People v. Ternoir

2021 IL App (1st) 180617-U

• Court: Appellate Court of Illinois
• Decided: February 3, 2021
• Docket: 1-18-0617
• Status: Unpublished

Opinion

2021 IL App (1st) 180617-U No. 1-18-0617 Order filed February 3, 2021 Third Division

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 12806 ) CHARLES TERNOIR, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge, presiding.

JUSTICE BURKE delivered the judgment of the court. Presiding Justice Howse and Justice McBride concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s conviction for first-degree murder over his contention that the trial court abused its discretion in admitting certain other crimes evidence.

¶2 Following a jury trial, defendant Charles Ternoir was found guilty of first-degree murder

during which he personally discharged a firearm (720 ILCS 5/9-1(a)(1) (West 2016)) and

sentenced to 70 years in prison. On appeal, defendant contends that the trial court erred in admitting No. 1-18-0617

certain other crimes evidence that had no relevance to show his motive or intent to commit the

offense. We affirm.

¶3 Defendant was charged with six counts of first-degree murder following the June 29, 2016

shooting death of Larry “Rico” Lawrence.

¶4 Prior to trial, the State filed a motion in limine seeking to admit other crimes evidence,

specifically, that defendant and Lawrence both sold narcotics in the area of Clark Street and

Division Street in Chicago. Defendant filed a response alleging that the proposed evidence was

neither intrinsic to, nor part of, the continuing narrative of the case and arguing that although

certain witnesses could testify that they knew defendant as a drug dealer, that knowledge was

neither reliable nor substantiated by other facts. Defendant concluded that the prejudice of this

evidence far outweighed its probative value.

¶5 At the hearing on the motion, the State explained that the fact that defendant and Lawrence

were drug dealers on the same block was the motive for the offense. The trial court asked how this

evidence would come before the jury, and the State replied through the testimony of witnesses

who purchased drugs from both defendant and Lawrence. The trial court then asked whether the

State expected these witnesses to testify that they knew defendant and Lawrence as drug dealers

in the same location, and the State answered yes.

¶6 The defense stated that it had not been tendered any statements by witnesses Serita Woods

or Michael Coleman stating they had purchased narcotics from defendant or Lawrence. 1 Moreover,

“statements regarding buying narcotics [were] not in any of the reports tendered” to the defense.

1 Serita Woods and another woman who was present at the shooting, Antoinette Woods, are not related. For clarity, each woman will be referred to by her first name.

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Counsel further stated that Serita did not identify defendant by name, although she recognized

defendant from seeing him in the area. According to counsel, “no evidence” tendered to the defense

stated that “they observed” either Lawrence or defendant “selling drugs on any particular time and

day,” and therefore, there was no “direct observation” of narcotics sales.

¶7 The trial court concluded that this was a question of fact for the jury, and that defendant

might be able to impeach by omission “down the line” by arguing that the witnesses “never said it

before or police didn’t write it down.” However, the trial court stated that it could not stop the

witnesses from testifying “in context how they know the people and how they are able to make

identifications and giving some context as to what may have preceded any dispute or animus

between the deceased and the defendant should there have been some.” The trial court therefore

found the other crimes evidence admissible. The matter proceeded to a jury trial.

¶8 Coleman testified that he was about to be released from prison after completing a sentence

for retail theft and had two prior convictions for aggravated robbery. In 2016, he visited a CVS

parking lot each day to purchase and use heroin, and to “hustle.” On June 29, 2016, he used heroin

in the afternoon, but was not impaired by 8 p.m. when he went to the parking lot with drugs to sell.

¶9 When Coleman arrived at the parking lot, he saw Lawrence and Serita, who both

“hustle[d]” in the area. Coleman explained that “hustle” meant to sell drugs. He had known

Lawrence for four years. Serita, whom he had known his entire life, was also a drug user.

Coleman’s girlfriend at the time, Antoinette Woods, was also present.

¶ 10 Coleman walked into the parking lot to make a narcotics transaction. At one point, a four-

doored black vehicle arrived and a passenger exited. Coleman identified defendant, whom he

referred to as “CJ,” in court as the passenger. He knew defendant from “the neighborhood

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hustling,” that is, selling drugs. Coleman had known defendant for four or five months and saw

him three to four times a week. Coleman purchased drugs from a “few” people at Clark and

Division. He “might” have purchased drugs from defendant, but did not remember.

¶ 11 After speaking to a few people, defendant walked past Coleman and Antoinette, and onto

Clark. There, defendant “encountered” Lawrence and “upped his gun.” Coleman explained that

“to up a gun” meant to “pull a gun somewhere from his waist.” Coleman did not hear defendant

say anything, but Lawrence said, “man, you up that motherf***, you got a blow that motherf***.”

Defendant then fired “a lot of times” at Lawrence. Lawrence, who did not have a firearm, ran

across Clark, and collapsed in the southbound lane. As defendant turned to leave, Lawrence

“hollered” that “you going to shoot me in front of everybody like this.” Defendant stopped, turned

around, and fired again. After more than 10 shots, defendant returned to the parking lot, dropped

the firearm in a garbage can, and ran away.

¶ 12 Coleman spoke to police and identified defendant in a photographic array as the shooter.

He was also shown a video of the shooting. At trial, Coleman identified himself, defendant, and

Lawrence in photographic stills taken from the videos and in the videos. These videos were then

published.

¶ 13 A video from the CVS parking lot shows defendant exit a black vehicle from the passenger

side. Defendant, who has a hand in his pants or waistband, passes a woman in a hooded sweatshirt

and walks out of the frame. The driver of the black vehicle also exits and stands near the vehicle.

The woman interacts with Coleman, who then walks past the woman and out of the frame. After a

few seconds, everyone scatters. Defendant reenters the parking lot, interacts with the driver of the

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black vehicle, and then runs away. The driver of the black vehicle enters the vehicle and exits the

parking lot going the opposite direction from defendant.

¶ 14 A video of the street outside the CVS parking lot shows defendant exit the parking lot and

approach Lawrence, who is standing near the curb in the street. Coleman is also present. After

defendant and Lawrence interact, defendant shoots him. As Lawrence staggers away, defendant

follows with his arm outstretched and shoots again, including when Lawrence is on the ground.

Defendant then goes back toward the CVS parking lot. Several people approach Lawrence, who is

lying in the middle of the street. Coleman leaves.

¶ 15 During cross-examination, Coleman acknowledged that there were “a lot” of drug dealers

around Clark and Division, and that he sold and used drugs. He then testified that Serita did not

sell narcotics, but only used them. When trial counsel noted that Coleman testified on direct

examination that Serita “was also out there hustling,” Coleman clarified that “hustling” meant

“[a]nything to get money,” and explained that Serita panhandled and did other things. He did not

know if he told the police how long he knew defendant before the shooting and did not think they

asked that question. However, he admitted telling the grand jury that he knew defendant for five

months. The police did not ask him if defendant dropped a firearm in a garbage can.

¶ 16 Serita, who acknowledged previous narcotics convictions, testified that she had an

addiction to heroin and crack cocaine, but at the time of trial had been “clean” for 4½ months.

Serita and Lawrence were close friends and referred to each other as “Auntie” and “nephew.”

Lawrence was one of many drug dealers in the area.

¶ 17 Around 8 p.m. on June 29, 2016, Serita was panhandling at Clark and Division when she

saw Lawrence come around the corner. She had used heroin that afternoon but was not high at that

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time. As they were speaking, a person approached and said, “you got to get the f*** down from

there.” Serita identified defendant in court as this person. While Lawrence responded, defendant

drew a firearm. As Lawrence turned to run away, defendant shot him in the back. Lawrence tried

to run again, but defendant shot him twice more and he fell to the ground. Defendant then

“emptied” the firearm into Lawrence. Defendant went back into the parking lot “where he came

from.” Serita later spoke to police and identified defendant in a photographic array.

¶ 18 During cross-examination, Serita testified that Lawrence wanted to give her his phone

number, as he would not be in the area anymore because “there were a lot of drug dealers that had

problems with him.”

¶ 19 Chastity Williams, who had two children with Lawrence, testified that she was on the

phone with him about 8 p.m. and heard six gunshots. On cross-examination, she testified that she

knew Lawrence had been in a fight with a drug dealer named “E-Dub” and that she had fought

with E-Dub’s girlfriend earlier in the week of the shooting. On redirect, Williams confirmed that

she had seen E-Dub before and described him as being skinny with braids.

¶ 20 Orlando Verzannon testified that he was on bond, had a pending case at the time of trial,

and had previous convictions for possession and delivery of a controlled substance. He denied

knowing Lawrence or defendant. On June 29, 2016, he “might” have driven his vehicle into the

CVS parking lot. The State asked the trial court to declare Verzannon a hostile witness, and the

court agreed.

¶ 21 Verzannon denied knowing defendant as “B.D.” Although Verzannon acknowledged

parking in the CVS lot and “guess[ed]” there were other black vehicles, he did not know whether

defendant was in one of those vehicles. He “guess[ed]” that he saw defendant exit the passenger

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seat of another vehicle, and “assume[d]” that defendant walked around the corner of the CVS.

Verzannon did not see Lawrence and denied knowing Lawrence as a drug dealer in the area.

Although he did not see defendant with a firearm, he heard gunshots. Verzannon denied seeing

defendant shoot at Lawrence, denied seeing defendant approach Lawrence where he had collapsed

on a parked vehicle, denied seeing defendant shoot Lawrence several more times, denied seeing

defendant return to the parking lot, and denied seeing defendant toss a firearm into a garbage can.

He explained that either his view was blocked or he was not paying attention. Verzannon drove

away and did not speak to officers that day.

¶ 22 Verzannon stated that he was later forced to speak to the police and make a video statement,

which was “all coached.” He did not consent to video or audio recording. He acknowledged

making the video statement but disputed the veracity of its contents. When Verzannon viewed a

photographic array, he put his initials next to a photograph and wrote “saw him shoot the other

guy.” He “assume[d]” that defendant was the subject of that photograph.

¶ 23 The State played the video statement, which is included in the record on appeal. Therein,

Verzannon stated that he chose and consented to make a videotaped statement. He identified B.D.

in a photographic array, and stated that he saw B.D. shoot Rico. Verzannon knew B.D. and Rico

as drug dealers who sold crack cocaine in the same neighborhood. Verzannon also sold crack

cocaine. Verzannon further stated that on the day of the shooting, he drove into the CVS parking

lot, parked, and exited the vehicle. He then saw B.D. arrive in the CVS parking lot and “tried to

say hi.” B.D., who seemed “focused on something,” went around the corner. Verzannon next saw

Rico try to run, but B.D. “upped a gun” and shot Rico. Rico fell down. B.D. then stood over Rico

and fired three more times. B.D. walked off, then turned back and shot Rico “some more.” B.D.

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threw the firearm into a garbage can in the CVS parking lot and left on foot. Verzannon did not

initially speak to the police because he was afraid. However, when he saw Rico’s children’s faces,

he knew he had to speak to the police.

¶ 24 During cross-examination, Verzannon testified that he did not speak to police on the day

of the shooting because he did not see the shooter. He spoke to the police after he was pulled over

in his girlfriend’s vehicle, detained, and placed in a holding cell. After three or four hours in the

cell, an officer entered and told Verzannon “to tell him what happened” or he would make

Verzannon’s life “a living hell” by towing the vehicle, charging Verzannon with a drug offense,

and having Verzannon’s girlfriend evicted. The officer knew the identity of the offender, showed

Verzannon a cell phone photograph of the alleged offender, and “needed” more witnesses. He

testified that he “guess[ed]” that the photograph was of defendant. Verzannon was told what to say

and made the statement to avoid going to jail.

¶ 25 During redirect, Verzannon admitted that some of the details in the statement were true,

including that he was present in the CVS parking lot, but that others, such as the shooter walking

past him, were “coached.”

¶ 26 Chicago police officer Peter Stevens testified that Verzannon was arrested on August 10,

2016, as part of a “narcotics roundup” following an undercover narcotics operation. During a

subsequent conversation, Verzannon talked about an incident at the CVS on Clark and Division.

After Stevens spoke with his superiors, a decision was made to release Verzannon without any

charges and Stevens transported him to meet with detectives.

¶ 27 Assistant State’s Attorney Dan Piwowarzyk testified that he spoke with Verzannon on the

night of August 10, 2016, at a police station, and was present when Verzannon made a video

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statement. He denied threatening or making a deal with Verzannon in order to obtain a statement.

He did not tell Verzannon what to say and Verzannon made the statement voluntarily.

¶ 28 Chicago police detective Jorge Lopez testified that during the course of the investigation,

he spoke with Verzannon, who was not under arrest at the time, and made no promises or threats

in order to obtain Verzannon’s statement.

¶ 29 Chicago police detective Abdalla Abuzanat testified that he responded to the shooting. He

recovered a firearm from a garbage can, and nine fired cartridge casings and one bullet from the

scene. The State entered a stipulation that a fired bullet recovered from Lawrence’s body was fired

from the firearm discovered in the garbage can.

¶ 30 Chicago police officer Matthew Savage, an evidence technician, testified that he did not

find ridge impressions on the firearm or cartridges.

¶ 31 Chicago police officer Benny Pambuku testified that around 8:14 p.m. on June 29, 2016,

he observed a vehicle matching the description of a vehicle that left the scene of a shooting. The

vehicle double parked, and a person ran up and entered the vehicle through the passenger side.

Pambuku and his partner curbed the vehicle and detained the occupants. Defendant and another

man were inside the vehicle. Defendant did not match the initial description of the shooter and

Pambuku only detained the men for 5 to 10 minutes. Pambuku documented the interaction with

investigatory stop reports which contained both men’s names. He gave a description of defendant

to other officers. Although Pambuku later went to the address defendant gave during the stop, he

did not locate defendant.

¶ 32 The State entered a stipulation that on July 1, 2016 Dr. Jon Gates, an assistant medical

examiner, performed an autopsy on Lawrence which revealed gunshot wounds to the back, right

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arm, abdomen, and left hand, and that in Gates’s opinion Lawrence’s death was due to multiple

gunshot wounds and the manner of death was homicide.

¶ 33 The State presentenced evidence that defendant was arrested on July 22, 2016, following a

traffic stop. The State admitted its exhibits into evidence and rested.

¶ 34 During the instruction conference, the defense objected to Illinois Pattern Jury Instructions,

Criminal, No. 3.14 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 3.14), that defendant had been

involved in other crimes. The trial court found that there was sufficient evidence to give the

instruction and to limit the jury’s “taking of the evidence” to the issues of intent and motive only

and not to consider that evidence for any other reason.

¶ 35 After the defense rested and closing arguments were presented, the trial court instructed

the jury, in relevant part, that

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

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

defendant’s intent and motive and may be considered by you only for that limited purpose.

It is for you to determine whether the defendant was involved in that offense and, if so,

what weight should be given to this evidence on the issue of intent and motive.”

¶ 36 The jury found defendant guilty of first-degree murder and that during the commission of

the offense, he personally discharged a firearm that proximately caused another person’s death.

¶ 37 Defendant filed a motion for a new trial alleging, in pertinent part, that he was not proven

guilty beyond a reasonable doubt and that the trial court erred in granting the State’s motion in

limine to permit proof of other crimes, specifically, “drug dealing.” The trial court denied the

motion. After a hearing, the trial court sentenced defendant to 45 years in prison for first-degree

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murder and to an additional 25 years because a firearm was used in the commission of the offense.

Defendant filed a motion to reconsider sentence, which the trial court denied.

¶ 38 On appeal, defendant contends the trial court erred when it admitted other crimes evidence

that he was a drug dealer when that evidence had no relevance to his motive or intent to commit

the charged offense. He notes that no witness testified that there was a dispute between himself

and Lawrence over the sale of drugs, and concludes that this prejudicial evidence could have

affected the trial’s outcome.

¶ 39 The State responds that the other crimes evidence was “highly relevant” to explain

defendant’s motive and intent for the shooting. The State further argues that defendant was not

prejudiced because the jury received a limiting instruction.

¶ 40 To be admissible, evidence must be relevant for a proper purpose. See People v. Lehman,

5 Ill. 2d 337, 342-43 (1955). Evidence proving a defendant’s propensity to commit crimes is not a

proper purpose, and generally, it is excluded from criminal trials as it tends to be overly persuasive

to a jury, which may “ ‘convict the defendant only because it feels he or she is a bad person

deserving punishment.’ ” People v. Ward, 2011 IL 108690, ¶ 24 (quoting People v. Lindgren, 79

Ill. 2d 129, 137 (1980)). Other crimes evidence, however, may be relevant for any purpose other

than to prove a defendant’s propensity to commit crimes such as a defendant’s intent, modus

operandi, identity, motive, or absence of mistake. People v. Pikes, 2013 IL 115171, ¶ 11. Other

crimes evidence is admissible if it is part of a continuing narrative of the events giving rise to the

offense and helps to explain the circumstance of the offense. People v. Ware, 2019 IL App (1st)

160989, ¶ 40.

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¶ 41 However, even in those cases where other crimes evidence is relevant for a proper purpose,

it may be excluded if its probative value substantially outweighs its prejudicial effect. Pikes, 2013

IL 115171, ¶ 11. We review a trial court’s decision to admit other crimes evidence for “a clear

abuse of discretion.” People v. Wilson, 214 Ill. 2d 127, 136 (2005). An abuse of discretion occurs

if the trial court’s determination is arbitrary, fanciful, or unreasonable, or if no reasonable person

would take the view adopted by the trial court. People v. Illgen, 145 Ill. 2d 353, 364 (1991).

¶ 42 Here, Coleman’s testimony and Verzannon’s video statement explaining that they knew

defendant to be a drug dealer in the area was not introduced to show defendant’s bad character.

Rather, the evidence was necessary to explain to the jury the circumstances of the offense. Ware,

2019 IL (1st) 160989, ¶ 40 (“Other crimes evidence is admissible if it is part of a continuing

narrative of the events giving rise to the offense and helps explain the circumstances of the

crime.”). Further context for the offense appeared in Serita’s and Williams’s testimony that

Lawrence, who also sold drugs in the area, was being threatened by other drug dealers and was

planning to leave the area, and Coleman’s testimony that he had known Lawrence for four years

but defendant for only four or five months. Without the context that defendant and Lawrence were

both drug dealers in the same neighborhood, but defendant was a newer addition, there was no

explanation for the confrontation between defendant and Lawrence and the shooting was otherwise

unexplained. We therefore find no abuse of discretion in the admission of the fact that defendant

was a drug dealer in the same area as Lawrence.

¶ 43 Moreover, even if the evidence that defendant was a drug dealer were improperly admitted,

it was harmless beyond a reasonable doubt. The improper introduction of other crimes evidence is

harmless error where the defendant is neither prejudiced nor denied a fair trial due to its admission.

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People v. Sims, 2019 IL App (3d) 170417, ¶ 30. Moreover, even if the other crimes evidence is

erroneously admitted, it is harmless when there is substantial evidence of the defendant’s guilt. Id.

Additionally, a jury instruction admonishing the jurors about the limited purpose for which they

may use the other crimes evidence substantially reduces the prejudicial effect of the admission of

the challenged evidence. Id. ¶ 31.

¶ 44 In the case at bar, Serita and Coleman both identified defendant as the shooter at trial.

Although Verzannon testified at trial that the content of his videotaped statement was false, in that

statement he identified defendant as the shooter. Additionally, the shooting was captured on

videotape, admitted into evidence, and published at trial. Coleman identified himself, defendant,

and Lawrence in the video. This video, which shows defendant shoot Lawrence multiple times, is

consistent with Serita’s and Coleman’s testimony and Verzannon’s statement.

¶ 45 Even if this court were to accept as true defendant’s assertion that the other crimes evidence

was erroneously admitted, the fact remains that three eyewitnesses stated that defendant

approached Lawrence and shot him multiple times, including while he was on the ground. People

v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009) (the credible and positive testimony of a single

witness is sufficient to convict); see also People v. Lewis, 165 Ill. 2d 305, 356 (1995) (“[a] single

witness’[s] identification of the accused is sufficient to sustain a conviction if the witness viewed

the accused under circumstances permitting positive identification”). Moreover, the State

presented a videotape of the shooting which was consistent with those identifications and

descriptions of the shooting and permitted the jury to observe the offense, and which provided

substantial evidence of defendant’s guilt. See Sims, 2019 IL App (3d) 170417, ¶ 30.

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¶ 46 Finally, the trial court addressed any danger that the other crimes evidence might be

improperly considered by the jury by giving a limiting instruction when instructing the jury. See

Illgen, 145 Ill. 2d at 376 (when the trial court specifically instructed the jury as to how other crimes

evidence could be considered, the instruction “limited and substantially reduced any prejudicial

effect created by the admission” of the evidence). Thus, even if the evidence that defendant was a

drug dealer were improperly admitted, its admission was harmless beyond a reasonable doubt.

Accordingly, we affirm defendant’s conviction for first-degree murder.

¶ 47 For the forgoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 48 Affirmed.

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