## 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 . Gist, 2013 IL App (2d) 111140

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellant, v. WI L L IAM E. GI ST, J R., Defe ndant-Appe llee.

District & N o. Second District Docke t No. 2-11-1140

Filed Marc h 11, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y 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

. ) In a prose cution for batteries def endant alleg edly committed ag ainst his

s o n , t he denial of the State’s motion to admit the testimony of the victim’s mother c o n c e r

n in g p rio r b a

tt e rie s defe ndant alleg edly committed
ag ainst his son was upheld over the State’s contention that the denial was based solely on the court’s a ssessment of the mother’ s cre dibilit y , since the m other never saw defe ndant strike the victim, the testimony was unreliab l e an d was more prejudicia l than probative, and the jury might speculate as to whether defe ndant demonstrated a pattern of violence
ag ainst his son.

Dec ision Under Review Appea l from the C i rc u i t Court of L ake County
, No. 09-CF- 1507; the Hon. Theodor e S. Potkonjak, J udg e, pre siding.

J udg ment Affir med and r emande d.Counsel on

Appea l Michae l J

. Waller, State’s Att orney , of Waukeg an (L awr ence M. Ba uer and J ay Paul Hoffma

nn, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Thomas A. L ilien and Ki m M

. De W itt, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llee.

Panel J USTI CE HUDSON deliver ed the judgment of the c ourt, with opinion. Presiding J ustice Bur

ke and J ustice J org ensen concur red in the judgme nt and opinion.

OP INION

¶ 1 The State appea ls the trial court’s denial of its motion in limine to admit evidenc e of prior domestic batterie s that defe ndant, Wil liam E. Gist, J r., alleg edly committed ag ainst his son W.G. The S tate contends th at t h e co urt err ed by denying admission of t he evidence solely beca use of its appra isal of a witness’ s cre dibilit y . We affir m. ¶ 2 An indictment c harg ed defe ndant with two counts of ag g ravated battery of a child (720 I L CS 5/12-4.3(a) (West 2008)), ag gravated domestic battery (720 I L CS 5/12-3.3 (West 2008)), and ag g ravated battery (720 I L CS 5/12-4(a) (West 2008)). All four count s al leg ed that defe ndant struck the vic tim in t he che st. ¶ 3 The State moved in limine
, pursuant to common law and section 115-7.4 of the Code of Criminal Proc edure of 1963 (725 I L CS 5/115-7.4 (West 2008)), to admit evidenc e of prior
acts of domestic violence that defe ndant alleg edly committed ag ainst the victim and filed a notice disclosing the potential witnesses to those acts. The notice stated that defe ndant’s son J .G. would testify that he had seen defe ndant strike the victim with a belt beca use the victim could not corr ectly rec ite his name; Ang elita Gist would testify that she had seen defe ndant punch the victim in the stomach beca use he could not corr ectly rec ite his name and had seen defen d an t s t rike the victim with a belt for the same rea son; and Be cky Quinn of the Depa rtment of C hildren and Fa m i l y S er vices would testify that defe ndant had admitted to her t h at h e had disciplined the vi ctim with a belt. The mot ion asser ted t hat, i n the charg ed incident, defendant struck the vi ctim beca use he could not state hi s gi v en name. Thus, the State asser

ted, the evidenc e was rele vant to show defe ndant’s intent, motive, and propensity to commit acts of domestic violence

. ¶ 4 The trial court, per J udg e Fr ed For eman, order ed the State to prese nt Ang elita Gist’s live testimony in support of the motion. At the subseque n t h ea ri n g befor e J udg e Theodore S. Potkonjak, Ang elita testified that she had two children, J .G., then ag e eight, and W.G., who

was six y ear s old. W

. G. h ad been nicknamed “Capone ” since birth. As he g rew older, he

-2-could not understand that his g iven name was differ ent. Every one called him by his nickname, a

nd Ang elita had no pr oblem with that. Defe ndant, howeve r, did not like it. ¶ 5 Two or three wee ks befor e the char g ed incident, Ang elita and defe ndant wer e in their bedroom with th ei r sons and perha ps other visiti ng children. The issue about the victim’s

name had been g oing on for about a month. Def endant asked the vict i m h i s n am e. He orig inally answe red corr ectly
, but then kept saying, “Capone Gist.” Def endant then alleg edly punched the victim in the stomach. Ang elita was sitti ng on the b ed an arm ’s length from defe ndant and saw his hand g o forwa rd and hit the victim in the abdomen. She could not tell whether defe ndant struck the victim with a fist or an open hand. Def endant’ s back was to her, and he was b l o ck ing her view of t he victim
, but she saw the vi ctim g rab his stomach after the contac t. The victim fell down, went i n t o a feta l position, and beg an to cry

. Ang elita picked the victim up. Def

endant’ s g randmother was in another room at the time. Ang elita did
not take the victim into t he other room, tell the g randmother about the incident, or call the authorities. She had not see n defe ndant strike the victim or J.G. on any other date. ¶ 6 The trial court denied the State’s motion. The court intimated that its ruling might have been differ ent had J udg e For eman not order ed the witness to testify

. The court observe d that her te stimony

differ ed fr om that proffe red in the State’ s motion. The court fur ther stated:
“B ased on the testimony the Court has in front o f it, the Court will find that the–ag ain, i t is afte r t he C ourt has had the opportuni ty to listen to t h e t es t i m ony of t he witness wh i ch the Court specific ally finds not to be cre dible as to the injury –as to the
g iven time of the alleg ed incident, prior incid ent, but in looking–in listening to her testimony she testified that throug hout the time that they wer e try ing to do this she never witnessed the defe ndant striking the victim or making any visible contac t with the victim beca use he w as havingtrouble with his name.” ¶ 7 The court noted that Ang elita’s acc ount involved, at most, one prior incident. The court found that evidenc e of a single incident, which Ang elita did not clea rly see, would be more prejudicia l than probative. An order prepa red by the assistant State’s Attorney stated that the State’s motion in limine was de nied in toto

. ¶ 8 The State moved to r econside r, contending that the cour t’s assessment of the witness’s

cre dibilit y was not a proper basis to de ny admission of the evidenc e. The trial court denied the motion, reiter ating that it found the evidenc e more prejudicia l than probative. The State timely appea led. ¶ 9 On appea l, the State rene ws its argument that the trial court err ed by denying a dmission

o f t h e evidenc e solely beca use of its assessment of the witness’s cre dibility

. The Sta t e

conce des that, in decidingwhether to admit evidence of prior ba d acts, the tria l court must balanc e the probative value of the evidenc e ag ainst the prejudice to the defe ndant. The State contends, howeve r, that the court here excluded the evidenc e solely beca use of i t s unfavor able opinion of Ang elita’s cr edibility , which is not a prope r consider ation. ¶ 10 Gene rally , evidenc e of othe r cr imes is admissibl e if it is relevant for any purpose other than to show a defe ndant’s propensity to commit crimes. People v. W ilson
, 214 I ll. 2d 127, 1 3 5 -3 6 (2 0 05). Howeve r, section 115-7.4 of the Code of Criminal Procedur e of 196 3 provides that, in a prosec ution for domes tic violence, “evide nce of the defe ndant’s

-3-commission of another offe nse or of fense s of domestic violence is a dmissibl e, and may be considere d for its bearing on any matter t o wh i ch it is rele vant.” 725 I L CS 5/115-7.4(a) (West 2008). The statute thus alter s the common-law r ule by allowing admission of othercrimes evidenc e to show propensity

. People v. Dabbs
, 239 I ll. 2d 277, 288 (2010)

. T h e statute furthe r provides: “(b) In weighing the proba tive value of

the evidenc e ag ainst undue prejudice to the defe ndant, the cour

t may consider: (1) the pr ox imity

in time to the charg ed or pr edica te offe nse; (2) the de g ree of fa ctual similarity to the char g ed or pr edica te offe nse; or (3) other rele vant fac ts and circ umstances.” 725 I L CS 5/115-7.4(b) (West 2008). ¶ 11 We g ener ally revie w a trial court’s evidentiar y ruling s for an abuse of discretion. People

v. Caffey
, 205 I ll. 2d 52, 89 (2001). An abuse of discretion occur s when no rea sonable person could agree with the position taken by the trial court. People v. Smi th
, 2 012 I L App (1st) 113591, ¶ 23. Howeve r, an evidentiar y ruling is revie wed de novo wher e “a trial court’s exercise of discretion has been frustra ted by an err oneous rule of law.” People v. W illiams
, 188 I ll. 2d 365, 369 (1999). The State contends that this case is of the latter ty pe beca use the trial court m i s t ak enly believed that a witness’s cre dibilit y is rele vant to deciding whether evidenc e is more probative than prejudicia l. As we explain, this is not what happene d here ; thus, we apply

the traditional abuse -of- discretion standa rd. ¶ 12 The State a

rgues that the trial c ourt usurped the jury ’s function by rulingon Ang elita’s

cre dibilit y in the context of a motion in limine

. Def endant responds that reliability is a fac tor in deciding whether to admit evidenc e (s ee Ca f f ey , 205 I ll. 2d at 89 (“tria l court must consider a number of circ umstances *** including que stions of r eliability and prejudice ”)) and that questions of reliability and cre dibilit y are nece ssarily intertwined. In its reply brief, the State contends that cre dibilit y is not the same thing as reliability

. The State equate s “unre liability ” or “unce rtainty” with “spe culation,” whic h it defines as “ theorizing a bout a matter as to which evidenc e is not sufficie nt for cer tain knowledg e.” Bla ck’s L aw Dictionary 1255 (5th ed. 1979). ¶ 13 Befo re tu rn i n g t o t h e merits, we discuss two preliminary points. First, this case is somewhat unusual in that the tria l court ordere d one of the pot ential wit nesses to testify at the hearing. In its opening brief, the State complains essentially that it was place d at a disadvantag e by having Ang elita testify and that the court then excluded the evidenc e on its
assessment of An gelita’s cre dibilit y rathe r than, as in the usual case , mere ly acc epting the State’s proff

er. Neve rtheless, as the State conce des, a trial court has v as t d i s cretion in conducting a hearing on a motion in limine
, including the discretion to require live witnesses. People v . Owen , 299 I ll. App. 3d 818, 823 (1998). ¶ 14 The sec ond point we discuss is the s cope of the trial cour

t’s ruling . As noted, the State
soug ht to introduce testimony by three witnesses reg arding at l east two separ ate incidents. The State’s notice indicated that both J .G. and Ang elita would testify that defe ndant struck the vi ctim with a belt. At the hearing
, Ang elita t estified about one incident, but stat ed that she had not se en defe ndant strike the victim on any other occa sion. The State did not argue that J .G. could independe ntly testify that defe ndant struck the victim with a belt. The trial

-4-court’s oral ruling did not specific ally ref er to the belt incident. Howeve r, the written order
, prepa red by the prosecu t o r, states that the motion was denied in toto

. The State moved to

rec onsider, but did not mention the belt incident. ¶ 15 The pa

rties’ brie fs larg ely confine their argument to the i ncident about which Ang elita
t es t i fi ed

. Ho we ver, the State points out that the t rial court did not ref er to any of t he other evidenc e and, at least implicitl y , contends that this was err or. We conclude that the State has for feited any argument about the admissibili ty of the other evidenc e. See People v. Thompson
, 337 I ll. App. 3d 849, 854 (2003). Whil e the trial court did not order J .G. to testify and the State co u l d p resumably have relied on its proff er to argue for the admissibili ty of J .G.’s testimony
, it did not argue separ ately for the admission of that evidenc e. The State did not raise the a

rgument in its m otion to reconsider and, eve n in this court, doe s not develop

a separ ate argument that J .G.’s testimony (or that of Be cky Qu i n n ) was independe ntly admissible to prove a pattern of c onduct by defe ndant. ¶ 16 Turning to the m erits o f t h e p ri mary issue, the fatal flaw in the S tate’s logic is that the trial court did not exclude the evidenc e beca use it found that Ang elita was not cre dible. To be sure, the court commented unfavor ably on Ang elita’s cred ibilit y , g oing so far as to observe that its rul i n g might have been differ ent had Ang elita not testified. Howeve r, its
actua l finding was that Ang elita did not actua lly see defe ndant strike the victim. Specifica lly
, the co u rt s t at ed, “she testified t hat t hroughout the t ime that they wer e trying to do this she

never witnes s ed t he defe ndant striking the victim or making any visible contac t with the victim,” beca

use defe ndant was betwee n her and the victim. The court thus assumed the truth of Ang elita’s testimony
, but never theless found the evidenc e unreliable

. In other words, Ang elita’s testimony
, even if true, would require the jury to speculate about whether and to what extent there w as conta ct betwe en the de fenda nt’s hand and the victim. ¶ 17 T h e co u rt fu rt h er ruled that Ang elita’s testimony
, even if true, rec ounted a sin gl e incident, which did not necessar ily prove a pattern of violence ag ainst the vi ctim based on his inability to rec ite his name corr ectly

. Moreove r, the court emphasized that the prejudice to defe ndant outweighed the pr obative value of the e vidence

. ¶ 18 Properly understood, the tri al co u rt ’s ru l ing was not an abuse of discretion. The c ourt

rea sonably conclude d that the testimony was more prejudicia l than probat i v e. Be cause Ang elita did not actua lly see defe ndant strike the victim, and was unable to say whether he used a closed fist or open hand, her testimony was of limit ed probative value. Moreove r, the
court re asonably

noted that a single incident was of limit ed probative value in esta blishing propensity

. Howeve r, the dang er that the jury might speculate th at defe ndant had demonstrated a

clea r patter n of violence ag ainst the victim was obviously prejudicia l. ¶ 19 Ac co rdi ng ly
, the order of the circuit court of L ake County is aff irmed and the cause i s

rema nded.

¶ 20 Affir

med and r emande d.

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