Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 12C220330. Honorable Garritt E. Howard, Judge Presiding.
For APPELLANT: OFFICE OF THE ILLINOIS STATE APPELLATE DEFENDER, Chicago, IL, Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Appellate Defender, Samuel M. Hayman, Assistant Appellate Defender.
For APPELLEE: OFFICE OF THE ILLINOIS STATE'S ATTORNEY, Chicago, IL, Anita Alvarez, State's Attorney, Alan J. Spellberg, Whitney Bond, Assistant State's Attorneys Marques Berrington, Student Law Clerk.
JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.
[¶1] Defendant Ian Clark was convicted of theft for stealing a bicycle. At his jury trial, the trial court permitted the State to introduce evidence that, four years before this case, defendant had stolen another bicycle in the same area. According to the State, the evidence of this other crime was relevant to prove defendant's intent and identity in the instant case.
[¶2] On appeal, defendant contends that the trial court erred in admitting evidence of his prior bicycle theft because it was not relevant to prove either his intent or identity. Instead, defendant argues that the only relevant purpose for that evidence was to prove his propensity to steal bicycles, which is a prohibited purpose for other-crime evidence. Defendant also contends that the trial court erred by omitting a necessary paragraph from the jury instruction dealing with his prior theft, which would have instructed the jury that it was up to them to weigh the evidence relating to defendant's prior theft.
[¶3] We agree with defendant that the trial court erred in admitting the other-crime evidence. Evidence of defendant's prior theft did not prove his intent to commit theft or his identity in the instant case in a permissible way. Rather, it relied on an inference that defendant possessed a propensity to commit theft, which is prohibited under the rules of evidence. However, we also conclude that, in light of the overwhelming evidence against defendant, that error was harmless beyond a reasonable doubt.
[¶4] We also agree that the trial court erred in delivering an incomplete version of Illinois Pattern Jury Instructions, Criminal, No. 3.14 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 3.14). However, we conclude that this error did not rise to the level of plain error, creating a serious risk that the jury misapplied the applicable law, considering that the jury was told that it " may" consider the evidence of defendant's prior conviction, rather than being told that it was required to consider it, and where other jury instructions told the jury that it could give whatever weight it deemed appropriate to the testimony and evidence in this case. We affirm defendant's conviction.
[¶5] I. BACKGROUND
[¶6] The State charged defendant with one count of theft, alleging that defendant stole a bicycle in Park Ridge, Illinois, in 2012. Prior to trial, the State filed a motion seeking permission to admit evidence that defendant had stolen a bicycle in 2008. The State argued that this crime proved defendant's intent and identity in this case. Defendant opposed the motion, arguing that the evidence was irrelevant for any purpose other than showing defendant's propensity to steal bicycles.
[¶7] The trial court, indicating that it was " very familiar with this area of law," noted that evidence of other crimes is inadmissible if used to establish a defendant's propensity to commit crimes, but it is admissible for any other purpose " such as modus operandi, intent, absence of mistake, et cetera." Without specifying the basis for which the evidence would be used, the trial court then stated that the probative value of the other-crime evidence outweighed its prejudicial effect, noting that the 2008 theft was " not too remote in time." The court granted the State's motion to admit the evidence of the 2008 theft.
[¶8] At trial, Adam Woznicki testified that he was waiting in his car in the parking lot of ATI Physical Therapy in Park Ridge, Illinois, around 9 a.m. on May 6, 2012. Woznicki testified that he saw defendant, whom he identified in court, walk past his car. Defendant was about 20 to 30 feet away from Woznicki. Woznicki said that defendant had something in his hand, but he could not see what it was. Woznicki testified that defendant rode away on a bicycle that had been locked to a pole in front of Woznicki's car. Defendant rode the bicycle past Woznicki's car and into an alley. Woznicki said that defendant seemed to be in a rush. After defendant had left, Woznicki saw that the bicycle's lock " was hanging on the pole," so Woznicki assumed that defendant had cut the lock.
[¶9] After losing sight of defendant, Woznicki drove around the block to try to find him. Woznicki turned out of the ATI parking lot and up a side street, where he saw defendant " trying to put the bike in a car." According to Woznicki, defendant was trying to remove the front tire of the bicycle so that it would fit in a black car.
[¶10] Woznicki circled the block and saw defendant again. Defendant, who was driving the black car, passed Woznicki. Woznicki typed the license plate number of the black car into his cell phone, then drove back to ATI. Woznicki testified that defendant's hair color stood out to him as unique. Woznicki said that defendant's hair was " gray and black, like two-tone."
[¶11] Robert Greif was the owner of the stolen bicycle. He testified that he went to ATI for physical therapy " sometime around" 9 a.m. or 9:30 a.m. on May 16, 2012. Greif locked his bicycle to a light post outside the building. After approximately an hour and a half of physical therapy, someone entered the building and said that a bicycle that had been locked outside was stolen. Greif called the police.
[¶12] Woznicki told the police about defendant's hair color and described him as 6 feet tall and approximately 40 years old. Defendant also gave the police the license plate number of the black car.
[¶13] Detective Tony Raitano of the Park Ridge police department entered the license plate number into a Secretary of State database, which returned information on a black Infiniti registered to defendant. Raitano created a photo array that included defendant's picture along with five individuals that resembled defendant.
[¶14] On May 22, 2012, Woznicki went to the Park Ridge police department, where he viewed the photo array. Woznicki signed an advisory form instructing him that the suspect may or may not be in the array and that he was not required to make an identification. Woznicki looked at the array briefly and identified defendant as the person who took the bicycle.
[¶15] On June 27, 2012, defendant was taken into custody during an unrelated traffic stop. Defendant was driving a 2002 black Infiniti sedan. The police did not recover the bicycle, a lock, or any bolt cutters. Defendant was wearing glasses when he was arrested.
[¶16] Two witnesses testified regarding the 2008 theft. Before they testified, the court instructed the jury that the evidence would " be received on the issue[s] of the defendant's identification and intent and may be considered *** only for [those] limited purpose[s]."
[¶17] Francis Zurek, who was 17 years old at the time of trial, testified that his bicycle was stolen on June 19, 2008, when he was 12 years old. Zurek parked his bicycle outside the Park Ridge public library, locked it to a bicycle rack, and went across the street to a restaurant. After eating, Zurek returned to the library and saw defendant riding his bicycle. Zurek said, " Sir, that's my bike," but defendant continued to ride away. Zurek saw a police car and flagged it down.
[¶18] Officer Robert Evans testified that Zurek flagged him down and told him that he saw someone steal his bicycle. Evans radioed the information Zurek gave him to other officers. Evans soon received a call that a suspect had been apprehended nearby. Evans went to that officer's location and saw defendant sitting on the curb in handcuffs. Evans also noticed a bicycle, a pair of bolt cutters, and a severed cable that was still attached to the bicycle.
[¶19] Evans brought defendant back to Zurek, and Zurek identified defendant as the man that had stolen his bicycle. Evans testified that he brought defendant back to the Park Ridge police station, where defendant admitted that " he cut the cable and took the bike."
[¶20] The parties stipulated that defendant pled guilty to the theft of Zurek's bicycle on April 15, 2009. Defendant exercised his right not to present any evidence.
[¶21] During its closing argument, the State thoroughly discussed the 2008 theft. The State said, " The law allows you to consider that evidence [of the 2008 theft] because you are not required to consider the evidence that you've heard in a vacuum, in a sterile environment." The State highlighted the similarities between the 2008 and 2012 thefts, noting that " [i]t was the same item that was taken" and that defendant " cut the locks" on the bicycles in both cases. According to the State, these similarities " establish the defendant's clear intent in permanently depriving the victims of the bicycle[s]." The State also argued that the similarities between the thefts " can be considered to establish the defendant's intent and the defendant's identification."
[¶22] At the jury instructions conference, defendant renewed his objection " to the other crimes evidence." The State proposed IPI Criminal 4th No. 3.14, which related to its other-crime evidence. When the court asked defense counsel if she objected to IPI Criminal 4th No. 3.14, she responded, " We would reiterate our prior objections to the whole issue of the other crimes evidence coming in." Defense counsel clarified that she was " [p]reserving that issue." The court then granted the State's request to deliver IPI Criminal 4th No. 3.14. When instructing the jury regarding the other-crime evidence, the court stated, " Evidence has been received that the defendant has been involved in an offense other than that charged in the information. This ...