2019 IL App (1st) 172085-U No. 1-17-2085 Third Division November 13, 2019
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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 ) Appeal from the ILLINOIS, ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) Nos. 16 CR 811 v. ) 16 CR 812 ) DAVID SUTTON, ) Honorable ) James N. Karahalios, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Connors concurred in the judgment. ORDER
¶1 Held: Defendant’s convictions for two counts of aggravated battery are vacated and the cause remanded for separate trials where the trial court improperly joined the separate cases in one trial and erred in admitting bad acts evidence.
¶2 Following a jury trial, defendant David Sutton was convicted of two counts of aggravated
battery (720 ILCS 5/12-3.05(b)(2) (West 2014)) and sentenced to three years’ imprisonment
on one count and five years’ imprisonment on the other, to be served consecutively. On
direct appeal, defendant argues that the trial court improperly joined the charges which
should have been tried as separate cases and that the trial court improperly admitted bad acts No. 1-17-2085
evidence. For the reasons that follow, we vacate defendant’s convictions and remand the
cause for separate trials.
¶3 I. BACKGROUND
¶4 On January 11, 2016, defendant was indicted by a grand jury on one count of aggravated
battery of M.M. in case number 16-CR-811 and on one count of aggravated battery of G.B.
in case number 16-CR-812. Both of the charges stem from incidents occurring on September
27, 2015 at Little City Foundation (Little City), a home for mentally disabled children, where
defendant worked as a life skills instructor. As to G.B., the indictment alleged that defendant
pulled G.B.’s hair and held his head down. As to M.M., the indictment alleged that defendant
grabbed M.M.’s head, pushed M.M.’s head and body against a wall, placed M.M. in a
chokehold, and punched and wrestled M.M. to the ground. The indictments also alleged that
both of these individuals were severely or profoundly intellectually disabled.
¶5 A. Pre-trial Motions
¶6 On May 11, 2016, the State filed a motion to join both cases for trial, or in the alternative,
to introduce evidence of each case into the trial of the other as proof of other crimes.
Defendant objected to the motion, arguing that the charges involve two separate events with
two separate victims and that he would be prejudiced by presenting to the jury different
defenses to each charge at the same trial. After hearing the parties’ arguments, the court
granted the State’s motion, stating:
“So I think that the time that’s going to be involved in trying both of them
together is going to be a significant judicial economy, economy of the witnesses and
of the resources, and you’ve got affirmative defenses on one. So your concern about
prejudice in mixing them together I don’t think is enough of a concern given the fact
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that apparently there’s going to be two drastically different approaches to each of
those occurrences.”
¶7 In defendant’s answer to the State’s motion for discovery, he asserted the affirmative
defense of self-defense and defense of others only in regards to the allegations involving
M.M.
¶8 On January 5, 2017, defendant filed a motion to allow the introduction of evidence
demonstrating that M.M. was a violent and physically aggressive child and that defendant
was aware of this prior to September 27, 2015. The State did not object, and the trial court
granted the motion.
¶9 On February 17, 2017, the State filed a motion to allow evidence of defendant’s prior bad
acts. This consisted of the testimony of Alayne Mancinelli, who observed two unrelated
incidents involving defendant and two other residents of Little City in 2014. On March 9,
2017, the court heard arguments from both parties. The State argued that the evidence of
defendant’s prior bad acts was “highly probative as to the defendant’s frame of mind, his
intent, his motive as well as the existence of a modus operandi whereby this defendant preys
upon these highly vulnerable children and unleashes his anger.” The defendant argued that an
Illinois Department of Children and Family Services (DCFS) investigation cleared him of all
wrongdoing associated with those reported incidents, that the only purpose of the evidence
was to improperly show his propensity to act in a similar manner, and that the evidence was
more prejudicial than probative.
¶ 10 The trial court granted the State’s motion, stating:
“As I view these two additional incidents or allegations of these incidents, I view
them as the way in which the Defendant executes his duties in employment of
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disciplining children to get them to comply with his idea of proper norms of conduct
*** it is alleged [defendant] approaches his duties through the use of physical force in
situations, which at least it is alleged, don’t call for that force or degree of that force.
And in that way, I find that these occurrences are similar so as to qualify for the
exception of the introduction of proof of other crimes or bad acts.”
¶ 11 B. Jury Trial
¶ 12 Theresa Moran, the deputy chief of centralized support services at Little City, testified
that G.B. and M.M. both resided at Little City in September of 2015, and more specifically
were at the Foglia home on the day of the incident. She stated that G.B.’s IQ was estimated
to be below 49 and M.M.’s IQ was 42. G.B. was diagnosed with ADHD, and M.M. was
diagnosed with autism and a mood disorder.
¶ 13 Moran explained that as a life skills instructor, defendant would have completed state-
mandated direct support person training, which includes 40 hours of classroom training and
80 hours of on-the-job training for working with individuals with intellectual and
developmental disabilities. He also would have completed crisis prevention training, which
teaches de-escalation techniques and physical restraint techniques for crisis management.
¶ 14 Moran testified that defendant indicated in an incident report that on September 27, 2015,
M.M. attacked a female staff member in the Foglia home. After receiving a request from the
clinical therapist, Moran reviewed the surveillance footage from that day and identified
defendant, M.M., and G.B and the incidents involved here. She testified that there were nine
different surveillance cameras in the home, and she downloaded the footage from 2:00 p.m.
to 3:15 p.m. from the main living area and two hallway cameras.
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¶ 15 On cross-examination, Moran acknowledged that she had reviewed M.M.’s monthly
behavioral reviews, which indicated 29 incidents of physical aggression, including pulling
hair, spitting, pushing, hitting, pinching, kicking, etc., along with nine incidents of property
destruction in January 2015. Reviews for February 2015 included 37 incidents of physical
aggression and 19 incidents of property destruction. However, between March and August
2015, M.M. had less than ten incidents of physical aggression for each month, though she
noted there was an unexplainable discrepancy between the behavioral reviews and the daily
logs. Finally, she testified that on September 19, 2015, it was reported that M.M. threw
furniture and displayed aggression towards staff members.
¶ 16 Mancinelli, M.M.’s mother, testified that M.M. was diagnosed with autism when he was
seven years old and was later diagnosed with a mood disorder. She testified that M.M.’s
functional age at the time of this incident was 18 months old. M.M. moved into Little City in
July 2013. On September 27, 2015, Manicinelli went to the Foglia home at Little City to pick
up M.M. for a weekend visit. Upon her arrival, she observed police vehicles and an
ambulance. She also saw defendant outside of the home and he had blood on his face. She
found M.M. sitting down in the living room and he was taken to the hospital. She testified
that M.M. had a black eye, which was photographed at the hospital and admitted into
evidence at trial. On cross-examination, Mancinelli stated that she did not know how M.M.
obtained the black eye, that she did not observe any other injuries, and that M.M. was at the
hospital for observation of his behaviors and not for any physical injuries. She also testified
that she was aware of M.M.’s aggressive behavior.
¶ 17 The State informed the court of its intention to elicit testimony regarding the bad acts
evidence. Defendant reasserted his objection to the introduction of this evidence and
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requested that the court read the pertinent Illinois pattern jury instruction. The court then read
the following to the jury:
“Evidence is about to be received that the defendant has been involved in conduct
other than that charged in the indictments. This evidence is being received on the
issues of the defendant’s frame of mind, intent, motive, consciousness of guilt, and
the existence of a modis [sic] operandi and may be considered by you only for that
limited purpose. It is for you to determine whether the defendant was involved in that
conduct, and if so, what weight should be given to this evidence on the issues of the
defendant’s frame of mind, intent, motive, consciousness of guilt, and the existence of
a modis [sic] operandi.”
¶ 18 Mancinelli testified that on November 15, 2014, she went to pick up M.M. from the
Spruce home at Little City. She brought food and ice cream with her. Another resident, M.H.,
asked her what she had. She told him and said she was taking it into the kitchen. As she went
to the kitchen, defendant followed her. Billy, another resident, followed them into the kitchen
and defendant shoved Billy out of the kitchen and slammed the door in Billy’s face. She
testified that she thought the action was “utterly just total disrespect” and the door “could
have hit [Billy] in the face, could have caught his finger in the door.” After she put the food
away, she walked into the hallway and M.H. was standing very close to her and trying to talk
to her. Defendant told M.H. to step back in a stern voice. Mancinelli continued down the
hallway to the office to speak with another staff member. M.H. followed her and defendant
yelled at M.H. to step back. M.H. started crying and telling defendant to stop yelling.
Defendant grabbed M.H. and pushed him out of the office. She heard noises from the
hallway, including yelling, scuffling, thumps against the wall, though she could not see what
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was happening. After a minute, she exited the office and did not see M.H. but saw defendant
in the living room and he told her that M.H. is “not supposed to be standing so close to
[her].” She did not respond to defendant. She stated that she was shocked by the incident, and
after she went home, she reported the incident via e-mail to multiple managers and directors
at Little City. On cross-examination, she testified that she did not know about M.H. or Billy’s
specific behavioral problems that Little City was dealing with at the time.
¶ 19 Theresa Fifarek, the manager of the Foglia home during the incident, testified that her
duties included supervising the life skills instructors assigned to that home. She testified that
G.B. came to Little City in 2014 after his mother died and his family could not provide the
necessary supervision. She stated that his exact IQ score was unable to be calculated but it
was less than 49. He was diagnosed with ADHD, pervasive developmental disorder, severe
mental retardation, and a genetic disorder. She stated that his functional age at the time of the
incident was about two years and one month old.
¶ 20 Fifarek testified as to the staff members’ training for various behaviors of residents. She
stated that staff members are to be supportive when a resident becomes anxious, and in
response to physical aggression, “the behavior will be prevented and blocked [and] further
attempts to engage in maladaptive behavior will be interrupted and physically blocked” and
the staff member will divert eye contact and will not verbally communicate with the resident.
She testified that the nonviolent crisis intervention workbook, in response to aggressive
behavior, does not provide for putting children in chokeholds, for poking children when they
are rocking back and forth, for slamming a child against a wall, for pinning children to the
floor, or for punching children.
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¶ 21 Fifarek reviewed the surveillance footage of the incident after another staff member
informed her of the incident. The video was published to the jury, and Fifarek identified the
locations and the individuals—defendant, G.B., and M.M.—in the video. Fifarek specifically
noted that defendant can be seen balling his fists. She testified that the “open stance” with
open palms and feet hip-width distance apart was the preferred stance for nonviolent crisis
intervention. She also testified that when defendant was sitting on the couch, he was also
looking at his phone and watching television. She stated that the video showed that defendant
initiated contact with M.M. first.
¶ 22 On cross-examination, she testified that putting hands on an individual to prevent an
aggressive behavior was “only [a] last resort where an individual was a danger to himself or
others,” but she acknowledged that the nonviolent crisis prevention handbook includes
techniques involving holding an individual’s shoulders or blocking attacks that can be used
when confronted with physical aggression. She further stated that they are “trained on how to
respond in the event that our individuals are displaying aggressive behavior in a
nonaggressive way.”
¶ 23 Fifarek testified that she reported the incidents involving the residents to DCFS. She and
Adrienne Brimie, the human resources manager, met with defendant on September 30 to
inform him of the DCFS investigation. During this meeting, she did not observe any injuries
to defendant.
¶ 24 Defendant objected to the introduction of the two-hour-long video footage arguing that
the video was cumulative and not relevant because it showed defendant sitting around and
watching television. The court overruled defendant’s objection and published the video
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finding that it was relevant evidence as it related to the State’s opening statement that
defendant was not interacting with the residents or keeping them occupied.
¶ 25 The combined camera views of the surveillance footage showed defendant sitting on the
couch in the living room as various residents enter and exit the living room. Early on in the
footage, G.B. sits down on the couch and defendant reaches over and grabs G.B. by his hair.
Defendant pulls G.B.’s head down towards the couch and holds it there for a few seconds.
After defendant releases him, G.B. walks out of the room.
¶ 26 Defendant remains sitting on the couch. M.M. enters and exits the living room several
times. About thirty minutes into the video, M.M. is sitting on the couch and defendant
reaches over and makes physical contact with M.M.’s back with the back of his hand. M.M.
turns around and hits defendant in the head. Defendant then hits M.M. in the head with an
open palm. Defendant grabs M.M.’s head with two hands. Defendant releases M.M., and
M.M. remains sitting on the couch. Defendant again reaches over and makes physical contact
with M.M. with the back of his hand. M.M. stands up and grabs onto the ponytail of another
staff member. Defendant walks over and wraps his hand around M.M.’s head and removes
M.M.’s hand from the staff member’s hair. He then presses M.M.’s head against the hallway
wall. Defendant moves M.M. to the opposite wall and wraps his arm around M.M.’s neck.
Defendant releases M.M. and M.M. walks out of view. M.M. enters and exits the living room
several times. After several minutes, the footage shows M.M. run down the hallway towards
defendant. Defendant hits M.M. in the face with his hand and pushes him. M.M. jumps at
defendant and hits him in the head. Defendant then hits M.M. in the head with a closed fist.
M.M. goes to his room but quickly runs out past defendant down the hallway. M.M. then
turns around and jumps at defendant. Defendant restrains M.M. by wrapping his hand around
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M.M.’s head. Defendant takes M.M. to the ground and holds him there for a minute.
Defendant releases M.M., who then goes to his room. About ten minutes later, the
paramedics arrive and take M.M. to the hospital.
¶ 27 Defendant moved for a directed verdict at the close of the State’s case, arguing that the
State failed to prove that G.B. suffered bodily harm. The court denied defendant’s motion,
stating that the issue was a question of fact for the jury.
¶ 28 Devonsha Wallace, a Little City life skills instructor, was called to testify for the defense.
He testified that he previously worked with M.M. at the Foglia home and had observed
M.M.’s aggressive behaviors between June and September of 2015. He also had observed
M.M. attack both female and male staff members on occasion. He testified that he has
previously used the “child restraint” on M.M., which means to “cross his arms and place your
hands over his wrist, but usually if there are other staff members nearby M.M. would “calm
down by himself.”
¶ 29 Defendant testified that during September 2015 he was working at Little City in the
Spruce home as a life skills instructor. He stated that M.M. had previously lived at Spruce
home and he was familiar with M.M. On September 27, 2015, defendant was working at
Foglia home, however, because they were short staffed in that home. On that day, he was
working with Erica and Iana.
¶ 30 In regards to the incident with G.B., defendant stated that when G.B. came over to the
couch where defendant was sitting, he “just kind of played with him, [he] grabbed his head,
not his hair, [and] pulled him down and was playing around a little bit.” He stated that he did
not intend to hurt him and G.B. did not cry or make any faces when this happened.
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¶ 31 In regards to the incident with M.M., defendant stated that on that day M.M. appeared
anxious and hyper because he was rocking and making grunting noises. Defendant reached
out to pat M.M. on the back for “reassurance” and to help him “settle down[,]” but instead,
M.M. “lunged” at defendant. Defendant placed his hand on M.M.’s torso to stop him. M.M.
then stood up, “lunged” at Iana, and grabbed her ponytail. Defendant knew at that time that
Iana was pregnant. Defendant took Iana’s ponytail at the base and slid M.M.’s hand off,
which he testified he was trained to do. He then attempted to put M.M. in a wall restraint,
which he testified he learned at the Little City staff orientation. He described a wall restraint
as: “where you have a client against a wall, and one hand is on the shoulder, the other hand is
on the wrist, and your leg is, like, between their legs, one by the foot an then your knee
behind their kneecap.” He stated that the wall restraint is meant to be conducted with two
staff members, but Iana ran out of the living room. After defendant released M.M., he told
him to go to his room several times. M.M. jumped at defendant and pulled him to the ground,
and the other two staff members, who were in the hallway, exited and closed the door.
Defendant attempted to put M.M. in a floor restraint but M.M. started to kick him.
Eventually, M.M. calmed down and went to his room.
¶ 32 During the altercation, Erica called 911 and defendant waited at the Foglia home until the
paramedics arrived. Defendant had scratches on his face and chest and his shirt was torn. He
testified that he did not observe any injuries to M.M. following this encounter and he did not
hear M.M. making any noises that would indicate that he had been injured. Defendant further
testified that he had observed M.M. be physically aggressive with staff members in the past.
Prior to this incident, defendant had never used physical restraints on M.M. He testified that
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following this incident he was terminated from his position with Little City and there was a
DCFS investigation.
¶ 33 Defendant also testified regarding the incidents that Mancinelli observed in 2014.
Defendant stated that M.H. was hyperactive, excitable, and highly sexualized. He explained
that M.H. would “strip and run around the house *** and try to make contact with female
employees. He smeared feces in his room, and he would get real excited when he didn’t get
his own way a lot of times and start throwing things in his room.” M.H. was required to
maintain an arm’s length distance with female employees and visitors. Defendant testified
that M.H. was standing “uncomfortably close” to Mancinelli, so he told M.H. to “watch [his]
space” and then assisted a different resident in the restroom. Defendant testified that he did
not know what Mancinelli was referring to when she said she heard noises in the hallway as
he did not make any physical contact with M.H.
¶ 34 As to Billy, defendant testified that when Mancinelli brought in the food, Billy was
closely following her. Defendant stated that Billy also had highly sexualized behaviors. After
he and Mancinelli entered the kitchen, defendant held up his hand towards Billy and shut the
kitchen door. He testified that he did not slam the door in Billy’s face and there was no risk
of harm to Billy. Following these incidents, defendant was investigated by DCFS, but DCFS
determined that the claims were unfounded. He received no discipline at Little City as a
result of these incidents.
¶ 35 On cross-examination, defendant testified that the tactics he used with M.M. were to
protect himself and calm down M.M. without causing pain to M.M. and that these were
taught in his Little City training. He testified that in the video he was watching television but
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he was also monitoring residents and had a good vantage point for doing so from the couch.
He stated that he also made his rounds as necessary.
¶ 36 Defendant renewed his motion for a directed verdict, which the trial court denied. The
jury received their instructions, which included instructions on defense of others and self-
defense. The jury found defendant guilty of both charges of aggravated battery. Defendant
subsequently moved for a judgment of acquittal notwithstanding the verdict or, in the
alternative, for a new trial, which included, among other claims, claims of improper joinder
and error in admitting Mancinelli’s testimony regarding the 2014 incidents. Following a
hearing, the trial court sentenced defendant to consecutive sentences of three years’ and five
years’ imprisonment.
¶ 37 While this appeal was pending, defendant filed a motion pursuant to Rule 21(a) of the
Illinois First District Appellate Court (eff. Sept. 1, 2004), requesting that this court consider
the DVD video that was admitted at trial. We ordered the motion taken with the case.
Defendant’s motion is granted as a viewing of the DVD is necessary for our resolution of this
appeal.
¶ 38 II. ANALYSIS
¶ 39 A. Joinder of Charges
¶ 40 Defendant first claims that he was denied a fair trial where the trial court improperly
joined his cases because the two charges of aggravated battery were not part of the same
comprehensive transaction. He asserts that the court’s error was not harmless and reversal of
his convictions is warranted. We agree with defendant and conclude that the charges should
not have been joined for the following reasons.
¶ 41 1. Same Comprehensive Transaction
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¶ 42 Pursuant to section 114-7 of the Code of Criminal Procedure of 1963, the trial court may
order two or more charges to be tried together against a criminal defendant if the offenses
could have been joined in a single charge. 725 ILCS 5/114-7 (West 2014); People v.
Patterson, 245 Ill. App. 3d 586, 587 (1993). “Two or more offenses may be charged in the
same [charging instrument] in a separate count for each offense if the offenses charged ***
are based on the same act or on two or more acts which are part of the same comprehensive
transaction.” 725 ILCS 5/111-4(a) (West 2014). The four factors in determining whether two
or more offenses are part of the “same comprehensive transaction” include: (1) proximity of
time and location of the offenses; (2) the identity of evidence needed to demonstrate a link
between the offenses; (3) whether there was a common method in the offenses; and (4)
whether the same or similar evidence would establish the elements of the offenses. People v.
Walston, 386 Ill. App. 3d 598, 601 (2008). The first two factors are considered to be the
“most important.” People v. Quiroz, 257 Ill. App. 3d 576, 586 (1993). If it appears that the
defendant may be prejudiced by a joinder of related prosecutions, the court may deny the
request for joinder. 725 ILCS 5/114-8(a) (West 2014). The decision of whether to join
separate charges is a matter within the sound discretion of the trial court, and we will not
reverse that decision absent an abuse of that discretion. People v. Fleming, 2014 IL App (1st)
113004, ¶ 38. Abuse of discretion is found where the trial court’s decision is “arbitrary,
fanciful, or unreasonable, or where no reasonable person would take the trial court’s view.”
Id.
¶ 43 We first note that judicial economy is an improper consideration in the analysis of
whether joinder is appropriate under the statute because “joinder will in most cases expedite
the judicial process.” Walston, 386 Ill. App. 3d at 601-02. We acknowledge that “judicial
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efficiency has no bearing on the controlling issue of whether multiple offenses are part of the
same comprehensive transaction.” Id. Here, the trial court stated that trying both charges
together in one trial would be of “significant judicial economy,” specifically in regards to the
witnesses and resources needed to try the cases. The record does not show whether the court
adequately considered any of the requisite factors nor are there any explicit conclusions as to
whether the charges were part of the same comprehensive transaction. Nonetheless, we find
that the record is sufficient to determine whether the charges were part of the same
comprehensive transaction.
¶ 44 The first factor weighs in favor of joinder where the two incidents involving M.M. and
G.B. occurred within two hours of each other in the Foglia home. Therefore, the offenses
share proximity of time and location.
¶ 45 The second factor asks not whether evidence of the two crimes is similar or identical, but
whether the court can identify evidence linking the crimes. Walston, 386 Ill. App. 3d at 605.
This court’s analysis in People v. Quiroz is instructive as to how this factor may be
established. There, the defendant’s charges of shooting two victims and using a gun to steal
the third victim’s car were joined in one trial. Quiroz, 257 Ill. App. 3d at 586. This court
upheld the joinder, finding that there was evidence linking the two shootings to the armed
robbery, namely that the armed robbery was conducted to enable defendant to flee from the
scene of the shootings. Id. In contrast, there is no evidence here that links the two alleged
batteries, except for the fact that defendant was at work during both incidents. Thus, this
factor does not weigh in favor of joinder.
¶ 46 The third factor—whether the offenses share a common method—considers “whether the
offenses were part of a ‘common scheme,’ so that each of the offenses supplies a piece of a
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larger criminal endeavor.” Walston, 386 Ill. App. 3d at 606-07. This court has found this
factor present where all three crimes were part of a common scheme (Quiroz, 257 Ill. App.
3d at 586) or where the second crime was an outgrowth of the first (People v. Reynolds, 116
Ill. App. 3d 328, 335 (1983)). Neither of those scenarios is present here. Thus, there is no
evidence that the batteries were part of a common criminal endeavor. The allegations of
battery were separate, independent acts with separate victims and this factor weighs against
joinder. See People v. Hayden, 2018 IL App (4th) 160035, ¶ 105 (finding joinder improper
where two sexual offenses with many similarities were separate transactions as they involved
separate victims, though they also occurred years apart). This factor then weighs against
joinder.
¶ 47 Finally, the fourth factor considers whether the same or similar evidence would establish
the elements of the offenses. There must be some commonality of evidence. See People v.
Johnson, 2013 IL App (2d) 110535 (finding this factor did not apply because there is no
commonality of evidence between unlawful possession of a handgun and domestic battery).
Here, the evidence required to establish the elements of each battery charge would not be the
same. The statutory provision under which defendant was charged requires the State to prove
that defendant “cause[d] bodily harm or disability or disfigurement *** to any person with a
severe or profound intellectual disability.” 725 ILCS 5/12-3.05(b)(2) (West 2014). The State
needed to separately prove the mental disabilities of the residents and the actions defendant
took that caused bodily harm. Stated another way, the allegations involving M.M. do nothing
to prove the allegations involving G.B. and vice versa. Therefore, this factor does not weigh
in favor of joinder.
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¶ 48 Our analysis of the factors demonstrates that defendant’s alleged batteries against the two
residents of the Foglia home are not part of the same comprehensive transaction. Despite
occurring close in time and location to one another, the crimes are not linked, are not part of
a larger criminal endeavor, and do not share the same evidence. Moreover, merely because
the offenses are similar in nature, i.e. defendant using unwarranted physical force against the
residents to correct their behavior, does not make them a “ ‘united, continuous and indivisible
act.’ ” People v. Hayden, 2018 IL App (4th) 160035, ¶ 105 (quoting People v. Perello, 350
Ill. 231, 235 (1932)). Thus, we find that joinder was inappropriate in this case and that the
trial court abused its discretion in joining the two battery charges in one trial. See Johnson,
2013 IL App (2d) 110535, ¶ 53.
¶ 49 2. Prejudice to Defendant
¶ 50 However, joinder error only requires reversal of the judgment if the error caused
prejudice to the defendant. Walston, 386 Ill. App. 3d at 609. The State contends that even if
joinder was in error, defendant was not prejudiced by it. Defendant, on the other hand, argues
that severance of his charges would have resulted in the exclusion of evidence that the State
presented in his trial on both charges. We agree with defendant and find that the joinder was
not harmless.
¶ 51 Joinder is “harmless where the evidence of all of the charged crimes would have been
admissible in the separate trials that would have taken place”. Walston, 386 Ill. App. 3d at
609. Although separate trials for the two charges will include reliable evidence of M.M. and
G.B.’s respective mental disabilities and the relevant video footage, as we discuss below,
evidence of the other charge of aggravated battery would not be admissible.
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¶ 52 Evidence of the other battery charge would constitute bad acts evidence, which includes
“misconduct or criminal acts that occurred either before or after the alleged criminal conduct
for which the defendant is standing trial.” Johnson, 2013 IL App (2d) 110535, ¶ 61. Such
evidence “is normally inadmissible if offered to demonstrate the defendant’s bad character or
his propensity to commit crime.” Walston, 386 Ill. App. 3d at 609-10. The reason why
propensity evidence is inadmissible is because it “overpersuades the jury, which might
convict the defendant only because it feels he or she is a bad person deserving punishment.”
People v. Lindgren, 79 Ill. 2d 129, 137 (1980). However, this type of evidence can be
admissible “to prove any material fact relevant to the case” if it shows modus operandi,
intent, motive, identity, or absence of mistake. Johnson, 2013 IL App (2d) 110535, ¶ 61;
People v. Pikes, 2013 IL 115171, ¶¶ 11-12.
¶ 53 Here, including evidence of the other battery charge would only serve as propensity
evidence because there is no non-propensity purpose for admitting the evidence. Defendant’s
defenses to the charges against him were that he did not harm G.B. when he touched him and
he was justified in touching M.M. Defendant’s physical contact with one resident on that day
would not prove his intent or motive, if there was one, for his contact with another resident.
Further, his identity is not at issue, and similarly, neither is his modus operandi. See People
v. Boyd, 366 Ill. App. 3d 84, 92 (“Modus operandi evidence ordinarily is not relevant where
identity is not at issue.”). Finally, defendant does not argue that the physical contact was
mistaken. Thus, the only purpose we can find for admitting such evidence would be to show
defendant’s propensity to become physically aggressive with residents. See Johnson, 2013 IL
App (2d) 110535, ¶ 61 (stating that bad acts evidence is “inadmissible if it is relevant only to
demonstrate a defendant’s propensity to engage in criminal activity”).
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¶ 54 Moreover, the admission of evidence of the other battery charge would likely create a
“mini-trial” of that offense within the trial, where multiple witnesses would need to testify as
to the circumstances surrounding the other battery charge. See People v. Nunley, 271 Ill.
App. 3d 427, 432 (1995). This would cause jury confusion and unnecessary delay, which are
other reasons for the inadmissibility of bad acts evidence. Walston, 386 Ill. App. 3d at 620.
¶ 55 Further, as discussed below, the evidence of 2014 incidents would also not be admitted at
either trial because it is propensity evidence. The absence of this prejudicial evidence could
affect the likelihood of conviction for one or both charges where there would be separate
trials for each.
¶ 56 In sum, evidence of both battery charges and evidence of the 2014 incidents constituted
inadmissible propensity evidence, and there is a reasonable probability that the jury found
defendant guilty of both charges after considering this improper evidence. See Johnson, 2013
IL App (2d) 110535, ¶ 58. Without this evidence, we cannot say that the properly admitted
evidence at separate trials would be so overwhelming that it would be impossible for a
reasonable jury to find defendant not guilty of either of the charges or both. See Hayden,
2018 IL App (4th) 160035, ¶ 136. Accordingly, we believe that joinder of the charges was
prejudicial. See Johnson, 2013 IL App (2d) 110535, ¶ 58 (“The fundamental fairness of the
proceedings was compromised.”).
¶ 57 B. Bad Acts Evidence
¶ 58 In addition to arguing that the joinder was not harmless, defendant contends that the trial
court should not have admitted (1) Mancinelli’s testimony regarding the 2014 incidents and
(2) the two-hour surveillance video that showed him being “lazy” while working. Because
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we anticipate that this issue will arise on remand, we address defendant’s argument that he
was prejudiced by the trial court’s admission of this evidence.
¶ 59 1. 2014 Incidents
¶ 60 Defendant claims that there was no non-propensity basis for admitting Mancinelli’s
testimony regarding her observations of the 2014 incidents. He also argues that the evidence
should not have been admitted because it was more prejudicial than probative.
¶ 61 “[A]ll relevant evidence is admissible unless otherwise provided by law.” People v. Cruz,
162 Ill. 2d 314, 348 (1994). But, if the probative value of such evidence is outweighed by its
prejudicial effect, the trial court may exclude the relevant evidence. Id. Further, “evidence
that the defendant in a criminal case has engaged in other bad acts on a different occasion is
not admissible to show that the defendant has a propensity to commit crime.” People v.
Clark, 2015 IL App (1st) 131678, ¶ 27. The courts disfavor the inference that because an
individual has previously committed crimes or similar bad acts he is more likely to have
committed the current crime for which he is on trial. Cruz, 162 Ill. 2d at 348. This rule was
codified in the Illinois Rules of Evidence under Rule 404(b) (eff. Jan. 1, 2011), which
provides that, with some exceptions not pertinent here, “[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show action in
conformity therewith[.]” It may, however, be admissible for purposes other than propensity,
such as to show modus operandi, intent, motive, identity, or absence of mistake. Pikes, 2013
IL 115171, ¶¶ 11-12. Nonetheless, the trial court must still weigh the probative value of the
evidence against its prejudicial effect. People v. Lewis, 2015 IL App (1st) 130171, ¶ 47.
¶ 62 The trial court’s ruling on the admissibility of bad acts evidence will not be reversed
absent a clear abuse of discretion. People v. Donoho, 204 Ill. 2d 159, 182 (2003). Abuse of
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discretion is found where the trial court’s decision is “arbitrary, fanciful, or unreasonable, or
where no reasonable person would take the trial court’s view.” Fleming, 2014 IL App (1st)
113004, ¶ 38.
¶ 63 It is unclear to this court precisely for which purpose the trial court admitted the
evidence. In ruling on the State’s motion regarding this evidence, the trial court mentioned
that the 2014 incidents were similar enough to the current charges to qualify as an exception
to the bar against bad acts evidence. The court later gave the jury a limiting instruction
stating that the evidence was only to be considered as proof of defendant’s frame of mind,
intent, motive, consciousness of guilt, and modus operandi. We find that none of these
purposes were served by the admission of Mancinelli’s testimony regarding the 2014
incidents.
¶ 64 Once again, defendant’s defenses to the charges against him were that he did not harm
G.B. when he touched him and he was justified in touching M.M. He did not argue that he
did not intend to touch either of them or that the touching was accidental. He also did not
argue that it was not him who touched either of the residents. Accordingly, the 2014
incidents had no probative value as to intent, identity, or consciousness of guilt. There is also
no probative value as to modus operandi because that purpose is intertwined with that of
identity. See People v. Berry, 244 Ill. App. 3d 14, 21 (1991) (“The modus operandi or
‘method of working’ exception refers to a pattern of criminal behavior so distinct that
separate offenses are recognized as the work of the same person.”). As to motive, nothing
about the 2014 incidents indicates what drove defendant to commit these subsequent
batteries, assuming defendant even had a conscious motive.
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¶ 65 We conclude that the trial court abused its discretion in admitting Mancinelli’s testimony
as to the prior incidents where none of the exceptions to admitting bad acts were applicable.
The only purpose served by such evidence was an improper showing of defendant’s
propensity to act in a similar manner a year later. Furthermore, the admission of this
testimony created a mini-trial, where additional testimony was necessary to provide a
complete picture of the incidents. See People v. Rosado, 2017 IL App (1st) 143741, ¶ 36
(stating that the admission of this type of evidence has the potential to create a “mini-trial”
that could “confuse the jury and waste time”). Although the prejudicial effect of Mancinelli’s
testimony was diminished by testimony that DCFS’s investigation determined the claims to
be unfounded and also by the trial court’s limiting instruction, there was not any permissible
probative value served by this evidence.
¶ 66 We need not determine whether the admission of this evidence was harmless because we
are remanding for separate trials. However, we have found that this evidence constitutes
inadmissible propensity evidence, it should not be admitted at either trial, regardless of its
arguably “harmless” effects in light of the other evidence introduced.
¶ 67 2. Surveillance Video
¶ 68 Defendant also claims that the two-hour surveillance video should not have been
admitted into evidence at trial because it constitutes bad acts evidence as it shows him being
“lazy” and watching television and is not relevant to the allegations of battery.
¶ 69 The State argues that defendant has forfeited this issue because he did not include it in his
posttrial motion. We agree. Our courts have repeatedly held that to preserve an issue for
review a defendant must object contemporaneously at trial and raise the error in a written
posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988) (holding that an issue is
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preserved by contemporaneous objection at trial and by written posttrial motion).
Additionally, defendant did not request that this issue should be reviewed under the plain
error doctrine. See Ramsey, 239 Ill. 2d at 412 (“In the absence of a plain-error argument by a
defendant, we will generally honor the defendant’s procedural default.”). Regardless, because
we are remanding this case for separate trials and, as we have stated, evidence of the other
battery charge would not be admissible, it is unnecessary for us to determine whether the trial
court erred in admitting the entire two-hour surveillance video. If proffered on remand, the
video will require editing to show only the portion associated with the battery charge being
tried, and therefore, much of the footage showing defendant “being lazy” will no longer be
included.
¶ 70 III. CONCLUSION
¶ 71 For the reasons stated, we vacate the judgment of the Circuit Court of Cook County and
remand the cause for separate trials.
¶ 72 Vacated and remanded.
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