2021 IL App (1st) 180529-U
FIRST DIVISION March 1, 2021
No. 1-18-0529
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 16 CR 724 ) JOHNATHAN REZA, ) The Honorable ) Carol M. Howard, Defendant-Appellant. ) Judge Presiding.
JUSTICE PIERCE delivered the judgment of the court. Presiding Justice Walker and Justice Coghlan concurred in the judgment.
ORDER
¶1 Held: The judgment of the circuit court is affirmed. Defendant’s convictions are affirmed where the circuit court erred by admitting other-crimes evidence, but the error did not warrant plain error relief because the evidence of defendant’s guilt was not closely balanced, and defendant did not establish that the admission of other-crimes evidence resulted in any prejudice, so his ineffective assistance of counsel claim fails. The circuit court’s imposition of consecutive sentences is affirmed because the record on appeal demonstrates that the circuit court made a finding that the victim of the attempted murder sustained a severe bodily injury for the purposes of section 5-8-4(d)(1) of the Unified Code of Corrections and that finding is not against the manifest weight of the evidence. Trial counsel was not ineffective for failing to object to the imposition of consecutive sentences. No. 1-18-0529
¶2 Defendant, Johnathan Reza, was charged with two counts of attempted murder and
numerous counts of aggravated battery after he allegedly stabbed Jose Diaz and Jose Duran during
an altercation in a bar parking lot and then rammed his truck into Jonathan Brito’s car as Brito
attempted to drive away from the scene with Diaz and Duran. Following a bench trial, Reza was
convicted of the attempted murder and aggravated battery of Diaz and the aggravated battery of
Duran. The convictions for the attempted murder and the aggravated battery of Diaz merged, and
defendant received a six-year prison sentence. He received a five-year prison sentence for the
aggravated battery of Duran. The circuit court ordered the sentences to be served consecutively,
resulting in an 11-year prison sentence.
¶3 On appeal, defendant does not challenge the sufficiency of the evidence supporting his
convictions. Instead, he argues that the circuit court erred by admitting other-crimes evidence and
erred by imposing a mandatory consecutive sentence. He also asserts that his trial counsel provided
ineffective assistance. For the following reasons, we affirm.
¶4 I. BACKGROUND
¶5 Defendant was charged with two counts of attempted murder and eight counts of
aggravated battery for stabbing Diaz and Duran on December 11, 2015, and two counts of
aggravated battery for driving his vehicle into Brito’s car, also on December 11, 2015, all of which
resulted in bodily harm to the victims. The only charges at issue in this appeal are the attempted
murder and the aggravated battery of Diaz and the aggravated battery of Duran.
¶6 Prior to trial, the State filed a motion in limine seeking to introduce evidence of other
alleged crimes committed by defendant. The only other-crimes evidence relevant to this appeal is
defendant’s arrest following an incident during a conversation with his landlord, Neal Pacheco, on
December 8, 2015, in which defendant allegedly grabbed a knife and said, “This is what I use on
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people who fuck with me.” The State’s motion asserted that it sought to introduce the other-crimes
evidence for modus operandi, intent, absence of innocent frame of mind, absence of mistake or
accident, and to contradict defendant’s denials. At the hearing on the motion, however, the
assistant state’s attorney clarified that:
“While I have written modus operandi, your Honor, I’m not asking to use it for that
matter. But clearly, Judge, this would fall under, should your Court [sic] allow,
other crimes evidence to show the defendant’s intent. As the Court is aware, intent,
Judge, can be garnered from those matters before an offense, during an offense, or
even after an offense, absence of the defendant’s innocent frame of mind, absence
of any mistake or accident by the defendant, and just as importantly, your Honor,
to contradict the defendant’s denials.”
The State also noted that defendant had filed an affirmative defense of self-defense. After hearing
argument, the circuit court granted the motion, stating,
“Both of the cases involve a knife. Both of them deal with some sort of dispute.
And so over the defense vigorous [sic] objection, I’m going to allow it in for one
purpose and one purpose only and that purpose would be modus operandi. It won’t
be admitted for any other purpose.”
¶7 During the State’s opening statement at the bench trial, the State asserted that Pacheco’s
testimony was relevant to show defendant’s modus operandi. At trial, Pacheco gave the following
testimony related to the other-crimes evidence. He rented an apartment to defendant. In December
2015, he went to the unit to discuss defendant moving out and defendant’s rent. During the
conversation, defendant began yelling and screaming about his roommate and having to move out.
Defendant cried and turned “Dr. Jekyll and Mr. Hyde.” Defendant went into a bedroom and
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returned holding a knife with a black blade and Pacheco described defendant holding the blade
with a finger through a hole. Defendant pointed the knife at Pacheco and said “this is what happens
to people who fuck *** with me, and I could go zero to a hundred like a flick of a switch.” Pacheco
went outside and called his wife, who called the police. Defendant followed Pacheco outside and
when the police arrived, he argued and yelled. The police removed defendant from the property.
Pacheco felt threatened by defendant and acknowledged that defendant never made any physical
contact with him.
¶8 The following testimony was given at trial relevant to the attempted murder and aggravated
battery charges. Jacklyn Frieri testified that on December 10, 2015, a wake was held for Miguel
Ayala, a man who went to high school with Frieri, Diaz, Duran, Brito, and defendant. After the
wake, Ayala’s family hosted a reunion at the Illinois Bar & Grill. Diaz, Duran, and Brito were at
Brito’s house before they went to the bar. Diaz, Duran, and Brito picked up Frieri from her house
in Brito’s car, and the group arrived at the bar around 11 p.m. Frieri testified that she had five
drinks at the bar and that the others were drinking but testified that neither she nor Diaz were
intoxicated. Defendant, whom Frieri had known since the sixth grade, was at the bar and left half
an hour before the bar closed. She and the others left the bar at closing time and the group stood
around drinking and smoking in the parking lot near Brito’s car. Defendant pulled up in a Dodge
Ram truck as if he were going to hit the group. Defendant smiled at the group and got out of the
truck. Duran then threw a beer bottle at the windshield of defendant’s truck. Defendant came over
and started fighting with Duran by punching him numerous times in the back. Diaz stepped in to
break up the fight when defendant started swinging at Diaz from behind, hitting him in the upper
body. Diaz ran backwards and yelled that he needed to go to the hospital. Frieri saw blood on
Diaz’s face and clothes. During the fight, she did not see defendant holding a knife and only saw
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defendant throwing what she thought were punches. She did not see Duran punch defendant.
Neither Duran nor Diaz had any weapons, and they were both bleeding. Frieri, Duran, and Diaz
got into Brito’s car and Frieri tried to stop their bleeding while Brito drove when defendant
repeatedly rammed Brito’s car with his truck, eventually causing Brito to black out.
¶9 Diaz testified that he did not know defendant. When defendant drove his truck at the group
in the parking lot, he heard defendant say something but did not hear what he said. Duran then
started arguing with defendant and walked away. Defendant parked his truck, and Diaz then saw
defendant and Duran fighting, with defendant taking swings at and hitting Duran’s upper back. He
did not see any weapons. Diaz tried to separate defendant and Duran by getting between them and
pushing them apart, and he tried to catch Duran as Duran was falling. Diaz had his back to
defendant, who reached around from behind and started punching Diaz in the chest, at which time
Diaz realized that he was being stabbed. After he was stabbed, he ran toward his friends and
defendant chased him. Diaz fell to the ground and defendant stabbed him on the side of his face
and in the back. As Diaz rolled on the ground to protect his face, defendant stabbed him in his
upper back between his lungs. The circuit court took judicial notice of a scar on Diaz’s face. Brito
and others were able to get defendant off Diaz, allowing him to get to the sidewalk and eventually
to Brito’s car. The last thing Diaz remembered was being in the backseat of Brito’s car and getting
rammed by another vehicle. At trial, he identified numerous photographs of the injuries to his face
and chest. Diaz no longer had movement on the left side of his face. He testified that he had not
been drinking that night. He did not see anyone throw at bottle at the truck. Defendant was holding
the knife between his middle and index finger when he stabbed Diaz in the chest.
¶ 10 Duran testified that had a few drinks at the bar before leaving at closing time and had one
drink before arriving at the bar. Duran did not know defendant. He saw a Dodge Ram driving
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toward him and his friends at a fast speed, so he threw a beer bottle at the truck’s windshield. He
threw the bottle because he heard defendant saying something but did not recall what was said.
Defendant got out of the truck and started chasing Duran. Duran initially thought that defendant
was punching him in the back and did not immediately realize that he was being stabbed from
behind. He could not defend himself because he was being stabbed from behind. He was also
stabbed on the lower right side of his neck, which left a scar. Duran fell to the ground at some
point. He did not have any weapons and did not see what kind of knife defendant held. The last
thing that he remembered was Diaz pushing defendant away to break defendant and Duran apart.
Duran was hospitalized for two weeks and underwent surgery on his back and neck. After meeting
with detectives, Duran identified defendant as the person who stabbed him.
¶ 11 Brito testified that he did not know defendant prior to December 11. Brito was in the
parking lot when the Dodge Ram drove past him and his friends and truck was going “pretty fast.”
He did not see anyone throw a bottle at the truck. He heard Diaz scream that someone was stabbing
him. He saw Diaz on his knees bleeding against a wall and still being hit but did not see any
weapons. Brito testified that another man, Juan Salgado, pushed defendant away from Diaz. Brito
helped Diaz get into Brito’s car. Duran, who was also bleeding, and Frieri got into Brito’s car. As
Brito drove down an alley, defendant rammed his truck into Brito’s car several times. Brito was
eventually able to drive to the hospital, and subsequently identified defendant as the man who
attacked Diaz and was driving the Dodge Ram. Brito had several drinks while at the bar and before
arriving.
¶ 12 Detective Smith testified that he met with Diaz in the emergency room and observed Diaz
bleeding from a large wound to his chest and the side of his face. Detective Smith also observed
Duran in the emergency room with a stab wound to his neck and a puncture wound on his back.
6 No. 1-18-0529
He was unable to speak to Duran because Duran was flatlining. The detectives interviewed Brito,
Frieri, and Salgado. Frieri told detectives that defendant was the person who stabbed her friends.
The detectives spoke to two police officers who encountered defendant around 2:30 a.m. near the
scene of the stabbings. The officers said that defendant claimed he was jumped and may have
stabbed someone, although the officers could not verify the information. Detective Smith went to
the Illinois Bar & Grill parking lot and found broken glass, broken beer bottles, and pieces of
shattered glass from Brito’s car. The detectives also went to defendant’s apartment building;
defendant was not there but the detectives observed a Dodge Ram with front end damage near the
building.
¶ 13 The parties stipulated that, if called to testify, Chicago police officer Ivan Lopez would
testify that he and his partner encountered defendant on December 11, 2015, at 2:47 a.m. near the
scene of the crimes and completed a contact card. Defendant told the officers that he had been in
an altercation with people that he did not know and that he might have stabbed someone. The
parties also stipulated that an evidence technician would testify that he took photos at the scene,
of Brito’s car, and of Duran’s injuries, and took blood swabs of the sidewalk near the scene.
¶ 14 Dr. Jeremy D. Slayton testified by way of stipulation that he treated Duran at Mt. Sinai
Hospital. Duran could not talk and had difficulty breathing. There was a large gaping wound about
10 centimeters long that exposed two ends of an artery in Duran’s neck that was bleeding
profusely. Duran also had a large gash on his back that revealed his ribs and lung when gently
retracted. He also had a two-centimeter gash on the left side of his back and six other stab wounds
on the left side of his back. Duran underwent surgery on his neck and received treatment, including
staples, for the stab wounds on his chest.
7 No. 1-18-0529
¶ 15 Dr. Mario Ellis testified by way of stipulation that Diaz presented at Mt. Sinai Hospital
with a five-centimeter laceration at the base of the helix—near the top of the ear—extending to his
face resulting in a 90% laceration of his facial nerve at the bony stylomastoid foramen.
¶ 16 Finally, the parties stipulated that Brian Schoon, an Illinois State Police Forensic Scientist,
was qualified as an expert in forensic biology, and that, if called at trial, would testify that DNA
found at the scene matched the Diaz’s DNA profile but did not match either Duran or defendant.
¶ 17 The State moved various exhibits into evidence and rested. Defendant moved for a directed
verdict, which the circuit court granted in part and denied in part, and the circuit court entered a
finding of not guilty on the aggravated battery charges involving Brito. Defendant did not present
any evidence. During closing arguments, the State argued in part that Pacheco’s testimony
indicated intent and modus operandi, specifically that defendant’s weapon of choice was a knife
and “how quickly he can go in the blink of an eye from okay to angry and angry enough to kill.”
¶ 18 The circuit court found defendant guilty of the attempted murder and the aggravated battery
of Diaz and the aggravated battery of Duran. The circuit court found defendant not guilty of the
attempted murder of Duran. Defendant filed a motion for a new trial, which failed to specifically
preserve defendant’s objection to the admission of Pacheco’s trial testimony. Following a hearing,
the circuit court denied defendant’s motion for a new trial.
¶ 19 After hearing argument at sentencing, the circuit court merged defendant’s convictions for
the attempted murder and aggravated battery of Diaz and sentenced him to six years in prison, and
sentenced defendant to five years in prison for the aggravated battery of Duran. The State argued
that the sentences should be served consecutively under section 5-8-4 of the Unified Code of
Corrections (Code) (730 ILCS 5/5-8-4(d)(1) (West 2014)) due to the severe bodily injury involved.
The court found that “There’s no doubt, based on the evidence I heard in this case, that severe
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bodily injury was inflicted; and there’s also no doubt that attempt murder is a Class X felony. So,
I believe that the sentences must run consecutive to one another.” Defendant filed a motion to
reduce sentence, which did not advance any argument that his sentences should run concurrently
rather than consecutively. The circuit court denied defendant’s motion to reduce sentence.
Defendant filed a timely notice of appeal.
¶ 20 II. ANALYSIS
¶ 21 On appeal, defendant raises two main arguments. First, he argues that the circuit court erred
by admitting Pacheco’s testimony for a modus operandi purpose where defendant’s identity was
not at issue because defendant raised a justified use of force theory at trial. In the alternative, he
argues that his trial counsel provided ineffective assistance by failing to advise the circuit court
that the State abandoned the portion of its motion seeking to introduce other-crimes evidence for
modus operandi purposes. Second, he argues that the circuit court erred by imposing a consecutive
sentence because severe bodily injury did not occur during the triggering offense of attempted
murder. He also argues that the circuit court’s sentencing judgment is ambiguous on the issue of
severe bodily injury and that a remand is appropriate to allow the circuit court to make a specific
finding. In the alternative, he argues that his trial counsel provided ineffective assistance by failing
to object to the imposition of consecutive sentences in the motion to reduce sentence. We address
these arguments in turn.
¶ 22 We first address defendant’s argument that the circuit court erred by admitting Pacheco’s
testimony for a modus operandi purpose. Defendant notes that the State abandoned its request to
admit other-crimes evidence for modus operandi purposes at the hearing on the motion in limine,
but the circuit court admitted the evidence only for that purpose. He argues that his identity was
not at issue in the case because his defense theory—asserted by his counsel during his opening
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statement and closing arguments—was that his use of force was justified, and that there was
nothing distinctive or unique about the Pacheco incident and the stabbings of Diaz and Duran.
Furthermore, he argues that other-crimes evidence was inadmissible under any of the other theories
advanced by the State: intent, absence of innocent frame of mind, and absence of mistake or
accident.
¶ 23 Defendant acknowledges that this issue was not preserved for appellate review but asks
this court to review the admission of other-crimes evidence under the doctrine of plain error. Under
the plain error doctrine, a reviewing court may consider unpreserved errors when a clear and
obvious error has occurred (People v. Hillier, 237 Ill. 2d 539, 545 (2010)), and either (1) the
evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless
of the closeness of the evidence (People v. Herron, 215 Ill. 2d 167, 186-87 (2005)). Defendant
argues that both prongs are met here.
¶ 24 We must first determine whether the circuit court erred by admitting evidence of other
crimes. The admissibility of evidence at trial is within the circuit court’s discretion, and its decision
will not be disturbed on appeal absent a clear abuse of that discretion. People v. Pikes, 2013 IL
115171, ¶ 12. Here, the circuit court explicitly stated that it was admitting evidence of the incident
with Pacheco solely for the purpose of modus operandi, despite the assistant state’s attorney
explicitly clarifying that the State was not seeking admission of the other-crimes evidence for that
purpose. This court, however, may affirm the circuit court’s decision to admit evidence for any
reason supported by the record, regardless of whether the circuit court’s specific reasoning was
correct. People v. Novak, 163 Ill. 2d 93, 101 (1994); People v. Johnson, 208 Ill. 2d 118, 128 (2003).
To establish a clear and obvious error warranting plain error review, defendant must demonstrate
that there was no legitimate basis for the admission of the other-crimes evidence.
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¶ 25 Other-crimes evidence is inadmissible if offered merely to establish that the defendant has
a propensity to commit crimes but is admissible “if relevant to establish any material question
other than the propensity to commit a crime.” People v. Thingvold, 145 Ill. 2d 441, 452 (1991).
Examples of relevant purposes include motive, criminal intent, identity, modus operandi, or
absence of mistake. People v. Hale, 2012 IL App (1st) 103537, ¶ 24 (citing People v. Wilson, 214
Ill. 2d 127, 135 (2005)). We have explained that modus operandi
“refers to a pattern of criminal behavior so distinct that separate crimes or wrongful
conduct are recognized as the work of the same person. [Citation.] If evidence of
other crimes is offered to prove modus operandi, there must be some clear
connection between the other crime and the crime charged which creates a logical
inference that if defendant committed one of the acts, he may have committed the
other act. This inference of identity does not arise from the mere fact that the crime
charged and the other crime share certain common features or marks of similarity,
for it may be that these similarities are shared not only by the crime charged and
defendant’s other crime, but also by numerous distinct crimes committed by
persons other than the defendant. Rather, the inference is created when both crimes
share peculiar and distinctive common features so as to earmark both crimes as the
handiwork of the defendant. [Citation.] There must be some distinctive features that
are not common to most offenses of that type. [Citation.] While there must be a
strong and persuasive showing of similarity between the other crime and the crime
charged to satisfactorily demonstrate modus operandi [citation] it is not necessary
that the crimes be identical for the other crime to be admitted in evidence to prove
modus operandi.” People v. Kimbrough, 138 Ill. App. 3d 481, 486-87 (1985).
11 No. 1-18-0529
¶ 26 Here, the circuit court should not have admitted the other-crimes evidence for a
modus operandi purpose because the two incidents were too dissimilar to establish a common
pattern of criminal behavior. During the Pacheco incident, defendant allegedly brandished a knife,
pointed it at Pacheco, and warned him that “this is what happens to people who fuck with me”
during a discussion at defendant’s apartment about rent and defendant’s roommate. There was no
evidence that Pacheco provoked or incited any sort of physical conflict during the conversation.
In the stabbing incident, witnesses testified that defendant said something from his truck, but no
one could recall what was said. There was no evidence that defendant, after getting out of his truck,
pointed a knife at any of the victims while making any sort of threat; none of the witnesses were
even aware that defendant was holding a knife until they were either being stabbed or heard
someone say they were being stabbed. And the stabbing incident occurred after a bottle was thrown
at defendant’s truck from a group of people in bar parking lot. The incidents occurred in dissimilar
locations at different times of the day and under different surrounding circumstances. The only
similarities between the incidents are that they both involved defendant holding a knife with the
blade protruding from his fingers and involved some sort of dispute. The State did not make a
“strong and persuasive showing of similarity” between the two events, and the circuit court should
not have admitted the other-crimes evidence for the purpose of modus operandi.
¶ 27 The State argues that the other-crimes evidence was admissible to show defendant’s intent,
state of mind, and the identity of the weapon used in the stabbings. We disagree. First, regarding
intent, the State asserts that “the other crimes evidence was relevant to establish defendant’s intent
to kill when he continued to stab Diaz in the face, the back and chest using a deadly weapon and
not to defend himself or his personal property from a forcible felony.” But the State does not make
an actual argument as to how the Pacheco incident establishes defendant’s intent to kill Diaz—
12 No. 1-18-0529
who testified that he did not know defendant prior to the stabbing—three days later. Second, the
State does not explain how defendant’s statement to Pacheco three days prior to the offenses goes
to establishing defendant’s state of mind during commission of the offenses charged here. The
State’s assertion that the incident with Pacheco “established defendant’s state of mind of how he
handles the people who mess with him” fails to connect the other-crimes evidence with the
offenses charged here. Third, the State’s argument that the other-crimes evidence was relevant to
establish the identity of the weapon does not account for the fact that none of the witnesses here
were able to testify as to the particular features of the knife involved; Pacheco testified that
defendant held a black blade, whereas some of the witnesses here only testified that they saw a
blade. No knife was introduced as evidence at trial and the State does not direct us to any evidence
establishing or tending to show that the blade used during the Pacheco incident was the same blade
used in the stabbings. We therefore find that there was no basis for the circuit court to admit the
other-crimes evidence, and thus the admission of that evidence was error.
¶ 28 We find however, that defendant is not entitled to first-prong plain error relief because the
evidence of his guilt was not closely balanced. Defendant’s primary theory at trial was that his use
of force was justified. His counsel argued that defendant was not trying to hit anyone with his
Dodge Ram and that after his truck was hit with a bottle, other bottles were thrown at defendant,
requiring him to defend himself. On appeal, defendant argues that the evidence was closely
balanced because (1) the circuit court found him not guilty of the attempted murder of Duran and
aggravated battery of Brito, and (2) the circuit court “questioned the prosecutor whether it would
be reasonable for [defendant] to conclude that Diaz was not merely trying to break up the fight”
but was instead joining in the fight. We disagree.
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¶ 29 First, the fact that defendant was found not guilty of the attempted murder of Duran and
the aggravated battery of Brito says little about the quality of the evidence of defendant’s guilt for
the attempted murder and the aggravated battery of Diaz and the aggravated battery of Duran. In
finding defendant not guilty of the attempted murder of Duran, the circuit court observed that
Duran started the fight, defendant and Duran were initially “in a mutual combat situation,” and
defendant may not have had an intent to kill Duran. But the evidence showed that defendant
repeatedly stabbed Duran, who was unarmed, attempting to retreat, and not fighting back. And
while defendant asserted that his use of force was justified, there was little evidence at trial to
support that theory. The evidence at trial showed that Duran threw a beer bottle at defendant’s
truck; some of the witnesses believed that defendant was driving the truck at them. Even accepting
defendant’s theory that Duran was the initial aggressor—which is debatable, as both Duran and
Frieri testified that defendant drove the truck at the group at a fast speed before Duran threw the
beer bottle—defendant’s response of getting out of his truck, chasing Duran down, and repeatedly
stabbing him was not justified, as there was no evidence, either direct or circumstantial, tending to
show that defendant reasonably believed that the use of deadly force was necessary to prevent
imminent death or great bodily harm to himself or another. See 720 ILCS 5/7-1(a) (West 2014)
(“A person is justified in the use of force against another *** which is intended or likely to cause
death or great bodily harm only if he reasonably believes that such force is necessary to prevent
imminent death or great bodily harm to himself or another ***.”). In other words, the evidence
was clear that any mutual combat did not continue through the duration of defendant stabbing
Duran, and thus there was no close question of defendant’s guilt for the aggravated battery of
Duran.
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¶ 30 Likewise, the evidence at trial showed that Diaz was attempting to break up the fight rather
than participate in it. He testified that he was attempting to help Duran as Duran was falling when
defendant began stabbing Diaz, and defendant chased Diaz while Diaz was running away, only for
defendant to continue stabbing Diaz in the face and back after he fell to the ground. Diaz was
unarmed and there was no evidence tending to show that Diaz attempted to fight defendant.
Likewise, there was no evidence that might support an inference that defendant felt threatened by
Diaz or that he reasonably believed that his conduct was necessary to protect himself while
outnumbered. The evidence of defendant’s guilt for the attempted murder and aggravated battery
of Diaz was not close. Therefore, we find that defendant is not entitled to first-prong plain error
relief because the evidence of his guilt for the charges on which he was convicted was not closely
balanced.
¶ 31 Defendant also argues that the circuit court’s erroneous admission of other-crimes evidence
rises to the level of second-prong plain error. He relies primarily on our supreme court’s statement
that “[t]he erroneous admission of evidence of other crimes carries a high risk of prejudice and
ordinarily calls for reversal” (People v. Lindgren, 79 Ill. 2d 129, 140 (1980)), and relies on People
v. James Jackson, 2017 IL App (1st) 142879 and People v. Lewis Jackson, 399 Ill. App. 3d 314
(2010) to argue that the admission of other-crimes evidence constitutes a “serious” error.
¶ 32 We do not agree that the error here rises to the level of second-prong plain error. While
both James Jackson and Lewis Jackson stand for the proposition that other-crimes evidence—in
those cases, the defendants’ alleged drug use—may constitute serious error warranting second-
prong plain error relief, both of those cases involved jury trials where the other-crimes evidence
was found to amount to nothing more than evidence showing propensity (James Jackson, 2017 IL
App (1st) 142879, ¶ 74 (finding that admission of evidence of marijuana smell was nothing more
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than propensity evidence in a jury trial for battery and resisting arrest)), or bad character (Lewis
Jackson, 399 Ill. App. 3d at 321-22 (finding that admission of evidence of drug use was merely
evidence that defendant was a bad person in a jury trial for murder)). Those cases both relied on
the principle stated in Lindgren that evidence of other crimes is improper because it
“overpersuades the jury, which might convict the defendant only because it feels he or she is a bad
person deserving punishment.” Lindgren, 79 Ill. 2d at 137. But here, the circuit court conducted a
bench trial, and thus there was no jury to overpersuade. As we have held in the context of other-
crimes evidence, “[i]n a bench trial, [the fear of overpersuasion of the jury] is assuaged; it is
presumed that the circuit court considered the other-crimes evidence only for the limited purpose
for which it was introduced.” People v. Nash, 2013 IL App (1st) 113366, ¶ 24 (citing People v.
Deenadayalu, 331 Ill. App. 3d 442, 450 (2002)).
¶ 33 Here, the circuit court only admitted evidence of the Pacheco incident for the purposes of
modus operandi, and there is nothing in the record to suggest that the circuit court considered the
other-crimes evidence for any other purpose in determining defendant’s guilt. There was no risk
that the circuit court would convict defendant merely for being a bad person deserving of
punishment, as the evidence was only admitted to establish a pattern of behavior indicating that
defendant was the offender in both crimes, an issue that defendant strenuously argues was
uncontested at trial. To be clear, we take no position on whether other-crimes evidence might rise
to the level of serious error for the purposes of second-prong plain error. We simply find that,
under the circumstances of this case, we do not believe that the admission of other-crimes evidence
was serious, and therefore defendant is not entitled to relief under the second prong of a plain error
analysis.
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¶ 34 In the alternative, defendant argues that his trial counsel provided ineffective assistance by
failing to advise the circuit court that the State abandoned the portion of its motion seeking to
introduce other-crimes evidence for modus operandi purposes. He contends that there was no
reasonable trial strategy in failing to object to the admission of other-crimes evidence for the
purpose of modus operandi, or in failing to remind the circuit court that the State expressly was
not seeking admission of other-crimes evidence for that purpose. He argues that he was prejudiced
because the erroneous admission of other-crimes evidence is highly prejudicial.
¶ 35 Criminal defendants have a constitutional right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 684-85 (1984); U.S. Const., amends. VI, XIV; Ill. Const.
1970, art. I, § 8. A defendant is denied effective assistance where his counsel’s performance fell
below an objective standard of reasonableness, and absent counsel’s deficient performance, there
is a reasonable probability that the outcome of the trial would have been different. Strickland, 466
U.S. at 684-85.
¶ 36 Here, defendant’s ineffective assistance claim is fully resolved on the issue of prejudice.
We have already held that the admission of the other-crimes evidence was erroneous but that the
evidence of defendant’s guilt was not closely balanced, and the admission was not a serious error
that affected the integrity of the proceedings. Defendant does not direct us to any portion of the
record that might establish that he was prejudiced by the admission of the other-crimes evidence,
and thus he cannot prevail on his ineffective assistance of counsel claim. We express no opinion
on whether counsel’s performance fell below an objective standard of reasonableness.
¶ 37 In light of the foregoing, we affirm defendant’s convictions for attempted murder and
aggravated battery.
17 No. 1-18-0529
¶ 38 Next, defendant argues that the circuit court erred by imposing consecutive sentences under
section 5-8-4 of the Code because Diaz’s injuries did not rise to the level of severe bodily injury.
He argues that Diaz was released from the hospital the same day that he was admitted, and that the
medical testimony at trial only discussed a five-centimeter complex facial laceration and facial
nerve laceration, and that no medical testimony was offered to support Diaz’s testimony that he
continued to lack movement in face due to his injuries. Defendant argues in the alternative that the
circuit court’s finding that “a severe bodily injury was inflicted” was ambiguous, as it did not
specify whose injuries were severe. He asks that we either order his sentences to run concurrently
or to remand the matter to the circuit court for a determination of whether Diaz’s injuries amounted
to severe bodily injury. We disagree with both of defendant’s arguments.
¶ 39 Defendant again acknowledges that this issue was not preserved for appellate review but
asks this court to review the sentencing issue under the doctrine of plain error. In the sentencing
context, defendant must show that an error occurred and either that “(1) the evidence at the
sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant
a fair sentencing hearing.” Hillier, 237 Ill. 2d at 545. “The improper imposition of consecutive
sentences *** might violate a defendant’s fundamental rights.” People v. Alvarez, 2016 IL App
(2d) 140364, ¶ 17.
¶ 40 Section 5-8-4(d)(1) of the Code provides that consecutive sentences are mandatory where
“[o]ne of the offenses for which the defendant was convicted was first degree murder or a Class X
or Class 1 felony and the defendant inflicted severe bodily injury.” 730 ILCS 5/5-8-4(d)(1) (West
2014). Defendant contends, and the State does not dispute, that he was only subject to a
consecutive sentence if the severe bodily injury was inflicted during the attempted murder of Diaz,
a Class X felony. Furthermore, there is no clear definition of the phrase “severe bodily injury,”
18 No. 1-18-0529
and the question of whether a bodily injury is severe is “a question properly left to the fact finder.”
People v. Deleon, 227 Ill. 2d 322, 332 (2008). “[A] trial court’s determination that a bodily injury
is ‘severe’ for purposes of consecutive sentencing may be reversed only if it is against the manifest
weight of the evidence.” Id. “A finding is against the manifest weight of the evidence only if the
opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based
on the evidence presented.” Id.
¶ 41 At sentencing, the State argued that the sentences should run consecutively but did not
specify whose injuries amounted to severe bodily injury or whether both victims’ injuries met that
standard. In announcing its sentencing judgment, the circuit court made the following statements:
“As I indicated earlier, I have reviewed my notes in the case; and I’ve
reviewed all of the factors in aggravation and mitigation.
The factors in aggravation are basically, the facts of the case in terms of the
[d]efendant’s or Mr. Reza’s inability to stop after the fight was over; and in
pursuing the fight further, he inflicted great bodily harm.
***
In terms of how the sentences should run, I do believe that the State is
correct, the sentences should run or must run consecutive to one another, pursuant
to 730 ILCS 5/5-8-4-[d](1). That provision specifically says, that if one of the
offenses for which the [d]efendant was convicted of first degree murder or Class X
felony, and the [d]efendant has inflicted severe bodily injury, that the sentences
must run consecutively.
19 No. 1-18-0529
There’s no doubt, based on the evidence that I heard in this case, that severe
bodily injury was inflicted; and there’s also no doubt that attempt murder is a Class
X felony. So, I believe that the sentences must run consecutive to one another.”
¶ 42 The circuit court’s statements indicate that it made a finding that defendant inflicted severe
bodily injury on Diaz during the triggering offense—attempted murder, a Class X felony—for the
purposes of section 5-8-4(d)(1). We do not agree with defendant that the circuit court’s
pronouncement is ambiguous. The circuit court was commenting on whether a consecutive
sentence was required and referred to the two factors that were required under the statute: a Class
X offense and infliction of severe bodily injury during the commission of that felony. Alvarez,
2016 IL App (2d) 140364, ¶ 18. While it is clear to us that the circuit court was addressing the
attempted murder conviction related to Diaz and the severe bodily injury Diaz suffered during that
offense, at a minimum we also presume that the trial court was discussing the injuries to Diaz, the
attempted murder victim, while discussing severe bodily injury for the purposes of section 5-8-
4(d)(1). The law is that the severe bodily injury must be connected to the trigging offense and
“[t]he trial court is presumed to know and follow the law.” People v. Stoffel, 239 Ill. 2d 314, 327
(2010) (citing People v. Jordan, 218 Ill.2d 255, 269 (2006)). That presumption is only rebutted
where the record “contains strong affirmative evidence to the contrary. People v. Howrey, 178
Ill 2d 1, 32 (1997). Here, defendant does not direct us to any strong affirmative evidence showing
that the circuit court misapplied the law when determining the relevant injuries and offense for the
purposes of section 5-8-4(d)(1). We therefore reject defendant’s argument that the circuit court’s
sentencing order was ambiguous.
¶ 43 We next find that the circuit court’s finding that Diaz’s injuries constitute severe bodily
injury is not against the manifest weight of the evidence. Diaz testified that he was stabbed in the
20 No. 1-18-0529
chest, back, and face. The circuit court took judicial notice of the scar on Diaz’s face and heard
testimony that Diaz no longer had movement on the left side of his face. The circuit court heard
medical testimony that Diaz suffered a 90% laceration of his facial nerve. The circuit court’s
finding that Diaz’s injuries were severe is neither unreasonable nor arbitrary and was clearly based
on the evidence presented. An opposite conclusion is not clearly evident.
¶ 44 Defendant argues that Diaz’s injuries do not rise to the level of severe bodily injury. He
contends that the only medical testimony regarding Diaz’s wounds related to the laceration on his
face and there was no medical testimony showing that he lacked movement in his face. He also
contends that there was no testimony as to how long Diaz was hospitalized or the severity of the
wounds. Defendant further argues that it is questionable whether lacerations rise to the level of
severe bodily injury. We do not agree.
¶ 45 First, defendant cites no authority to support his contention that medical testimony was
necessary to establish the extent of Diaz’s injuries. See People v. Cisneros, 2013 IL App (3d)
110851, ¶ 21 (observing that the absence of medical testimony regarding severity or permanency
of an injury does not preclude a finding of severe bodily harm). Here, the circuit court heard Diaz’s
testimony and observed photographs of his injuries, evidence that the circuit court was free to
consider in determining the severity of his injuries. Diaz testified that he was stabbed in the chest
and back, and that the cut to his face left him with a lack of movement and a scar. And while it is
true that severe bodily harm requires a degree of harm greater than that required to create the
aggravated battery offense, Diaz testified that he still lacked movement in face nearly two years
after the stabbing. Medical testimony was given corroborating the extent of the wound: a five-
centimeter laceration near the base of the ear extending to his face resulting in a 90% laceration of
his facial nerve at the bony stylomastoid foramen. The evidence overwhelmingly established that
21 No. 1-18-0529
Diaz sustained a severe bodily injury. We find that the circuit court’s finding that defendant
inflicted severe bodily injury on Diaz is not against the manifest weight of the evidence.
¶ 46 Defendant’s final argument is that his trial counsel was ineffective for failing to raise any
argument at sentencing that Diaz’s injuries were not severe, or to assert any argument in his motion
to reduce sentence against the circuit court’s imposition of consecutive sentences. But once again,
defendant cannot establish that he was prejudiced by any deficiency in his counsel’s performance
because the circuit court found, and the record supports the finding, that the injuries to Diaz were
severe. We are not persuaded that, had counsel argued against consecutive sentencing, that the
result of the sentencing hearing might have been different.
¶ 47 In sum, we affirm the circuit court’s imposition of consecutive sentences based on the
finding that defendant inflicted severe bodily injury on Diaz.
¶ 48 III. CONCLUSION
¶ 49 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 50 Affirmed.