Illinois Official Reports 

Appellate Court

People v. Rosado, 2017 IL App (1st) 143741

Appellate Court 

Caption

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

JOE ROSADO, Defendant-Appellant.

District & No. First District, Second Division

Docket No. 1-14-3741

Filed

Modified upon

denial of rehearing

August 1, 2017

September 12, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 11-CR-6292; the 

Hon. Maura Slattery Boyle, Judge, presiding.

Judgment Reversed and remanded with directions.

Counsel on

Appeal

Michael J. Pelletier, Patricia Mysza, and Robert N. Markfield, of State 

Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, 

Jon Walters, and Michelle Corda, Assistant State’s Attorneys, of 

counsel), for the People.

Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.

Presiding Justice Neville and Justice Mason concurred in the 

judgment and opinion.
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 OPINION 

¶ 1 Before this case was tried, a jury acquitted Joe Rosado of delivering, on March 29, 2011, a 

controlled substance to an undercover police investigator. After the acquittal, before a different 

jury but the same judge, Rosado was tried in this case for delivering a controlled substance to 

the same undercover police investigator on March 23, six days before March 29. The State was 

allowed to present testimony that Rosado had sold drugs on March 29; however, Rosado was 

not allowed to tell the jury of his acquittal. On appeal, Rosado challenges both evidentiary 

rulings. We find that the trial court abused its discretion: the March 29 testimony was not 

proper other-crimes evidence, and Rosado should have been allowed to inform the jury of his 

acquittal. We reverse his conviction and remand for a new trial. 

¶ 2 BACKGROUND 

¶ 3 In 2011, Rosado was arrested for and charged with a series of drug transactions that 

allegedly took place within a two-week period in March 2011. In case No. 6287, Rosado was 

charged with selling drugs on March 18, 2011. In this case (case No. 6292), he was charged 

with delivering 15 to 100 grams of cocaine within 1000 feet of a high school on March 23, 

2011. Finally, in case No. 6291, he was charged with selling drugs on March 29, 2011. He was 

arrested on April 1, 2011. 

¶ 4 The State elected to try the case involving the March 29 transaction first. Before trial, the 

State moved to admit evidence of both the March 18 and the March 23 incidents as “other 

crimes” evidence. The trial court denied this motion, reasoning that the evidence was more 

prejudicial than probative and that the jury might convict Rosado based on the other-crimes 

evidence. At the jury trial, Rosado argued that his brother, Javier Moreno, had sold the drugs; 

Rosado was acquitted. 

¶ 5 Before trial in this case, the State nevertheless moved to admit evidence of the March 29 

incident as “other crimes” evidence, to show identity. The trial court admitted the evidence 

over Rosado’s objection, without referencing whether the evidence was more probative than 

prejudicial. The trial court also stated that in its opinion, Rosado had only been acquitted 

because the State “did not handle that case correctly because the evidence in the tape on that 

case was quite clear” and that the trial court “would have had a different view” of the evidence 

than the jury that acquitted him. The trial court also denied Rosado’s request to inform the jury 

that he had been acquitted of selling drugs on March 29. 

¶ 6 During opening argument, the State referred to the March 29 drug sale; Rosado’s counsel 

then told the jury that it should not consider the March 29 sale, but concern itself with the 

charges at issue. 

¶ 7 Officer Emerico Gonzalez testified that on March 23, 2011, he was assigned to purchase 

narcotics from Rosado. Gonzalez, wearing civilian clothes and driving a civilian vehicle, was 

the “undercover” officer, while other police officers performed surveillance and enforcement. 

Gonzalez had a recording device, marked money with which to buy the drugs, and a cell phone 

number that had been given to him by Rosado. 

¶ 8 When Gonzalez entered the restaurant, a woman greeted him, and he told her that he was 

looking for Jose. She corrected him and told him he was looking for “Joe Joe.” Gonzalez did 

not see Rosado in the restaurant, so he asked the woman if she could call Joe Joe. The woman 
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did but told Gonzalez that Joe Joe was not answering the phone. Gonzalez called the number 

he had been given, but no one answered. The woman made a second phone call and held a 

conversation. She informed Gonzalez that Joe Joe would be there around 3 p.m. Gonzalez 

walked out of the restaurant to his car and then received a call from Rosado. A recording of this 

call and a transcript (translated into English from Spanish) were presented to the jury: 

“Gonzalez: I wanted to ask you can we do something today?

 Answer: What do you want[,] the same thing? 

 Gonzalez: Yea yea, the same thing you gave me before for 800. 

Answer: Okay can you give me five minutes I’ll call you back, in five minutes. 

Gonzalez: Five minutes, okay I’ll be waiting for you inside then.”

¶ 9 Gonzalez went back into the restaurant and sat down at a table. There were two or three 

people in the restaurant. Rosado entered, wearing a brown jacket and light colored pants, and 

gestured to Gonzalez to wait, then went into the kitchen area. Gonzalez saw Rosado’s back. 

After one or two minutes, Rosado gestured for Gonzalez to follow him into the men’s 

restroom. There, Rosado placed a plastic bag containing cocaine on the counter, and Gonzalez 

gave Rosado $800 in marked bills. Gonzalez could see the side and front of Rosado’s face, 

from two or three feet away. Gonzalez placed the bag in his waistband, and both men walked 

out. Gonzalez returned to his car and notified the others of the purchase. The contents of the 

bag tested positive for cocaine. At 4:25 p.m., Gonzalez viewed a photo array and identified 

Rosado as the man who had sold him the drugs. Rosado was arrested on April 1, but Gonzalez 

did not know if any of the marked bills had been recovered after the arrest. 

¶ 10 Gonzalez knew Rosado’s brother, Javier Moreno, because he also was investigating 

Moreno for drug sales. Both brothers were Hispanic with black hair, brown eyes, and goatees. 

Gonzalez compared pictures of both men and testified that their hairlines and facial hair were 

slightly different and that Rosado is slightly older and taller than Moreno. Both brothers spoke 

Spanish but had different voices and mannerisms and different cell phone numbers. Gonzalez 

testified that the man he spoke to and purchased drugs from on March 23 was Rosado, not 

Moreno, because Moreno had a tattoo on his hands and the man in the restroom did not have 

that tattoo. Moreno’s picture was not in the photo array viewed by Gonzalez.

¶ 11 Gonzalez went on to describe an undercover drug purchase made six days later, on March 

29. This transaction took place in Gonzalez’s car outside the same restaurant, and he bought 

41⁄2 ounces of cocaine from Rosado for $3100. He denied purchasing drugs from Moreno on 

March 29. 

¶ 12 Gonzalez stated that he had seen Rosado and purchased drugs from him before March 23, 

but he did not remember the date. It was possible that he had talked to Moreno on March 24, 

25, or 26 and possibly bought drugs from Moreno on March 24 and 26. 

¶ 13 Officer Robert Ramirez testified that he was an enforcement officer during the March 23 

drug purchase, stationed near the restaurant. After the purchase, Ramirez used a police 

computer to generate a photo array. Ramirez knew that Rosado’s picture was in the photo array 

and knew which photo was Rosado’s. He presented the array to Gonzalez, who identified 

Rosado. Ramirez also worked on the March 29 investigation but did not present a photo array 

to Gonzalez after that purchase. 

¶ 14 Officer David Torres testified that on March 23, he was working as a surveillance officer. 

Torres parked in a car at the northwest corner of the intersection (kitty-corner from the 
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restaurant) with the car facing away from the restaurant. Torres remained in his car throughout. 

He saw Gonzalez arrive in a civilian car and go into the restaurant, then return to his car a few 

minutes later. Gonzalez had a phone conversation, then re-entered the restaurant. A few 

minutes later, a man with a goatee and wearing a brown jacket and light colored pants entered 

the restaurant. Torres saw the man’s profile and identified him as Rosado. A few minutes later, 

Torres heard a radio report from Gonzalez that the drug transaction had been successful. Torres 

also testified that he had worked as a surveillance officer on March 29. He testified that he did 

not see Moreno on March 29 or March 23, did not see Rosado on March 29, and did not know 

if Moreno had been in the restaurant on March 23. 

¶ 15 Officer Joseph Watson testified that during the March 29 drug purchase, he was assigned to 

surveillance and was parked on the north side of Cermak Road, across the street from the 

restaurant. Watson saw Rosado driving a white Ford Expedition and turning off Cermak onto 

Christiana Avenue. Gonzalez had already parked outside the restaurant and gone inside. 

Rosado parked on Christiana and also went inside; Watson could see Rosado’s back but did not 

remember what Rosado wore. After a few minutes, Gonzalez and Rosado left the restaurant 

and got into Gonzalez’s car; then Rosado went back into the restaurant, and Gonzalez alerted 

the other officers of a drug purchase. Watson could not see what had occurred in Gonzalez’s 

car. Watson also worked as a surveillance officer on March 23, again parked across the street 

from the restaurant. He denied seeing Moreno on either March 23 or March 29. 

¶ 16 During closing arguments, the State referred to the March 29 purchase, arguing that the 

purchase identified Rosado because of its similarities to the March 23 purchase. Rosado’s 

counsel argued that Gonzalez had little opportunity on March 29 to successfully identify 

Rosado and that Gonzalez had confused Rosado for his brother, Moreno, who was being 

investigated during the same time frame. The trial court instructed the jury on the other-crimes 

evidence: “Evidence has been received that the defendant has been involved in an offense 

other than that charged in the indictment. This evidence has been received on the issue of the 

defendant’s identification and may be considered by you only for that limited purpose. It is for 

you to determine whether the defendant was involved in that offense, and, if so, what weight 

should be given to this evidence on the issue of identification.”

¶ 17 The jury found Rosado guilty. In his posttrial motion, Rosado argued that the trial court 

erred in admitting evidence of the March 29 drug sale and in disallowing evidence of his 

acquittal for that sale. The trial court denied the motion and sentenced Rosado to seven years of 

imprisonment. (Rosado pleaded guilty to the March 18 drug sale.) 

¶ 18 STANDARD OF REVIEW 

¶ 19 We review the admission of the other-crimes evidence and the trial court’s decision not to 

admit evidence of the acquittal for an abuse of discretion. See People v. Wilson, 214 Ill. 2d 127, 

136 (2005). An abuse of discretion occurs when a trial court’s decision is “arbitrary, fanciful, 

or unreasonable to the degree that no reasonable person would agree with it.” (Internal 

quotation marks omitted.) People v. Lerma, 2016 IL 118496, ¶ 23. 
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¶ 20 ANALYSIS 

¶ 21 Admission of Other-Crimes Evidence 

¶ 22 Rosado first contends that the trial court abused its discretion in admitting evidence of the 

March 29 drug sale as other-crimes evidence. Other-crimes evidence is inadmissible to show a 

defendant’s propensity to commit crime because a jury might convict the defendant not based 

on the evidence adduced at trial, but on the notion that defendant deserves punishment. People 

v. Placek, 184 Ill. 2d 370, 385 (1998). Such evidence can be admitted, however, to prove 

intent, modus operandi, identity, motive, absence of mistake, or any relevant, material fact 

other than propensity. People v. Donoho, 204 Ill. 2d 159, 170 (2003). But even when this 

evidence is admissible, the trial court still must weigh its prejudicial effect versus its probative 

value and exclude it if its prejudicial effect substantially outweighs its probative value. Placek, 

184 Ill. 2d at 385. The State’s proof of the other crime need not be beyond a reasonable doubt 

“but must be more than a mere suspicion.” People v. Davis, 248 Ill. App. 3d 886, 893 (1993). 

And “the mere fact of acquittal does not necessarily mean that [the] defendant did not commit 

the alleged other offense.” People v. Baldwin, 2014 IL App (1st) 121725, ¶ 73.

¶ 23 The State argues that Officer Gonzalez’s identification of Rosado was the core issue at trial 

and the March 29 evidence “lent credibility to the officers’ identification of [Rosado], showed 

that a relationship between the parties was established, and gave a more complete picture of the 

crime charged.” In support, the State directs us to People v. Vazquez, 180 Ill. App. 3d 270 

(1989). But Vazquez actually illustrates the evidentiary problem with the State’s argument.

¶ 24 Vazquez was charged with two counts of selling drugs, once on June 12 and another sale 

on July 2. Id. at 276. The State chose to try Vazquez for the July 2 sale and used evidence of the 

June 12 sale. Id. The Vazquez court accepted this evidence to refute Vazquez’s defense that he 

had not been involved in the July 2 sale, to bolster the State’s identification of Vazquez as the 

seller, and to show the relationship between buyer and seller. Id. at 278. 

¶ 25 What occurred here is precisely backwards from Vazquez. There, the evidence used was of 

a prior sale. The officers could successfully identify Vazquez on July 2 and were able to buy 

drugs with ease because they recognized him from June 12 and had already established a 

buyer-seller relationship. Here, the State submitted evidence from a later sale, on March 29. 

But the officers did not explain how their ability to recognize Rosado on March 23, both in 

person and in the photo array that same day, was somehow increased based on what they saw 

six days later on March 29. Further, the March 29 evidence could not explain how the 

buyer-seller relationship had already been established on March 23. (The same logical problem 

applies to another case cited by the State, People v. Bowman, 227 Ill. App. 3d 607 (1992), 

where a witness testified that she recognized the defendant from a previous drug sale.) 

¶ 26 The trial court abused its discretion in admitting this evidence because it could not bolster 

identification (the only basis on which it was admitted) and had no other relevance; it also was, 

as such, more prejudicial than probative. 

¶ 27 Evidence of Rosado’s Acquittal 

¶ 28 Rosado further argues that the trial court erred in not allowing him to inform the jury that 

he already had been tried and acquitted of the March 29 drug sale. Rosado relies primarily on 

People v. Ward, 2011 IL 108690. 
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¶ 29 Ward was accused of sexually assaulting two women, M.M. and L.S. Id. ¶¶ 5-6. Ward was 

first tried for assaulting L.S. but was acquitted after arguing that L.S. had consented. Id. ¶ 5. In 

the M.M. trial, the State asked to admit evidence of the assault on L.S. under section 115-7.3 of 

the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 2006)), which allows 

admission of prior sexual crimes to show propensity. People v. Ward, 2011 IL 108690, ¶ 7. 

The trial court allowed this evidence but ruled that Ward’s counsel could not present evidence 

that he had already been tried and acquitted of assaulting L.S. Id. ¶ 10. L.S. testified at the 

M.M. trial and briefly referred to the fact that she had testified before. Id. ¶ 14. The jury was 

instructed multiple times that it must decide whether Ward had committed the offense against 

L.S. and how much weight to give to that evidence. Id. ¶ 15. 

¶ 30 The Illinois Supreme Court held that the trial court abused its discretion in excluding the 

evidence of Ward’s acquittal. The supreme court determined that the acquittal was certainly 

probative of the issue, since “the complete absence of any reference to the outcome in that case 

severely restricted defendant’s ability to convey a complete context for L.S.’s allegations.” Id.

¶ 39. And the potential for unfair prejudice was high, given the inflammatory nature of the 

allegations, and the jury instruction that Ward had been “involved in an offense” implied that 

Ward had been charged, and perhaps convicted, of assaulting L.S. (Emphasis and internal 

quotation marks omitted.) Id. ¶¶ 44-45. Finally, the court held that the error was not harmless, 

as the propensity evidence was quite important in a case where the sole issue in dispute was 

Ward’s consent defense. Id. ¶ 49. 

¶ 31 The State argues that Ward is distinguishable because the evidence of the March 29 drug 

sale was not overly inflammatory and was used for identification purposes instead of 

propensity and that the acquittal was not obviously relevant to the identification. Ward indeed 

differs, particularly in that the other-crimes evidence in Ward was admitted as propensity 

evidence under a specific statute, as opposed to this case, where the evidence could only be 

admitted as something other than propensity under the standard rules of evidence. And the 

evidence of the March 29 transaction was certainly not inflammatory as was L.S.’s description 

of sexual assault. 

¶ 32 But nowhere does Ward limit its holding to prior cases of sexual assault admitted under 

section 115-7.3 or to cases involving emotional, wrenching testimony from sympathetic 

victims. Ward’s holding, which enforces the familiar principles of relevance, probative value, 

and unfair prejudice, applies with equal force here. 

¶ 33 The State argues that “the acquittal was not directly relevant to identity.” We do not know 

whether that is true, as we will never know the jury’s reasoning. But in both the March 23 and 

March 29 cases, the central question was identification, enough to invoke Ward’s holding. 

¶ 34 Rosado relies on People v. Bedoya, 325 Ill. App. 3d 926 (2001), where Bedoya’s 

conviction was reversed because the jury was not told that Bedoya had been acquitted of 

aggravated discharge of a firearm, though that charge was used as other-crimes evidence in a 

subsequent trial. The State attempts to distinguish Bedoya by arguing that the jury instruction 

given to Rosado’s jury was less prejudicial than that given in Bedoya. Contrary to the State’s 

representation, the jury in this case appears to have been given the same instruction as in 

Bedoya, the pattern instruction: “Evidence has been received that the defendant has been 

involved in an offense other than that charged in the indictment,” and the jury must determine 

“whether the defendant was involved in that offense.” Illinois Pattern Jury Instructions, 

Criminal, No. 3.14 (3d ed. 1992). Like the Bedoya court, we also are concerned that “[t]he jury 
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could have been left with the false impression that those ‘offenses’ were alive and pending.” 

Bedoya, 325 Ill. App. 3d at 943. The acquittal definitely relates to one of the tasks given by the 

instruction: determining whether Rosado was, in fact, involved in the March 29 offense. 

¶ 35 The trial court should have allowed Rosado to introduce evidence of his acquittal. The 

acquittal was relevant, in that it made “the existence of any fact that is of consequence to the 

determination of the action more probable or less probable.” Ill. R. Evid. 401 (eff. Jan. 1, 

2011). And it was highly probative on the crucial issue of identification. Did the police officers 

(especially Officer Gonzalez) recognize the man who sold the drugs on March 23 as Rosado? 

Or did they have him mixed up with his brother Moreno, who was also being investigated by 

the same officers during the same time period? The evidence of the March 29 acquittal would 

have provided the jury with a “complete context” for Officer Gonzalez’s allegations that 

Rosado had sold him drugs that day—especially in light of Officer Gonzalez’s vehement 

protestations that Rosado, not Moreno, had sold the drugs on March 29. The acquittal would 

have strongly impeached Officer Gonzalez’s testimony, and he was the most consequential 

witness against Rosado—the only officer who saw the drug seller up close. 

¶ 36 When admitting other-crimes evidence, we often warn trial courts not to allow a 

“mini-trial” on the other crime, since that could confuse the jury and waste time. Ward, 2011 

IL 108690, ¶ 39. But if a trial court is going to admit it, the trial court must do so equitably. 

Rosado should have been allowed to tell the jury about the acquittal. 

¶ 37 Beyond these timeworn evidentiary rules, a question of basic fairness must be dealt with. 

The State chose to try the March 29 case before the March 23 case. Rosado, for whatever 

reason, was acquitted. And yet, the State was allowed to proceed with the March 23 case as 

though the acquittal never happened and re-present the March 29 evidence to a second jury, 

forcing Rosado to defend himself again. Further, the trial court allowed the State to use 

other-crimes evidence in this case after having denied leave to do so in the March 29 case, 

concluding there that the evidence was more prejudicial than probative. The record does not 

reveal a sound reason for why the trial court made an about-face and ruled to the contrary here.

Both in terms of logic and fairness, the trial court’s decision was “unreasonable” and an abuse 

of discretion. 

¶ 38 The Errors Are Not Harmless 

¶ 39 The State argues that overwhelming evidence of guilt shows that any errors were harmless 

beyond a reasonable doubt. See People v. Patterson, 217 Ill. 2d 407, 434 (2005). But the 

State’s brief then equates “overwhelming” evidence with evidence that is “not closely 

balanced.” “Closely balanced” is part of a plain error analysis, not harmless error. People v. 

Thompson, 238 Ill. 2d 598, 613 (2010). Many attorneys (and judges, for that matter) find this 

area of law confusing, and we will not further muddy the waters by importing “not closely 

balanced” into harmless error analysis. 

¶ 40 Improper admission of other-crimes evidence is harmless if the defendant has not been 

prejudiced or denied a fair trial, and the State must show beyond a reasonable doubt that the 

result would have been the same without the improper admission. People v. Gregory, 2016 IL 

App (2d) 140294, ¶ 28. We will consider whether the other-crimes evidence was a “material 

factor” in the conviction. Id. 

¶ 41 The State has not shown that these errors were harmless beyond a reasonable doubt. 

Officer Gonzalez spoke with someone who answered Rosado’s cell phone and discussed a 
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drug transaction, but the conversation was short, and the other party did not identify himself. 

None of the other officers saw the drug seller up close; they were parked on the opposite side of 

the intersection from the restaurant. The case depended on Officer Gonzalez, who had also 

been investigating Moreno at the same time and admitted he could not remember which days 

he had bought drugs from Moreno. There was no physical evidence tying the drugs or the 

money to Rosado. Officer Gonzalez’s testimony might have been sufficient to support a 

conviction, but that is not the same thing as “overwhelming” evidence. See People v. Hogan, 

388 Ill. App. 3d 885 (2009) (finding evidence was sufficient to support conviction, but not 

overwhelming for harmless error analysis). So the March 29 evidence was a “material factor” 

in the jury’s decision.

¶ 42 Instructions on Remand on Denial of Petition for Rehearing 

¶ 43 Rosado is entitled to a new trial. In our original opinion, we remanded the case to the 

presiding judge of the criminal division of the circuit court with instructions that the case be 

assigned to a different judge for any further proceedings, under Illinois Supreme Court Rule 

366(a)(5) (eff. Feb. 1, 1994). The State has now petitioned for rehearing, arguing that we do 

not have that power under Rule 366 and that we failed to explain our reasoning for those 

instructions. Indeed, we did not explain—out of a desire to spare the trial court some 

embarrassment. But since the State asks for an explanation, we will provide one. 

¶ 44 In ruling on the other-crimes issue, the trial court made specific comments regarding the 

jury’s verdict in acquitting Rosado on the March 29 transaction. The judge stated that the 

evidence against Rosado was “quite clear.” It attributed the acquittal to the prosecutors not 

asking the right questions and leaving issues “up in the air,” which allowed Rosado’s attorneys 

to argue reasonable doubt. 

¶ 45 Here, the trial court reversed its own evidentiary rulings between cases (for no discernible 

reason) and then made a lengthy statement indicating its belief in Rosado’s guilt. We have not 

ordered the case reassigned due to trial court error in its evidentiary rulings. See People v. 

White, 2017 IL App (1st) 142358, ¶ 43 (though trial court’s evidentiary rulings were 

erroneous, reviewing court will not reassign matter on remand because there was “no 

indication that the court will not follow the law on remand”). Outward appearances would 

suggest that the trial court changed its evidentiary rulings in the second case to ensure that 

Rosado was not acquitted again. This raises the type of situation that requires reassignment, to 

avoid even the appearance of bias. See, e.g., People v. Montanez, 2016 IL App (1st) 133726, 

¶ 44 (on remand for third-stage postconviction proceedings, case should be reassigned where 

original postconviction judge “has already ruled that no contrary verdict could ever stand” and 

“expressed a disregard for the evidence presented”).

¶ 46 The State argues that we do not have the power to reassign the case under Rule 366, which, 

it maintains, is reserved only for civil cases. But many courts have ruled otherwise and used 

Rule 366 for reassignment in criminal cases. See Eychaner v. Gross, 202 Ill. 2d 228, 279 

(2002) (Rule 366 authority “includes the power to reassign a matter to a new judge on 

remand”); White, 2017 IL App (1st) 142358, ¶ 42; Montanez, 2016 IL App (1st) 133726, ¶ 44; 

People v. Serrano, 2016 IL App (1st) 133493, ¶ 45; People v. Tally, 2014 IL App (5th) 

120349, ¶ 43. 

¶ 47 The State has cited no direct authority for its argument. Instead, it argues that our powers 

are instead governed by Illinois Supreme Court Rule 615. That rule allows us to “set aside, 
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affirm, or modify any or all of the proceedings subsequent to or dependent upon the judgment 

or order from which the appeal is taken.” Ill. S. Ct. R. 615(b). But, the State argues, since those 

powers have been limited by the supreme court in a completely different context, we do not 

have the power to direct the presiding judge of the criminal division to reassign the case. While 

in People v. Castleberry, 2015 IL 116916, ¶ 26, the supreme court ruled that an appellate court 

did not have the power under Rule 615 to modify an illegal sentence, the Castleberry court was 

not asked and did not rule on whether an appellate court has the same power to reassign a case 

under Rule 615 as it does under Rule 366. This judicial power is necessary for an appellate 

court, and we can see no reason why we should have that power in civil cases but not in 

criminal ones. The petition for rehearing is denied. 

¶ 48 Reversed and remanded with directions.