ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Johnson, 2013 IL App (2d) 110535

Appellate Court

Caption

PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARYL

L. JOHNSON, Defendant-Appellant.–PEOPLE OF THE STATE OF

ILLINOIS, Plaintiff-Appellee, v. DARYL L. JOHNSON, DefendantAppellant.

 District & No. Second District

Docket Nos. 2-11-0535, 2-11-0782 cons.

Filed May 31, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant’s convictions for domestic battery and unlawful possession of

a weapon by a felon were vacated and the cause was remanded for two

separate trials, since defendant’s counsel’s ineffectiveness in agreeing to

the joinder of the charges, accompanied by the trial court’s improper

instructions on other-crimes evidence, especially the lack of instruction

on the limited purpose for which the other-crimes evidence was to be

considered, prejudiced defendant and resulted in plain error that

undermined the integrity of the judicial process. 

Decision Under 

Review

Appeal from the Circuit Court of Kendall County, Nos. 10-CF-141, 10-

CM-409; the Hon. John A. Barsanti, Judge, presiding.

Judgment Reversed and remanded with directions.
Counsel on

Appeal

Thomas A. Lilien and Yasemin Eken, both of State Appellate Defender’s

Office, of Elgin, for appellant.

Eric C. Weis, State’s Attorney, of Yorkville (Lawrence M. Bauer and

Richard S. London, both of State’s Attorneys Appellate Prosecutor’s

Office, of counsel), for the People.

Panel PRESIDING JUSTICEBURKEdelivered the judgment of the court, with

opinion.

Justices Jorgensen and Hudson concurred in the judgment and opinion.

OPINION

¶ 1 At a jury trial, the State introduced evidence that, on April 29, 2010, defendant, Daryl L.

Johnson, choked, grabbed, and shoved his girlfriend, Cheryl Hausler, and that the police

recovered a handgun and ammunition from defendant’s room in Hausler’s home the next

day. The jury found defendant guilty of two counts of unlawful possession of a weapon by

a felon (see 720 ILCS 5/24-1.1(a) (West 2010)) and one count of misdemeanor domestic

battery (see 720 ILCS 5/12-3.2(a)(2) (West 2010)). The trial court imposed concurrent terms

of 6 years in prison on the weapons convictions and 365 days in jail on the domestic battery

conviction.

¶ 2 Defendant appeals, alleging the following trial errors: (1) defense counsel rendered

ineffective assistance when she agreed to join the weapons charges with the domestic battery

charge; (2) the trial court erroneously admitted evidence of defendant’s threats to Hausler;

(3) the use of a defective jury instruction regarding other-crimes evidence is plain error; and

(4) the cumulative effect of these errors deprived defendant of a fair trial. We conclude that

defense counsel was ineffective in agreeing to join the charges and that the jury was

incorrectly instructed in several respects. We hold that defense counsel’s ineffectiveness in

agreeing to the joinder of charges and the trial court’s use of an incorrect jury instruction

were reversible errors that deprived defendant of a fair trial. The joinder error and the

instruction error were intertwined, which amplified the prejudice to defendant. We vacate

the convictions and remand the cause for new, separate trials.

¶ 3 I. FACTS

¶ 4 Defendant was charged by indictment in case number 10-CF-141 with two counts of

unlawful possession of a weapon by a felon. “It is unlawful for a person to knowingly

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possess on or about his person or on his land or in his own abode or fixed place of business

*** any firearm or any firearm ammunition if the person has been convicted of a felony

under the laws of this State or any other jurisdiction.” 720 ILCS 5/24-1.1(a) (West 2010).

The first count alleged that defendant knowingly possessed a firearm, and the second count

alleged that defendant knowingly possessed firearm ammunition.

¶ 5 In case number 10-CM-409, defendant was charged by complaint with misdemeanor

domestic battery against Hausler. A person commits domestic battery if he or she knowingly

without legal justification by anymeans makes physical contact of an insulting or provoking

nature with any family or household member. 720 ILCS 5/12-3.2(a)(2) (West 2010). The

charge alleged that defendant repeatedly choked Hausler and pushed her in the collarbone

area, causing her to strike her back on a television entertainment center. The parties agreed

to join the three charges for purposes of a jury trial.

¶ 6 A. Pretrial Motions

¶ 7 Before trial, the State moved to introduce evidence of other domestic violence incidents

to show defendant’s propensity to commit the charged domestic battery. The common-law

rule is that other-crimes evidence is not admissible to show a defendant’s propensity to

commit crimes. People v. Dabbs, 239 Ill. 2d 277, 283 (2010); see Ill. R. Evid. 404(b) (eff.

Jan. 1, 2011). However, by statute, the legislature has made exceptions to that rule in a few

specific areas, such as domestic batteries (725 ILCS 5/115-7.4, 115-20 (West 2010)). Dabbs,

239 Ill. 2d at 291; see Ill. R. Evid. 404(b) (recognizing statutory exceptions to the general

rule of inadmissability). In those instances, evidence of a defendant’s commission of a prior

qualifying offense may be admitted, in the trial court’s discretion, to show the defendant’s

propensity to commit the charged offense if, after weighing certain statutory factors, the trial

court determines that the probative value of the evidence is not substantially outweighed by

the risk of undue prejudice. See 725 ILCS 5/115-7.4 (West 2010); Dabbs, 239 Ill. 2d at 291;

see also Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 8 Section 115-7.4 provides that, in weighing the probative value of the evidence against

the prejudice to the defendant, the trial 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; and (3) other relevant facts and circumstances. 725 ILCS 5/115-7.4(b) (West 2010).

¶ 9 The State submitted written statements signed by Hausler, which she gave after

defendant’s arrest. Defense counsel objected to the evidence as prejudicial and irrelevant.

The trial court found certain statements to be admissible under section 115-7.4. Specifically,

Hausler described two days on which defendant allegedly committed domestic violence

against her before he committed the charged offense in April 2010.

¶ 10 The court ruled that Hausler could testify that, in December 2009, defendant pushed her

and shook her very hard. Hausler also could testify that, in March 2010, defendant grabbed

a phone from her hand, shook her by the shoulders, flipped over a recliner in which she was

sitting, held her down, and threw a coffee table, which struck her legs, bruising one.

¶ 11 The court also found that, though not admissible under section 115-7.4, certain threats

that defendant allegedly made during the December 2009 and March 2010 incidents were

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admissible for purposes other than to show propensity. Specifically, Hausler could testifythat

defendant threatened to kill her and “have a shootout” with the police if she reported his

conduct to the police. The court commented that “the fact-finder would want to know why

[Hausler] didn’t report it” to the police.

¶ 12 Before trial, the parties stipulated to defendant’s prior felony conviction for purposes of

the charges of unlawful possession of a weapon by a felon. The State agreed that, if

defendant testified, his prior felony conviction was inadmissible for impeachment purposes,

because it was more than 10 years old. See People v. Montgomery, 47 Ill. 2d 510, 516 (1971)

(a witness’s prior conviction is admissible for impeachment purposes only where (1) the

crime was punishable by death or imprisonment of more than one year, or the crime involved

dishonesty or a false statement; (2) the conviction is less than 10 years old; and (3) the trial

judge determines that the probative value of the evidence is not substantially outweighed by

the danger of unfair prejudice).

¶ 13 B. The Trial

¶ 14 Hauslertestified that she and defendant began cohabiting in her home in November 2009.

Defendant had his own room where he kept his personal belongings, and he did not allow

anyone else to enter his room. At 7:40 a.m. on April 29, 2010, Hausler awoke and took her

dogs to the backyard. As she called the dogs back to the house, she walked backward, turned

around, and saw defendant standing right in front of her. Hausler testified that she is 5 feet

3 inches tall, while defendant is at least 6 feet 1 inch tall. Defendant stood 9 to 10 inches

away, glaring down at Hausler and holding a travel mug with coffee. Defendant said, “Do

you realize I’ve been drinking this coffee for two days?” Defendant sounded angry. Hausler

replied that defendant should “make more coffee if [he] want[ed] more coffee.” Defendant

responded, “Do you realize yesterday was my birthday?” Hausler told him that she did not.

¶ 15 Defendant’s voice became louder, and he moved closer to Hausler. Defendant said, “Do

you realize today is my mother’s birthday? And she was murdered on my 13th birthday.”

Defendant put down his mug, grabbed Hausler by the throat, and squeezed until she could

not breathe. Defendant pushed Hausler into the living room and into the television, which

almost fell off the stand. Defendant grabbed her by the shoulders and shook her hard, telling

her, “the only way to make you listen is to shake you.”

¶ 16 Defendant stopped shakingHausler and walked toward the door. Hauslerwaited a couple

minutes and thought about what she should do next. She was scared, nervous, and upset.

After defendant calmed down, Hausler told him that she needed to take the puppy outside.

¶ 17 Defendant went to the bathroom, and Hausler walked across the street to the house of

Michael Isabell. Isabell called 911, and Hausler told the operator what had happened. The

police arrived a short time later.

¶ 18 The next day, Hausler called the police and asked them to retrieve a gun from her home.

Hausler testified that she had found the gun in December 2009, while defendant was on the

road for his job as a cross-country truck driver. Hausler found the gun in a black nylon bag

in defendant’s bedroom. During a telephone conversation later that month, Hausler told

defendant that she found the gun and did not want it in the house. Defendant replied that he

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needed the gun to protect her and the house. Defendant was upset that Hausler had entered

his room.

¶ 19 Hausler testified that, on another occasion in December 2009, defendant pushed her into

the kitchen counter and the sink. Hausler sat on the sofa, and defendant started shaking her.

Hausler struck her head on the back of the sofa. She did not call the police, because

defendant threatened to kill her if she did so.

¶ 20 Hausler testified to another incident in March 2010, which was a few weeks before the

charged offenses occurred. Hausler was in the kitchen when defendant grabbed her cell

phone and started shaking her. Defendant followed Hausler around so she could not leave

the house. Hausler sat in a recliner in the living room, and defendant lifted the chair and

flipped Hausler over. Later the same day, defendant again took Hausler’s phone and also

threw her laptop computer. Defendant then picked up the coffee table and threw it at Hausler,

hitting both of her legs. Hausler suffered a large bruise on her right thigh. Defendant told

Hausler that, if she called the police, there would be a shootout and he would kill himself,

her, and the police.

¶ 21 On cross-examination, Hauslertestified that she never gave defendant a key to her home.

As a truck driver, defendant would be gone for several days at a time. Overall, defendant

would stay at her house about half the time. Hausler always was home when defendant

returned, and she allowed him back into the home. Hausler’s son, Tyler, had access to the

entire house. Also, a person named John Gamble was renting a room. Gamble lived mostly

in the basement, but he had access to the entire house. The police discovered the gun in what

used to be Tyler’s room. Defendant had taken over the room, after which Tyler never entered

it. 

¶ 22 When Hausler discovered the gun in December 2009, she told Tyler, who told her to call

the police. Hausler acknowledged that she did not contact the police after the December 2009

gun discovery or the March 2010 domestic violence incident.

¶ 23 On redirect examination, Hausler testified that, when Gamble moved out, he took all of

his belongings. When Tyler moved out of the room that defendant took over, he removed all

of his things from the room. Hausler testified that she waited to call the police because

defendant had threatened her and she was afraid.

¶ 24 Isabell testified that, on the morning of April 29, 2010, Hausler walked barefoot to his

house. Hausler was crying and shaking. Isabell saw that her neck had red marks, which

looked like they were caused by “squeezing.” Isabell called 911 and handed the phone to

Hausler.

¶ 25 Sergeant Norman Allison testified that he was dispatched to a “domestic battery” in

progress. The Plano police station was right around the corner from Hausler’s home, so he

arrived in a matter of seconds. Sergeant Allison encountered Hausler, who still was across

the street with Isabell. Hausler was crying and “kind of shaken up.” Two other officers

arrived and went with Sergeant Allison to Hausler’s home, where they arrested defendant in

the backyard. Sergeant Allison returned to Hausler and saw a very faint red mark on her

neck. Sergeant Allison asked Hausler whether the mark was a “tan line,” and she answered

that she and defendant had an altercation in the house and that defendant placed his hands

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around her neck.

¶ 26 Detective Gene Morton testified that defendant waived his Miranda rights and spoke

about the incident. Defendant told Detective Morton that he was going to get some coffee

when Hausler entered the kitchen. Defendant “kind of spun her around” because they were

continuing an argument from the previous day. Defendant admitted that he grabbed Hausler

by the shoulders and turned her around. Defendant did not indicate that there was any other

physical contact.

¶ 27 Detective Morton testified that, the day after defendant’s arrest, he and Sergeant Allison

went to Hausler’s house after she asked them to retrieve a gun. Hausler signed a consent-tosearch form and directed the officers to a bedroom, which contained male clothing, including

army fatigues, and identification and paperwork belonging to defendant. Detective Morton

testified that he saw bags, “like suitcases,” along two walls. Detective Morton saw on the

floor an unzipped, black bag that contained a gun, ammunition, and two reloaders. The gun

was loaded with six rounds.

¶ 28 Kimberly Hood, a forensic scientist, testified as an expert in the examination,

comparison, and identification of fingerprints. She found a fingerprint on the gun that was

suitable for comparison, but it did not match defendant.

¶ 29 The State presented the stipulation that defendant previously had been convicted of a

felony in Cook County. The trial court advised the jury that “[t]his information concerning

the agreement of these facts can be used by you like any other evidence in this case to come

to your verdict.”

¶ 30 Defendant testified that, on the morning of the incident, he was living with Hausler,

Tyler, and Gamble. Defendant saw friends come to the house “almost every day.” On April

29, 2010, defendant was in the kitchen making coffee when Hausler entered the room.

Defendant asked if he could drink some coffee, and Hausler approached him and asked

whose coffee he would be drinking. Defendant responded that it was his, and Hauslerlooked

perplexed. Defendant placed his arms around her in a hug. Defendant asked why she did not

remember that it was his birthday, since they had made plans to celebrate. Defendant placed

his hands on Hausler’s shoulders because he could not see things that were not in front of

him. Defendant held onto her shoulders and physically turned her around so she could look

him in the eye. Defendant denied shaking Hausler or placing his hands on her neck.

¶ 31 Defendant spoke to Hausler for about two minutes and turned to retrieve his coffee, and

when he turned back, Hausler was gone. Defendant went to the backyard and smoked a

cigarette at the picnic table. The police arrived about five minutes later.

¶ 32 Defendant denied that the December 2009 andMarch 2010 incidents occurred. Defendant

also denied discussing a gun with Hausler.

¶ 33 On cross-examination, defendant testified that Gamble had property at the house.

Defendant admitted that he kept his cars, clothes, personal hygiene kit, and paperwork at

Hausler’s home, but he stated that he kept belongings in everyroom. Defendant admitted that

he left his clothes and other items in one of the bedrooms and would be upset if a person

went through his things. Defendant testified that there was no lock on the bedroom door and

that he never told Hausler that he wanted people to stay out.

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¶ 34 On redirect examination, defendant testified that, when he moved into Hausler’s home,

the bedroom he used contained certain items that were not his, including a pair of men’s

boots, a saxophone, a baseball, and baseball bats.

¶ 35 The trial court instructed the jury that it could consider the evidence of defendant’s

“conduct other than those charged in the indictment,” for purposes of “intent, motive, design,

knowledge, absence of mistake, and propensity.” The jury found defendant guilty of

domestic battery and both weapons charges. The court imposed concurrent terms of 6 years’

imprisonment on the weapons convictions and 365 days in jail for the domestic battery.

Defendant filed these timely appeals, which we consolidated.

¶ 36 II. ANALYSIS

¶ 37 On appeal, defendant argues that he is entitled to new, separate trials on the weapons

charges and the domestic battery charge because (1) defense counsel rendered ineffective

assistance by agreeing to join the weapons charges with the domestic battery charge; (2) the

trial court erroneously allowed Hausler to testify about threats defendant made during the

December 2009 and March 2010 incidents; (3) the use of a defective jury instruction

regarding other-crimes evidence is plain error; and (4) the cumulative effect of these errors

deprived defendant of a fair trial.

¶ 38 We conclude that defense counsel was ineffective in agreeing to join the charges and that

the jury was incorrectly instructed on other-crimes evidence, on defendant’s prior felony

conviction, and on the evidence concerning the firearm and ammunition. We hold that

defense counsel’s ineffectiveness in agreeing to the joinder of the charges and the trial

court’s use of an incorrect jury instruction deprived defendant of a fair trial. Defendant is

entitled to new, separate trials: one for domestic battery and one for the two counts of

unlawful possession of a weapon by a felon.

¶ 39 A. Joinder of Charges and Ineffective Assistance

¶ 40 Defendant argues that his counsel rendered ineffective assistance by agreeing to join the

domestic battery charge with the charges of unlawful possession of a weapon by a felon.

Both the United States and Illinois Constitutions guarantee a defendant the right to effective

assistance of counsel. See U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. The purpose

of this guarantee is to ensure that the defendant receives a fair trial. Strickland v. Washington,

466 U.S. 668, 684-85 (1984); People v. Pineda, 373 Ill. App. 3d 113, 117 (2007). The

ultimate focus of the inquiry is on the fundamental fairness of the challenged proceedings.

Strickland, 466 U.S. at 696; Pineda, 373 Ill. App. 3d at 117. “However, there is a strong

presumption of outcome reliability, so to prevail, a defendant must show that counsel’s

conduct ‘so undermined the properfunctioning of the adversarial process that the trial cannot

be relied on as having produced a just result.’ ” Pineda, 373 Ill. App. 3d at 117 (quoting

Strickland, 466 U.S. at 686).

¶ 41 Claims of ineffective assistance of counsel are generallyevaluated under the two-part test

set forth in Strickland, 466 U.S. at 687, and adopted by our supreme court in People v.

Albanese, 104 Ill. 2d 504, 525-26 (1984). People v. Harris, 225 Ill. 2d 1, 20 (2007). Under

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Strickland, defense counsel was ineffective only if (1) counsel’s performance fell below an

objective standard of reasonableness; and (2) counsel’s error prejudiced the defendant.

Failure to establish either prong is fatal to the claim. Strickland, 466 U.S. at 687; Pineda, 373

Ill. App. 3d at 117.

¶ 42 Defendant argues that counsel’s decision to acquiesce in the joinder of the charges had

the effect of allowing the jury to consider otherwise inadmissible other-crimes evidence,

which caused him to be prejudiced. First, defendant contends that, in the unlawfulpossession-of-a-weapon-by-a-felon case, the jury should not have considered the two

uncharged domestic violence incidents or the threats that accompanied those incidents.

Second, defendant argues that, in the misdemeanor domestic batterycase, the jury should not

have considered his prior felony conviction. We note that an erroneous jury instruction is a

matter separate from the joinder of the charges, but we conclude that the joinder of the

charges, coupled with the improper jury instructions, mandates new, separate trials with

precise jury instructions.

¶ 43 1. Unreasonable Performance

¶ 44 We assess counsel’s performance using an objective standard of competence under

prevailing professional norms. People v. Ramsey, 239 Ill. 2d 342, 433 (2010). To establish

deficient performance, the defendant must overcome the strong presumption that counsel’s

action or inaction was the result of sound trial strategy. Ramsey, 239 Ill. 2d at 433. As a

result, counsel’s strategic choices that are made after investigation of the law and the facts

are virtually unassailable. Ramsey, 239 Ill. 2d at 433.

¶ 45 We conclude that defense counsel’s representation fell below an objective standard of

reasonableness because the charges should not have been joined and there was no sound

defense strategy for agreeing to do so. A court may order two or more charges to be tried

together “if the offenses *** could have been joined in a single charge.” 725 ILCS 5/114-7

(West 2010). “Two or more offenses may be charged in the same [charging instrument] in

a separate count for each offense if the offenses charged *** are based on the same act or on

2 or more acts which are part of the same comprehensive transaction” (725 ILCS 5/111-4(a)

(West 2010)), unless it appears that the defendant will be prejudiced by joinder of the

separate charges (725 ILCS 5/114-8 (West 2010)). People v. Walston, 386 Ill. App. 3d 598,

601 (2008).

¶ 46 A trial court has substantial discretion in deciding whetherto severseparate charges, and

its decision will not be reversed on appeal absent an abuse of that discretion. Walston, 386

Ill. App. 3d at 600. An abuse of discretion occurs only where no reasonable person would

agree with the trial court’s ruling. Walston, 386 Ill. App. 3d at 601. The trial court here did

not address the joinder question directly, but instead allowed the charges to be joined because

the parties agreed to it. Thus, we have no application of discretion to review for abuse. See

Walston, 386 Ill. App. 3d at 601. In any event, however, we agree with defendant that the

weapons charges should not have been joined with the domestic battery charge.

¶ 47 A number of factors affect whether two or more crimes are part of the “same

comprehensive transaction” so as to be susceptible to joinder. The factors routinely are

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described as (1) “the proximity in time and location of the offenses”; (2) “the identity of

evidence needed to demonstrate a link between the offenses”; (3) “whether there was a

common method in the offenses”; and (4) “whether the same or similar evidence would

establish the elements of the offenses.” (Internal quotation marks omitted.) Walston, 386 Ill.

App. 3d at 601 (quoting People v. Gapski, 283 Ill. App. 3d 937, 942 (1996)).

¶ 48 First, “the proximity in time and location of the offenses,” the most helpful factor by far,

asks whether the offenses to be joined were close in time and location. As events become

separated by time and distance, the likelihood decreases that they may be considered part of

the same comprehensive transaction as is required by the statute. Walston, 386 Ill. App. 3d

at 603. “[N]o matter how similar two incidents are, incidents not occurring within a very

close time and space to one another will most likely be separate incidents.” Walston, 386 Ill.

App. 3d at 605.

¶ 49 In this case, the factor of proximity in time and location of the offenses is neutral. The

domestic battery and defendant’s constructive possession of the handgun and ammunition

both allegedly occurred at Hausler’s home. However, the evidence suggests that the handgun

was in defendant’s room when he allegedly committed the domestic battery. That incident

began outside, where defendant allegedly choked Hausler, and then moved into the living

room, where defendant allegedly pushed her into the television and shook her. Thus, the

offenses of domestic battery and unlawful possession of a weapon by a felon allegedly

occurred on the same premises, but in different locations on the premises. Defendant asserts

that, because Hausler discovered the handgun in December 2009 and the domestic battery

occurred in April 2010, the offenses have no temporal connection. However, there was

evidence that defendant had constructive possession of the handgun in December 2009 and

when he was taken into custody for the domestic battery. Thus, the evidence presented

creates a reasonable inference that defendant was in constructive possession of the handgun

when the domestic battery occurred.

¶ 50 Second, “the identity of evidence needed to demonstrate a link between the offenses” is

a factor that asks “not whether evidence of the two crimes is similar or identical but rather

whether the court can identify evidence linking the crimes.” (Emphases omitted.) Walston,

386 Ill. App. 3d at 605. For example, in People v. Quiroz, 257 Ill. App. 3d 576 (1993), the

appellate court noted that there was evidence linking two shootings to an alleged armed

robbery the defendant committed during his escape: during the time between the two sets of

crimes, the defendant had attempted to gain entrance into the home of a fellow gang member

as he fled the scene of the shootings. Quiroz, 257 Ill. App. 3d at 586. The defendant’s

intervening attempt to hide in the house linked his crimes of shooting two people and

stealing a carto escape. Quiroz, 257 Ill. App. 3d at 586. In this case, the domestic battery and

defendant’s unlawful possession of the handgun and ammunition cannot be linked by any

evidence. The State’s theory is that defendant’s constructive possession of the weapon and

his verbal threats caused Hausler not to report the December 2009 and March 2010 incidents

when they occurred. However, the existence of the weapon and defendant’s threats had no

such effect on Hausler on the date of the charged domestic battery. Hausler testified that,

within a few minutes of the domestic battery, she fled to her neighbor’s house and spoke to

the police, which creates the reasonable inference that defendant’s weapon and his threats

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to use it did not discourage Hausler from reporting the violent incident. Thus, the threats do

not link the domestic battery with the weapons offenses.

¶ 51 Third, the “common method” factor in the joinder analysis asks whether the offenses

were part of a “common scheme,” so that each of the offenses supplies a piece of a larger

criminal endeavor. Walston, 386 Ill. App. 3d at 606-07 (citing Quiroz, 257 Ill. App. 3d at 586

(three crimes were part of a common scheme where the last crime was committed in an

attempt to flee the scene of the first two)). In this case, the unlawful possession of the

handgun and ammunition can be viewed as part of a common scheme with each of the

uncharged domestic violence incidents but not with the charged domestic battery. Therewas

no evidence that defendant committed the charged domestic battery to facilitate his ongoing

possession of the handgun. Similarly, defendant’s possession of the handgun was not part of

a common criminal scheme in committing the charged domestic battery.

¶ 52 Fourth, the question of “whether the same or similar evidence would establish the

elements of the offenses” may be considered in the joinder analysis, but only if it is used to

determine whethermultiple offenses are part of a single comprehensive transaction. (Internal

quotation marks omitted.) Walston, 386 Ill. App. 3d at 607. In this case, defendant’s status

as a felon and his constructive possession of the handgun and ammunition, which are the

elements of the weapons charges, share no commonality with the evidence of his physical

contact with Hausler on the date of the arrest.

¶ 53 The first factor is neutral, and the remaining factors weigh against joinder of the charges.

We hold that the offenses of domestic battery and unlawful possession of a weapon by a

felon were not part of the same comprehensive transaction so as to warrant joinder.

¶ 54 The State contends that, while defense counsel’s decision to allow the joinder ultimately

failed, the decision was unassailable trial strategy. We disagree. The record shows that

defense counsel’s decision to go along with the joinder was based more on convenience than

strategy. In explaining why the parties had agreed on joinder, the prosecutor told the court,

“[A]t this point in time I have spoken to Counsel[;] both 10-CF-141 and 10-CM-409 are

scheduled for jury trial on the same date and the same time and we are asking that they be

heard at the same time.” To which defense counsel commented, “That’s correct.” Besides

scheduling, the temporal proximity of the offenses was the only reason given for joining the

cases.

¶ 55 The State characterizes the prosecution as a credibility contest between defendant and

Hausler, which is accurate considering that defendant denied the occurrence of any of the

domestic violence incidents, including the charged domestic battery, and denied discussing

a handgun with Hausler. Thus, the State asserts that joining the charges was defense strategy

because it “presented the best opportunity to challenge the credibility of the complaining

witness and possibly obtain an acquittal in both cases.” Exposing one’s client to only one

trial might be a sound strategy for minimizing the risk of conviction in some instances, but

not in this case. In the domestic battery case, the jury was improperly informed of

defendant’s status as a felon. See Montgomery, 47 Ill. 2d at 516 (prior conviction is not

admissible for impeachment purposes when the conviction is at least 10 years old). Similarly,

in the unlawful-possession-of-a-weapon-by-a-felon case, the jury was informed of the

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charged domestic battery, two instances of uncharged domestic violence, and the threats that

accompanied those uncharged incidents. Though prejudicial, this evidence was possibly

relevant to show defendant’s constructive possession of the weapon and to explain the timing

of Hausler’s reporting of the gun to the police. However, the evidence required a precise

limiting instruction to make these purposes clear. We view no strategic reason for counsel’s

acquiescence to the joinder, especially in light of counsel’s failure to attempt to fashion a

limiting instruction on other-crimes evidence. We hold that defendant has overcome the

strong presumption that counsel’s action was the result of sound trial strategy. See Ramsey,

239 Ill. 2d at 433.

¶ 56 2. Prejudice

¶ 57 To establish prejudice, the defendant must show that “ ‘there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.’ ” Pineda, 373 Ill. App. 3d at 117 (quoting Strickland, 466 U.S. at 694). “ ‘A

reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ”

Pineda, 373 Ill. App. 3d at 117 (quoting Strickland, 466 U.S. at 694). The prejudice

component of Strickland entails more than an “outcome-determinative test”; rather, the

defendant must show that counsel’s deficient performance rendered the result of the trial

unreliable or the proceeding fundamentally unfair. People v. Richardson, 189 Ill. 2d 401, 411

(2000); Pineda, 373 Ill. App. 3d at 117.

¶ 58 We conclude that defendant has met his burden to affirmatively prove prejudice. See

Strickland, 466 U.S. at 693; Pineda, 373 Ill. App. 3d at 117. Defense counsel’s improper

acquiescence to the joinder of the charges rendered the result of the trial unreliable. The

joinder and the use of a defective instruction, which we address later, created the reasonable

probability that the jury found defendant guilty of unlawful possession of a weapon by a

felon after improperly considering the two uncharged domestic violence incidents and the

threats that accompanied those incidents. Moreover, in the misdemeanor domestic battery

case, there is a reasonable probability that the jury improperly considered defendant’s prior

felony conviction. The fundamental fairness of the proceedings was compromised. See

Strickland, 466 U.S. at 696; Pineda, 373 Ill. App. 3d at 117.

¶ 59 B. Evidence of Threats

¶ 60 Because the issue is likely to arise at trial on remand, we address defendant’s argument

that the trial court committed reversible error in granting the State’s motion in limine and

admitting evidence of defendant’s threats. Hausler testified that, following a violent episode

in December 2009, defendant threatened to kill her if she called the police. Hausler also

testified that, following another violent episode in March 2010, defendant said that, if she

called the police, there would be a shootout and he would kill himself, her, and the police.

¶ 61 Other-crimes evidence encompasses misconduct or criminal acts that occurred either

before or after the alleged criminal conduct for which the defendant is standing trial. People

v. Spyres, 359 Ill. App. 3d 1108, 1112 (2005). Other-crimes evidence is admissible to prove

any material fact relevant to the case (People v. Donoho, 204 Ill. 2d 159, 170 (2003)), but is

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inadmissible if it is relevant only to demonstrate a defendant’s propensity to engage in

criminal activity (People v. Hendricks, 137 Ill. 2d 31, 52 (1990)). Such evidence may be

admissible when it is relevant to show, among other things, motive, intent, identity, absence

of mistake or accident, modus operandi, or the existence of a common plan or design. People

v. Wilson, 214 Ill. 2d 127, 135-36 (2005). However, relevant other-crimes evidence may yet

be excluded if its prejudicial effect substantially outweighs its probative value. People v.

Illgen, 145 Ill. 2d 353, 365 (1991).

¶ 62 The admissibilityof other-crimes evidence is left to the trial court’s sound discretion, and

we will not disturb that decision absent a clear abuse of discretion. Wilson, 214 Ill. 2d at 136.

A trial court’s determination constitutes an abuse of discretion if it is arbitrary, fanciful, or

unreasonable, or if no reasonable person would take the view adopted by the trial court.

Illgen, 145 Ill. 2d at 364.

¶ 63 On appeal, defendant does not challenge the trial court’s determination that the domestic

violence incidents in December 2009 and March 2010 were admissible under section 115-7.4

to show his propensity to commit the charged domestic battery. However, defendant argues

that his verbal threats that accompanied those incidents were not admissible for any purpose.

Hausler testified that defendant made the threats during the incidents that the trial court

already had ruled admissible to show propensity under section 115-7.4. One could argue that

the trial court would not have abused its discretion in also admitting the threats to show

propensity under section 115-7.4, because the threats were directly related to the domestic

violence incidents. See 725 ILCS 5/115-7.4 (West 2010); Dabbs, 239 Ill. 2d at 291; see also

Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 64 In any event, the trial court admitted the threats not to show propensity but to explain

Hausler’s failure to contact the police after the incidents in December 2009 and March 2010.

One could also argue that defendant’s threats were admissible to show defendant’s intent and

lack of mistake. The threats tended to make the existence of a material fact more or less

probable than it would have been without the evidence. Defendant testified, and defense

counsel argued in closing argument, that Hausler, not defendant, was upset on the day of the

offense. Defense counsel argued that defendant did not choke Hausler, but merely hugged

her. Defendant testified that he placed his hands on Hausler’s shoulders, but that he did so

only to look her in the eye. Defendant denied shaking Hausler, placing his hands around her

neck, or squeezing her, besides offering a hug. Defendant denied that the December 2009 and

March 2010 incidents occurred at all. Defense counsel also argued that Hausler was not

credible because she had failed to report the prior incidents. Thus, one could argue that

Hausler’s testimony about defendant’s threats was relevant to explain Hausler’s failure to

report the prior incidents and to establish that defendant intended to commit the domestic

battery and that, contrary to his testimony, the touching of Hausler was neither loving nor

gentle and was not a mistake. We conclude that, if admitted for these limited purposes in the

domestic batteryprosecution, Hausler’s testimonyabout defendant’sthreatswould have been

relevant other-crimes evidence. See Illgen, 145 Ill. 2d at 365. In the prosecution for unlawful

possession of a weapon by a felon, the evidence of defendant’s threats may very well have

been admissible to explain the timing of Hausler’s reporting of the weapon and to establish

defendant’s constructive possession of the weapon. When the charges of unlawful possession

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of a weapon by a felon are tried separately from the domestic battery charge, the trial court

must conduct a proper balancing test. We emphasize that our discussion is confined to the

specific evidence that was presented to the trial court and that we are not directing the trial

court to admit any particular evidence at the new trials on remand.

¶ 65 C. Jury Instruction

¶ 66 Finally, defendant contends that the verdict was unreliable because the jury was not

properly instructed on other-crimes evidence. Defendant argues that the trial court

erroneously (1) failed to give limiting instructions when witnesses testified to uncharged

conduct and (2) used jury instructions and verdict forms that did not distinguish between

charged and uncharged conduct. Defendant notes that at no time during the trial did the court

explain to the jury the difference between the charged conduct and the uncharged conduct.

Alternatively, defendant makes an undeveloped claim that defense counsel rendered

ineffective assistance where she failed to request proper instructions or to otherwise bring

the errors to the court’s attention.

¶ 67 We agree with defendant that the verdict was unreliable because, in light of the

instruction error, the convictions might have been based on uncharged conduct, including the

domestic violence incidents in December 2009 and March 2010, defendant’s threats

accompanying those incidents, and defendant’s prior felony conviction. These errors

compounded the joinder error and are reversible.

¶ 68 Jury instructions give the jurors the correct principles of law applicable to the facts so

they can reach a correct conclusion according to the law and the evidence. People v. Fuller,

205 Ill. 2d 308, 343 (2002). In a criminal case, the applicable Illinois Pattern Jury Instruction

“shall be used, unless the court determines that it does not accurately state the law.” Ill. S.

Ct. R. 451(a) (eff. July 1, 2006). In determining the adequacy of instructions, a reviewing

court will consider all the instructions as a whole to ascertain if they fully and fairly cover

the law. People v. Housby, 84 Ill. 2d 415, 433-34 (1981).

¶ 69 In this case, the State tendered the following instruction on other-crimes evidence:

“Evidence has been received that the defendant has been involved in conduct other

than those charged in the indictment.

This evidence has been received on the issues of defendant’s intent, motive, design,

knowledge, absence of mistake, and propensity.

It is for you to determine whether the defendant was involved in that conduct and if

so, what weight should be given to this evidence on the issues of the defendant’s intent,

motive, design, knowledge, absence of mistake, and propensity.”

¶ 70 Before trial, the trial court asked defense counsel whether she had any objection to the

instruction or whethershe would like it read before the other-crimes evidence was admitted.

Counsel stated that she had no objection to the instruction but did not want it read when the

evidence was introduced, because she feared that the instruction would confuse the jury.

¶ 71 When the State presented the stipulation that defendant had been previously convicted

of a felony in Cook County, the trial court advised the jury that “[t]his information

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concerning the agreement of these facts can be used by you like any other evidence in this

case to come to your verdict.” Thus, the court did not instruct the jury that defendant’s status

as a felon was to be considered for the limited purpose of determining his guilt or innocence

on the charges of unlawful possession of a weapon by a felon, but rather that it could be

considered for any relevant purpose, including propensity to commit domestic battery.

¶ 72 At the jury instruction conference, the trial court remarked that “you have to find out

which statements would be for propensity.” Defense counsel again said that she had no

objection to the State’s instruction and commented that any change to the instruction would

confuse the jury. The court suggested that “if you were gonna try to spell it out the way it

really actually is,” then the instruction would state that “this and this and this is just for

propensity and these things are for all the other issues.” Defense counsel rejected the court’s

suggestion as too confusing for the jury and asked that the instruction be given as submitted.

Before instructing the jury, the court remarked that “I think it probably could be reworked,

but I think this is too complicated to do that.” Defense counsel reiterated that she would not

object to the instruction and reasoned that the court had already allowed the admission of the

other-crimes evidence. The trial court gave the instruction, without modification, as tendered

by the State and agreed to by defense counsel.

¶ 73 The agreement between the prosecution and defense counsel notwithstanding, we agree

with defendant that the trial court committed reversible error in failing to give the jury a

precisely tailored version of Illinois Pattern Jury Instructions, Criminal, No. 3.14 (4th ed.

2000) (hereinafter IPICriminal 4th No. 3.14). IPICriminal 4th No. 3.14 provides as follows:

“[1] Evidence has been received that the defendant[s] [(has) (have)] been involved

in [(an offense) (offenses) (conduct)] other than [(that) (those)] charged in the

[(indictment) (information) (complaint)].

[2] This evidence has been received on the issue[s] of the [(defendant’s)

(defendants’)] [(identification)(presence)(intent)(motive)(design) (knowledge) (____)]

and may be considered by you only for that limited purpose.

[3] It is for you to determine [whether the defendant[s] [(was) (were)] involved in

[(that) (those)] [(offense) (offenses) (conduct)] and, if so,] what weight should be given

to this evidence on the issue[s] of ____.”

¶ 74 Moreover, the preferred practice is for the trial court to instruct the jury, not only at the

close of the case, but also when other-crimes evidence is admitted, of the limited purpose for

which it may consider the other-crimes evidence. People v. Heard, 187 Ill. 2d 36, 60-61

(1999) (citing People v. Denny, 241 Ill. App. 3d 345, 360-61 (1993)); Illinois Pattern Jury

Instructions, Criminal, No. 3.14, Committee Note (3d ed. Supp. 1996).

¶ 75 The trial court abused its discretion in failing to tailor IPI Criminal 4th No. 3.14 based

on the evidence presented, and that error compounded and amplified the joinder error. First,

in the unlawful-possession-of-a-weapon-by-a-felon case, clearly the jury should not have

considered for propensitythe charged domestic battery, the two uncharged domestic violence

incidents, or the threats that accompanied those uncharged incidents. Second, in the

misdemeanor domestic battery case, the jury should not have been instructed that it could

consider for propensity defendant’s prior felony conviction, the threats defendant allegedly

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made to Hausler , and the evidence of defendant’s gun possession. 1

¶ 76 Defendant concedes that he did not object below to the trial court’s alleged errors in

instructing the jury and that, therefore, the issue is forfeited. See People v. Herron, 215 Ill.

2d 167, 175 (2005) (both an objection at trial and raising the issue in a posttrial motion are

necessary to preserve the issue for appellate review). However, under Illinois Supreme Court

Rule 451(c) (eff. July 1, 2006), where a jury instruction suffers from a substantial defect,

claims of error are not subject to forfeiture on appeal. An erroneous instruction constitutes

a substantial defect, or plain error, when the instruction created a serious risk that the

defendant was incorrectly convicted because the jury did not understand the applicable law,

so as to threaten the fundamental fairness of the defendant’s trial. People v. Durr, 215 Ill. 2d

283, 299 (2005). To prevail, the defendant need not prove that the error in the instruction

actually misled the jury. Herron, 215 Ill. 2d at 193. “When there is error in a close case, we

choose to err on the side of fairness, so as not to convict an innocent person.” Herron, 215

Ill. 2d at 193. Plain error arises in two circumstances: (1) when the flawed instruction was

provided in a case where the evidence was closely balanced or (2) when the flaw in the

instruction is “grave” or so serious that it denied the defendant a substantial right and

undermined the integrity of the judicial process. Herron, 215 Ill. 2d at 178-79. Here,

regardless of the closeness of the evidence, the instruction error was so grave that it denied

defendant a fair trial and undermined the integrity of the judicial process.

¶ 77 The State argues that the convictions must be affirmed because defendant invited the jury

instruction error. Plain-error review is forfeited when a defendant invites the error. “[A]

defendant’s invitation or agreement to the procedure later challenged on appeal ‘goes beyond

mere waiver.’ ” People v. Harvey, 211 Ill. 2d 368, 385 (2004) (quoting People v. Villarreal,

198 Ill. 2d 209, 227 (2001)). Invited error is sometimes referred to as an issue of estoppel in

that a defendant may not request to proceed in one manner and later contend on appeal that

the course of action was in error. Harvey, 211 Ill. 2d at 385. To allow a defendant to use the

exact ruling or action procured in the trial court as a vehicle for reversal on appeal would

offend notions of fair play, encourage defendants to become duplicitous (Harvey, 211 Ill. 2d

at 385), and deprive the State of the opportunity to cure the alleged defect (People v. Bush,

214 Ill. 2d 318, 332 (2005)). Where the defendant invited the error, our supreme court has

declined to address any related plain-error claim. See, e.g., People v. Patrick, 233 Ill. 2d 62,

77 (2009).

¶ 78 That said, the concerns underlying the invited error rule are not present here. First, the

prosecution introduced the flawed instruction and offered no suggestion for curing the defect,

even when it was pointed out by the trial court. Second, defense counsel’s conduct was not

duplicitous. We acknowledge that counsel persistently declined the trial court’s overtures to

modify the instruction, but counsel’s tactic was less an invitation of error than an attempt to

mitigate jury confusion that could result from a convoluted instruction. Under these unique

facts, granting defendant relief for the instruction error is not unfair to the State.

Such an instruction on the threats as other-crimes evidence would be predicated on the trial

1

court’s determination that the threats were not admissible to show propensity under section 115-7.4.

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¶ 79 Rather than taking the untenable position that the instruction accurately stated the law,

the State argues that we should disregard defendant’s claim of error because the prosecution

and defense counsel agreed to use the flawed instruction at trial. To adopt the State’s position

would be to condone a grave error that prejudiced defendant’s right to a fair trial and

undermined the integrity of the judicial process, with the sole justification being that the

prosecution and defense counsel stipulated to the error and the trial court grudginglyaccepted

the stipulation.

¶ 80 We recognize that the prosecution and defense counsel, especially, placed the trial court

in a difficult position. The error in trying the domestic battery charge with the weapons

charges did not manifest itself until it was time to instruct the jury. By then, it was too late

to untangle the evidence to make it understandable for the jury. The court was left with three

bad options: (1) use a simple instruction that misstated the law, (2) use an accurate

instruction that was so convoluted that the jury likely could not follow it, or (3) declare a

mistrial and start over with separate trials and precise instructions. At the attorneys’

prodding, the court chose the first option; but in hindsight, the third option was the only way

to cure the error. We acknowledge the trial court’s predicament, but we hold that defendant

must be granted new trials because the cumulative error in this case was so egregious.

¶ 81 Our holding that defense counsel did not invite the jury instruction error is further

supported by People v. Brown, 319 Ill. App. 3d 89, 99 (2001), where the trial court used a

flawed version of IPI Criminal 4th No. 3.14 such that the jury was not informed that the

other-conduct evidence could be considered solely on the issues previouslyenumerated. The

Appellate Court, Fourth District, held that the instruction “failed to convey the correct

principles of law to the jury,” which was reversible error even though the defendant did not

object at trial or on appeal. Brown, 319 Ill. App. 3d at 99.

¶ 82 To the extent that certain other-crimes evidence might be admissible in the new, separate

trials, the trial court may determine those purposes, depending on the specific evidence

presented. We note that, as we are remanding the cause for separate trials on the weapons

charges and on the domestic battery charge, no other-crimes instruction on the prior

conviction will be necessary in the trial on domestic battery because the prior conviction

would be inadmissible for any purpose in that trial.

¶ 83 III. CONCLUSION

¶ 84 Our reversal of defendant’s convictions raises the double jeopardy issue. The double

jeopardy clause of the United States Constitution prohibits the State from having another

opportunity to try a case unless it has in the first trial presented sufficient evidence to prove

the defendant guilty beyond a reasonable doubt. People v. Macon, 396 Ill. App. 3d 451, 458

(2009). Thus, before remanding for a new trial, double jeopardy requires the appellate court

to rule upon the sufficiency-of-the-evidence issue. People v. Taylor, 76 Ill. 2d 289, 309

(1979). We have carefully reviewed the record in the light most favorable to the prosecution

and conclude that the evidence sufficiently supports the verdict beyond a reasonable doubt.

Our determination, however, is not binding on retrial and does not indicate this court’s

opinion as to defendant’s guilt or innocence.

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¶ 85 For the reasons stated, we reverse defendant’s convictions and remand the cause for new

trials: one for domestic battery and one for the two counts of unlawful possession of a

weapon by a felon.

¶ 86 Reversed and remanded with directions.

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