NOTICE 2021 IL App (5th) 180571-U NOTICE Decision filed 11/15/21. The This order was filed under text of this decision may be NO. 5-18-0571 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for Rehearing or the disposition of IN THE limited circumstances allowed under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Lawrence County. ) v. ) No. 18-CF-88 ) DAVID F. WAGNER, ) Honorable ) Robert M. Hopkins, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court. Justices Cates and Barberis concurred in the judgment.
ORDER
¶1 Held: In a criminal trial on a charge of aggravated criminal sexual abuse, the admission of evidence of the defendant’s prior arrest and incarceration for possession of methamphetamine did not result in prejudicial error and the admission of evidence of the defendant’s drug use at the time of the offense did not result in plain error or the denial of the defendant’s right to effective assistance of counsel.
¶2 A jury convicted the defendant, David F. Wagner, of aggravated criminal sexual
abuse of his adopted daughter, and the circuit court sentenced the defendant to six years in
the Illinois Department of Corrections. In a direct appeal from his conviction and sentence,
the defendant argues that the admission of evidence at his trial that he used
methamphetamine and THC and evidence that he had been incarcerated for an unrelated 1 drug crime resulted in plain error and the denial of his constitutional right to effective
assistance of counsel. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 In 2012, the defendant adopted his wife’s daughter. On May 7, 2017, the wife
walked into the Lawrenceville police station and reported that the defendant had sexually
abused the daughter. On May 25, 2017, and on September 15, 2017, the daughter submitted
to forensic interviews and gave consistent details of the abuse during each separate
interview. The daughter reported that the abuse began when she was in the fifth grade and
ended in February 2016 when she was in the eighth grade.
¶5 The abuse ended in February 2016 when the defendant was arrested for possession
of methamphetamine. He ultimately served a prison sentence in the Illinois Department of
Corrections for this drug offense. He was released from prison in October 2017 and resided
in a halfway house until January 2018. He then moved to Indiana for a period of time. The
Lawrenceville chief of police, James White, attempted to question the defendant about the
daughter’s abuse allegations on several occasions after the defendant was released from
prison, but Officer White was unable to question the defendant until June 27, 2018, when
the defendant agreed to be interviewed. Officer White and an investigator with the Illinois
Department of Children and Family Services (DCFS), Jessie Gray, conducted the
interview.
¶6 During the interview, Officer White informed the defendant of the daughter’s
allegations without providing the defendant with any of the details that the daughter
reported. According to Officer White, the defendant did not deny sexually abusing the 2 daughter but instead “advised that he was on [methamphetamine and THC] at the time and
that if she said it happened, it probably happened.” Upon further questioning, the defendant
admitted to sexually abusing the daughter three to four times a week and provided Officer
White with the same details that the daughter had reported. The defendant explained to
Officer White that after his wife left for work, he would ask the daughter to come to his
bedroom and ask her to get undressed and get in bed with him. The defendant said that he
would then take off his shorts and have the daughter “place her hands on his penis and
begin to masturbate.” He would also occasionally touch her vagina and her breasts and kiss
her.
¶7 The defendant told Officer White that this abuse began when the daughter was in
the fifth grade and that he abused her because he himself had been sexually abused at a
young age. The defendant admitted to instructing the daughter not to tell anyone because
he would get in trouble. He told Officer White that he was sorry. According to Officer
White, the defendant’s confession was consistent with the details of the abuse that the
daughter had reported during her two forensic interviews. At the conclusion of the
defendant’s interview, the defendant handwrote a confession that read as follows:
“I am very sorry for doing the things to my daughter ***, and I’m sorry putting her
through that. And I’m sorry to the rest of the family because I had it done to me. My
father molested. I did not penetrate her like I was and am truly sorry. The only thing
I did touch her on her vagina.”
¶8 On July 2, 2018, the State charged the defendant with aggravated criminal sexual
abuse in violation of section 11-1.60(b) of the Criminal Code of 2012 (720 ILCS 5/11- 3 1.60(b) (West 2018)). The State alleged that the defendant was the adoptive father of the
victim who was under 18 years of age when the defendant “knowingly touched the vaginal
area” of the victim for purposes of his sexual arousal.
¶9 Prior to the defendant’s jury trial, the defendant filed a motion in limine requesting
the circuit court to exclude the admission of evidence that he had a prior drug conviction.
The conviction was for possession of methamphetamine. In the motion, the defendant
argued that the prejudicial effect of the conviction outweighed its probative value. At the
hearing on the motion, the defense emphasized that the defendant’s conviction of
possession of methamphetamine was not relevant to the defendant’s credibility. See People
v. Montgomery, 47 Ill. 2d 510, 514 (1971).
¶ 10 In response, the State told the circuit court that it did not intend on presenting any
evidence specifically about the defendant’s methamphetamine conviction. However, the
State continued, it anticipated that the defendant’s arrest and incarceration for the
methamphetamine offense would come up during the trial because the arrest and
incarceration were part of the timeline of the events relevant to the sexual abuse offense
and that the arrest would come up during both Officer White’s and the daughter’s
testimony. The State argued that the probative value of this evidence outweighed any
prejudicial effect that knowledge of the arrest and incarceration might have on the jury.
¶ 11 Although not included in the defendant’s motion in limine, the State also discussed
its intent to offer evidence of the defendant’s drug use when the abuse occurred, explaining
as follows:
4 “There’s also testimony, I expect, of [the defendant] talking about
methamphetamine use with the officer during the period which these allegations
were made. *** I can’t see how it doesn’t come up or the jury can infer that, at least,
when we’re discussing statements he made about using methamphetamine that may
go to motive or state of mind.”
In response, the defense asked that the circuit court not allow the admission of evidence of
the prior conviction without first addressing its relevancy in light of the other evidence
admitted at that point in the trial. The circuit court denied the defendant’s motion in limine,
ruling as follows: “Well, at this point, the Court will deny the Motion in Limine as to the
prior conviction for methamphetamine. The Court finds that the *** probative value
outweighs the prejudicial effect and the Court will permit it to be brought into evidence.”
¶ 12 Four witnesses testified at the defendant’s trial: Officer White, the daughter, the
defendant, and Gray. Gray testified only as a rebuttal witness.
¶ 13 During Officer White’s testimony, the prosecution elicited testimony from the
officer about the victim’s mother walking into the police station and reporting the sexual
abuse. The State then presented testimony about Officer White’s attempts to contact the
defendant after learning of the reported abuse. During direct examination, the prosecutor
asked Officer White whether the officer immediately contacted the defendant after learning
of the abuse. Officer White responded that he “couldn’t at that time because [the defendant]
was at Department of Corrections.” Officer White explained to the jury that the first time
he was able to speak with the defendant was “shortly after [the defendant] got out and was
paroled.” Officer White explained that he saw the defendant when the defendant “stopped 5 by the jail for something” and the officer told the defendant that he needed to speak with
him. According to Officer White, the defendant said he would come by the next day but
did not do so. Officer White then testified that he later saw the defendant again when the
defendant was at the courthouse for some unspecified reason, and the officer again told the
defendant that he needed to talk to him. Officer White eventually interviewed the defendant
on June 27, 2018, when the defendant voluntarily came to the police station for questioning.
Officer White then told the jury about the interview and the defendant’s confession
described above.
¶ 14 Officer White testified that, during the interview, the defendant admitted that the
last incident of abuse occurred “the day before he got arrested for the first time, which I
think was February of maybe ’16.” The officer explained to the jury that he did not reveal
to the defendant any of the details of the abuse as reported by the daughter and that the
defendant’s version of events “pretty much lined up” with the daughter’s statement of what
happened. Officer White also denied helping the defendant fill in any part of the
defendant’s written statement or telling the defendant what to say or write. According to
Officer White, the defendant was left alone in the interrogation room while the defendant
handwrote his statement.
¶ 15 The daughter, who was 16 years old at the time of the trial, testified that the
defendant was married to her mother and that the defendant had adopted her in 2012. She
had lived with the defendant since she was three years old, and the defendant had been a
father to her for as long as she could remember. In explaining the abuse to the jury, the
daughter testified that the defendant would wake her up after her mother had left for work, 6 and she would go into the defendant’s bedroom and give him a “hand job,” touching his
penis with her hands to ejaculation before she got ready for school. She testified that the
defendant also rubbed her vaginal area. She explained that this occurred every morning
and that it became routine.
¶ 16 The daughter estimated that she was in the fifth grade when the abuse started and in
the eighth grade the last time it occurred. She was 14 years old when the abuse ended. The
prosecutor asked the daughter how she remembered when the abuse stopped, and she
answered, “Because he had gone to jail.” She told the jury that she never told anyone when
the abuse was happening because she was scared, and she did not know how to say that she
did not like what was happening. The first time she mentioned the abuse to anyone was in
May 2017 after the defendant was sent to prison. She testified that the defendant got out of
prison in October 2017, and she had not spoken with him since his release.
¶ 17 The defendant testified at the trial in his own defense and denied abusing his
daughter. He testified that when Officer White interviewed him, he initially denied the
allegations because he “didn’t do it.” However, according to the defendant, Officer White
and the DCFS investigator kept “pressing” him, called him a liar, and got mad. The
defendant told the jury that he wanted to “just get out of that room” and, therefore, he
admitted to the abuse and told Officer White and the investigator what they wanted to hear.
With respect to his written statement, the defendant admitted that the statement was in his
handwriting and that he signed it. He testified, however, that Officer White and the
investigator told him what to write and that 75% of the statement was their words, not his
own. He told the jury that he wrote what they told him to write and that they had to tell him 7 how to spell some of the words. He claimed that he did not understand what he wrote
because he had “these cleanses” and loses “memory of it.” He testified that he voluntarily
added the part about him being sexually abused himself when he was younger.
¶ 18 The defendant testified that he had a good relationship with his daughter and that
nothing sexual ever occurred between them. He denied ever touching his daughter sexually
and denied that she ever touched him sexually. During direct examination, the defense
attorney asked the defendant why he had spent time in prison, and the defendant answered,
“Possession of meth under five grams.” The defense attorney then asked the defendant
whether he heard from the daughter while in prison, and the defendant testified that he
talked to his daughter and son every night while in prison, telling them good night and that
he missed them and loved them.
¶ 19 During cross-examination, the prosecutor asked the defendant to tell the jury exactly
what he told Officer White during the interview, and the defendant answered, “I told him
I was under the influence of methamphetamine when all this supposedly happened.” The
defendant also testified during cross-examination that he used methamphetamine for about
six months to a year, and that he was using about a quarter gram of methamphetamine
every day when he was arrested for possession of methamphetamine. The defendant denied
being unable to remember events due to his drug use at the time the abuse occurred. Also
during cross-examination, the prosecutor asked the defendant whether he met with Officer
White at any point after he was released from prison prior to the June 27, 2018, interview.
The defendant testified that he did not meet with Officer White at first because he was in a
halfway house and later he could not find a ride to meet with the officer. 8 ¶ 20 For the State’s rebuttal, the DCFS investigator, Gray, testified about the interview
of the defendant in June 2018 at the Lawrenceville police station. Gray testified that no one
got mad or yelled at the defendant during the interview and that the defendant was not
pressured to say anything. Gray testified that neither she nor Officer White helped the
defendant write the defendant’s statement. According to Gray, both she and Officer White
were out of the room when the defendant wrote his statement.
¶ 21 At the conclusion of the trial, the jury found the defendant guilty of aggravated
criminal sexual abuse, and the circuit court sentenced the defendant to a term of six years
in the Illinois Department of Corrections followed by a two-year term of mandatory
supervised release. The defendant now appeals from the circuit court’s judgment. The
defendant argues that he was denied a fair trial due to the admission of testimony about his
prior conviction and prison sentence for possession of methamphetamine and the admission
of testimony about his methamphetamine and THC use at the time of the abuse.
¶ 22 II. ANALYSIS
¶ 23 1. Evidence of the Defendant’s Prior Conviction of Possession of Methamphetamine
¶ 24 The defendant argues that the circuit court erred in allowing the admission of
evidence that he had a prior conviction for possession of methamphetamine. Although the
defendant did not object to this testimony during the trial, prior to trial, the defendant filed
a motion in limine seeking an order excluding testimony about this prior conviction. The
circuit court denied the motion in limine, and the defendant raised this issue in his posttrial
motion, arguing that the circuit court erred in denying the motion in limine. In a criminal
9 case, “a defendant preserves an issue for review by (1) raising it in either a motion in limine
or a contemporaneous trial objection, and (2) including it in the posttrial motion.” People
v. Denson, 2014 IL 116231, ¶ 11. Here, even though he did not offer a contemporaneous
objection at trial, the defendant has nonetheless preserved this claimed error for review by
raising the issue in a motion in limine and again in his posttrial motion.
¶ 25 As the State notes in its brief, the defendant first focuses his argument on whether
use of the prior conviction was proper impeachment evidence under the standards set out
in People v. Montgomery, 47 Ill. 2d 510, 514 (1971), and its progeny. We agree with the
State that this argument is misplaced because the State did not impeach the defendant with
his prior possession of methamphetamine conviction but instead offered this other crimes
evidence for purposes of establishing the timeline of the abuse and explaining the timeline
of Officer White’s investigation of the reported abuse. Accordingly, we need not determine
whether the prior conviction was proper impeachment evidence under Montgomery
standards because the evidence was not admitted for that purpose.
¶ 26 “[W]here the defendant has made a timely objection and properly preserved an error
for review, the reviewing court conducts a harmless-error analysis in which the State has
the burden of persuasion with respect to prejudice.” People v. McLaurin, 235 Ill. 2d 478,
495 (2009). In harmless-error analysis, the State must prove beyond a reasonable doubt
that the jury verdict would have been the same absent the error. People v. Herron, 215 Ill.
2d 167, 181 (2005).
¶ 27 Turning to the admission of other crimes evidence for purposes other than a
Montgomery impeachment, Illinois courts have held that evidence of other crimes, wrongs, 10 or acts by the defendant is inadmissible if the evidence is offered solely to establish the
defendant’s propensity to commit an offense. People v. Gumila, 2012 IL App (2d) 110761,
¶ 37. Courts generally prohibit the admission of other crimes evidence because the jury
should not convict a defendant on the basis that he is a bad person deserving punishment;
instead, guilt or innocence should be evaluated solely based on the evidence relevant to the
charged crime. People v. Donoho, 204 Ill. 2d 159, 170 (2003).
¶ 28 However, evidence of other crimes is admissible for other purposes including to
show knowledge, intent, absence of mistake or accident, and the absence of an innocent
mind frame or the presence of criminal intent. Id.; see also Ill. R. Evid. 404(b) (eff. Jan. 1,
2011). Evidence of other crimes must tend to make the existence of a fact that is of
consequence in the case more probable or less probable than it would be without the
evidence. People v. Boyd, 366 Ill. App. 3d 84, 90 (2006); Ill. R. Evid. 401 (eff. Jan. 1,
2011). Also, evidence of other crimes must not become the focal point of the trial. Boyd,
366 Ill. App. 3d at 94. Like other evidentiary matters, whether to admit other crimes
evidence lies within the sound discretion of the circuit court. Gumila, 2012 IL App (2d)
110761, ¶ 37.
¶ 29 In the present case, in the State’s case-in-chief, the State presented testimony that
informed the jury of the defendant’s arrest and incarceration for an unspecified crime. The
State presented this evidence through the testimony of Officer White and the daughter.
Specifically, in explaining the period between learning of the reported abuse and the
eventual interview of the defendant, Officer White told the jury about the defendant being
incarcerated in the Department of Corrections for an undisclosed offense which prevented 11 the officer from interviewing the defendant immediately after learning of the abuse.
Similarly, during the daughter’s testimony, the daughter told the jury that the defendant’s
abuse ended when he was arrested for an undisclosed crime. The State offered this
testimony from the daughter as a basis for explaining to the jury when and why the
defendant’s abuse ended and in explaining how the daughter could remember exactly when
the abuse ended.
¶ 30 On appeal, the defendant argues that the prejudicial effect of this evidence
outweighed its probative value. However, based on our review of the record, we conclude
that even if the evidence of the defendant’s methamphetamine conviction was improperly
admitted, the error was harmless beyond a reasonable doubt.
¶ 31 The “improper introduction of other-crimes evidence is harmless error when a
defendant is neither prejudiced nor denied a fair trial based upon its admission.” People v.
Nieves, 193 Ill. 2d 513, 530 (2000). In addition, Illinois courts have explained that “[a]n
error in admitting other-crimes evidence is harmless if there is substantial evidence of the
defendant’s guilt.” (Emphasis added.) People v. Sims, 2019 IL App (3d) 170417, ¶ 30
(citing Nieves, 193 Ill. 2d at 530-31); see also People v. Murdock, 259 Ill. App. 3d 1014,
1021 (1994) (“Notwithstanding the fact that the court allowed the State to use the other
crimes evidence for a purpose for which it was not proper, reversal of defendant’s
conviction on this ground is not required in light of his failure to establish any prejudice
resulting therefrom. Here, even ignoring the improper other crimes evidence, the State
introduced substantial evidence of defendant’s guilt.”).
12 ¶ 32 In the present case, the evidence presented at the trial included testimony from
Officer White about the daughter’s two forensic interviews during which the daughter
provided consistent details of the abuse. The evidence also included the daughter’s
testimony at the trial detailing the abuse for the jury and evidence of the defendant’s
confession in which the defendant corroborated the details of the abuse that the daughter
reported. Officer White explained to the jury that he did not reveal to the defendant any of
the details of the abuse as reported by the daughter prior to his interview of the defendant,
and yet the defendant’s confession included the same details of the abuse that the daughter
conveyed during her forensic interviews and at trial. The defendant confessed to the abuse
both verbally and in writing, and Officer White testified that the defendant was not coerced
or pressured into making any verbal and written statements and that no one told the
defendant what to say or write in confessing to the abuse. Officer White’s testimony was
corroborated by the testimony of Gray who also participated in the defendant’s interview.
Gray confirmed that the defendant was not coerced into confessing and that no one told the
defendant what to say or write.
¶ 33 Accordingly, the present case was not merely a credibility contest based only on the
daughter’s and the defendant’s testimony. Instead, the daughter’s testimony was
corroborated by the details of the defendant’s own confession. In addition, the defense did
not offer any evidence to establish a motive for the daughter to falsely report the abuse.
Under these facts, the unchallenged evidence establishing the defendant’s guilt was
substantial and compelling despite the defendant’s testimony at the trial that he did not
abuse his daughter. 13 ¶ 34 Our supreme court has held that although the erroneous admission of other crimes
evidence ordinarily calls for reversal, the evidence “must have been a material factor in
[the defendant’s] conviction such that without the evidence the verdict likely would have
been different.” People v. Cortes, 181 Ill. 2d 249, 285 (1998). “If the error is unlikely to
have influenced the jury, admission will not warrant reversal.” Id. at 285-86 (holding that
the admission of other crimes evidence was “harmless beyond a reasonable doubt” where
the verdict would not have been different without the other crimes evidence; therefore, the
defendant was not prejudiced and was not denied a fair trial).
¶ 35 In the present case, for the reasons we have explained, the State presented
substantial evidence of the defendant’s guilt such that the admission of Officer White’s and
the daughter’s testimony about the defendant’s arrest and incarceration was harmless
beyond a reasonable doubt. Accordingly, we reject the defendant’s argument that the
admission of other crimes evidence during Officer White’s and the daughter’s testimony
constituted reversible error.
¶ 36 In addition to Officer White’s and the daughter’s testimony, the defendant’s
attorney also elicited testimony from the defendant himself about his incarceration for the
methamphetamine offense. With respect to this testimony, the defendant argues that his
attorney was constitutionally ineffective in presenting this evidence to the jury.
¶ 37 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 (1) his counsel’s
performance fell below an objective standard of reasonableness and (2) absent counsel’s 14 deficient performance, there is a reasonable probability that the outcome of the trial would
have been different. Strickland, 466 U.S. at 684-85. The court need not consider the
deficiency prong where the defendant fails to establish prejudice under the second prong
of the Strickland standard. Id. at 697.
¶ 38 As noted above, in the present case, Officer White’s and the daughter’s testimony
referenced the defendant’s arrest and incarceration for an undisclosed crime. During direct
examination, the defendant’s attorney had the defendant clarify to the jury the specific
crime for which the defendant was arrested and incarcerated, and the defendant told the
jury that it was for possession of methamphetamine under five grams. The defense attorney
also elicited testimony from the defendant that the defendant talked to his daughter every
night while in prison, telling her good night and that he missed her and loved her. The
prosecution did not reference the defendant’s arrest and incarceration for the possession of
methamphetamine offense at any time during its closing arguments.
¶ 39 Based on our analysis of the entire record of the trial as outlined above, we again
conclude that there is no reasonable probability that the outcome of the defendant’s trial
would have been different had the defendant’s attorney not elicited this testimony from the
defendant. The defendant’s voluntary confession to Officer White independently
corroborated the details of the abuse that were reported by the daughter. This evidence was
overwhelming. As a result, the defendant’s ineffective assistance of counsel argument fails
under the prejudice prong of the Strickland standard. See People v. Coleman, 183 Ill. 2d
366, 397-98 (1998) (holding that a “lack of prejudice renders irrelevant the issue of
counsel’s performance”); People v. Johnson, 128 Ill. 2d 253, 271 (1989) (applying the two- 15 part Strickland standard and, without deciding the first prong, concluding that in light of
the overwhelming evidence the defendant suffered no prejudice from the claimed errors);
People v. Page, 155 Ill. 2d 232, 266-67 (1993) (the defendant could not meet the prejudice
prong of the Strickland test in light of the overwhelming evidence against the defendant).
¶ 40 2. Evidence of the Defendant’s Drug Use
¶ 41 The defendant also argues that reversible error occurred due to the admission of
evidence that he was using methamphetamine and THC when the abuse occurred. Again,
this claimed error involves evidence of other crimes which, as noted above, is not
admissible for purposes of establishing the defendant’s propensity to commit an offense
but is admissible for other purposes including to show knowledge, intent, absence of
mistake or accident, and absence of an innocent mind frame or the presence of criminal
intent. Gumila, 2012 IL App (2d) 110761, ¶ 37.
¶ 42 With respect to this claimed error, the defendant’s motion in limine did not ask the
circuit court to exclude evidence of uncharged drug crimes; the defendant asked only that
evidence of his prior conviction be excluded. In addition, the defendant did not object at
trial to the admission of testimony about his drug usage, and the claimed error was not
included in the defendant’s posttrial motion. Accordingly, the defendant has forfeited this
claimed error. The defendant acknowledges this forfeiture but asks us to review this
claimed error under the plain-error rule.
¶ 43 The plain-error rule allows a reviewing court to review a forfeited error affecting
substantial rights under one of two alternative prongs: (1) the evidence is so closely
balanced that the conviction may have resulted from the error and not the evidence, or 16 (2) the error is so serious that the defendant was denied a substantial right and a review of
the forfeited error preserves the integrity of the judicial process. People v. Herron, 215 Ill.
2d 167, 178-79 (2005). Under both prongs the defendant has the burden of persuasion.
People v. Reese, 2017 IL 120011, ¶ 69. If the defendant fails to carry his burden, the
procedural default must be honored. People v. Naylor, 229 Ill. 2d 584, 593 (2008). On
appeal, the defendant raises both prongs of the plain-error rule.
¶ 44 (a) First Prong of the Plain-Error Rule
¶ 45 Under the first prong of the plain-error rule, “[w]hat makes an error prejudicial is
the fact that it occurred in a close case where its impact on the result was potentially
dispositive.” People v. Sebby, 2017 IL 119445, ¶ 68. “In determining whether the evidence
adduced at trial was close, a reviewing court must evaluate the totality of the evidence and
conduct a qualitative, commonsense assessment of it within the context of the case.” Id.
¶ 53. This inquiry “involves an assessment of the evidence on the elements of the charged
offense or offenses, along with any evidence regarding the witnesses’ credibility.” Id.
¶ 46 Our supreme court has held that the prejudice prong for ineffective assistance of
counsel is similar to the closely balanced evidence first prong of plain-error review. People
v. White, 2011 IL 109689, ¶ 134. This is true because “[b]oth analyses are evidence-
dependent and result-oriented.” Id. Therefore, “where a defendant fails to show prejudice,
a defendant’s allegations of ineffective assistance of counsel and plain error under the
closely-balanced-evidence prong both fail.” People v. Hensley, 2014 IL App (1st) 120802,
¶ 47 (citing White, 2011 IL 109689, ¶ 134).
17 ¶ 47 Here, because we have concluded above that the evidence of the defendant’s guilt
was not closely balanced, the defendant has failed to establish plain error under the first
prong of the plain-error rule. See, e.g., People v. Holt, 2019 IL App (3d) 160504-B, ¶ 47
(“Because we have determined that [the defendant] failed to meet his burden under the first
prong of the plain-error inquiry—and thus that the evidence was not closely balanced—we
hold that [the defendant] cannot satisfy the prejudice prong of the Strickland inquiry.”).
¶ 48 (b) Second Prong of the Plain-Error Rule
¶ 49 The defendant also argues that plain error occurred under the second prong of the
plain-error rule. “Our supreme court has equated the second prong of the plain error test
with structural error such that automatic reversal is only warranted when the error renders
a defendant’s trial fundamentally unfair or unreliable.” People v. Jackson, 2013 IL App
(3d) 120205, ¶ 25 The United States Supreme Court has recognized an error as structural
error only in a very limited class of errors including: a complete denial of counsel, trial
before a biased judge, racial discrimination in the selection of a grand jury, denial of self-
representation at trial, denial of a public trial, and a defective reasonable doubt instruction.
People v. Thompson, 238 Ill. 2d 598, 609 (2010). With respect to errors that render the trial
fundamentally unfair or challenge the integrity of the judicial process, the courts presume
the existence of prejudice, regardless of the strength of the evidence, because of the
importance of the rights involved. Herron, 215 Ill. 2d at 187.
¶ 50 In arguing the second prong of the plain-error rule, the defendant challenges the
admission of other crimes evidence and challenges the circuit court’s failure to instruct the
jury on the limited purpose for which such evidence could be considered. See Illinois 18 Pattern Jury Instructions, Criminal, No. 3.14 (approved Oct. 17, 2014). However, these
claimed errors do not fall within the categories of structural error recognized by our
supreme court. “[A]utomatic reversal [under the second plain-error prong] is only required
where an error is deemed ‘structural.’ ” People v. Glasper, 234 Ill. 2d 173, 197-98 (2009).
¶ 51 While Illinois courts have held that, under certain circumstances, the improper
admission of other crimes evidence can rise to the level necessary to invoke the second
prong of the plain-error rule (see People v. Jackson, 2017 IL App (1st) 142879, ¶ 70), there
are no reported cases establishing that, in all circumstances, this type of error constitutes
structural error resulting in an automatic reversal regardless of the strength of the evidence.
See People v. Strawbridge, 404 Ill. App. 3d 460, 469 (2010) (holding that because “an
error concerning the admission of other-crimes evidence may be deemed harmless in
appropriate circumstances, we cannot say that such an error is so fundamental that it
necessarily satisfies the second prong of the plain-error doctrine”).
¶ 52 Likewise, with respect to the circuit court’s failure to instruct the jury on the limited
purpose of the other crimes evidence, Illinois courts have held that the failure to give a
limiting instruction concerning the use of other crimes evidence does not necessarily rise
to the level of plain error. People v. Tolbert, 323 Ill. App. 3d 793, 800 (2001); People v.
Hooker, 253 Ill. App. 3d 1075, 1085 (1993). Generally, the only instructions necessary to
ensure a fair trial include the elements of the crime charged, the presumption of innocence,
and the question of burden of proof. People v. Turner, 128 Ill. 2d 540, 562-63 (1989).
“Where the defendant claims second-prong plain error, a reviewing court must decide
19 whether the defendant has shown that the error was so serious it affected the fairness of the
trial and challenged the integrity of the judicial process.” Sebby, 2017 IL 119445, ¶ 50.
¶ 53 Here, upon review of the entire record of the trial as outlined above, we conclude
that the admission of other crimes evidence as well as a lack of a limiting instruction were
not so substantial that they affected the fairness of the trial or challenged the integrity of
the process. We are confident that the exclusion of the other crimes evidence or the giving
of a limiting instruction would not have swayed the jury toward an acquittal. The jury
would have convicted the defendant with, or without, the other crimes evidence and with,
or without, a limiting instruction. Accordingly, the defendant’s claim of plain error fails
under both prongs of the plain-error rule.
¶ 54 III. CONCLUSION
¶ 55 For the foregoing reasons, we affirm the circuit court’s judgment.
¶ 56 Affirmed.