## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellee
, v. DARYL L

. J OHNSON, Def

endant- Appellant.

– P EOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellee
, v. DARYL L

. J OHNSON, DefendantAppellant.

District & N o. Second District Docke t Nos. 2-11-0535, 2-11- 0782 cons.

Filed May 31, 2013

Held (Note : This syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s convictions for domestic battery and unlawful possession of

a wea pon by a felon wer e vaca ted and the cause was rema nded for two separ ate trials, since defe ndant’s counsel’s ineffe ctiveness in agree ing to the joinder of the char g es, acc ompanied b y the trial court’s improper instructions on other-c rimes evidence, especia lly the lack of instruction

on the limit ed purpo s e fo r which the other-c rimes evidenc e was to be considered, prejudice d defe ndant and resulted in plain err or that undermined the integ rity

of the judicial proc ess.

Dec ision Under
Review Appea l f rom the Circuit Court of Kenda ll County
, Nos. 10-CF- 141, 10- CM-409; the Hon. J ohn A. B arsa nti, J udg e, pre siding.

J udg ment Reverse d and re manded with dire ctions.Counsel on

Appea l Thomas A. L ilien and Yase min Eken, both of State Appellate Def ender ’s Offic e, of Elg in, for appe llant.

Eric C. Weis, State’s Attorney
, of Yorkville (L awr en ce M

. Ba uer and Richard S. L ondon, both of State’s At torney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel PRES I DI NG J U ST I CE B U RK

E d elivere d the judgme nt of the court, with opinion.
J ustices J org ensen a

nd Hudson conc urre d in the judgme nt and opinion.

OP INION

¶ 1 At a jury trial, the State introduced evidenc e that, on April 29, 2010, defe ndant, Dar yl L

. J ohnson, choked, g rabbe d, and shoved his g irlfri en d
, Chery l Hausler
, and that the police

rec overe d a handgun and ammunition from defe ndant’s room i n Ha u s l er ’s home the next day

. The jury

found def

endant guilty

of two counts of unla

wful possession of a wea

pon by

a felon (see 720 I L CS 5/24-1.1(a) (West 2010)) and one count of misdemeanor d o m es t i c battery (see 720 I L CS 5/12-3.2(a) (2) (West 2010)). The trial court imposed concur rent terms of 6 y ear s in prison on the wea pons convictions and 365 day s in jail on the domestic battery conviction. ¶ 2 Def

endant appea ls, alleg ing the following trial erro rs : (1 ) d ef en s e co unsel rende red ineffe ctive assistance when she agree d to join the wea pons char g es with the domestic battery char g e; (2) the trial court errone ously admitted evidenc e of de fenda nt’s threats to Hausler; (3) the use of a defe ctive jury instruction reg arding other-c rimes evidenc e is plain err or; and (4) the cumulative eff

ect of these err ors deprive d defe ndant of a fair trial. We conclude that defe nse counsel was ineffe ctive in agree ing to join the char g es and that the jury was incorre ctly instructed in sever al respe cts. We hold that defe nse counsel’s ineffe ctiveness in
agree ing t o the joinder of charg es and the trial court’s use of an incorre ct jury instruction

wer e reve rsible er ro rs t h at deprive d defe ndant of a fair trial. The joinder err or and the instruction err or wer e intertwined, which amplified the prejudice to defe ndant. We vacate the convictions and r emand the c ause f or new , separ ate tria ls.

¶ 3 I . FACTS ¶ 4 De fe n d an t was char g ed by indictment in case number 10-CF- 141 with two counts of unlawful possession of a wea pon by a felon. “It is unlawful for a person to knowing ly

-2-possess on or about his person or on his land or in his own abode or fix ed place of business

* * * an y firea

rm or any firea

rm ammunition if the person has been convicted of a fe l o n y under the laws of this State or any other jurisdiction.” 720 I L CS 5/24-1.1(a) (West 2010). The first count alleg ed that defe ndant knowing ly possessed a firea rm, and the second count alleg ed that def

endant knowing ly

possessed fire arm ammuniti on. ¶ 5 In case number 10-CM-409, defe ndant wa s ch arg ed by complaint with misdemeanor domestic battery ag ainst Hausler

. A person commits domestic battery if he or she knowing ly without leg al justification by any means makes phy sical contac t of an insulti ng or provoking
nature with any family or household member. 720 I L CS 5/12-3.2(a) (2) (West 2010). The char g e allege d that defe ndant repeate dly ch o k ed Hausler and pushed her in the collarbone

are a, causing her to strike her back on a television enter tainment cente r. The parties agree d to join the three c harg es for purposes of a

jury trial.

¶ 6 A. Pretrial Motions ¶ 7 Be fore trial, the State moved to introduce evidenc e of other domestic violence incidents to show defe ndant’s propensity to c ommit the char g ed domestic battery

. The common-law rule is that other-c rimes evidenc e is not admissible to s h o w a d ef endant’ s propensity to commit crimes. People v. Dabbs
, 239 I ll. 2d 277, 283 (2010); see I ll. R. Evid. 404(b) (eff

. J an. 1, 2011). Howeve r, by statute, the leg islature has made exceptions to that rule in a few specific are as, such as domestic batterie s (725 I L CS 5/115-7.4, 115-20 (West 2010)). Dabbs
, 239 I ll. 2d at 291; see I ll. R. Evid. 404(b) (re cogniz ing statutory exceptions to the g ener al rule of inadmissability). In those instances, evidenc e of a defe ndant’s commission of a prior qualifying of

fense may

be admitted, in the trial court’s di scre tion, to show the def endant’ s propensity to commit the char g ed offe nse if, afte r weighing cer tain statutory fac tors, the trial
court deter

mines that the probative value of the evidenc e is not substantially outweig hed by the risk of undue prejudice

. See 725 I L CS 5/115-7.4 (West 2010); Dabbs
, 239 I ll. 2d at 291;

see a lso I ll. R. Evid. 403 (eff. Jan. 1, 2011). ¶ 8 Section 115-7.4 provides that, in weighing the probative value of the evi d en ce against the pre judice to the def

endant, the tr ial court may consider (1) the proxi mity in time to the char g ed or predic ate offe nse; (2) the degree of fac tual simil arity to the char g ed or predic ate offe nse; and (3) other rele vant fac ts and circ umstances. 725 I L CS 5/115-7.4(b) (West 2010). ¶ 9 The State submitt ed written statements s i gn ed b y Ha u s l er , wh i ch s h e g ave a fter defe ndant’s arr est. Def

ense counsel objected to the ev i d en ce as prejudicia l and irrele vant. The trial court found cer

tain statements to be admissible under section 115-7.4. Specifica lly
, Hausler descr ibed two day s on which defe ndant alleg edly committed domestic violence
ag ainst her be fore he committed the cha rg ed off ense in Apr il 2010. ¶ 10 The court ruled that Hausler could testify that, in Dec ember 2009, defe ndant pushed her and shook her very hard. Hausler also could testify that, in Marc h 2010, defe ndant g rabbe d

a phone from her hand, shook her by the shoulders, flipped over a rec liner in which she was sitti ng , held her

down, and thre w a c offe e table, which struck he r leg s, bruising one

. ¶ 11 The court also found t hat, t houg h not admissible under sec tion 115-7.4, cer tain threats that defe ndant alleg edly made during the Dec ember 2009 and Marc h 2010 i n ci dents wer e

-3-admissible for purposes other than to show propensity

. Specifica lly
, Hausle r c o u ld te s ti f y th a t defe n d an t threatened to kill her and “have a shootout” with the police if she repor ted his conduct to the police. The court commented that “ the fa ct-finde r would want to know why [Hausler] didn’t report it” to the police. ¶ 12 Be fore trial, the parties stipulated to defe ndant’s prior felony conviction for purposes of the char g es of unlawful possession of a wea pon by a felon. The State agree d that, if defe ndant testified, his prior felony conviction was inadmissible for impeachme nt purposes, beca use it was more than 10 y ear s old. See People v. Montgomery
, 47 I ll. 2d 510, 516 (1971) (a witness’s prior conviction is admiss i b le for impeachme nt purposes only wher e (1) the crime was punishable by death or imprisonment of more than one y ear , or the crime involved dishonesty or a false statement; (2) the conviction is le ss than 10 year s old; and (3) the trial judge deter

mines that the probative value of the evidenc e is not substantially outweig hed by the dang er of

unfair pr ejudice)

.

¶ 13 B. The Trial ¶ 14 Hausler testified that she and defe ndant beg an cohabiting in her home in Novem b e r 2 0 09. Def endant had his own room wher e he kept hi s persona l b el o n g ings, and he did not allow
anyone else to e nter his r oom. At 7:40 a.m. on April 29, 2010, Hausler awoke and took he r dog s to the backyard. As she called the dog s back to the house, she walked backw ard, turned around, and saw de fenda

nt standing r ight in fr ont of her. H ausler testified that she is 5 fee t 3 inches tall, while defe ndant is at least 6 fee t 1 i n ch t al l

. Def endant stood 9 to 10 inches

awa y , g laring down at Hausler and holdi ng a travel mug with coff ee. Defe ndant s ai d, “Do
you rea liz e I ’ve been drinking this coff ee for two day s? ” Def

endant sounded angry

. Hausler replied that defe ndant should “ make more coff ee if [he] want[ed] more coff ee.” Def endant responde d, “Do you rea liz e y esterda y was my birthday ? ” Hausler told him that she did not. ¶ 15 Def

endant’ s voice beca

me louder, and he moved closer to Hausler

. Def endant said, “Do
you rea liz e today is m y m o t h er’ s birthday ? And she was murdere d on my 13th birthday .” Def endant put down hi s mug, gr abbed Hausler by the throat, a

nd squeezed unti l she could
not breathe. Defenda

nt pushed Ha u s l er into the l iving room and int o the t elevision, which almost fell off the stand. Def endant g rabbe d her by the shoulders and shook her hard, telling her, “ the only

way to make you listen is to s hake you.” ¶ 16 Def

endant stopped s haking Hausler and walked toward the door. Hausler waited a couple minutes an d t h o u g ht about what she should do next. She was scar ed, nervous, and upset. After defe ndant calmed down, Hausle r told him that she neede d to take the puppy outside. ¶ 17 Def

endant went to the bathroom, an d Ha u s l er walked acr oss the street to the house of Michae l I sabell. I s abell called 911, and Hausler tol d the operator what had happened. The police ar rived a short time later. ¶ 18 The next day
, Hausler called the police and asked them to retrie ve a gun from her home. Hausler testified that she had found the gun in Dec ember 2009, while defe ndant was on the road for his job as a cross-c ountry truck driver. Hausler found the gun in a black nylon ba g in defe ndant’s bedroom. During a telephone conver sati o n l ater that month, Hausler told defe ndant that she found the gun and did not want it in the house. Def endant replied that he

-4-neede d the gun to protect her and the house. Def endant was upset that Hausler had enter ed his room. ¶ 19 Hausler testified that, on another occa sion in Dec ember 2009, defe ndant pushed her into the kitchen counter and the sink. Hausler sat on the sofa, and defe ndant started shaking her. Hausler struck her head on the back of the sofa. S h e d i d n o t call the police, beca use defe ndant threatened to kill her if she did so. ¶ 20 Hausler testified to another inc ident in Ma rch 2010, which was a few wee ks befor e the char g ed offe nses occur

red. Hausler was in the kitchen when defe ndant g rabbe d her cell phone and started shaking her. Defenda nt followed Hausler around s o s he could not leave the house. Hausler sat in a rec liner in the living room, and defen d an t l i ft ed the chair and flipped Hausler over. L ater the same d ay , d ef en dant ag ain took Hausler ’s phone and also threw her laptop computer. Def endant then picked up the coff ee table and threw it at Hausler
, hitting both of her legs

. Ha u sler suffe red a larg e bruise on her rig ht thigh. Def endant told Hausler that, if she called the police, the re would be a shootout and he would kill himself, her, a nd the police. ¶ 21 On cross-e x amination, Hausler testified that she never g ave defe ndant a key to her home

. As a t ruck driver, defe ndant would be g one for sever al day s at a time. Over all, def en d an t would stay at her h o u s e ab o u t half the time. Hausler alway s was home when defe ndant
returne d, and she allowed him back into the hom e. H au s l er ’s son, Tyler, had acc ess t o the entire house. Also, a person named J ohn Gamble was renting a room. Gamble lived mostly in the baseme nt, but he had acc ess to the entire house. The police discovere d the gun in what used to be Tyler’s room. Def endant had taken over the room, afte r which Tyler never enter ed it. ¶ 22 When Hausler discovere d the gun in Dec ember 2009, she told Tyler, who told her to call the police. Hausler acknow ledg ed that she did not contac t the police afte r the Dec ember 2009
gun discovery

or the Mar ch 2010 domestic violenc e incident. ¶ 23 On redire ct examination, Hausler testified that, when Gamble moved out, he took all of his belong ings. When Tyler moved out of the room that defe ndant took over, he remove d all of his things from the room. Haus l er t es t ified that she waited to call the police beca use defe ndant had thre atene d her a nd she wa s afr aid. ¶ 24 I sabell t estified that, on the morning of April 29, 2010, Hausler walked bare foot to his house. Hausler was cry

ing and shaking

. I s abell saw that her neck had red marks, which looked like they wer e cause d by “squee zing.” I sabell called 911 and handed the phone to Hausler

. ¶ 25 Serg eant No rm an Al l ison testified that he was dispatched to a “domestic battery ” in
prog ress. The Plano police station was right around the corne r from Hausler ’s home, so he

arr ived in a matter

of sec onds. Serg eant Allison enc ountere d Hausler , who still was acr oss the street with I sabell. Hausler was cry ing and “kind of shaken up.” Two other office rs

arr ived and went with Serg eant Allison to Hausler ’s home, wher e they arr ested defe ndant in the backyar d

. Serg eant Allison returne d to Hausler and saw a very faint red mark on her neck. Serg eant Allison asked Hausler whether the mark was a “tan line,” and she answe red that she and defe ndant had an altercation in the hous e and that defe ndant pl ace d his hands

-5-around he r nec k.

¶ 26 Detec tive Gene Morton tes t i fi ed that defe ndant waived his Miranda rights and spoke about t h e i n ci dent. Defenda nt told Detec tive Morton that he was g oing to g et s ome coffee when Hausler enter ed the kitchen. Def endant “kind of spun her around” beca use they wer e continuing an argument from the previous day

. Def endant admitted that he g rabbe d Hausler by the shoulders and turned her around. Def endant did not indicate that there was any other phy sical conta ct. ¶ 27 Detec tive Morton testified that, the day afte r defe ndant’s arr est, he and Serg eant Allison
went to Hausler ’s house afte r she asked them to retrie ve a gun. Hausler signe d a consent-tosear ch form and direc ted the office rs to a bedroom, which contained male clothing, including
army fatigues, and identification and paper work belong ing to de fenda nt. D etec tive Morton testified that he saw bag s, “like suitcases,” along two walls

. De t ec t ive Morton saw on the floor an unzipped, black bag that contained a gun, ammunition, and two reloa ders. The gun was loade d with six rounds. ¶ 28 Ki m b er l y Ho o d
, a fore nsic scientist, testified as an exp er t i n t h e ex am i n at i o n , compar ison, and identification of fing erpr ints. She found a finge rprint on the gun that was suitable for c omparison, but it did not m atch de fenda nt. ¶ 29 The State prese nted the stipulation that d ef en d an t p re viously had been convicted of a felony in Cook County

. The trial court advised the jury that “[t] his infor mation c oncer

ning the agree ment of these fac ts can be used by you like any other evidenc e in this case to come to y our ver dict.” ¶ 30 Def

endant testified t h at , o n the morning of the incident, he was living with Hausler, Tyler, and Gamble. Def

endant saw friends come to the house “almost ever y day .” On April 29, 2010, defe ndant was in t h e kitchen making coff ee when Hausler enter ed the room. Def endant asked if he could drink some coff ee, and Hausler appr o ached him and asked whose coff

ee he would be drinking

. Def endant responde d that it was his, and Hausler looked perple x ed. Def

endant place d his arms around her in a hug

. Def endant asked why she did not

reme mber that it was his birthday
, since they had made plans to cele brate

. Def endant place d his hands on Hausler ’s s houlders because he could not see things t h at we re n o t in front of him. Def endant held onto her shoulders and phy sically turned her around so she could look him in the ey e. De fenda

nt denied shakingHausler or plac ing his ha

nds on her ne ck. ¶ 31 Def

endant spoke to Hausler for about two minutes and turned to retrie ve his coff ee, a nd when he turned back
, Ha u sler was g one. Def endant went to the backyard and smoked a cig are tte at the picnic ta

ble. The police arr ived about five minutes later. ¶ 32 Def

endant denied that the Dec e mb e r 2 0 0 9 a n d M a r c h 2 0 1 0 in c id e n

ts occur red. D efe ndant also denied discussinga gun with Hausler. ¶ 33 On cr o s s-examination, defe ndant testified that Gamble had pro p er t y at t h e h o u s e. Def endant ad m i t t ed that he kept his car s, clothes, persona l hyg iene kit, and paper work at Hausler ’s home, but he stated that he kept belong ings in ever y room. Def

endant admitted that he left his clothes and other items in one of the bedrooms and woul d b e up s et if a person went throug h his things. Def endant testified that there was no lock on the bedroom door and that he neve r told Hausler that he wa

nted people to stay

out.

-6-¶ 34 On redire ct examination, defe ndant testified that, when he moved into Hausler ’s home,

the bedroom he used contained cer tain ite m s that wer e not his, including a pair of men’s boots, a saxophone, a base ball, and base ball bats. ¶ 35 The trial court in s t ru ct ed t h e j u ry t hat it could consider the evidenc e of def endant’ s “conduc t other than those char g ed in the indictment,” for purposes of “intent, motive, desig n, knowledg e, absenc e of mistake, and propensity .” The jury found defe ndant gui l t y of domestic battery and both wea pons char g es. The court imposed concur rent terms of 6 y ear s’ imprisonment on the wea pons convictio n s and 365 day s in jail for the domestic battery

. Def endant f iled these timely

appea ls, which we c onsolidated.

¶ 36 I I . ANALYSI S ¶ 37 On appea l, defe ndant argues that he is entitled to new, separ ate trials on t h e we ap o n s char g es and the domestic b at t er y charg e beca use (1) defe nse counsel rende red ineffe ctive assistance by agree ing to join the wea pons char g es with the domestic battery char g e; (2) the trial court err oneously allowed Hausler to testify about threats defe ndant made during the Dec ember 2009 and Marc h 2010 incidents; (3) the use of a d efe ctive jury instruction
reg arding other-c rimes evidenc e is plain err or; and (4) the cumulative eff ect of these err ors deprive d defe ndant of a

fair tr ial. ¶ 38 We conclude that defe nse counsel was ineffe ctive in agree ing to join the char g es and that the jury was incorre ctly instructed on o t h er -cr imes evidenc e, on defe ndant’s prior felony conviction, and on the evidenc e conce rning the firea rm and ammunition. We hold that defe nse counsel’s ineffe ctiveness in agree ing to the joinder of the char g es and the trial court’s use of an incorre ct ju ry i n struction deprive d defe ndant of a fair trial. Def endant is entitled to new, separ ate t ri al s : one for domestic battery and one for the two counts of unlawful possession of a

wea pon by a fe lon.

¶ 39 A. J oinder of Cha rg es and I neff ective A ssistance ¶ 40 Def

endant arg

ues that his counsel rende red ineffe ctive assistance by agree ing to join the domestic battery char g e with the char g es o f unlawful possession of a wea pon by a felon. Both the United States and I llinois Constitutions guara ntee a defe ndant the rig ht to eff ective assistance of counsel. See U.S. Const., amend. VI ; I ll. Const. 1970, art. I
, § 8. The purpose of this guara

ntee is to ensure that the defe ndant rec eives a fair trial. Strickland v. W ashington
, 466 U.S. 668, 6 8 4 -8 5 (1 9 8 4); People v. Pineda
, 373 I ll. App. 3d 113, 117 (2007). The ultimate focus of the inquiry is on the fundamenta l fairne ss of the cha lleng ed proc eeding s. Strickland
, 4 6 6 U. S

. at 696; Pineda
, 373 I ll. App. 3d at 117. “Howe ver, there is a strong presumption of outcome reliability
, so to preva il, a defe ndant must show that counsel ’s conduct ‘so undermined the proper functioning of the adver sarial proce ss that the trial cannot be relied on as having produce d a just result.’ ” Pineda
, 373 I ll. App. 3d at 117 (quoting Strickland , 466 U.S. at 686). ¶ 41 Claims of ineffe ctive assistance of c o u n s el are g ener ally evaluated under the two-par t test

s et forth in Strickland
, 466 U.S. at 687, and adopted by our supreme court in People v. Albanese
, 104 I ll. 2d 504, 525-26 (1984). People v. Harris
, 225 I ll. 2d 1, 20 (2007). Under

-7-Strickland
, defe nse counsel was ineffe ctive only if (1) counsel’s perf ormanc e fell below an objective standard of rea sonablene ss; and (2) counsel’s err o r p re judiced the defe ndant. Fa ilure to establish either prong is fata l to the claim. Strickland
, 466 U.S. at 687; Pineda
, 373 I ll. App. 3d at 117. ¶ 42 Def

endant arg

ues that counsel’s decision to ac quiesce in the joinder of the char g es had the eff ect of allowing the jury to consider otherwise inadmissible other- cr i m es evidenc e, whi ch cause d him to be prejudice d. First, defe ndant contends that, in the unlawfulpossession-of-a -we apon-by-a- felon case , t he jury should not have considere d the two unchar g ed domestic violence incidents or the threats that acc ompanied those incidents. Second, defe ndant argues that, in the misdemeanor domestic battery case , the jury should not have considere d his prior felony conviction. We note that an err oneous jury instruction is a matter separat e fr o m t h e joinder of the char g es, but we conclude that the joinder of the char g es, coupled with the improper jury in s t ru ctions, mandates new, separ ate trials with
prec ise jury

instructions.

¶ 43 1. Unre asonable Perfor mance ¶ 44 W e as s es s co u n s el’s perf ormanc e using an objective standard of competenc e und er preva iling profe ssional norms. People v. Ramsey
, 239 I ll. 2d 342, 433 (2010). To establish defic ient perf

ormanc e, the defe ndant must overc ome the strong presumption that counsel’s action or inaction wa s the result of sound trial strategy

. Ramsey
, 239 I ll. 2d at 433. As a result, counse l’s strateg ic choices that are made a fter inve stiga tion of the law a

nd the fa cts

are virtually

unassailable. Ramsey , 239 I ll. 2d at 433. ¶ 45 We conclude that defe nse counsel’s repr esentation fe ll below an objective standard of

rea son ablene ss beca

use the char g es should not have been joined and there was no sound defe n s e s t rateg y for agree ing to do so. A court may order two or more char g es to be tried toge ther “if the offe nses *** could have been joined in a single char g e.” 725 I L CS 5/114-7 (West 2010). “Two or

more off enses may be charg ed in the same [charg ing instrument] in

a separ ate count for eac h offe nse if the offe nses char g ed *** are based on the same act or on 2 or more acts which are part of the same compre hensive transac tion” (725 I L CS 5/111-4(a) (W es t 2 010)), unless it appea rs that the defe ndant will be prejudice d by joinder of the
separ ate char g es (725 I L CS 5/114-8 (West 2010)). People v. W alston
, 386 I ll. App. 3d 598, 601 (2008). ¶ 46 A trial court has substantial discretion in deciding whether to sever separ ate char g es, and its decision will not be r ever sed on appea l a bsent an abuse of that discre tion. W alston , 386 I ll. App. 3d at 600. An abus e o f d i scre tion occur s only wher e no rea sonable person would
agree with the trial court’s ruling

. W alston
, 386 I ll. App. 3d at 601. The trial court here did
not addre ss the joinder question direc tly
, but instead allowed the char g es to be joined beca use the parties agree d to it. Thus, we have no application of discretion to r eview for abuse. See W alston
, 386 I ll. App. 3d at 601. In any event, howeve r, we agree with defe ndant t h at the

wea pons char g es should not have be en joined with the domestic ba ttery char g e. ¶ 47 A number of fac tors aff ec t wh et h er t wo o r m o re cr i m es ar e part of the “same compre hensive transac tion” so as to be susceptible to joinder. The fac tors routinely ar e

-8-descr ibed as (1) “the proxi mity in time and locat i o n o f t h e offe nses”; (2) “the identity of

evidenc e needed t o demonstrate a link betwee n the offe nses”; (3) “whe ther there was a

common method in the offe nses”; and (4) “whe ther the same or simil ar evidenc e would establish the elements of the offe nses.” (Interna l quotation marks omitted.) W alston
, 386 I ll. App. 3d at 601 (quoting People v . Gapski , 283 I ll. App. 3d 937, 942 (1996)). ¶ 48 First, “the proxi mity in time and location of the offe nses,” the most helpful fac tor by far
, asks whether the offe nses to be joined we re close in time and location. As events become
separ ated by time and distance, the likelihood decr ease s that they may be considere d part of the same compre hensive transac tion a s is r equire d by the statute. W alston
, 386 I ll. App. 3d
at 603. “[ N] o m att er how simil ar two incidents are , incidents not occur ring within a very close time and space to one another will most likely be separ ate incidents.” W alston
, 386 I ll. App. 3d at 605. ¶ 49 In this case , the factor of prox imity in time and location of t he offenses is neutra l. The domestic battery and defenda nt’s constructive possession of t he handgun and ammu n i t ion both alleg edly occur

red at Hausler ’s home. Howeve r, the evidenc e sug g ests that the handgun was in def

endant’ s room when he alleg edly committed the domestic battery . That incident beg an outside, wher e defe ndant alleg edly choked Hau s l er, and then moved into the living
room, wher e defe ndant alleg edly pushed her into the television and shook her. Thu s , the offe nses of domestic battery an d u n lawful possession of a wea pon by a felon alleg edly

occur red on the same premises, but in differ ent locations on the premises. Def endant asser

ts that, beca use Hausler di scover ed the handgun i n Dec ember 2009 and the domestic battery

occurred in April 2010, the offe nses have no temporal connec tion. Howeve r, there was evidenc e that defe ndant had constructive possession of the handgun in Dec ember 2009 and when he was taken int o cu s tody for the domestic battery

. Thus, the evidenc e prese nted

cre ates a rea sonable infere nce that defe ndant was in constructive possession of the handgun when the dome stic battery occur red. ¶ 50 Second, “the identity of evidenc e neede d to demonstrate a link betwee n the offe nses” is a fa ctor that asks “not whethe r evide nce of the two cr imes is sim ilar or identica l but rather whether the court can identify evidenc e linking the crimes.” (Emphase s omitted.) W alston
, 386 I ll. App. 3d at 605. For example, in People v

. Quiroz
, 257 I ll. App. 3d 576 (1993), the appellate court noted that there was evidenc e linking two shootings to an alleg ed arme d robber y the defe ndant committed during his esca pe: during the time betwee n the two sets of crimes, the defe ndant had attempted to g ain entra nce into the home of a fellow g ang member

as he fled the scene of the shootings. Quiroz
, 257 I ll. App. 3d at 586. The def en d an t’s intervening attempt to hide in the house linked his crimes of shoot i n g t wo p eople and stealing a car to esca

pe. Quiroz
, 257 I ll. App. 3d at 586. In this case , the domestic battery and defe ndant’s unlawful possession of the handgun an d ammunition cannot be linked by any evidenc e. The State’s theory is that de fenda nt’s constructive possession of the wea pon and his verba l threats cause d Hausler not to repor t the Dec ember 2009 and Marc h 2010 incidents when they

occur red. H oweve r, the e x istence of the wea pon and def

endant’ s threats ha d no such eff ect on Hausler on the date of the char g ed domestic battery

. Hausler testified that, within a few minutes of the domestic battery
, she fled to her neig hbor’s house and spoke to the pol ice, which cre ates the rea sonable inferenc e t h at d efe ndant’s weapon and his threats

-9-to use it did not discourag e Hausler from repor ting the violent incident. Thus, the threats do not link the domestic battery with the wea

pons offe nses. ¶ 51 Third, the “common method” fac tor in the j o i n d er analy sis asks whether the offe nses

wer e part of a “c o m mon scheme ,” so that eac h of the offe nses supplies a piece of a larg er criminal endea

vor. W alston
, 386 I ll. App. 3d at 606-07 (citing Quiroz
, 257 I ll. App. 3d at 586 (three crimes wer e part of a common scheme wher e t h e l as t cr i me was committed in an att empt to flee the scene of the first two)). In this case , the unlawful pos s es s i o n o f t h e handgun and ammunition can be viewed as part o f a common scheme with eac h of the uncharged domestic violence incidents but not with the charged domestic battery

. There was

no evidenc e that defe ndant committed the char g ed domestic battery to fac ilitate his ong oing possession of the handgun. Simi larly
, defe ndant’s possession of the handgun was not part of

a common cr iminal scheme in committing the c harg ed domestic battery

. ¶ 52 Four

th, the question of “whe ther the same or simil ar ev i d en ce wo u l d es t ablish the elements of the offe nses” may be considere d in the joinder analy sis, but only if it is used to deter mine whether multipl e offe nses are part of a single compre hensive transac tion. (Interna l quotation ma

rks omitted.) W

alston , 386 I ll. App. 3d at 607. In this c ase, defe ndant’s status

as a felon and his constructive possession of the h an d gu n an d ammunition, which are the elements of the weapons char g es, share no commonality with the evidence of his ph y s i ca l
contac t with Hausler on the date of the a rre st. ¶ 53 The first fac tor is neutra l, and the rema ining fac tors weigh ag ainst joinder of the cha rg es. We hold that the offe nses of domestic battery and unlawful possession o f a wea pon by a felon we re not pa

rt of the same compre hensive tra nsaction so as to wa

rra nt joinder. ¶ 54 The State contends that, while defe nse counsel’s decision to allow the joinder ultimately fail ed
, the decision was unassailable trial strategy

. We disag ree

. The rec ord shows that defe nse counsel’s decision to g o along with the joinder was based more on convenie nce than strategy

. In explaining why the parties had agree d on joinder, the prosec utor told the court, “[ A]t this point in time I have spoken to Counsel[ ;] both 10-CF- 141 and 10-CM-409 ar e schedule d for j u ry trial on the s ame date and the s ame tim e and we are asking that they be hear d at the same time.” To which defe nse counsel commented, “That’s corr ect.” Be sides scheduling
, the temporal proxi mity of the offe nses was the only rea son g iven for joining the

case s. ¶ 55 The State char acte rizes t h e prosec ution as a cre dibility contest betwee n defe ndant and Hausler
, which is acc urate considering that defe ndant denied t h e o cc u rre nce of any of the domestic violence incidents, including the char g ed domestic battery
, and denied discussing

a handgun with Hausler

. Thus, the State asser ts that joining the char g es was defe nse strategy beca use it “pre sented the best opportunity to challeng e the cre dibilit y of the comp l aining witness and possibly o b t ai n an acquittal in both case s.” Ex posing one’s client to only one trial might be a sound strategy for minimi zing the risk of conviction in some instances, but
not in this case

. In the domestic battery case , the ju ry wa s improperly informed of d ef en d an t’s status as a felon. See Montgomery
, 47 I ll. 2d at 516 (prior conviction i s n o t admissible for im

peac hment purposes when the conviction is at least 10 y ear s old). Simi larly
, i n the unlawful-posse ssion-of-a -we apon-by-a- felon case , the jury was informed of t h e

-10-char g ed domestic battery
, two instances of unchar g ed domestic violence, and the threats that

acc ompanied t hose unchar g ed incidents. Thoug h prejudicia l, this evidenc e was possibly rele vant to show defe ndant’s constructive possession of the wea pon and to explain the timing of Hausler ’s repor

ting of the gun to the police. Howeve r, the evidenc e require d a prec ise limit ing instruction to make these purposes clea r. We view no strateg ic rea son for counsel’s acquie scenc e to the joinder, espec ially in ligh t of counsel’s failure to attempt to fashion a limit ing instruction on other-c rimes evidenc e. We hold that defe ndant has overc ome the strong presumption that counsel’s action was the result of sound trial strategy

. See Ramsey
, 239 I ll. 2d at 433.

¶ 56 2. Prejudice ¶ 57 To establish prejudice
, the defe ndant must show that “ ‘there is a rea sonable proba bility that, but for counsel’s unprofessional err ors, t he result of t he procee ding wo u l d have been d i ffe rent.’ ” Pineda
, 373 I ll. App. 3d at 117 (quoting Strickland
, 466 U.S. at 694). “ ‘A

rea sonable probability is a probability sufficie nt to undermine confide nce in the outcome.’ ” Pineda
, 373 I ll. App. 3d at 117 (quoting Strickland
, 466 U.S. at 694). The prejudice component of Strickland entails more than an “outcome- deter minative test”; rathe r, the defe ndant must show th at counsel’s defic ient perf ormanc e rende red the result of the trial unreliable or the proce eding fundame ntally unfair. People v. Richardson
, 189 I ll. 2d 401, 411 (2000); Pineda , 373 I ll. App. 3d at 117. ¶ 58 We conclude that defe ndant has met his burden to affi rm at i v el y p rove prejudice . See Strickland
, 466 U.S. at 693; Pi n ed a , 3 7 3 I ll. App. 3d at 117. Def ense counsel’s improper acquie sce n ce t o t h e joinder of the char g es rende red the result of the trial unreliable

. The joinder and the use of a defe ctive instruction, which we addre ss later, cre ated the rea sonable probability that the jury found defe ndant guilty of unlawful possession of a wea pon by a felon after improperly considering the t wo uncharg ed domesti c v i o l en ce incidents and the threats that acc ompanied those incidents. Moreove r, in the misdemeanor domestic battery

case , there is a rea sonable probability that the jury improperly considere d defe ndant’s prior felony convict i on. The fundame ntal fairne ss of the proce eding s was compromised. See Strickland , 466 U.S. at 696; Pineda , 373 I ll. App. 3d at 117.

¶ 59 B. Evide nce of Threats ¶ 60 Be cause the issue is likely to arise at trial on rema nd, we addre ss defe ndant’s argument that the trial court committed reve rsible er ro r i n g ranting the State’s motion in limine and admitting evidenc e of defe ndant’s threats. Hausler testified that, following a violent episode in Dec ember 200 9
, d ef

en d an t threatened to kill her if she called the police. Hausler also testified t hat, foll owing an o t h er v iolent episode in Marc h 2010, defe ndant s aid t hat, i f she called the police, ther e would be a shootout and he would kill himself, her, and the police. ¶ 61 Ot her- crimes evidenc e encompa sses misconduct or criminal acts that occur re d ei t h er befor e or afte r the alleg ed criminal conduct for which the defe ndant is standing trial. People

v. Spyres
, 359 I ll. App. 3d 1108, 1112 (2005). Other- crimes evidenc e is admissible to prove any materia l fac t rele vant to the case ( People v. Donoho
, 204 I ll. 2d 159, 170 (2003))
, but is

-11-inadmissibl e if it is rele vant only to demonstrate a defe ndant’s propensity to eng ag e in

criminal activity (

People v. Hendrick

s , 1 3 7 I l l

. 2d 31, 52 (1990))

. Such evidenc e may be admissible when it is rele vant to show, among other things, motive, intent, identity
, absenc e of mistake or acc ident, modus operandi
, or the exis tence of a common plan or desig n. People

v. W ilson
, 214 I ll. 2d 127, 135-36 (2005). Howeve r, rele vant other-c rimes evidenc e may y et be excluded if its prejudicia l eff ect substantially outweig hs its prob at ive value. People v. Illgen , 145 I ll. 2d 353, 365 (1991). ¶ 62 The admissibili ty of other-c rimes evidenc e is left to the trial court’s sound discretion, and

we will not disturb that decision absent a clea r abuse of discretion. W

ilson
, 214 I ll. 2d at 136. A trial cour

t’s deter mination constitut es an abuse of discretion if it is arbitra ry , fanc iful, or

unrea sonable, or if no rea sonable person would take the view adopted b y t h e trial court. Illgen , 145 I ll. 2d at 364. ¶ 63 On appea l, defe ndant does not challeng e the trial court’s deter mination that the domestic violence in c id e nts in Dec ember 2009 and Marc h 2010 wer e admissible under section 115-7.4
to show his propensity to commit the char g ed domestic battery

. Howeve r, defe ndant argues that his verba l threats that acc ompanied those incidents wer e not admissible for any purpose. Hausler testified that defe ndant made the threats during the incidents t h at t h e t ri al court alre ady 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 t hreats to show propensity under section 115-7.4, bec ause the threats were direc tly related t o the dom estic violence incidents. See 725 I L CS 5/115-7.4 (West 2010); Dabbs
, 239 I ll. 2d at 291; see also I ll. R. Evid. 403 (eff. Jan. 1, 2011). ¶ 64 In any event, the trial court admitted the t h re at s not to show propensity but to expl ain Hausler ’s failure to contac t the police afte r the incidents in Dec ember 2009 and Marc h 2010. One could also arg

ue that defe ndant’s threats wer e admissible to show defe ndant’s intent and lack of mistake. The threats tended to make the exis tence of a materia l fac t m ore or less probable than it would have been wi t h o u t t he evidenc e. Def endant testified, and defe nse counsel argued in closing argument, that Hausler
, not defe ndant, was upset on the day of the offe nse. D ef

ense counsel argued that defe ndant di d not choke Hausler, but mere ly hug g ed her. D efe ndant t estified that he plac ed his hands on Ha usler’s shoulder s, but that he did so only to look her in the eye. Def endant denied shaking Hausler
, placing his hands around her neck, or squeezing her, besides offe ring a hug

. Def endant denied that the Dec ember 2009 and Marc h 2010 incidents occur red at all. Def

ense counsel also argued that Hausler was not

cre dible beca

use she had failed to repor t t h e prior incidents. Thus, one could argue that Hausler’s t es timony about defe ndant’s threats was rele vant to explain Hausler ’s failure to repor t the prior incidents and to es t ab l i s h that defe ndant intended to commit the domestic b att ery and that, contra

ry to his testimony
, the touching of Hausler was neither loving n o r g entle and was not a mistake. We conclude that, if admitted for these limit ed purposes in the domestic battery prosec ution, Hausler ’s testimony ab o ut d e f e n d a nt’ s th r e a ts w o u ld h a

ve been rele vant other-c rimes evidenc e. See Illgen
, 145 I ll. 2d at 365. In the prosec ution for unlawful possession of a we apon by a fe lon, the evidenc e of defe ndant’s threats ma y very well have been admissible to explain the timing of Hausler ’s repor ting of the wea

pon and to establish defe ndant’s constructive possession of the wea pon. Wh e n th e c h a

r g e s o f unlawful possession

-12-of a wea pon by a felon are tried separ ately from the domestic battery char g e, the trial court must conduct a prope r bala ncing test. We emphasize that our di scussion is confined to the specific evidenc e that was pre sented to the trial court and that we are not dir ecting the trial court to admit any

particula r evide nce at the new tria ls on remand.

¶ 65 C. J ury Instruction ¶ 66 Finally
, defe ndant contends that t h e v er d i ct wa s unreliable beca use the jury was not p ro p er ly instructed on other-c rimes evidenc e. Def endant argues that the trial court erroneously (1) failed to g ive limit ing instructions when witnesses testified to unchar g ed conduct and (2) used jury instructions and verdic t forms t h at d i d not distinguish betwee n char g ed and unchar g ed conduct. Def endant notes that at no time during the trial did the court explain to the jury the differ ence betwee n the cha rg ed conduc t and the unchar g ed conduct. Alt ernatively
, defe ndant makes an undevelope d claim that defe nse counsel rende red ineffe ctive assist ance wher e she failed to reque st proper instructions o r t o o therwise bring the er rors to the c ourt’s attention. ¶ 67 W e agr ee wi t h d ef en d an t t h at the verdic t was unreliable beca use, in light of the instruction err or, the convictions might have been based on unchar g ed conduct, including the domestic violen ce incidents in Dec ember 2009 and Marc h 2010, defe ndant’s threats

acc ompanying those incidents, and defe ndant’s prior felony conviction. These er rors compounded the joinder

err or and a

re r ever sible. ¶ 68 J ury instructions g ive the jurors the cor re ct principles of law applicable to the fac ts so they can rea ch a corr ect conclusion acc ording to the law and the evidenc e. People v. Fuller
, 205 I ll. 2d 308, 343 (2002). In a criminal case , the applicable I llinois Pattern J ury Instruction “shall be used, unl ess t he court deter mines that it does not acc urate ly state t he law.” I ll. S. C t

. R. 451(a) (ef

f. J uly 1, 2006). In deter

mining the adequa cy of instructions, a revi ew i n g court will consider all the instructions as a whole to asce rtain i f they fully and fairly cover the law. People v . Housby , 84 I ll. 2d 415, 433-34 (1981). ¶ 69 In this case, the State te ndere d the followinginstruction on other-c rimes evidenc e:

“Evidenc e has been rec eived that the defe ndant has be en involved in conduct other than those cha

rg ed in the indictment.
This evidenc e has been rec eived on the issues of defe ndant’s intent, motive, desig n, knowledg e, abse nce of

mistake, and prope nsity

. I t is for you to deter

mine whether the defe ndant was involved in that conduct and if
so, what weight should be g iven to this evidenc e on the issues of the defe ndant’s intent, motive, desig n, knowledg e, abse nce of mistake, and prope nsity .” ¶ 70 Be fore trial, the trial court asked defense counsel whether she had any objection to the instruction or whether she would like it rea d befor e the other-c rimes evidenc e was admitted. Counsel stated that she had no objection to the instruction but did not want it rea d when the evidenc e wa s introduced, be cause she fe are d that the instruction would confuse the jury

. ¶ 71 When the State prese nted the stipulation that defe ndant had been previously convicted of a felony in Cook County
, t h e t ri al co urt advised the jury that “[t] his information

-13-conce rning the agr eeme nt of t hese facts can be used by you like any other evidence in this

case to come to your verdic t.” Thus, the court did not instruct the jury that defe ndant’s status

as a felon was to be considere d for the limit ed purpose of deter mining his guilt or innocenc e

on the char g es of unlawful possession of a wea pon by a felon, but rathe r that it co u l d b e considere d for a

ny rele vant purpose, inc luding pr opensity to commit domesti c batter y

. ¶ 72 At the jury instruction confe renc e, the trial court rema rked t h at “you have to find out which statements would be for p ro p en s i t y .” Def ense counsel ag ain said that she had no objection to the State’s instruction and commented that any chang e to the instruction would confuse the jury

. The court sug g ested that “if you wer e g onna try to spell it o u t t h e way it

rea lly actua lly is,” then the instruction would s t at e t h at “t h is and this and this is just for propensity and these things are for all the other issues.” Def ense counsel reje cted the court’s
sug g estion as too confusing for the jury and asked that the instruction be g iven as submitt ed. Be fore instructing the jury
, the court rema rked that “I

think it probably could be rew orked, but I think this is too complicated to do that.” Def ense counsel reiter ated that she would not object to the instruction and rea soned that the court had alre ady allowed the admission of the other-c rimes evidenc e. The trial court g ave the instruction, without modification, as tender ed by the State and a g ree d to by defe nse counse l. ¶ 73 The agree ment betwee n the prosec ution and defe nse counsel notwithstanding, we a g ree with defe ndant that the trial court committed reve rsible err or in failing to g ive the jury a prec isely tailored version of I llinois Pattern J ury Instructions, Criminal, No. 3.14 (4th ed. 2000) (her einaf

ter I PI Criminal 4th No. 3.14). I PI Criminal 4th No. 3.14 provides as follows: “[1] Evidence has bee n rec eived that the def endant[s] [(has) (have)] been involved in [(an offe nse) (off

enses) (conduc t) ] other than [(that) (those)] char g ed in the [(indictment) (information) (c omplaint)]. [2] This evidenc e has been rec eived on the issue[s] of the [(defenda nt’s) (def endants’) ] [(ide nti f

ic a ti o n ) (p r e s e n c e ) ( in

tent) ( motive) (design) (knowledg e) (____)] and may be conside red by

you only for that limited purpose. [3] I t is for you to deter

mine [w h et h er t h e defe ndant[s] [(was) (we re) ] involved in [(that) (those)] [(offense ) (off enses) (conduc t)] and, if so,] what weight should be g iven to this evidence on the issue[s] of ____.” ¶ 74 Moreove r, the pref err ed prac tice is f

or the trial court to instruc t the jury
, not only at the close of the case , but also when other-c rimes evidenc e is admitted, of the limit ed purpose for which it may consider the other- cr i m es evidenc e. People v. Heard
, 187 I ll. 2d 36, 60-61 (1999) (citing People v. Denny
, 241 I ll. App. 3d 345, 360-61 (1993)); I llinois Pattern J ury Instructions, Criminal, No. 3.14, Comm ittee Note ( 3d ed. Supp. 1996). ¶ 75 The trial court abused its discretion in failingto tailor I PI Criminal 4th No. 3.14 based

on the evidenc e prese nted, and that err or compounded and amplified the joinder err or. First, in the unlawful-posse ssion-of-a -we apon-by-a- felon case , cl ear ly the jury should not have considere d for propensity the char g ed domestic battery
, th e tw o u n c h a r g ed domestic violence incidents, or the threats that acc ompanied those unchar g ed in ci d en t s

. Second, in the misdemeanor domestic battery case , the jury should not have been instru ct ed t hat it could consider for propensity defe ndant’s prior felony conviction, the threats defe ndant alleg edly

-14-made to Ha usler , and the e vidence of def endant’ s gun possession. 1 ¶ 76 Def

endant conce des that he did not object b el o w t o t h e t ri al court’s alleg ed err ors in instructing the jury and that, there fore
, the issue is forf eited. See People v. Herron
, 215 I ll. 2d 167, 175 (2005) (both an objection at trial and raising the issue in a posttrial motion are

nece ssary to prese rve the issue for appellate revie w). Howeve r, under I llinois Supreme Court Rule 451(c) (ef

f. J uly 1, 2006), wher e a jury instruction suffe rs from a substantial defe ct, claims of err or ar e not subject to for feiture on appea l. An err oneous instruction c onstitut es

a substantial d ef

ec t , o r plain err or, when the instruction cre ated a serious risk that the defe ndant was incorre ctly convicted beca use the jury did not understand the applicable law,

so as to threa

ten the fundame ntal fairne ss of the defe ndant’s trial. People v. Durr
, 215 I ll. 2d 283, 299 (2005). To preva il, the defe ndant need not prove that the err or in the instruction
actua lly misled the jury

. Herron
, 215 I ll. 2d at 193. “When there is err or in a close case , we choose to e rr on the side of fa irness, so as not to convict an innoc ent per son.” Herron , 215 I ll. 2d at 193. Plain err or arises in two circ umstances: (1) when the flawe d instruction was
pro vided in a case wher e the evidenc e was closely balanc ed or (2) when the flaw in the instru ct i o n is “grave ” or so serious that it denied the defe ndant a substantial rig ht and undermined the integrity of the judicial proce ss. Herron
, 215 I ll. 2 d at 1 7 8 -79. Her e, reg ardle ss of the closene ss of the evidenc e, the instruction err or was so g rave that it denied defe ndant a f

air trial a nd undermined the integ rity of the judicial proc ess. ¶ 77 The State argues that the convictions must be aff irmed beca

use defe ndant invited the jury instruction err or. Plain-err or revie w is forf eited when a defe ndant invites the err or. “[ A] defe ndant’s invitation or agree ment to the proce dure later challeng ed on appea l ‘g oes beyond

mere waiver .’ ” People v. Harve y , 211 I ll. 2d 368, 385 (2004) (quoting People v. Villarreal
, 198 I ll. 2d 209, 227 (2001))

. Invited err or is sometimes ref err ed to as an issue of estoppel in that a defe ndant may not reque st to proce ed in one manner and later contend on appea l that the course of action was in err or. Harve y , 211 I ll. 2d at 385. To allow a defe ndant to use the
exact ruling or action procur ed in the trial court as a vehicle for reve rsal on appea l would offe nd notions of fair play
, encour ag e defe ndants to become duplicitous ( Harve y , 211 I ll. 2d
at 385), and deprive the State of the opportunity to c ure the alleg ed defe ct ( People v. Bush
, 214 I ll. 2d 318, 332 (2005)). Where the def endant invit ed the err or, our supreme court has declined to addre ss any rela ted plain-er

ror claim. See, e.g. , People v. Patrick
, 233 I ll. 2d 62, 77 (2009). ¶ 78 That said, the concerns underlying the invit ed err or rule are not prese nt here

. First, the
prosec ution in

tro d u c e d the flawe d instruction and offe red no sug g estion for curing the defe ct,

even when it was pointed out by the trial court. Second, defe nse counsel’s conduct was not duplicitous. We acknow ledg e that counsel persistently declined the trial court’s overture s to modify the instruction, but counsel’s tactic was less an invitation of err or than an attempt to mitigate jury confusion that could result from a convoluted instruction. Under these unique fac ts, gr antingdefe ndant re lief for the instruction err or is not unfair to the State.

Such an ins truct ion on the thr eat s as oth er

- cr imes eviden ce woul d be pre dic at ed on the tr ia l 1

cou rt ’s det er m ina ti on tha t the thr eat s wer e not admissi ble to sho w pro pen si ty unde r sec ti on 115-7.4.

-15-¶ 79 Rather than taking the untenable position that the instruction ac curately stated the law
, the State argues that we should disreg ard defe ndant’s claim of err or beca use the prosec ution and defe nse counsel agree d to use the flawe d instruction at trial. To adopt the State’s position would be to condone a g rave err or t h at p re j udiced defe ndant’s rig ht to a fair trial and undermined the integ rity of the judicial pro cess, with the sole justification being that the
p r o s e c ution and defe nse counsel stipulated to the err or and the trial court grudg ingly acc epted the stipulation. ¶ 80 We rec og nize that the prosec ution and defe nse counsel, espec ially
, place d the trial court in a difficult position. The err or in try ing the domestic battery charg e with the wea pons char g es did not manifest itself until it was time to ins truct the jury . By then, it w as too late
to untang le the evidenc e to make it understanda ble for the jury

. The court was left with three bad options: (1) use a sim p l e i n s truction that misstated the law, (2) use an acc urate instruction that was so convoluted that the jury likely cou l d n o t follow it, or (3) decla re a mistrial and start over with separ ate trials and prec ise instructions. At t h e at torney s’ prodding
, the court chose the first option; but in hindsight, the third option was the only way to cure the err or. We acknow ledg e the trial court’s predic ament, but we hold that defe ndant must be g rante d new tria ls beca use the c umulative err or in this case w as so egreg ious. ¶ 81 Ou r h o l d ing that defe nse counsel did not invite the jury instruction err or is f u rt h er supported by People v. Brown , 319 I ll. App. 3d 89, 99 (2001), where the trial court used a flawe d versio n o f I P I C ri minal 4th No. 3.14 such that the jury was not informed that the other-c onduct evidenc e could be considere d solely on the issues previously enumer ated. The Appellate Court, Four

th Di s t ri ct , held that the instruction “fa iled to convey the corr ect principles of law to the jury ,” which was reve rsible err or even though the defe ndant did not object at tria l or on appe al. Brown , 319 I ll. App. 3d at 99. ¶ 82 To the extent that cer tain other-c rimes evidenc e might be admissible in the new, se parate trials, the trial court may deter mine t h o s e p urposes, depending on the specific evidenc e prese nted. We note that, as we are rema nding the cause for separ ate trials on the wea pons char g es and on the domestic battery charg e, no other-c rimes ins t ru ct i on on the prior conviction will be n ec essary in the trial on domestic battery beca use the prior conviction would be inadmissible for a ny purpose in that trial.

¶ 83 I I I . CONCLUSI ON ¶ 84 Our reve rsal of defe ndant’s co n v ictions raises the double jeopar dy issue. The double jeopar dy clause of the Un ited States Constitution prohibits the State from having another opportunity to try a case unless it has in the first trial prese nted sufficie nt evidenc e to prove the defe ndant guilty beyond a rea sonable doubt. People v. Macon
, 396 I ll. App. 3d 451, 458 (2009). Thus, befor e rema nding for a new trial, double jeopar dy require s the appellate court to rule upon the sufficie ncy-of- the-e vidence issue

. P eople v. Taylor
, 76 I ll. 2d 289, 309 (1979). We have car efully revie wed the rec ord in the light most favor able to the prosec ution and conclude that the evidenc e sufficie ntly supports the verdic t beyond a rea sonable doubt. Our deter mination, howeve r, is n o t b i n d i n g on retria l and does not indicate this court’s opinion as to defenda

nt’s guilt or innocence

.

-16-¶ 85 For the rea sons stated, we reve rse defe ndant’s convictions and rema nd the cause for new trials: one for domestic battery and one for the two counts o f u n l awf ul possession of a

wea pon by a fe lon.

¶ 86 Reverse d and re manded with dire ctions.

-17-