                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Haley, 2011 IL App (1st) 093585




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



District & No.             First District, Second Division
                           Docket No. 1-09-3585


Filed                      November 1, 2011
Rehearing denied           November 21, 2011
Held                       Defendant’s conviction for involuntary manslaughter following his
(Note: This syllabus       prosecution for first degree murder based on an incident in which he
constitutes no part of     pushed a fisherman into a harbor was upheld, where evidence that
the opinion of the court   defendant had pushed another fisherman into the same harbor about a
but has been prepared      month before the charged offense gave a context to defendant’s arrest and
by the Reporter of         was relevant to show defendant’s modus operandi and that he acted
Decisions for the          intentionally, and the trial court did not abuse its discretion in finding the
convenience of the         probative value of the evidence outweighed any potential prejudice.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 07-CR-19916; the
Review                     Hon. John P. Kirby, Judge, presiding.


Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Todd T. McHenry, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Michelle Katz, Kathleen Warnick, and Adam W. Delderfield, Assistant
                           State’s Attorneys, of counsel), for the People.


Panel                      JUSTICE HARRIS delivered the judgment of the court, with opinion.
                           Justices Cunningham and Connors concurred in the judgment and
                           opinion.



                                              OPINION

¶1          Defendant, John Haley, was charged with first degree murder. A jury found Haley not
        guilty of first degree murder, but guilty of the lesser offense of involuntary manslaughter.
        The circuit court sentenced defendant to 5 years’ incarceration for involuntary manslaughter,
        with an additional 5-year extended sentence, for a total of 10 years in the Illinois Department
        of Corrections. We are called upon to determine whether the circuit court properly admitted
        testimony, as other crimes evidence, of an incident involving defendant one month prior to
        the instant offense, and whether Haley’s sentence was excessive.
¶2          We hold that the circuit court did not abuse its discretion in allowing the jury to hear
        evidence of defendant’s other crimes because it was admitted for purposes other than to show
        defendant’s propensity to commit criminal acts. The circuit court did not abuse its discretion
        in weighing this evidence’s probative value to be greater than its prejudicial effect. We also
        hold that the circuit court did not abuse its discretion in sentencing when focusing on the
        degree of force defendant used in committing the crime when considering the aggravating
        factor that defendant’s conduct threatened or caused serious harm. The circuit court did not
        abuse its discretion in balancing the various factors in aggravation and mitigation, including
        defendant’s potential for rehabilitation.

¶3                                        JURISDICTION
¶4          The circuit court sentenced defendant on December 11, 2009. Defendant timely filed his
        notice of appeal on December 15, 2009. This court granted an amended notice of appeal on
        September 30, 2010, correcting the indictment number and description of the offense.
        Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois
        Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final
        judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S.
        Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).


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¶5                                    BACKGROUND
¶6         Defendant was charged with first degree murder for the death of Du Doan, who drowned
       after being pushed into Lake Michigan at Montrose Harbor in Chicago, Illinois, during the
       early morning hours of September 1, 2007.

¶7                                               Pretrial
¶8          Before trial, the State filed a motion seeking to introduce proof of other crimes
       committed by defendant. Specifically, the State sought to introduce the testimony of Ronald
       Squires, whom defendant pushed into Lake Michigan approximately one month prior to
       pushing Doan into Lake Michigan in this case. The State offered the evidence of defendant’s
       past crime to show defendant’s modus operandi. The State also argued that the evidence
       showed that defendant acted intentionally, that defendant had a callous attitude toward the
       victim, and that the crimes were of a common design. Additionally, the State argued that it
       would put defendant’s arrest and crime into context. The State contended that “its admission
       will be essential in rebutting the defendant’s almost certain claim *** that he did not intend
       to kill Du Doan by pushing him in the lake.”
¶9          During argument before the court, the State contended the incidents had similar
       circumstances, victims, and location. The State argued the two offenses were so similar that
       they proved defendant’s modus operandi. Specifically, both victims were close in age,
       defendant pushed both victims into the lake under the cover of darkness while the victims
       were fishing, defendant told accompanying friends what he had done immediately after the
       incidents, both victims were wearing bulky clothing that would inhibit swimming, and the
       incidents occurred close geographically. The State also argued that the prior crime showed
       lack of accident, that defendant’s actions were not inadvertent, involuntary, or performed
       without his knowledge. The State argued the prior incident was important because, although
       defendant admitted to knowingly and intentionally pushing both victims into Lake Michigan,
       at first he claimed it was an accident. The State also argued that the other crimes evidence
       put defendant’s arrest into context, as Ronald Squires did not come forward until he found
       out about Doan’s death in this case. The State also argued the evidence negated defendant’s
       anticipated argument that he did not foresee the consequences of his actions. The court,
       noting that it counted eight possible reasons raised by the State to allow evidence of
       defendant’s other crime into evidence, asked the State if it was seeking to have each of those
       eight reasons brought in under each individual theory. The court listed the reasons as
       “[m]odus operandi, intent, identity, motive, absence of mistake, common design, and
       context of defendant’s arrest.” The State responded, acknowledging that many of the
       articulated reasons overlapped, but asked that the evidence of other crimes be admitted under
       all of the reasons it offered.
¶ 10        Defendant argued that the prior crime of pushing Squires in the lake did not make it any
       more or less probable or relevant that he intended to kill the victim in this case. Defendant
       also stressed that he already admitted committing the prior crime, so the evidence of his prior
       crime only shows a propensity to commit crime.
¶ 11        The court, in issuing its ruling, stated it considered the question before it as “twofold.”

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       First, whether the proof of defendant’s other crime was admissible in the present case, and
       second, whether it was relevant, where defendant gave a video statement indicating he
       intentionally pushed the victim into Lake Michigan as a prank. The court granted the State’s
       request, finding the proof of defendant’s other crime could be used for any purpose other
       than his propensity to commit crime and that it would be relevant to show “modus operandi,
       intent, identity, motive, and absence of mistake.” The court found that the prejudicial effect
       of the other crimes evidence did not substantially outweigh its probative value.

¶ 12                                     State’s Case-In-Chief
¶ 13       The testimony at trial established that defendant was with his friends, Thomas
       Harrington, Steven Harrington, Bryant Dwayne Thomas, a/k/a Dwayne, and Katie Hoffman
       before, during, and after the incident. They all testified on behalf of the State. Thomas
       Harrington testified that on the date of the incident, the group went to two house parties in
       Chicago where they drank alcohol before going to the Wicker Park neighborhood of
       Chicago, to continue drinking. At this point it was early Saturday morning and the group
       took Katie’s car and went to Montrose Harbor to eat. At Montrose Harbor, the group headed
       to the nearest benches. Defendant asked the group “would it be funny if we pushed
       somebody in the water?” Thomas Harrington testified that he told defendant, “No.” The
       group then walked closer to the pier where defendant again asked the group, “would it be
       funny if we pushed somebody in the water?” Thomas Harrington recalled Dwayne spoke to
       defendant, and then defendant pulled away from the group, telling them he was going to
       watch the sun rise. The group, excluding defendant, decided to go back to the car. As they
       were walking to the car, Thomas Harrington heard a splash. When they got to the car,
       defendant ran up behind them laughing and said to the group, “we gotta get outta here.” In
       the car, defendant was laughing as the group sped away and when asked what happened,
       defendant responded, “the guy looked hot and needed a swim.” The group then went to an
       unnamed café to eat. They spent the night in the car.
¶ 14       Thomas Harrington testified that two days later he spoke with defendant over the phone.
       Defendant informed him that someone had died at Montrose Harbor. He, along with Steven
       and Katie, met up with defendant at his girlfriend’s house. He testified that defendant had
       a tattoo of a bird on each side of his neck and various tattoos covered his forearms.
¶ 15       Dwayne testified that he met up with defendant early in the evening the night before the
       incident. He remembered that later in the evening, after going to a bar and a party at the Flat
       Iron building located at North Damen and Milwaukee in Chicago, they were joined by
       Thomas Harrington, Steven, and Katie. In the early morning hours that Saturday, the group
       decided to go watch the sun rise. After parking, the group started to walk toward benches
       near the harbor. Dwayne grabbed defendant and told him, “stop being stupid or something
       to that effect.” He testified that he then went back to the car because he thought going to the
       harbor was “stupid” and he was feeling sick. Katie, Thomas Harrington, and Steven all
       started walking back to the car. Dwayne recalled that on his way back to the car, he heard
       someone yell to call the police. Hearing this, he fled because he did not want to get into
       trouble. Katie, Thomas Harrington, and Steven ran with him. Defendant came up from


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       behind the group. Everyone got into the car. Dwayne sat in the front seat, Katie drove, and
       the other three members of the group, including defendant, sat in the back. Dwayne testified
       that the people in the back were laughing and that defendant stated “he looked hot” as he
       entered the car.
¶ 16       The Monday after the incident, Dwayne learned that someone had drowned at Montrose
       Harbor. Later in the day, he spoke with defendant. He then met with defendant at defendant’s
       house. They decided to call a television news journalist named Jay Levine to give an
       interview. After the interview, they had Levine follow them to the police station.
¶ 17       Katie testified she went to a party on the night before the incident with defendant,
       Thomas Harrington, Steven, and Dwayne. After, they went to a hot dog place to get food and
       then to Montrose Harbor. It was defendant’s idea to go to the harbor to watch the sun rise.
       She testified seeing Dwayne grab defendant’s arm, and the group walked back to her car. The
       prosecutor then confronted her with her grand jury testimony in which she stated that
       defendant started to walk toward a man fishing on the end of the harbor. Katie admitted
       giving that answer, but claimed she lied to the grand jury. She testified that as she was
       talking to Thomas Harrington and Steven while walking to her car, she heard a splash. She
       testified that defendant came running behind her from the area of the splash. The prosecutor
       read her grand jury testimony, in which she stated that while the group was in the car,
       defendant said he pushed a man in the water. After being asked why he did that, defendant
       responded that the man looked like he wanted to go for a swim. She testified that she lied to
       the grand jury regarding those comments.
¶ 18       Katie further testified that on the Monday after the incident, defendant called her saying
       a man had drowned at Montrose Harbor. After taking this call, she went to defendant’s
       house. After speaking with the group, she gave Jay Levine an interview. After the interview
       she went to the police station.
¶ 19       Steven Harrington testified that the night before the incident, he was with defendant,
       Katie, Thomas Harrington, and Dwayne. They were “out drinking and partying.” Steven
       testified that at Montrose Harbor defendant “started to get a little goofy and was talking
       about pushing someone in the water.” Steven added that “[defendant] said would [it] be
       funny if I [(defendant)] pushed someone in the water.” Steven testified this made him
       nervous because he is unable to swim. Defendant then broke away from the group, saying
       he was going to go watch the sun rise. The group, absent defendant, began to walk back
       toward the car. As they were about halfway to the car, Steven heard a loud splash from
       behind him. The group then ran toward Katie’s car. Everyone got in the car and defendant
       said “go, go, go.” Katie, driving, made a U-turn and drove away. Steven testified that
       “[defendant] said the guy looked hot and he needed to go for a swim. I [(defendant)] pushed
       him in.” On Monday, defendant called him and they met at defendant’s residence. The next
       morning, Steven received a call from the Chicago police department asking him to come in.
¶ 20       Thomas Harrington, Dwayne Thomas, Katie Hoffman, and Steven Harrington all testified
       that when speaking with the police initially they were not truthful, but that eventually they
       told the police the truth.
¶ 21       The State later called Tracy Stanker to the stand. Stanker, who worked for the Cook


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       County State’s Attorney in the grand jury unit at the time of the incident, testified regarding
       the grand jury testimony of Thomas Harrington, Dwayne, Katie, and Steven. She testified
       that before the grand jury, Dwayne testified that defendant stated he saw someone fishing
       who looked hot, so he pushed him into the lake.
¶ 22       The State called three bystanders, who were at or near Montrose Harbor at the time of
       the incident, to testify. Lance Shirahama and Chung In were fishing at Montrose Harbor and
       Thomas Earley was taking a walk in the area. Shirahama testified that on the morning of the
       incident, he was at Montrose Harbor setting up his fishing equipment. He said it was light
       enough for him to see what he was doing while setting up his fishing equipment. He noticed
       a man on the same side of the harbor as him fishing near the water. Minutes later, he saw a
       group of five people gather by a bench near the parking lot. The group consisted of one
       female and four males. He next heard a splash and saw someone running alone. He noticed
       the splash come from the same place he had previously noticed the other fishermen. The
       group of people he had seen gathered by the bench walked toward their car. He used his net
       to reach for the person in the water, but was unable to do so. He witnessed the man in the
       water struggling, and then go under the water. Shirahama yelled for help and ran after the
       man he had noticed running from the scene.
¶ 23       On cross-examination, Shirahama testified that at the time of the incident the conditions
       were “not dark but not light.” He also acknowledged that he did not actually see anyone
       being pushed into the lake, but only heard the splash.
¶ 24       Chung In testified he was at Montrose Harbor fishing at the time of the incident. He saw
       a man fishing under a lamppost. Next he saw another man walk behind the fisherman and
       push him from behind with both hands into the water. He yelled out at the man doing the
       pushing. The man ran toward the parking area. He observed the fisherman struggling in the
       water and another fisherman attempting to hand him a fishing net. He testified that he called
       the police. He testified that he previously saw that the man who pushed the fisherman was
       with several other people, but that he was alone when he pushed the fisherman into the water.
       He could not make out the details of the man’s face.
¶ 25       Thomas Earley testified he was walking on Montrose Drive near Montrose Harbor. As
       he was walking, he heard a man whom he now knows is Lance Shirahama yelling “call 911.”
       He also noticed four people moving at a fast pace, with a fifth person following the group
       “sprinting.” The group was headed for the parking area of Montrose Drive. The group,
       including a fifth person who had by this time caught up with the others, got into a white
       Dodge Neon automobile and made a fast “U-turn out of the parking lane.”
¶ 26       The State called several law enforcement personnel who testified regarding their
       respective investigations of the incident. Steven Zambello testified that he was a paramedic
       for the Chicago fire department at the time of the incident and arrived on the scene shortly
       after receiving the emergency call. He said that Doan was not responding when he was pulled
       from the water. Zambello testified regarding the lifesaving techniques he attempted on Doan,
       which were ultimately unsuccessful.
¶ 27       Detective Matthew Rickher testified that he and his partner were assigned to investigate
       the drowning of Doan. Detective Rickher testified to the recovery of evidence at the scene,


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       including the victim’s vest, which was saturated with water and weighed approximately 20
       pounds and his boots, which were also saturated with water and weighed approximately 5
       pounds.
¶ 28        Edward Tomasik, the forensic investigator who, along with his partner, was assigned to
       investigate the death of Doan, testified regarding the video, photographic, and physical
       evidence he collected both at the scene and at Wiess Hospital, where Doan was taken.
¶ 29        Detective Cheryl Bronkema testified that she was one of several detectives assigned to
       investigate the death of Du Doan. Detective Bronkema testified regarding her interviews of
       the witnesses and defendant. Detective Bronkema conducted a lineup for Lance Shirahama
       and Ronald Squires in which neither made a positive identification of defendant.
¶ 30        Valerie Arangelovich, from the office of the medical examiner of Cook County, testified
       as an expert in forensic pathology regarding the autopsy she performed on Doan’s body. In
       her opinion, had Doan survived, he most likely would have been in a comatose vegetative
       state. She opined further that the cause of Doan’s death was homicide.
¶ 31        Based on its pretrial motion to introduce evidence of another crime committed by
       defendant, the State called Eric Kriske and Ronald Squires to the stand. Before either
       testified, the court informed the jury, “[t]his evidence is being received only for the issues
       of the Defendant’s modus operandi, intent, absence of mistake, and knowledge and may be
       considered by you only for that limited purpose.” Defense counsel noted that they had
       previously objected to proof of other crimes evidence, and renewed their objection.
¶ 32        Kriske testified that approximately a month before the incident for which defendant was
       standing trial, he and defendant were drinking until around three or four in the morning. At
       five in the morning, Kriske, along with defendant and a woman named Zoe, went to
       Montrose Harbor. They were drinking beer. A fisherman walked by, at whom Kriske,
       defendant, and Zoe waved. The fisherman went to the pier with a fishing pole in his hands.
       At some point, defendant left Zoe and Kriske and went to the pier to talk to the fisherman.
       Kriske became aggravated and left the scene. As he was leaving, he heard a splash from
       behind him. He saw defendant, but not the fisherman. Defendant told him that they had to
       go. They then went to Kriske’s apartment.
¶ 33        Kriske said that after about four hours, he and defendant had a discussion and Kriske
       voiced his concern over what had happened. Kriske said defendant expressed remorse for his
       actions. Kriske and defendant then went back to Montrose Harbor. They assumed the
       fisherman had not been hurt because nobody was there. On cross-examination, Kriske
       testified that defendant laughed after he pushed the fisherman into the water.
¶ 34        Before Ronald Squires testified, defense counsel indicated that if the State did not call
       Ronald Squires, they would call him in their case-in-chief. Squires testified that
       approximately a month before the incident for which defendant was currently standing trial,
       he was pushed into Lake Michigan at Montrose Harbor. He testified that while he was
       fishing, he noticed two males and one female in the area. Later, he happened to turn around
       and see a person who asked him, “Do you have a light?” Squires gave the man a lighter,
       which the man returned. He saw the man for a second time, and noticed the man was covered
       in tattoos, including his arms, and there was a tattoo of a bird on the side of his neck. Squires

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       said that at one point the female in the group approached him and asked him questions about
       fishing for five minutes. While he was talking to the female, the man with the tattoos and the
       other man were talking farther away. After talking to the woman, he turned his back to the
       group and continued fishing. He then felt a push to his shoulder blade area. As he was
       pushed, he heard the woman say, “Oh, my God.” Squires recalled that before someone
       pushed him, the man with the tattoos appeared nervous and “antsy.”
¶ 35       Squires testified to his feelings once he was in the water, specifically, that he was in
       shock and found it difficult to swim with his boots on. He testified that he swam about 80
       feet to the rocks on the other side. Squires testified that he “was swimming for [his] life.”
       Once he reached the rocks, the two men and the woman were gone. A month later, a fellow
       fisherman called him. Based on their conversation, he went down to Montrose Harbor, where
       he spoke with the police regarding being pushed into the lake.
¶ 36       The State called Thao Doan, daughter of the victim. She testified that her father would
       often fish at Montrose Harbor and that he was 62 years old when he drowned. The parties
       stipulated that at 5:30 a.m. on the day of the incident, the water at Montrose Harbor was 71
       degrees and that Doan’s body was found 8 feet off the Harbor wall in water that was 15 feet
       deep.
¶ 37       The State rested its case. Defendant motioned for a directed finding, which the circuit
       court denied. Defendant called his mother, Ann Haley, to the stand. Ann Haley testified that
       defendant is a peaceful person.
¶ 38       The jury found defendant not guilty of first degree murder, but guilty of involuntary
       manslaughter. Defendant filed a motion for a new trial, arguing, amongst other things, that
       the proof of other crimes evidence was improperly admitted. The court denied defendant’s
       motion.

¶ 39                                         Sentencing
¶ 40       At the sentencing hearing, the State called James Lorang, Adam Katz, Adam Stein, and
       Thao Doan to testify in aggravation. Lorang testified to an altercation he had with defendant
       and another man in October of 2000. Lorang had passed defendant and the other man on the
       street. After he passed, defendant and the other man attacked him from behind. They kicked
       and punched him. After five minutes, the attack ended and defendant and the other man fled
       the scene. Lorang received treatment at an emergency room for his injuries. His ear bled and
       his forearms were bruised. Lorang lost 25% of his hearing in one ear.
¶ 41       Detective Adam Katz testified that in January of 2001, he witnessed a disturbance
       involving defendant in which it appeared as though a Hispanic man was fending off two
       white males. One of the white males was defendant, who was detained and searched.
       Detective Katz discovered 18 bundles of cocaine in defendant’s pocket. In defendant’s
       backpack, Detective Katz found a pill bottle with 25 tablets of paramethoxyamphetamine,
       a pink bag with 48 pills of PCP, and several bags of cocaine totaling 166.9 grams. Defendant
       pled guilty and received 4 years’ probation, and 120 days in Cook County jail, based on the
       incident.
¶ 42       Adam Steinz testified to an incident in February of 2005, where defendant struck him

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       with a beer bottle and a barbell, and kicked and punched him. At the time, Steinz worked at
       a liquor store, where he met defendant, and offered to help him carry alcohol to defendant’s
       friend’s party. At the party, defendant invited Steinz to stay. Steinz became intoxicated. At
       some point, defendant and Steinz argued over defendant’s use of racist language. Steinz
       attempted to leave the party, but defendant hit him over the head with a beer bottle. Steinz
       then hit defendant in the face. Defendant’s friends took hold of Steinz, pinned him down, and
       kicked and punched him. While pinned down, defendant struck him with a barbell. Steinz
       managed to leave the apartment and call the police. Steinz had severe lacerations to his head,
       as well as bruises on his face. Defendant received misdemeanor probation for his role in the
       incident.
¶ 43        Thao Doan, Du Doan’s daughter, read a prepared statement indicating the impact his
       death had on her family. She asked that defendant be punished with the maximum penalty.
       The State presented impact statements from Thao Doan, Ann Doan, and Kevin Doan, which
       indicated the heavy emotional and financial toll Du Doan’s family endured.
¶ 44        Defendant presented testimony and written statements from his family. Defendant’s
       mother testified that defendant had given up alcohol and was now married with a child. She
       testified his bad behavior began after he found his alcoholic father dead in 1986. The
       following letters were entered into evidence by defendant. Defendant’s sister, Mary Haley,
       stated that defendant had become a better person since the incident. Defendant’s wife, Regina
       Haley, claimed defendant gave up alcohol and is a good husband and father. Defendant,
       through his own statement, apologized to the Doan family and stated that he had given up
       alcohol.
¶ 45        Before making its ruling, the sentencing court stated on the record a long list of factors
       it considered in making its decision. The court noted that it had read defendant’s presentence
       investigation report and considered defendant’s past criminal conduct, the four statutory
       aggravation factors as argued by the State, the statutory factors in mitigation as argued by
       defendant, defendant’s credibility, demeanor, general moral character, mentality, social
       environment, habits, and age, the nature and circumstances of the offense, the tentative
       attitude on the part of defendant or its absence thereof, the protection of the public,
       deterrence and punishment, defendant’s rehabilitative potential, and the stimuli that caused
       the crime. The sentencing court also stressed that in making its decision, it considered all of
       the above factors in addition to the arguments of counsel, the victim impact statements, and
       defendant’s statement.
¶ 46        The sentencing court noted the statutory factors in aggravation, as argued by the State,
       were whether defendant’s conduct caused or threatened serious harm, defendant’s history of
       delinquency or criminal activity, whether the sentence was necessary to deter others from
       committing the same crime, and whether defendant committed the offense against a person
       60 years of age or older, which he had. The sentencing court remarked, “[t]hose were the four
       factors that at least statutorily would be for aggravation.”
¶ 47        The sentencing court also commented on the statutory factors it considered in mitigation,
       as argued by defendant. The court considered whether defendant contemplated that his
       criminal conduct would cause or threaten serious harm to another, to which the court


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       commented, “I don’t believe there’s any testimony concerning that.” The court analyzed
       whether defendant’s criminal conduct was the result of circumstances unlikely to recur, but
       did not comment on the record regarding this factor. The court stated it did not believe that
       whether defendant was particularly likely to comply with probation would apply as
       defendant’s previous probationary sentences were completed satisfactorily. The court also
       commented that whether defendant’s imprisonment would entail excessive hardship to his
       dependents did apply, finding his incarceration would clearly affect his mother, wife, and
       child.
¶ 48       Before issuing defendant’s sentence, and after listing the factors on the record it
       considered in both aggravation and mitigation, the sentencing court commented:
               “First and foremost, *** this was not an accident. This was an action by a young man
           in the prime of his life, good physical condition, who showed to everybody in this
           courtroom that heard this case that he has an utter lack of respect for human life.
               This was a cowardly act, pushing a man that he could [not] even look in the eye,
           pushing a man, not into a pool with a group of people around, into a lake and then took
           off running. And based on the testimony of the people with him, this defendant thought
           that it was funny.
               And I heard arguments saying that the defendant is a thrill seeker. That’s far from the
           truth. A thrill seeker puts himself in danger. A coward puts others in danger.
               What [defendant] did to Mr. Doan and Mr. Squires was the height, the epitome of
           being a coward.
               As [he] talked to Mr. Squires, he waited until he turned his back to push him into a
           lake. He did not even give Mr. Doan the opportunity to hear him. He pushed him in the
           back.
               Out of all of the factors here today, I feel that it is imperative to send the sentence to
           [defendant] loud and clear these actions were reprehensible and should not be performed
           in a civilized society ***.”
       The sentencing court stressed further that the acts of violence committed by defendant were
       not isolated incidents. After considering all of the factors in aggravation and mitigation, the
       court sentenced defendant to 5 years’ incarceration for involuntary manslaughter, with an
       additional 5-year extended sentence, for a total of 10 years’ imprisonment. This was the
       maximum sentence for which defendant was eligible.
¶ 49       Defendant timely appealed.

¶ 50                                       ANALYSIS
¶ 51       Defendant argues that the circuit court erred in allowing the jury to hear evidence of his
       previously pushing Mr. Squires into the lake because it was unnecessary and the risk of
       prejudice outweighed any probative value of the evidence. Defendant further argues that the
       circuit court erred in sentencing him because it improperly considered that his conduct
       caused serious harm and failed to give proper weight to his rehabilitative potential.
¶ 52       The State responds that defendant forfeited his claims of error by failing to object at trial

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       and in a posttrial motion. Forfeiture aside, the State argues that the circuit court did not abuse
       its discretion in allowing the jury to hear the evidence of defendant’s pushing Mr. Squires
       because it went to defendant’s modus operandi, intent, absence of mistake, and knowledge;
       and that the prejudicial effect of such evidence did not outweigh the probative value of the
       evidence. The State argues the circuit court did not abuse its discretion in sentencing
       defendant as it did because the circuit court fully considered the aggravating and mitigating
       evidence in issuing its sentence, a sentence the State claims is proportional to defendant’s
       actions.
¶ 53        In his reply brief, defendant contends he preserved both issues for appeal but argues in
       the alternative that if this court should hold that he forfeited either issue, we should review
       them under the plain error doctrine.
¶ 54        In order to preserve an issue for appeal, a litigant must object both at trial and in a written
       posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988) (“Both a trial objection and
       a written post-trial motion raising the issue are required for alleged errors that could have
       been raised during trial.” (Emphasis in original.)). The State argues that defendant has
       forfeited his first claim of error, that the circuit court improperly allowed the jury to hear
       evidence of defendant’s pushing Mr. Squires. Despite the State’s contentions, we hold that
       defendant did preserve this issue for appeal. In response to the State’s pretrial motion to
       introduce evidence of other crimes, defendant argued that the evidence was prejudicial and
       not relevant where he admitted to pushing the victims in the lake in both instances. On
       October 22, 2009, during trial, but before the State was to introduce testimony concerning
       evidence of defendant’s other crime, defense counsel stated, “We previously objected to the
       proof of other crimes coming into this case. We will continue that objection today.” After
       trial, defendant filed a motion for a new trial arguing the circuit court erred in allowing the
       jury to hear evidence of his other crime. It is clear from the record that defendant properly
       preserved this issue for appeal and the State’s argument that he is procedurally defaulted as
       to this issue is without merit.
¶ 55        Evidence of other crimes is not admissible to show a defendant’s propensity to commit
       a crime. People v. Lindgren, 79 Ill. 2d 129, 137 (1980). This is because evidence of other
       crimes can overpersuade the jury, which may convict a defendant based on its belief that the
       defendant is of bad character and deserves punishment. Id. at 137. However, if the evidence
       of another crime is relevant, it can be introduced for any purpose other than to show the
       defendant’s propensity to commit criminal acts. People v. Illgen, 145 Ill. 2d 353, 365 (1991).
       Relevant evidence is evidence that “has any tendency to make the existence of any fact that
       is of consequence to the determination of the action more or less probable than it would be
       without the evidence.” Id. at 365-66. Evidence of other crimes is admissible when “relevant
       to prove modus operandi, intent, identity, motive or absence of mistake.” Id. at 364-65.
       Evidence of other crimes may also be admitted “to show *** that the act in question was not
       performed inadvertently, accidentally, involuntarily, or without guilty knowledge.” People
       v. Wilson, 214 Ill. 2d 127, 136 (2005).
¶ 56         Other crimes evidence must “bear[ ] some threshold similarity to the crime charged.” Id.
       However, less similarity between the crime charged and the evidence of other crimes is
       allowed when used to show any other exception other than to prove modus operandi. Id. at

                                                  -11-
       140. Using other crimes evidence to prove modus operandi requires greater similarity
       between the charged offense and the prior act “because modus operandi refers to a pattern
       of criminal behavior so distinctive that separate crimes are recognized as the handiwork of
       the same person.” Id.
¶ 57       In deciding whether to allow such evidence, the trial court must weigh the probative
       value of the other crimes evidence against its prejudicial effect. Illgen, 145 Ill. 2d at 365. If
       the probative value of the evidence is outweighed by its prejudicial effect, the trial court
       should exclude the evidence. Id. We will not reverse the circuit court’s ruling on the
       admission of other crimes evidence absent a clear abuse of its discretion. People v. Ward,
       2011 IL 108690, ¶ 21. “An abuse of discretion occurs when the ruling is arbitrary, fanciful,
       unreasonable, or when no reasonable person would adopt the trial court’s view.” Id. We must
       also not substitute our judgment for that of the circuit court when determining a decision
       within its discretion. Illgen, 145 Ill. 2d at 371.
¶ 58       In this case, we hold that the circuit court did not abuse its discretion by allowing the
       State to introduce evidence of defendant’s other crime. The incidents in question bear a
       striking similarity. They both occurred during the early morning hours at Montrose Harbor.
       Based on evidence in the record, both incidents seemed to occur at dawn with limited
       visibility. Defendant in both instances had been out the night before drinking alcohol with
       friends. Defendant pushed fishermen from behind into the water. After pushing the fishermen
       into the water, defendant fled. In both cases, after the incident occurred, defendant laughed.
¶ 59       Our supreme court has held that evidence of another crime may be admitted for any
       purpose other than to show a defendant’s propensity to commit criminal acts. Illgen, 145 Ill.
       2d at 365. In this case, the evidence of defendant’s prior crime is relevant to show
       defendant’s modus operandi, that defendant acted intentionally rather than inadvertently,
       involuntarily or accidentally, and to put context to defendant’s arrest. The State put forth this
       evidence for those purposes. It is clear from the similarity of the incidents that the evidence
       of defendant’s previous crime shows defendant’s modus operandi. The testimony shows a
       distinctive criminal pattern on defendant’s part. Wilson, 214 Ill. 2d at 140 (“modus operandi
       refers to a pattern of criminal behavior so distinctive that separate crimes are recognized as
       the handiwork of the same person”). It is also clear that the evidence established defendant’s
       motive for pushing the fishermen into the lake and that his actions were not the result of an
       accident or mistake. Squires testified that his back was turned and that he was pushed
       forcefully from behind. After being pushed, Squires testified, the man pushing him was gone.
       The same steps led to Doan’s drowning in this case.
¶ 60       It is also clear from our review of the record that the circuit court weighed the evidence’s
       probative value against its potential prejudice against defendant before admitting it. See
       Illgen, 145 Ill. 2d at 365 (in deciding whether to allow such evidence, the trial court must
       weigh the probative value of the other offense evidence against the prejudicial effect of that
       evidence). The circuit court’s determination that the evidence’s probative value outweighed
       any prejudice against defendant was not an abuse of discretion. The testimony helped to
       explain how defendant committed the crime against Doan as the evidence of his prior crime
       was substantially similar to the one at bar. We cannot say that the circuit court’s ruling was
       “arbitrary, fanciful, unreasonable,” or that “no reasonable person would adopt the trial court’s

                                                 -12-
       view.” Ward, 2011 IL 108690, ¶ 21.
¶ 61       Defendant next argues that the circuit court erred in sentencing him as it did because the
       circuit court considered an improper aggravating factor and failed to give proper weight to
       defendant’s rehabilitative potential. The State responds that defendant is procedurally
       defaulted from raising these issues before this court for failing to file a written posttrial
       motion according to Illinois Supreme Court Rule 605(a)(3). Ill. S. Ct. R. 605(a)(3) (eff. Oct.
       1, 2001). Illinois Supreme Court Rule 605(a)(3) provides in relevant part:
                 “B. that prior to taking an appeal, if the defendant seeks to challenge the correctness
            of the sentence, or any aspect of the sentencing hearing, the defendant must file in the
            trial court *** a written motion asking to have the trial court reconsider the sentence
            imposed, or consider any challenges to the sentencing hearing, setting forth in the motion
            all issues or claims of error regarding the sentence imposed or the sentencing hearing;
                 C. that any issue or claim of error regarding the sentence imposed or any aspect of
            the sentencing hearing not raised in the written motion shall be deemed waived.” Ill. S.
            Ct. R. 605(a)(3) (eff. Oct. 1, 2001).
       In this case, the record shows that on December 11, 2009, defendant filed a motion to
       reconsider his sentence. In his motion, defendant argued his sentence was excessive,
       claiming the court failed to consider that the Illinois Constitution requires consideration of
       the objective of restoring defendant to useful citizenship or other factors in mitigation.
       Defendant did not argue in his motion that the circuit court considered an improper
       aggravating factor. Rule 605(a)(3) clearly states that defendant must set “forth in the motion
       all issues or claims of error.” Ill. S. Ct. R. 605(a)(3) (eff. Oct. 1, 2001). Accordingly,
       defendant has not waived his contention that the circuit court failed to give his rehabilitation
       potential proper weight. However, defendant did waive his contention that the circuit court
       considered an improper aggravating factor by his failure to raise this issue in his motion to
       reconsider his sentence.
¶ 62        We may review defendant’s waived argument only if he sustains his burden of persuasion
       under the plain error doctrine. People v. Herron, 215 Ill. 2d 167, 187 (2005). The second
       prong of the plain error doctrine allows a court of review to reach a forfeited claim of error
       “where the error is so serious that the defendant was denied a substantial right.” Id. at 178-
       79; see also Ill. S. Ct. R. 615(a) (“Any error, defect, irregularity, or variance which does not
       affect substantial rights shall be disregarded. Plain errors or defects affecting substantial
       rights may be noticed although they were not brought to the attention of the trial court.”).
       Review of whether the circuit court improperly considered a factor in aggravation under the
       second prong of the plain error doctrine is proper, as it affects a fundamental right,
       defendant’s right to liberty. People v. Martin, 119 Ill. 2d 453, 458 (1988). However, before
       addressing whether defendant’s claim satisfies the plain error doctrine, defendant “must first
       show that a clear or obvious error occurred.” People v. Hillier, 237 Ill. 2d 539, 545 (2010).
¶ 63        The Illinois Constitution requires that “[a]ll penalties shall be determined both according
       to the seriousness of the offense and with the objective of restoring the offender to useful
       citizenship.” Ill. Const. 1970, art. I, § 11. The trial judge, however, is given great discretion
       in determining a sentence within the limits set by the legislature by statute. People v. Fern,


                                                 -13-
       189 Ill. 2d 48, 53 (1999). The trial court is in the best position to weigh the evidence and to
       assess the credibility of the witnesses. People v. Jones, 168 Ill. 2d 367, 373 (1995). This
       determination must be based “on the particular circumstances of each case, considering such
       factors as the defendant’s credibility, demeanor, general moral character, mentality, social
       environment, habits, and age.” Fern, 189 Ill. 2d at 53. A trial court must balance the goals
       of retribution and rehabilitation of the defendant when determining a sentence. People v.
       Quintana, 332 Ill. App. 3d 96, 109 (2002).
¶ 64        A defendant’s potential for rehabilitation is not given greater weight than the seriousness
       of the crime. People v. Coleman, 166 Ill. 2d 247, 261 (1995). The trial court is not “required
       to make an express finding that defendant lacked rehabilitative potential.” Quintana, 332 Ill.
       App. 3d at 109.
¶ 65        The trial court’s discretion, however, “is not unfettered.” People v. O’Neal, 125 Ill. 2d
       291, 297 (1988). Under Supreme Court Rule 615, a court of review has the power to reduce
       a defendant’s sentence if the sentence was unlawful or an abuse of the trial court’s discretion.
       Ill. S. Ct. Rs. 615(b)(1), (b)(4); Jones, 168 Ill. 2d at 378. In reviewing a defendant’s sentence,
       this court “must proceed with great caution and must not substitute its judgment for that of
       the trial court merely because it would have weighed the factors differently.” Fern, 189 Ill.
       2d at 53. If a sentence is within the statutory limits, a court of review will not alter that
       sentence unless the trial court abused its discretion. People v. Coleman, 166 Ill. 2d 247, 258
       (1995). Further, “[a] sentence within statutory limits will not be deemed excessive unless it
       is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to
       the nature of the offense.” Fern, 189 Ill. 2d at 54.
¶ 66        Defendant first argues that it was improper for the circuit court to consider, as an
       aggravating factor, that defendant’s conduct caused or threatened serious harm. He relies on
       our supreme court’s decision in People v. Martin to argue that it is improper to consider the
       occurrence of death in a conviction for involuntary manslaughter as death is inherent in the
       offense. Martin, 119 Ill. 2d at 455. To put Martin into context, we will first look at People
       v. Saldivar, 113 Ill. 2d 256 (1986), as our supreme court in Martin addresses Saldivar in its
       decision.
¶ 67        In Saldivar, our supreme court addressed whether it was improper for a sentencing judge
       to consider, as a factor in aggravation, that defendant’s conduct threatened serious harm.
       Saldivar, 113 Ill. 2d at 260. The defendant in Saldivar had been convicted of voluntary
       manslaughter. The court stated:
                “Sound public policy demands that a defendant’s sentence be varied in accordance
            with the particular circumstances of the criminal offense committed. Certain criminal
            conduct may warrant a harsher penalty than other conduct, even though both are
            technically punishable under the same statute. Likewise, the commission of any offense,
            regardless of whether the offense itself deals with harm, can have varying degrees of
            harm or threatened harm. The legislature clearly and unequivocally intended that this
            varying quantum of harm may constitute an aggravating factor. While the classification
            of a crime determines the sentencing range, the severity of the sentence depends upon the
            degree of harm caused to the victim and as such may be considered as an aggravating


                                                 -14-
           factor in determining the exact length of a particular sentence, even in cases where
           serious bodily harm is arguably implicit in the offense for which a defendant is
           convicted.” (Emphasis in original.) Saldivar, 113 Ill. 2d at 269.
       In Saldivar, our supreme court held that the sentencing court erred in considering, as a factor
       in aggravation, that defendant’s conduct threatened serious harm to the victim because “the
       circuit court focused primarily on the end result of the defendant’s conduct, i.e., the death of
       the victim, a factor which is implicit in the offense.” Id. at 272. The supreme court stressed
       that the circuit court’s findings were “not directed at the degree or gravity of the defendant’s
       conduct, i.e., the force employed and the physical manner in which the victim’s death was
       brought about or the nature and circumstances of the offense.” Id. at 271-72.
¶ 68       In Martin, the defendant was convicted of involuntary manslaughter and sentenced to the
       maximum statutory penalty, five years’ incarceration. Martin, 119 Ill. 2d at 455. Our supreme
       court explained the reasoning used by the sentencing court, before holding that considering
       the victim’s death as an aggravating factor was improper:
           “Before imposing the sentence [the sentencing court] explicitly stated that ‘in committing
           the felony the defendant inflicted serious bodily injury to another resulting in death.’ In
           addition, the judge added the phrase ‘resulting in death’ to the signed document on which
           he indicated the aggravating factors he considered in imposing the sentence. But even if
           we were to disregard these statements, it remains abundantly clear that the trial court
           focused solely on the victim’s death in sentencing defendant since there was no extreme
           degree of harm the court could have considered. The defendant’s gun was unintentionally
           discharged, firing a single shot which killed the victim. The degree of force–the
           brutality–which, as we observed in Saldivar, might justify an increased sentence even
           though death is implicit in the offense, simply is not present in this situation. For these
           reasons, we conclude that the trial judge improperly considered the victim’s death as an
           aggravating factor in sentencing the defendant.” (Emphasis omitted.) Martin, 119 Ill. 2d
           at 461 (citing Saldivar, 113 Ill. 2d at 269).
¶ 69       Unlike the sentencing courts in Saldivar and Martin, the sentencing court in the case at
       bar did not focus its decision primarily on the victim’s death. The sentencing court did not
       even mention the term “death” in making its ruling. It did mention, in addressing the State’s
       argument that defendant’s conduct caused or threatened serious harm, that it was one of “four
       factors that statutorily would be for aggravation.” However, the sentencing court did not
       improperly focus on the harm caused in issuing its sentencing ruling. Rather, the sentencing
       court’s comments show that it properly considered, not Doan’s death, but the brutality of the
       circumstances of defendant’s crime, in sentencing defendant as it did. See Martin, 119 Ill.
       2d at 461 (“[t]he degree of force–the brutality–*** might justify an increased sentence even
       though death is implicit in the offense”). The sentencing court properly considered the
       brutality of defendant’s actions in pushing a man into a lake from behind, fleeing, and then
       laughing about his actions. The court found defendant’s actions “reprehensible.” Instead of
       focusing on the victim’s death in this case, which would have been improper, it is clear the
       sentencing court addressed the force and manner in which defendant committed the crime,
       proper considerations in determining the appropriate sentence.


                                                -15-
¶ 70        Additionally, unlike in Saldivar and Martin, the sentencing court considered many
       factors in making its decision. The transcript of its ruling is lengthy and addresses
       defendant’s presentence investigation report, his past criminal conduct, statutory factors in
       aggravation and mitigation, his credibility, demeanor, general moral character, mentality,
       social environment, habits and age, the nature and circumstances of the offense, the tentative
       attitude on the part of defendant or absence thereof, the protection of the public, deterrence
       and punishment, defendant’s rehabilitative potential, and the stimuli that caused the crime.
       This was in addition to the arguments of counsel, victim impact statements, and defendant’s
       own statement.
¶ 71        We hold that, although the sentencing court mentioned that the degree of harm caused
       by defendant’s actions was one of “four factors that statutorily would be for aggravation,”
       the court’s ruling shows that it properly analyzed this factor in terms of the degree of force
       defendant used in committing the offense, as opposed to the outcome of defendant’s action,
       the victim’s death. The sentencing court considered the brutality of defendant’s conduct and
       the circumstances of the crime, which is proper under both Martin and Saldivar. Martin, 119
       Ill. 2d at 461 (“The degree of force–the brutality–*** might justify an increased sentence
       even though death is implicit in the offense ***.”); Saldivar, 113 Ill. 2d at 271-72.
¶ 72        The record shows the sentencing court did not improperly focus on the victim’s death in
       making its decision. Rather, the sentencing court considered many factors in light of the facts
       and circumstances of this particular case in crafting a proper sentence. The three other
       statutory factors in aggravation which the court considered–defendant’s past criminal
       activity, deterrence, and the victim’s age–are sufficient to support the sentence. This is a
       sentence perfectly justified for the offense.
¶ 73        Defendant’s final argument is that his sentence is excessive in light of his claims that the
       sentencing court failed to give proper weight to his rehabilitative potential. We disagree. The
       sentencing court specifically stated on the record that defendant’s rehabilitative potential was
       one of the factors it considered in making its decision. We note that in conducting our
       review, it is not proper for us to substitute our judgment for that of the sentencing court
       simply because we may have weighed the various factors differently. Fern, 189 Ill. 2d at 53.
       We also note that a defendant’s potential for rehabilitation is not given greater weight than
       the seriousness of the crime nor is the sentencing court required to expressly state that a
       defendant lacked rehabilitative potential. See Coleman, 166 Ill. 2d at 261; Quintana, 332 Ill.
       App. 3d at 109 (the trial court is not “required to make an express finding that defendant
       lacked rehabilitative potential”). The record shows defendant’s rehabilitative potential was
       a factor the sentencing court considered. That the sentencing court appeared to place more
       weight on the fact that defendant had a lengthy criminal record, which included several
       instances of violent conduct, was not improper. We hold the sentencing court did not abuse
       its discretion when it sentenced defendant.

¶ 74                                    CONCLUSION
¶ 75       The judgment of the circuit court is affirmed.



                                                 -16-
¶ 76   Affirmed.




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