good afternoon your honor his name is deborah peel and i represent the appellant he was here there are two issues in this case in both of them involve a very simple application of well established basics of other crimes evidence the first issue is that the other crimes evidence should not have been admitted at all the second issue is that even if the other crimes evidence should have been admitted the court heard by misinforming the jury of the nature of the other crimes evidence so in this case at least had a search warrant to search h went to the house and lisa's street and they conducted a thorough search of the house in the house they found a jacket which mr farron admitted belonged to him and in that jacket was a very small amount of heroin for less than a gram and the state's own expert in that in that that is not a standard amount for distribution and fair testified that he was an addict and that although he had sold his own before he was an addict and that this amount was for his own personal use as for the cocaine there was also cocaine in the house now this was a house in which a lot of people were there there were three people there during the search they are in with klein he just left the house there are people sort of coming in and out of the house and in this house in a common or the house in the kitchen there was a cabinet mccutchen inside that cabin it was a dog with bag inside that dog  drugs now in order to prove the case the state sought to introduce other crimes evidence and that other crimes evidence consisted of four prior convictions there were chicken fictions for possession with intent to sell cocaine one from eleven years before this unrest one from ten years before the rest there are also two more recent convictions both just for simple possession of drugs one for simple possession of heroin from five years before and one for simple possession of cocaine from two years before now this is state's case the court actually read the prior convictions to the jury instructing them that they could use this evidence for knowledge intended absence of mistake however when reading was to the jury the jury said properly the first two convictions were for possession w to deliver however the second two convictions which were actually just for simple possession the court also said that those are for possession of intentional liver so the courts and he was not correct in saying that but so the jury went back to the jury room believing that they had these four convictions that they could use for knowledge intent absence in the state but in fact two of them are only for simple possession so as for the first issue this other crimes evidence should not have been admitted at all it's well established in illinois that other crimes evidence admissible only for specific purposes and it's admissible only if it sufficiently similar to the other to the crimes an issue of the cross has a certain similarities to the crimes that issue in the case and if it's probative for the actual issues for which it's being admitted offenses in order to admit it as other crimes evidence illinois courts have consistently always looked at the underlying facts not said oh what is the name of this crime ok that's admissible they always look at the underlying facts now the state maintain that in drug cases the name with the name of the crown is sufficient in that all the court needs to do is look at the name of the crime that's not the case that's not the law in illinois and it's never been the law in illinois is private has nine hundred sixty three the illinois supreme court has been looking to the underlying facts of the matter are they similar what do they actually show you about the current of the current events it's not enough just to know the name of the offense now the state also says that's not possible for there to be sufficient differences between drug cases that drug a drug cases a drug case all other offenses are admissible all other drug offenses are admissible in a drug case that's just also not the law in illinois and there are no cases saying that drug crimes are treated differently there are no cases saying that in a drug tends to place an innocent construction on his x if you said yes i did that but i was doing it for an innocent reason and as a sort of classic in the supreme court based on that where the defendant was feeding his daughter and shot his wife claimed it was an accident and the state was allowed to admit other evidence of prior assault on the wife saying no he said he does innocently but he didn't hear he had no hope he did not try to put an innocent construction of a cocaine possession just that i didn't know anything about it after the heroin he didn't try to put an innocent construction on he said yes that's that my heroin but i wasn't intending to sell it however other crimes evidence can be admitted to show intent only if it's closely related in time place and circumstance now given for has never been convicted before of selling heroin he's been convicted ten eleven years before this for selling pain never for selling heroin simple possession of heroin yes and so it wasn't there are no crimes of his there is no such not in the on top of that is for us  sufficiently similar to crossing that threshold there's no bright line i think it depends it's sort of it's sort of a more complex analysis of well how similar is this is this really similar that is if there's a certain degree of similarity then maybe that men then maybe a little bit longer about would be the climate issue the more of the less prejudicial it is of course are more likely to want introducing but are less similar to the private issue whereas with with other crimes evidence you want something that's as similar as possible to cross at the similarity threshold and in montgomery it is possible to just all these other crimes do they show and you know lack of truthfulness but it's a very different analysis and completely different jury instructions and a completely different analysis about whether the defendant will then testify but no there is no there is no similar bright line rule for this and then going back to intent with the heroin he had to prove they had they had to prove that it was sufficiently similar in time place and circumstance but he has no prior heroin dealings and we also just don't know anything about the circumstances of the prior cocaine dealings was it a small amount in a pocket in a bedroom that he said was for his personal use if so maybe that could be starting to cross the similarity threshold even though it's a different drug but the fact is we just don't know the state just didn't meet of burden of showing any kind of similarity we don't know any of the facts of the other cases as for knowledge and it's also admissible to show knowledge now which was addition of the cocaine of course that was the key issue did he know that that cocaine was there but knowing only that their facts of these convictions that knowledge can only really be proved through propensity because the idea being well this guy's a drug dealer of course he would know about drugs in the kitchen now if you'd said oh yes i knew that that white powder was there but i thought it was flour and then you could say this is somebody who's had dealings with cocaine this guy knows what cocaine looks like although of course we don't know even whether the prior convictions for powder cocaine or crack cocaine but here are the knowledge or if you thought or if the or the state had been able to prove that previously he'd hidden drugs in the kitchen or in a dog food bag or something just to show some similarity but here that the idea that he would know about drugs in the kitchen just because he's a drug dealer that's propensity evidence he's a drug dealer of course he knows he's just kind of the bad guy we know about  drugs now as for the heroin there is no need to prove to prove knowledge where he admitted that he had the heroin and the state the state admits that the knowledge issue is not is not the same with the heroin because the minute that he had it and as for absence of mistake a case like this where i mean as far as absence of mistake i suppose to some to some extent that's true that there has to be some some notion of what the defendants going to argue but that is the law in illinois i mean for instance in the evidence if the defendant is making an issue of them but in this case there was not even it's sort of not even it's premature even to be looking at how probative they are where it is not even to cross the threshold of similarity and so we're sort of not even at that point because it should have been admitted because of a lack of similarity or be good because there is no showing of any similarity but that is not that but that is of course an issue that you have to know what the defendant is going to be arguing but there are no cases saying are you going to throw everything in just in case the defendant argue that that's just not the law now that in so that these other kinds of events because there's no information about how the jury can actually be using it how could it show it and how could it show knowledge it could really only be used for propensity in propensity is precisely what the state argued here's a quote from the state's closing argument commonsense says that he'd be able to get cocaine because he has the heroin in the pocket that he'd sell complain again so to sort of shorten it common sense says that he'd sell cocaine again it's rare to find such a clear of propensity evidence he's done it before he'll do it again because that's really the only way it could be used their idea that and of course the fact that the judge mistakenly told the jury that all four convictions were  it's giving the jury the impression that this is a guy who's been an unrepentant drug dealer for the last decade officer where one officer said there was no admission whatsoever regarding the cocaine and one officer said oh he said that anything illegal was his the defense said to these at a cocaine was his and the officer said he said anything illegal he didn't even off that and the other was a tiny amount of heroin which the state's own expert said was not consistent with distribution and that came a fair as an addict if you're really going to sell this particular heroin are you going to keep it for it to stave off drawl the evidence wasn't overwhelming now the only supreme court has said that the improper admission of other crimes evidence carries with it a high risk of prejudice and ordinarily calls for withdraw that for for a reversal and that's if the other crimes evidence it's true here half of the other crimes evidence was not actually true and indicated to the jury falsely that he had been a lifelong drug dealer so for all these reasons that that the second issue is the first from the plain earth closely balanced second from undermines the integrity of the judicial process and counsel as the state admits was ineffective for not noting the error and the prejudice for all the reasons noted in the harmless error issue that that the evidence against him is just simply not overwhelming we have a house of people coming and going in impeached officers involved where other crimes evidence is emitted involved that the titles of the crimes are vastly different from from one another what i mean is the prior title the titles of the prior convictions are different drastically from the titles of the current charges and for example a and because they have the differences in the charges in the titles of the charges because there could be so many distinguishing factors that there needed to be more of an underlined or an analysis of the underlying facts of the prior convictions and yet which is true that there is no case that says that charges involving the prior was that they were prior convictions were physical abuse and verbal are verbal threats whereas the current charges for it was murder now people it's in that those are vastly different on the face and they needed those those offenses honor we don't know the underlying facts i'm i'm merely suggesting that the cases that the fountain cites in support of her argument that we should we should dig into these cases as well the differences are significant  properly handled the people would submit that the evidence reach one of these convictions is this overwhelming and therefore any error with regard to the other crimes evidence is harmless  mid on the witness stand that he not only possessed that heroin but he also sells heroin he actually admitted that he sold heroin the day before his house was searched your honor i don't think he gets a whole lot stronger than that and admission that he sells heroin for the trier of fact to conclude that the heroin he possessed in this case was going to be sold especially when there's testimony from officers that this is how people solve this is people people distribute heroin this is how they package it the prosecutor been hard on these convictions i guess because the the evidence of possession of both the heroin and the cocaine and the intent to deliver the heroin and cocaine were both so strong that that there construct evidence of constructive possession was very strong again if there is anything greater that the defendant controlled the premises that this cocaine was found again he told the officer line to come that everything in this house was mine now kind of interesting the one that the state did rely on to say like oh you don't you really don't need to show any similarities it's actually federal case u s demand and in my article in my in my brief i argued don't line federal cases but it's kind of interesting because even in that all the same undercover officer or the drugs in other cases where the drugs package the same way just different things that actually show a similarity rather than is a drug dealer oh he's still in drug dealer the way that they do that that the state is arguing it is act is asking this court to adopt a brand new bought a brand new body in law to allow them in city evidence regarding drugs to guarding drug cases now quickly to go to a couple other things the idea that the defendant has controlled the premises here it's worth noting sell that this little bit of heroin and finally question about structural error that wrong two of of tire of the plane there for one meal and ice cream for it is never specifically held that is only structural as there have been other crimes evidence is an extremely unusual error i searched far in why they found nothing like it in the case law where the structure of their list is a list of these very common errors that would cause a new trial and but the idea of this with this this kind of there is so odd it would never even make it onto the structural error list so it's that sense to be saying if you say that only structural errors are cleaner on the second prong it leaves out just odd one off areas like this that could be i mean these off there is a could even be worse than this that just simply didn't happen to make it on the list but the bigger point is is that the illinois supreme court has never it's sort of made gestures toward in this is gone and gone over in the states in my briefs about illinois supreme court's analysis and structural error but it's not actually the law in illinois at this point that only structural absence of mistake this idea that he's been a lifelong drug dealer they're going back to the wrong information that undermines international integrity as much as anything that this is not a fair trial and given false information you know an honest mistake but he was s there going back in the wrong information about the defendant and being told to use that wrong information to see whether he's guilty here i think that's that's about as serious an error as you can have the jury believing that they can use wrong information about the defendant's criminal