft”). But the jury heard that evidence, weighed it along with the other
       evidence, and still found defendant guilty.
¶ 60       We find that the State presented sufficient evidence to prove defendant’s knowledge. His
       unexplained possession of the car gave rise to an inference that he knew it was stolen, and his
       explanation for his possession conflicted with other evidence such that the jury could
       reasonably reject his explanation.

¶ 61                                    B. Testimony of Jason Fox
¶ 62       Defendant next contends that the trial court erred in admitting two portions of Jason Fox’s
       testimony. We first address defendant’s argument that Jason should not have been able to
       testify regarding defendant’s link to jewelry taken from his parents’ house because that
       evidence constituted impermissible other-crimes evidence. Jason testified that he had gone to
       the pawn shop to recover his mother’s stolen jewelry and that he saw defendant at that pawn
       shop, testimony that, according to defendant, created a suggestion that defendant was involved
       with the theft and sale of the jewelry.
¶ 63       As we recounted earlier, the trial court initially agreed with defendant, granting the portion
       of defendant’s motion in limine requesting exclusion of “[a]ny mention of other property that
       was stolen” from the Fox home. But when the State proceeded to mention the stolen jewelry
       and the pawn shop in its opening statement and then introduced the evidence of the jewelry and
       pawn shop through Jason’s testimony, the trial court overruled defense objections. The court
       also denied defendant’s request for mistrial on this ground, reasoning that the evidence of the
       stolen jewelry was relevant “[t]o show that the car was probably stolen or possibly stolen.”
¶ 64       A trial court’s ruling on the admissibility of evidence, and its balance of the probative
       nature of that evidence versus its prejudicial impact, is left to the sound discretion of the court
       and will be reversed only for an abuse of that discretion. People v. Pikes, 2013 IL 115171,
       ¶¶ 11-12. An abuse of discretion occurs where the trial court’s decision is arbitrary, fanciful, or
       so unreasonable that no reasonable person would adopt the trial court’s view. People v. Illgen,
       145 Ill. 2d 353, 364 (1991).
¶ 65       Other-crimes evidence is inadmissible if it is used to show a defendant’s propensity to
       commit crimes. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011); People v. Heard, 187 Ill. 2d 36, 58
       (1999). Evidence of other crimes may be admitted for other purposes, such as proving a
       defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). “In fact, [the supreme] court has
       held that evidence of other crimes committed by the defendant may be admitted if relevant to
       establish any material question other than the propensity to commit a crime.” (Internal
       quotation marks omitted.) People v. Pikes, 2013 IL 115171, ¶ 13.

                                                    -9-
¶ 66        Defendant argues that, by Jason telling the jury about the Fox burglary and the jewelry
       theft, the police’s advice to him to visit pawn shops to search for the stolen jewelry, and then
       his encountering defendant at one of those pawn shops, the jury could infer that defendant was
       part of the break-in at the Fox home, and thus part of the initial theft of the vehicle he was
       caught driving.
¶ 67        The State argues that the admission of this evidence of the Fox home burglary, the theft of
       the jewelry, and the police’s advice to Jason to visit pawn shops to search for the missing
       jewelry was proper under the continuing-narrative exception to the prohibition of other-crimes
       evidence. The State contends that this evidence explained why Jason was visiting a pawn shop
       in the first place and provided background for Jason’s identification of defendant while he was
       driving his parents’ stolen car, the day before defendant was stopped in Chicago.
¶ 68        Under the continuing-narrative exception, evidence of a defendant’s other bad acts is
       admissible where the “ ‘other *** acts are all a part of the continuing narrative which concern
       the circumstances attending the entire transaction and they do not concern separate, distinct
       and disconnected crimes.’ ” People v. Adkins, 239 Ill. 2d 1, 32 (2010) (quoting People v.
       Marose, 10 Ill. 2d 340, 343 (1957)). The exception will not apply, “even when the crimes
       occur in close proximity, if the crimes are distinct and ‘undertaken for different reasons at a
       different place at a separate time.’ ” Adkins, 239 Ill. 2d at 33 (quoting People v. Lindgren, 79
       Ill. 2d 129, 139-40 (1980)); see also People v. Johnson, 34 Ill. 2d 202, 206 (1966) (in trial of
       defendant charged with stealing from sleeping train passenger, testimony that he stole from
       another sleeping passenger on same train was part of continuing narrative).
¶ 69        But even if we accepted the State’s invocation of the continuing-narrative exception, we
       question the probative value of that evidence. The State could have just as easily established
       that Jason saw defendant with the stolen vehicle without creating an inference that defendant
       was involved with the burglary and the jewelry theft at the Fox home. Jason could have simply
       testified that he saw his father’s car in the parking lot of a store, without detailing what kind of
       store it was. There was no need to specify that, while on a mission searching for the jewelry
       taken during the burglary, he happened to see defendant at a pawn shop—the very type of store
       at which the police who were investigating the burglary told Jason to look for his mother’s
       jewelry. There was no reason that the jury had to hear any mention whatsoever of stolen
       jewelry or the pawn shop. Thus, even were we to credit the State’s continuing-narrative
       argument, the probative value of this evidence was slight at best.
¶ 70        In contrast, the prejudicial impact of this evidence substantially outweighed any probative
       value. See Pikes, 2013 IL 115171, ¶ 11 (other-crimes evidence should not be admitted if
       prejudicial effect substantially outweighs probative value). The evidence of the jewelry and the
       pawn shop not only created an unmistakable inference that defendant was involved in another
       crime for which he was not on trial, but it directly impacted his theory of the case. Defendant
       testified that he did not know the Fox car was stolen, and the other-crime evidence strongly
       suggested that defendant knew the car was stolen—because he, in fact, was the one who stole
       it.
¶ 71        Defendant, who began the trial under the impression that evidence of the stolen jewelry
       was off-limits, was suddenly forced to dispel the improper suggestion that he was involved in
       the uncharged burglary. Defendant had to call a witness, Detective Schweigert, to at least
       partially rebut the notion, and defense counsel devoted significant time in her closing argument
       to refuting the notion that defendant had anything to do with the burglary itself. “Even if

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       other-crimes evidence is relevant, it must not become the focal point of the trial. [Citation.]
       The trial court should prevent a mini-trial of a collateral offense.” (Internal quotation marks
       omitted.) People v. Hale, 2012 IL App (1st) 103537, ¶ 24.
¶ 72       To make matters worse, defendant was prevented from offering evidence that another
       individual, Brian Lamb, had been arrested for the burglary of the Fox home. At trial, defendant
       sought to elicit testimony from Detective Schweigert that he had arrested Lamb for the
       burglary of the Foxes’ home. The trial court prevented defendant from doing so, ruling that
       Schweigert’s testimony would be inadmissible hearsay.
¶ 73       We disagree that this excluded evidence was hearsay. The hearsay rule only applies to
       statements. See Ill. R. Evid. 801(c) (eff. Jan. 1, 2011) (“ ‘Hearsay’ is a statement, other than
       one made by the declarant while testifying at the trial or hearing, offered in evidence to prove
       the truth of the matter asserted.” (Emphasis added.)). A “statement,” for purposes of the
       hearsay rule, is either “an oral or written assertion” or “nonverbal conduct of a person, if it is
       intended by the person as an assertion.” Ill. R. Evid. 801(a) (eff. Jan. 1, 2011). Here,
       Schweigert would not have recounted a statement. Schweigert would have simply been
       relaying an event—his arrest of Lamb. There was no assertion of fact that would have been
       reproduced in court had Schweigert testified that he arrested Lamb for the burglary.2
¶ 74       The exclusion of evidence that Lamb had been arrested for the burglary was critical,
       because “the concerns underlying the admission of other-crimes evidence are not present when
       the uncharged crime or bad act was not committed by the defendant.” Pikes, 2013 IL 115171,
       ¶ 16. The fact of Lamb’s arrest for the burglary could have dispelled much of the prejudice
       created by the evidence of the burglary and the stolen jewelry. Instead, defendant found
       himself unnecessarily fighting off an uncharged burglary offense that directly impacted the
       defense’s theory of the case, while being prevented from offering potent, available evidence
       that someone else had committed that offense.
¶ 75       The State notes that defense counsel was able to limit any damage by eliciting
       Schweigert’s testimony that he did not arrest defendant for the burglary, but the mere fact that
       Schweigert had not arrested defendant for the burglary did not dispel the notion that defendant
       committed it. Instead of learning that the Fox burglary had resulted in the arrest of someone
       other than defendant, the jury was left with the impression that the crime had remained
       unsolved. In fact, coupled with the evidence that defendant was seen leaving a pawn shop
       where Jason had gone to search for his mother’s jewelry, the fact that defendant had not been
       arrested could lead to an inference that defendant had committed a burglary and gotten away
       with it. Defendant could only truly eliminate the prejudicial effect of the other-crimes evidence
       by connecting Lamb to the burglary.
¶ 76       The risk of unfair prejudice was also elevated because defendant had a prior conviction for
       residential burglary. We do not mean to suggest that the trial court erred in admitting evidence

           2
            It appears that the trial court correctly categorized Schweigert’s testimony that Lamb confessed to
       the burglary as hearsay. Schweigert would have repeated an out-of-court statement (the confession)
       used to prove the truth of the matter asserted in that statement (that Lamb committed the burglary). We
       do not consider this ruling as part of our prejudice analysis, nor do we consider whether Schweigert
       could have testified to the confession under some exception to the hearsay bar. See Ill. R. Evid.
       804(b)(3) (eff. Jan. 1, 2011) (providing for admission of hearsay statements made against declarant’s
       penal interest where declarant is unavailable to testify).

                                                     - 11 -
       of defendant’s prior conviction as impeachment evidence—it did not. See Ill. R. Evid. 609(a)
       (eff. Jan. 1, 2011) (evidence of prior conviction may be used to impeach witness). But Jason’s
       testimony suggested that defendant was involved in the burglary of the Fox home, and the jury
       heard that defendant had been convicted of the very same offense. Defendant’s prior
       conviction thus amplified the risk of unfair prejudice, as it could have increased the risk that
       the jury would conclude that defendant was more likely involved in the Fox burglary because
       of his prior burglary. And we emphasize that defendant’s prior burglary conviction was not a
       conviction for the same crime for which defendant was on trial—it was a conviction for the
       same uncharged offense to which the State impermissibly linked defendant.
¶ 77       For all of these reasons, we hold that the admission of Jason’s testimony regarding the
       jewelry stolen from the Fox home, and his subsequent identification of defendant at a pawn
       shop, was an abuse of discretion. The abuse-of-discretion standard, though admittedly the most
       deferential standard of review in the law, is not a rubber stamp. See Paul v. Gerald Adelman &
       Associates, Ltd., 223 Ill. 2d 85, 99 (2006). Under the specific circumstances of this case, we
       hold that the risk of unfair prejudice posed by that evidence substantially outweighed its
       minimal probative value.
¶ 78       We now turn to the question of whether the trial court’s error in admitting this evidence
       was harmless. The improper admission of other-crimes evidence is harmless when a defendant
       is neither prejudiced nor denied a fair trial because of its admission. People v. Gregory, 2016
       IL App (2d) 140294, ¶ 28. The State bears the burden persuading this court, beyond a
       reasonable doubt, that the result of the trial would have been the same without the admission of
       the improper evidence. Id.
¶ 79       We conclude that the admission of the other-crime evidence in this case was not harmless
       beyond a reasonable doubt. Our supreme court has stated that “[t]he erroneous admission of
       evidence of other crimes carries a high risk of prejudice and ordinarily calls for reversal.”
       People v. Lindgren, 79 Ill. 2d 129, 140 (1980). This is such a case. As we have already
       explained, the challenged evidence created the distinct inference that defendant had
       participated in the burglary of the Fox home and thus that defendant had stolen the Foxes’ car,
       directly impacting his claim at trial that he did not know the vehicle was stolen.
¶ 80       Nor did the trial court issue a limiting instruction to the jury to alleviate the possible
       prejudice. See Gregory, 2016 IL App (2d) 140294, ¶ 30 (in considering whether improper
       other-crimes evidence was harmless, noting that “[t]here was no limiting instruction *** to the
       jury, which thus was free to consider the [evidence] in any manner that it saw fit, including as
       evidence of propensity”). The court thus failed to mitigate the risk that the jury drew the
       improper inference that defendant was the burglar.
¶ 81       Because the trial court abused its discretion in admitting Jason’s testimony regarding the
       jewelry and the pawn shop, and that error was not harmless beyond a reasonable doubt, we
       vacate defendant’s conviction and remand for a new trial.
¶ 82       Defendant raises two additional objections to Jason’s testimony, which we address only to
       the extent they are likely to recur on retrial. See People v. Jones, 105 Ill. 2d 342, 353 (1985)
       (when remanding for new trial on one issue, court should consider other issues only if likely to
       recur on retrial).
¶ 83       First, defendant argues that the State introduced improper other-crimes evidence when
       Jason testified that defendant sped out of the parking lot of the pawn shop—in other words, the
       court allowed the State to introduce evidence that defendant broke the speed limit while

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       driving away. But the State did not use that testimony to show defendant’s propensity to drive
       recklessly; it used defendant’s speeding to show his guilty knowledge. In its closing argument,
       the prosecution argued, “As [Jason] Fox was trying to stay into [sic] the speed limit, the
       defendant was pulling away from him going 50 to 55 miles an hour ***. That shows his
       consciousness of guilt.” This was a permissible purpose for the evidence. See People v.
       Abernathy, 402 Ill. App. 3d 736, 755 (2010) (other-crimes evidence admissible to prove
       defendant’s consciousness of guilt).
¶ 84       Second, defendant contends that Jason’s in-court identification of defendant was tainted
       and inadmissible, because he made it after seeing a single photograph of defendant at the
       police station and after Officer Caro had told him that the photograph was a picture of the
       person in custody for possessing the stolen vehicle.
¶ 85       An in-court identification that is based on an out-of-court photographic identification is
       inadmissible where the out-of-court identification is “so impermissibly suggestive as to create
       a substantial risk of irreparable misidentification.” People v. McTush, 81 Ill. 2d 513, 518
       (1980). But even where an out-of-court identification is impermissibly suggestive, “the State
       may nevertheless overcome that obstacle, by a clear and convincing showing, based on the
       totality of the surrounding circumstances, that the witness is identifying the defendant solely
       on the basis of his memory of events at the time of the crime.” (Internal quotation marks
       omitted.) Id. at 520. When considering whether an in-court identification has a sufficient
       independent basis from a suggestive pretrial identification, a court must consider several
       factors: the witness’s opportunity to view the offender at the time of the crime, the witness’s
       degree of attention, the accuracy of the witness’s prior description of the criminal, the level of
       certainty demonstrated by the witness at the confrontation, the length of time between the
       crime and the confrontation, and any acquaintance the witness had with the suspect prior to the
       crime. Id. at 521; see Neil v. Biggers, 409 U.S. 188, 199 (1972); People v. Slim, 127 Ill. 2d 302,
       307 (1989).
¶ 86       We decline to reach the admissibility of Jason’s in-court identification because it appears
       that the trial court did not conduct a full analysis of this question. The trial court excluded
       Jason’s identification of defendant in the photograph at the police station but did not appear to
       consider whether Jason’s photographic identification of defendant at the police station tainted
       his in-court identification, or whether the State could overcome that taint by clear and
       convincing evidence. Instead, the trial court simply left it to the jury to consider whether the
       identification was “sketchy.” On retrial, should defendant challenge the admissibility of
       Jason’s in-court identification, the court should consider it under the rubric outlined by our
       supreme court in McTush.

¶ 87                                   C. Prosecutorial Misconduct
¶ 88       Defendant next contends that the prosecution committed misconduct in its opening
       statement, direct examination of Officer Caro, and closing arguments. We address defendant’s
       arguments only to the extent that we find them likely to recur on retrial.
¶ 89       Defendant first argues that, in its opening statement, the prosecution “blatantly violated the
       judge’s pre-trial ruling barring it from mentioning the theft of *** jewelry.” But as we have
       held that the evidence of the jewelry is inadmissible on retrial, this issue is not likely to recur.
¶ 90       Next, defendant contends that the prosecutor improperly elicited testimony from Officer
       Caro regarding defendant’s silence in response to questions Caro asked him on the day

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       defendant was arrested. Defendant contends that the prosecutor committed misconduct in
       eliciting this evidence—or at least attempting to—because, prior to trial, she “assured the
       judge, and defense counsel, that [she] would not use [defendant’s] silence against him.”
¶ 91        Caro’s testimony about defendant’s silence concerned two different time periods and
       locations. One such instance happened at the police station, the other on the roadside after the
       police pulled defendant over in the vehicle. We consider each of these instances in turn.
¶ 92        Defendant’s conversation with Caro at the police station occurred after defendant had been
       arrested and been given warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). In
       Doyle v. Ohio, 426 U.S. 610, 619 (1976), the United States Supreme Court held that “the use
       *** of [an arrestee’s] silence, at the time of arrest and after receiving Miranda warnings,
       violate[s] the Due Process Clause of the Fourteenth Amendment.” But “Doyle applies only
       when a defendant invokes his right to remain silent.” People v. Patterson, 217 Ill. 2d 407, 445
       (2005). “Once the right to remain silent has been waived, it can be invoked only by a
       defendant’s positive assertion that he wants to remain silent.” Id.
¶ 93        Here, Caro testified that he advised defendant of his Miranda rights and that defendant
       agreed to speak with him. Thus, defendant waived his right to remain silent. See, e.g., People v.
       Hart, 214 Ill. 2d 490, 513 (2005) (defendant waived right to silence where he “agreed to speak
       with [detective] and ‘make a statement’ ”). Accordingly, the State was entitled to introduce the
       entirety of the conversation, including the fact that defendant could offer no specifics
       regarding his rental agreement with Brian. See People v. Brown, 222 Ill. App. 3d 703, 713-14
       (1991) (“[W]here a defendant has been advised of his Miranda rights and subsequently waives
       them, the jury may consider the entire communicative process in order to better evaluate the
       meaning and accuracy of the statements that were made.” (Emphasis added.)).
¶ 94        Turning to defendant’s silence at the roadside, defendant argues that “pre-arrest silence in
       response to police questioning is generally inadmissible as substantive evidence.” After
       considering this issue, we concluded that a recent decision of the United States Supreme Court,
       Salinas v. Texas, 570 U.S. ___, 133 S. Ct. 2174 (2013), was directly relevant to the question of
       the admissibility of a suspect’s noncustodial silence and asked the parties for supplemental
       briefing on the impact of Salinas. In his supplemental brief, defendant argued for the first time
       that he was in custody while questioned at the roadside, rendering Salinas inapplicable.
¶ 95        We decline to reach the issue of the admissibility of defendant’s roadside silence because it
       would require us to resolve the issue of whether defendant was in custody during the traffic
       stop, an issue that the trial court never had the opportunity to reach. We leave this question to
       the trial court on retrial, should the State once again attempt to introduce evidence of the
       roadside conversation between the police and defendant and should defendant challenge its
       admissibility.
¶ 96        Defendant’s final prosecutorial-misconduct argument is that the prosecution committed
       misconduct several times during its closing arguments. We decline to consider the propriety of
       the State’s closing argument, as it is unlikely to recur on retrial. See, e.g., People v. Orr, 149
       Ill. App. 3d 348, 362 (1986) (declining to consider defendant’s claim “that the State’s closing
       arguments were improper” because it was unlikely to recur on retrial); People v. Guthrie, 123
       Ill. App. 2d 407, 414 (1970) (same). We remind the State that its closing arguments must be
       confined to the evidence (People v. Scott, 108 Ill. App. 3d 607, 614 (1982)) and may not shift
       the burden of proof to defendant (People v. Adams, 281 Ill. App. 3d 339, 345 (1996)).


                                                   - 14 -
¶ 97                                    D. Lesser-Included Offense
¶ 98        Finally, defendant contends that the trial court erred in denying his request for a jury
        instruction on the offense of criminal trespass to a vehicle, which, he argues, was a
        lesser-included offense of PSMV. We decline to reach this issue, as we cannot be sure what the
        evidence on retrial will be or whether it will justify the delivery of an instruction on criminal
        trespass to a vehicle. See People v. Jones, 175 Ill. 2d 126, 132 (1997) (in deciding whether to
        give lesser-included offense instruction, court must determine whether “[v]ery slight
        evidence” existed to support instruction).

¶ 99                                      III. CONCLUSION
¶ 100      For the reasons stated above, we vacate defendant’s conviction and remand for a new trial.

¶ 101      Vacated and remanded.




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