                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                            People v. Gist, 2013 IL App (2d) 111140




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    WILLIAM E. GIST, JR., Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-11-1140


Filed                      March 11, 2013


Held                       In a prosecution for batteries defendant allegedly committed against his
(Note: This syllabus       son, the denial of the State’s motion to admit the testimony of the
constitutes no part of     victim’s mother concerning prior batteries defendant allegedly committed
the opinion of the court   against his son was upheld over the State’s contention that the denial was
but has been prepared      based solely on the court’s assessment of the mother’s credibility, since
by the Reporter of         the mother never saw defendant strike the victim, the testimony was
Decisions for the          unreliable and was more prejudicial than probative, and the jury might
convenience of the         speculate as to whether defendant demonstrated a pattern of violence
reader.)
                           against his son.


Decision Under             Appeal from the Circuit Court of Lake County, No. 09-CF-1507; the
Review                     Hon. Theodore S. Potkonjak, Judge, presiding.



Judgment                   Affirmed and remanded.
Counsel on                  Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
Appeal                      and Jay Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.

                            Thomas A. Lilien and Kim M. DeWitt, both of State Appellate
                            Defender’s Office, of Elgin, for appellee.


Panel                       JUSTICE HUDSON delivered the judgment of the court, with opinion.
                            Presiding Justice Burke and Justice Jorgensen concurred in the judgment
                            and opinion.




                                              OPINION

¶1          The State appeals the trial court’s denial of its motion in limine to admit evidence of prior
        domestic batteries that defendant, William E. Gist, Jr., allegedly committed against his son
        W.G. The State contends that the court erred by denying admission of the evidence solely
        because of its appraisal of a witness’s credibility. We affirm.
¶2          An indictment charged defendant with two counts of aggravated battery of a child (720
        ILCS 5/12-4.3(a) (West 2008)), aggravated domestic battery (720 ILCS 5/12-3.3 (West
        2008)), and aggravated battery (720 ILCS 5/12-4(a) (West 2008)). All four counts alleged
        that defendant struck the victim in the chest.
¶3          The State moved in limine, pursuant to common law and section 115-7.4 of the Code of
        Criminal Procedure of 1963 (725 ILCS 5/115-7.4 (West 2008)), to admit evidence of prior
        acts of domestic violence that defendant allegedly committed against the victim and filed a
        notice disclosing the potential witnesses to those acts. The notice stated that defendant’s son
        J.G. would testify that he had seen defendant strike the victim with a belt because the victim
        could not correctly recite his name; Angelita Gist would testify that she had seen defendant
        punch the victim in the stomach because he could not correctly recite his name and had seen
        defendant strike the victim with a belt for the same reason; and Becky Quinn of the
        Department of Children and Family Services would testify that defendant had admitted to
        her that he had disciplined the victim with a belt. The motion asserted that, in the charged
        incident, defendant struck the victim because he could not state his given name. Thus, the
        State asserted, the evidence was relevant to show defendant’s intent, motive, and propensity
        to commit acts of domestic violence.
¶4          The trial court, per Judge Fred Foreman, ordered the State to present Angelita Gist’s live
        testimony in support of the motion. At the subsequent hearing before Judge Theodore S.
        Potkonjak, Angelita testified that she had two children, J.G., then age eight, and W.G., who
        was six years old. W.G. had been nicknamed “Capone” since birth. As he grew older, he

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       could not understand that his given name was different. Everyone called him by his
       nickname, and Angelita had no problem with that. Defendant, however, did not like it.
¶5         Two or three weeks before the charged incident, Angelita and defendant were in their
       bedroom with their sons and perhaps other visiting children. The issue about the victim’s
       name had been going on for about a month. Defendant asked the victim his name. He
       originally answered correctly, but then kept saying, “Capone Gist.” Defendant then allegedly
       punched the victim in the stomach. Angelita was sitting on the bed an arm’s length from
       defendant and saw his hand go forward and hit the victim in the abdomen. She could not tell
       whether defendant struck the victim with a fist or an open hand. Defendant’s back was to her,
       and he was blocking her view of the victim, but she saw the victim grab his stomach after
       the contact. The victim fell down, went into a fetal position, and began to cry. Angelita
       picked the victim up. Defendant’s grandmother was in another room at the time. Angelita did
       not take the victim into the other room, tell the grandmother about the incident, or call the
       authorities. She had not seen defendant strike the victim or J.G. on any other date.
¶6         The trial court denied the State’s motion. The court intimated that its ruling might have
       been different had Judge Foreman not ordered the witness to testify. The court observed that
       her testimony differed from that proffered in the State’s motion. The court further stated:
               “Based on the testimony the Court has in front of it, the Court will find that
           the–again, it is after the Court has had the opportunity to listen to the testimony of the
           witness which the Court specifically finds not to be credible as to the injury–as to the
           given time of the alleged incident, prior incident, but in looking–in listening to her
           testimony she testified that throughout the time that they were trying to do this she never
           witnessed the defendant striking the victim or making any visible contact with the victim
           because he was having trouble with his name.”
¶7         The court noted that Angelita’s account involved, at most, one prior incident. The court
       found that evidence of a single incident, which Angelita did not clearly see, would be more
       prejudicial than probative. An order prepared by the assistant State’s Attorney stated that the
       State’s motion in limine was denied in toto.
¶8         The State moved to reconsider, contending that the court’s assessment of the witness’s
       credibility was not a proper basis to deny admission of the evidence. The trial court denied
       the motion, reiterating that it found the evidence more prejudicial than probative. The State
       timely appealed.
¶9         On appeal, the State renews its argument that the trial court erred by denying admission
       of the evidence solely because of its assessment of the witness’s credibility. The State
       concedes that, in deciding whether to admit evidence of prior bad acts, the trial court must
       balance the probative value of the evidence against the prejudice to the defendant. The State
       contends, however, that the court here excluded the evidence solely because of its
       unfavorable opinion of Angelita’s credibility, which is not a proper consideration.
¶ 10       Generally, evidence of other crimes is admissible if it is relevant for any purpose other
       than to show a defendant’s propensity to commit crimes. People v. Wilson, 214 Ill. 2d 127,
       135-36 (2005). However, section 115-7.4 of the Code of Criminal Procedure of 1963
       provides that, in a prosecution for domestic violence, “evidence of the defendant’s

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       commission of another offense or offenses of domestic violence is admissible, and may be
       considered for its bearing on any matter to which it is relevant.” 725 ILCS 5/115-7.4(a)
       (West 2008). The statute thus alters the common-law rule by allowing admission of other-
       crimes evidence to show propensity. People v. Dabbs, 239 Ill. 2d 277, 288 (2010). The
       statute further provides:
                “(b) In weighing the probative value of the evidence against undue prejudice to the
            defendant, the court may consider:
                    (1) the proximity in time to the charged or predicate offense;
                    (2) the degree of factual similarity to the charged or predicate offense; or
                    (3) other relevant facts and circumstances.” 725 ILCS 5/115-7.4(b) (West 2008).
¶ 11        We generally review a trial court’s evidentiary rulings for an abuse of discretion. People
       v. Caffey, 205 Ill. 2d 52, 89 (2001). An abuse of discretion occurs when no reasonable person
       could agree with the position taken by the trial court. People v. Smith, 2012 IL App (1st)
       113591, ¶ 23. However, an evidentiary ruling is reviewed de novo where “a trial court’s
       exercise of discretion has been frustrated by an erroneous rule of law.” People v. Williams,
       188 Ill. 2d 365, 369 (1999). The State contends that this case is of the latter type because the
       trial court mistakenly believed that a witness’s credibility is relevant to deciding whether
       evidence is more probative than prejudicial. As we explain, this is not what happened here;
       thus, we apply the traditional abuse-of-discretion standard.
¶ 12        The State argues that the trial court usurped the jury’s function by ruling on Angelita’s
       credibility in the context of a motion in limine. Defendant responds that reliability is a factor
       in deciding whether to admit evidence (see Caffey, 205 Ill. 2d at 89 (“trial court must
       consider a number of circumstances *** including questions of reliability and prejudice”))
       and that questions of reliability and credibility are necessarily intertwined. In its reply brief,
       the State contends that credibility is not the same thing as reliability. The State equates
       “unreliability” or “uncertainty” with “speculation,” which it defines as “theorizing about a
       matter as to which evidence is not sufficient for certain knowledge.” Black’s Law Dictionary
       1255 (5th ed. 1979).
¶ 13        Before turning to the merits, we discuss two preliminary points. First, this case is
       somewhat unusual in that the trial court ordered one of the potential witnesses to testify at
       the hearing. In its opening brief, the State complains essentially that it was placed at a
       disadvantage by having Angelita testify and that the court then excluded the evidence on its
       assessment of Angelita’s credibility rather than, as in the usual case, merely accepting the
       State’s proffer. Nevertheless, as the State concedes, a trial court has vast discretion in
       conducting a hearing on a motion in limine, including the discretion to require live witnesses.
       People v. Owen, 299 Ill. App. 3d 818, 823 (1998).
¶ 14        The second point we discuss is the scope of the trial court’s ruling. As noted, the State
       sought to introduce testimony by three witnesses regarding at least two separate incidents.
       The State’s notice indicated that both J.G. and Angelita would testify that defendant struck
       the victim with a belt. At the hearing, Angelita testified about one incident, but stated that
       she had not seen defendant strike the victim on any other occasion. The State did not argue
       that J.G. could independently testify that defendant struck the victim with a belt. The trial

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       court’s oral ruling did not specifically refer to the belt incident. However, the written order,
       prepared by the prosecutor, states that the motion was denied in toto. The State moved to
       reconsider, but did not mention the belt incident.
¶ 15        The parties’ briefs largely confine their argument to the incident about which Angelita
       testified. However, the State points out that the trial court did not refer to any of the other
       evidence and, at least implicitly, contends that this was error. We conclude that the State has
       forfeited any argument about the admissibility of the other evidence. See People v.
       Thompson, 337 Ill. App. 3d 849, 854 (2003). While the trial court did not order J.G. to testify
       and the State could presumably have relied on its proffer to argue for the admissibility of
       J.G.’s testimony, it did not argue separately for the admission of that evidence. The State did
       not raise the argument in its motion to reconsider and, even in this court, does not develop
       a separate argument that J.G.’s testimony (or that of Becky Quinn) was independently
       admissible to prove a pattern of conduct by defendant.
¶ 16        Turning to the merits of the primary issue, the fatal flaw in the State’s logic is that the
       trial court did not exclude the evidence because it found that Angelita was not credible. To
       be sure, the court commented unfavorably on Angelita’s credibility, going so far as to
       observe that its ruling might have been different had Angelita not testified. However, its
       actual finding was that Angelita did not actually see defendant strike the victim. Specifically,
       the court stated, “she testified that throughout the time that they were trying to do this she
       never witnessed the defendant striking the victim or making any visible contact with the
       victim,” because defendant was between her and the victim. The court thus assumed the truth
       of Angelita’s testimony, but nevertheless found the evidence unreliable. In other words,
       Angelita’s testimony, even if true, would require the jury to speculate about whether and to
       what extent there was contact between the defendant’s hand and the victim.
¶ 17        The court further ruled that Angelita’s testimony, even if true, recounted a single
       incident, which did not necessarily prove a pattern of violence against the victim based on
       his inability to recite his name correctly. Moreover, the court emphasized that the prejudice
       to defendant outweighed the probative value of the evidence.
¶ 18        Properly understood, the trial court’s ruling was not an abuse of discretion. The court
       reasonably concluded that the testimony was more prejudicial than probative. Because
       Angelita did not actually see defendant strike the victim, and was unable to say whether he
       used a closed fist or open hand, her testimony was of limited probative value. Moreover, the
       court reasonably noted that a single incident was of limited probative value in establishing
       propensity. However, the danger that the jury might speculate that defendant had
       demonstrated a clear pattern of violence against the victim was obviously prejudicial.
¶ 19        Accordingly, the order of the circuit court of Lake County is affirmed and the cause is
       remanded.

¶ 20      Affirmed and remanded.




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