NO. 4-07-0115 Filed 4/3/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from 

Plaintiff-Appellee ) Circuit Court

v. ) of Morgan County

NELSON A. YOUNG, ) No. 05CF136

Defendant-Appellant )

) Honorable

) Richard T. Mitchell,

 ) Judge Presiding

_________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

In July 2005, the State charged defendant, Nelson A.

Young, with first degree murder (720 ILCS 5/9-1(a)(1) (West

2004)); the charge was later amended to first degree murder under

section 9-1(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS

5/9-1(a)(2) (West 2004)). In July 2006, a jury convicted defendant of the amended first-degree-murder charge. In August 2006,

the trial court sentenced him to 40 years' imprisonment. Defendant appeals, arguing that the trial court erred in allowing

evidence of prior convictions. We affirm. 

I. BACKGROUND

On July 21, 2005, the State charged defendant with

first degree murder under section 9-1(a)(1) of the Code (720 ILCS

5/9-1(a)(1) (West 2004) (knows such acts will cause death)),

alleging that on July 19, 2005, defendant stabbed Eva Mae Davis,

killing her, knowing that his act created the strong probability

of death or great bodily harm. On July 26, 2005, the charge was

amended to first degree murder under section 9-1(a)(2) of the
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Code (720 ILCS 5/9-1(a)(2) (West 2004) (knows that such acts

create a strong probability of death or great bodily harm)),

alleging that on July 19, 2005, defendant stabbed Eva Mae Davis,

killing her, knowing that his act created the strong probability

of death or great bodily harm, correcting the citation to be

consistent with the charge alleged.

On June 29, 2006, the State filed a motion in limine to

admit, inter alia, prior convictions of aggravated battery and

aggravated assault and testimony from the victim of that assault. 

Defendant had pleaded guilty on both charges, the battery was

committed with a knife, the assault victim was to testify that

defendant threatened the victim with a knife, and defendant

threatened that he was going to kill the victim.

On July 6, 2006, a hearing was held on the motion in

limine. The State argued that the prior convictions and testimony should be admitted for reasons other than a propensity to

commit crimes, that is, reasons such as intent, modus operandi,

motive, and absence of mistake or accident. Defendant argued

that the crimes were not similar enough to show modus operandi

because, defendant asserted, the prior crimes were only similar

to this charge in that a knife was used each time. Defendant

argued as a result, the probative value would be outweighed by

the prejudicial effect. Defendant conceded that if accident was

asserted as a defense, the prior convictions might be admissible

to show lack of accident, but defense counsel said no such

defense was planned.
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The trial court denied the motion, stating it would not

allow the State to present defendant's prior convictions during

the State's case in chief. The court cautioned, though, that

were defendant to testify that the stabbing was a accident or

that defendant otherwise lacked intent, the court would allow the

State to use the evidence at issue to rebut defendant's testimony.

On July 11, 2006, the jury was selected, and the trial

commenced the next day. The evidence showed that on July 19,

2005, defendant placed calls to his brother, John Young, and

cousin, Joe Morgan, both in North Carolina. He told each that

defendant and his girlfriend, Eva Mae Davis, had struggled after

Eva had charged at defendant with a knife and that he had accidentally stabbed her in the heart, killing her. Defendant asked

each for money so defendant could travel to North Carolina.

Morgan went to his local sheriff's office to report the

crime. The North Carolina sheriff's office contacted the Jacksonville police department. Officers from Jacksonville went to

defendant's residence, where they found the victim's body in a

bed, covered with a sheet.

On July 19, 2005, Illinois State Police officer Michael

Narish, a crime-scene investigator, was called to the scene to

collect evidence. He testified that the victim's clothing did

not have any blood on it and her remains appeared to have been

cleaned, except for the bottom of her feet. In processing the

scene, Officer Michael Narish found additional evidence, includ-
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ing a filet knife.

Doctor Travis Hindman, a forensic pathologist, testified that he performed the victim's autopsy. Dr. Hindman testified the victim had a stab wound to her chest, which went through

her lung and cut her heart. In his opinion, this wound was the

cause of death, and it was possible that the wound could have

been made with the filet knife found by Officer Michael Narish. 

The victim also had cuts on her left leg and left hand consistent

with the sort of wounds a person would receive when the person is

in a defensive posture, though Hindman was not certain the wounds

were sustained as the victim defended herself. The blood on the

bottom of her feet indicated that she was able to walk after

being stabbed. Chemical tests also showed the presence of

cocaine and marijuana in the victim. Dr. Hindman testified that

marijuana could stay in the body for days while cocaine would be

eliminated within hours.

Tracy Sulwer, an employee of the Illinois State Police,

Division of Forensic Services, testified that she found defendant's bloody fingerprints on a phone and doorknob taken from the

crime scene. Sulwer also testified that the only print that she

could find on the knife was from the defendant.

Amanda Humke, a forensic scientist with the Illinois

State Police crime lab, testified that she did deoxyribonucleic

acid (DNA) analysis on blood samples found during the investigation. Humke testified that the DNA test performed on blood found

on a telephone, doorknob, and shirt collected at the scene showed
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that the blood was the victim's, while the shirt's tag had a

mixture of blood consistent with the victim's and defendant's

DNA.

Michelle Montgomery testified that she had a fatherdaughter-like relationship with defendant. Montgomery had dated

defendant's son, and defendant had dated Montgomery's mother. 

Although neither of those relationships continued to July 2005,

Montgomery and defendant had continued to keep in almost daily

contact with each other. Montgomery testified that defendant had

admitted, prior to the victim's death, to hitting the victim. 

Montgomery also testified that defendant told her that he would

have to leave the victim or hurt her really bad, at one point

saying that he would have to kill the victim to get away from the

relationship.

Montgomery testified that defendant called her at about

7:30 a.m. on July 19, 2005, and asked her if she would keep in

touch no matter what happened. Defendant also told her that he

needed to leave town. Montgomery could hear the defendant and

the victim arguing in the background. Montgomery told defendant

that she was still in bed and would talk to him later. Montgomery tried to call defendant back but did not get through to him. 

Defendant returned Montgomery's phone call around 1:30 p.m. that

day and said that he was trying to get in touch with his family

in North Carolina. Defendant wanted Montgomery's help to get

defendant to the bus station in Springfield. Defendant called

back again about 2:15 or 2:20 p.m. and said he was on his way to
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Montgomery's house, where he arrived about 2:30 p.m. Once there,

defendant ate some food Montgomery made for him and made three or

four phone calls. Montgomery knew that defendant placed the

first of the phone calls to his daughter, Vanessa, telling his

daughter that he was running out of time and needed to get out of

town. Montgomery testified she did not know who else defendant

called or what was said.

Montgomery testified that while defendant was still at

her home, Montgomery received a telephone call from her sister. 

She told Montgomery defendant had killed the victim. Montgomery

told defendant he had to leave, and defendant responded that only

Montgomery could help him at that point, and he was going to

explain but did not know how. Later the same day, there was a

loud knock at Montgomery's door. Montgomery's boyfriend answered

the door and about 12 people charged in, including the victim's

family members. They asked where defendant was, found him,

dragged him outside, fought with him, and the police came.

Defendant testified in his own defense. He testified

that he and the victim had dated for about a year, occasionally

living together, and that their relationship had ups and downs. 

Defendant testified he hit the victim two or three times on one

occasion, but he described it as a mistake. Defendant explained

the victim woke him up from being passed out drunk. Defendant

testified that they both used crack cocaine regularly and smoked

it together on July 18, 2005. The victim left defendant's house

sometime that night. On July 19, 2005, defendant left in the
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early morning to look for the victim so he could get his bicycle

from her and ride to the store to get beer. He did not find her. 

He went to the store, bought a bottle of beer, and returned home

to find the victim there.

Defendant testified that he went into the bedroom. 

Defendant and the victim had an argument because he wanted to go

to sleep, and she wanted to go back to her house. Defendant

testified that one of the victim's family members, L.A. Jackson,

visited with the victim, and when Jackson left, the victim was

upset and anxious to leave the house. The victim said that she

had something to do and would do it with or without defendant.

Defendant also testified that she had a sock tied around her leg

in the area of the cut that Dr. Hindman testified about. Defendant said that he asked the victim about her leg, and she said

she had cut her leg at her house. Defendant testified after that

exchange, he heard a loud noise and went to the kitchen finding

that the victim was attempting to leave the house through the

back door. She had a knife in her hand.

Defendant testified that he told the victim to give him

the knife. Defendant testified the victim charged him, drawing

the knife back to the level of her head with her right hand while

telling defendant he better get back. Defendant grabbed the

victim's right arm with his left hand and took the knife from

her. Defendant testified that they wrestled over the knife, she

grabbed him, he fell with his back against her, then he turned

around to find the knife was in her chest. The victim told
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defendant to call an ambulance, then she fell and lost consciousness. Defendant testified that he pulled the knife out of her

chest, carried her to his bedroom, attempted cardiopulmonary

resuscitation on her, and found that she was already dead. He

testified that, because she had died so quickly, he did not call

an ambulance.

Defendant testified that he then cleaned himself up,

and cleaned her body, put new clothes on her body, and covered it

with a sheet. Defendant called his daughter and Montgomery from

his house. At about 1:30 p.m., defendant rode his bicycle to

Montgomery's house. Defendant testified that once at Montgomery's house he called his daughter a second time, and he called a

sister, brother, and cousin, telling each what was happening and

asking for money. Defendant testified he was scared to call the

police because he feared the victim's family would hear about

what had happened and kill him before the police arrived. 

Defendant testified that he was hiding in Montgomery's kitchen

closet when about 12 people, including members of the victim's

family, came in the house, grabbed him, and beat him. He did not

remember anything else until three days later when he was in

jail.

After the defense rested, the State renewed its motion

in limine to admit the previous convictions in evidence and

permit testimony by the victim of the prior assault. The State

based its argument on the defendant's assertion that the stabbing

was an accident. The trial court allowed the State's motion with
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respect to the prior convictions, which were stipulated to, but

did not allow the victim of the previous assault to testify.

On July 14, 2006, both sides presented closing arguments. The jury deliberated for just under two hours before

returning a verdict of guilty on the amended charge of first

degree murder. On August 22, 2006, the trial court sentenced

defendant to 40 years' imprisonment. This appeal followed.

II. ANALYSIS

On appeal, defendant argues that the trial court erred

in allowing evidence of defendant's prior convictions.

A. Standard of Review 

Whether to admit other-crimes evidence is within the

trial court's discretion, and this court will not disturb that

ruling absent an abuse of discretion. People v. Spyres, 359 Ill.

App. 3d 1108, 1113, 835 N.E.2d 974, 978 (2005) (trial court's

admitting evidence of receipt of other cannabis shipments affirmed where the defendant asserted that he was merely the

roommate of a drug trafficker). A trial court abuses its discretion "'only where the trial court's decision is arbitrary,

fanciful, or unreasonable or where no reasonable man would take

the view adopted by the trial court.'" People v. Hayes, 319 Ill.

App. 3d 810, 819, 745 N.E.2d 31, 40 (2001) (trial court's admitting evidence of theft of a maroon Chevrolet Caprice by the

defendant where the defendant testified that he had no possession

of that car at the time of the abduction at issue in trial),

quoting People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515,
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519 (1991).

B. The Charge Was Amended To Make It Consistent 

With the Allegation

On July 21, 2005, the State charged defendant with

first degree murder (720 ILCS 5/9-1(a)(1) (West 2004)). Although

first degree murder as defined in section 9-1(a)(1) requires that

the perpetrator intends to kill or do great bodily harm to the

victim, the information alleged that on July 19, 2005, defendant

stabbed Eva Mae Davis, killing her, knowing that his act created

the strong probability of death or great bodily harm. On July

26, 2005, the charge was amended to first degree murder under

section 9-1(a)(2), which is the citation consistent with the

information as charged.

C. The Trial Court Did Not Abuse Its Discretion by 

Admitting Evidence of Defendant's Previous Convictions

Defendant argues that the only similarity between this

case and his prior convictions is use of a knife, and distinguishes the situations by pointing out that the victims of the

two previous crimes were male and were not domestic partners of

defendant. Defendant argues that while evidence of previous

domestic abuse was relevant, and properly admitted, the prior

crimes were irrelevant. However, because the prior convictions

were admitted to show intent or lack of accident, mere general

areas of similarity are sufficient. People v. Adams, 308 Ill.

App. 3d 995, 1004, 721 N.E.2d 1182, 1188 (1999) (trial court's

admitting evidence of the defendant's assaulting previous fiancée

after she discovered the defendant was involved in a homosexual
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relationship affirmed in case where the defendant on trial for

murder asserted he accidentally killed current girlfriend). A

greater degree of identity would be required if the prior convictions were admitted to show modus operandi or that the crime was

part of a common design or plan. Adams, 308 Ill. App. 3d at

1003, 721 N.E.2d at 1188.

The trial court initially denied the State's motion to

admit the other-crimes evidence when defendant was not expected

to testify that the stabbing was an accident, but the court

granted the motion after defendant testified that the stabbing

was an accident. 

Evidence of defendant's prior convictions was admitted

for a purpose other than to show propensity. The record shows

the evidence of prior convictions was admitted for the limited

purpose of showing the defendant's intent or lack of accident. 

The trial court specifically noted it weighed the

probative value of the evidence against its prejudice. The court

made its determination very near the end of the trial and was in

the best position to weigh those factors in the context of the

entire case. The court did not abuse its discretion. The court

initially denied the State's motion to admit defendant's previous

convictions until it became clear how they were probative. That

is, they were not admitted until they were relevant to disprove 

defendant's explanation of the stabbing as an accident.

Moreover, the trial court gave a limiting instruction

with the jury instructions (Illinois Pattern Jury Instructions,
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Criminal, No. 3.14 (4th ed. 2000)) that the other-crimes evidence

was admitted only "on the issue of defendant's motive." A

limiting instruction reduces any prejudice created by admitting

other-crimes evidence. Hayes, 319 Ill. App. 3d at 820, 745

N.E.2d at 41. The instruction successfully prevented the jury

from considering the previous convictions as evidence of defendant's propensity to commit a crime. People v. King, 165 Ill.

App. 3d 464, 469, 518 N.E.2d 1309, 1313 (1988) (no reversible

error where evidence of prior crime was admitted to show intent

but limiting instruction referenced identification and design).

Other-crimes evidence is not admissible to prove a

defendant's propensity to commit a crime but may be admissible to

prove modus operandi, intent, identity, motive, or absence of

mistake. Spyres, 359 Ill. App. 3d at 1112, 835 N.E.2d at 977. 

Other-crimes evidence is also admissible as part of a continuing

narrative of the event giving rise to the offense. People v.

Thompson, 359 Ill. App. 3d 947, 951, 835 N.E.2d 933, 936 (2005)

(trial court's admitting evidence of earlier altercation affirmed

where it provided context for the crime for which the defendant

was being tried).

However, even if relevant, other-crimes evidence may be

excluded if its prejudicial effect substantially outweighs its

probative value. Spyres, 359 Ill. App. 3d at 1112, 835 N.E.2d

977. "Whether the probative value of other-crimes evidence is

outweighed by its prejudicial impact is a determination left to

the trial court's discretion, and we will not disturb that
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decision absent a clear abuse of discretion." Spyres, 359 Ill.

App. 3d at 1114, 835 N.E.2d at 979. 

Defendant submits numerous cases to support his contention that the trial court erred in admitting other-crimes evidence. However, even defendant's cases demonstrate a reluctance

to overturn a trial court's determination to admit such evidence. 

Indeed, only one case cited by defendant results in a reversal by

the reviewing court. People v. Connolly, 186 Ill. App. 3d 429,

434-35, 542 N.E.2d 517, 521 (1989) (evidence of burglaries

committed three years earlier not distinctive enough to prove

modus operandi and not probative for any other permissible

purpose). 

 The determination of "whether the evidence of other

crimes is so closely connected with the main issue that it tends

to prove the accused guilty of the crime for which he is being

tried" is to be made based on the facts of each case. People v.

Wilson, 46 Ill. 2d 376, 380-81, 263 N.E.2d 856, 859 (1970) (trial

court's admitting evidence of the defendant's prior drug transaction with informant affirmed where the defendant asserted that

drugs belonged to someone else and he did not know they were in

his apartment). As in Spyres and Wilson, the other-crimes

evidence was relevant in that it tended to negate defendant's

contention that he lacked intent. While an innocent state of

mind might be present in one instance, the more often it occurs

with similar results, the less likely that it was without criminal intent. See People v. Charles, 238 Ill. App. 3d 752, 761,
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606 N.E.2d 603, 610 (1992) (affirming admission of evidence that

the defendant shot someone with a shotgun 15 minutes earlier to

negate the defendant's assertion of self-defense). In this case,

the trial court found the other-crimes evidence should be admitted because defendant was asserting that the stabbing was an

accident. This court finds no reversible error.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

admission of other-crimes evidence. As part of our judgment, we

grant the State its $50 statutory assessment against defendant as

costs of this appeal.

Affirmed.

APPLETON, P.J., and STEIGMANN, J., concur.