2020 IL App (1st) 182165-U No. 1-18-2165 Order filed December 3, 2020 Fourth Division
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 ILLINOIS, ) Appeal from the Circuit ) Court of Cook County. Plaintiff-Appellee, ) ) v. ) No. 16 CR 10806 ) DARREL WELCH, ) Honorable ) Alfredo Maldonado, Defendant-Appellant. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court. Justices Hall and Reyes concurred in the judgment.
ORDER
¶1 Held: Defendant’s convictions are affirmed over his contention that the trial court abused its discretion in admitting unduly prejudicial and excessive other-crimes evidence.
¶2 After a jury trial, defendant Darrel Welch was convicted of three counts of aggravated
criminal sexual assault and one count of aggravated kidnapping and was sentenced to a total of
72 years in prison. On appeal, defendant contends that the trial court abused its discretion in
allowing the State to present evidence that he committed a prior, uncharged sexual assault against No. 1-18-2165
a different victim. In particular, defendant argues that the probative value of the other-crimes
evidence was substantially outweighed by the danger of unfair prejudice because the prior assault
was too remote in time and factually dissimilar from the charged offenses. He further argues that
the State relied excessively on the other-crimes evidence at trial and thus created an improper
“mini-trial” on that uncharged conduct. For the reasons that follow, we reject defendant’s
contentions and affirm the trial court’s judgment. 1
¶3 I. BACKGROUND
¶4 As will be discussed more fully below, the evidence at trial established that, in the early
hours of June 3, 2014, as the victim, T.C., was walking home, defendant approached her from
behind, grabbed her by the neck, and dragged her into an alley, where he ripped off her clothing,
threatened to kill her, and repeatedly sexually assaulted her. At the time, defendant was 54 years
old and T.C. was 19 years old.
¶5 Before trial, the State filed a motion to admit evidence that defendant committed a similar
sexual assault against a different victim, T.B., in August 1999. In the motion, the State represented
that, during that incident, defendant approached T.B., grabbed her by the arm, and forced her into
an alley, threatening to hurt her if she screamed, before tearing off her clothing and sexually
assaulting her. Finding the alleged assaults of T.B. and T.C. sufficiently similar, the trial court
allowed the State to introduce the other-crimes evidence for purposes of showing defendant’s
intent and propensity to commit the charged offenses against T.C.
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
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¶6 At trial, T.C. recounted that, as she was walking home from a friend’s house on the evening
of June 2, 2014, she ran into another friend named Mike Noel. (Noel is defendant’s nephew.) T.C.
and Noel went to Noel’s grandmother’s house, where they sat on the front porch, talking and
smoking marijuana. Eventually, T.C. and Noel went to the garage behind Noel’s grandmother’s
house and had sex in a car parked in the garage. T.C. testified that Noel did not put his hands on
her neck while they were having sex. When they finished, T.C. and Noel went back to the porch.
¶7 Around 1 a.m., Noel went inside the house while T.C. remained on the porch. At some
point, defendant and a woman approached the porch and used a key to enter the house. Defendant
later came back out to the porch and smiled at T.C. but did not say anything. T.C. then got up and
began to walk home.
¶8 As T.C. walked toward an alley, defendant grabbed her and told her not to scream. With
his hands around T.C.’s neck and mouth, defendant dragged T.C. down the alley, threatening to
kill her if she was not quiet. When defendant got T.C. near the back of a garage, he pulled off
T.C.’s clothes and pushed her to the ground. He then forced his penis into T.C.’s mouth, causing
her to vomit. He proceeded to force his penis into T.C.’s vagina and anus. T.C. struggled to escape,
but defendant wrapped his legs around hers and trapped her under the weight of his body. When
defendant finally let T.C. go, he told her “what happens in Vegas, stays in Vegas,” and that he
would kill her if she told anyone what he had done.
¶9 T.C. got up and ran home, leaving her bra and underwear behind. When she arrived home
around 5 a.m., she told her mother that she had been raped. T.C.’s mother testified that T.C. was
hysterical and crying. Her hair and clothing were disheveled, as though she had been in a struggle.
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After speaking with her mother, T.C. called 9-1-1. Two police officers and an ambulance arrived
a short time later.
¶ 10 The ambulance transported T.C. to a hospital, where she was examined by a physician and
nurse and a sexual assault kit was collected. The examination revealed bruising on both sides of
T.C.’s neck, an abrasion on the palm of her right hand, and blood with yellow discharge inside her
vaginal wall. T.C. reported pelvic and vaginal pain. The doctor and nurse collected oral, vaginal,
and anal swabs from T.C., as well as swabs of her neck, breasts, and abdomen. The nurse noted
the presence of dirt or debris in T.C.’s pubic hair.
¶ 11 Meanwhile, the police officers who responded to T.C.’s 9-1-1 call searched the alley where
T.C. reported that the assault occurred. The officers found a bra, underwear, and pair of socks on
the cement in front of a garage door between two garbage cans. The bra matched the description
of T.C.’s bra. When shown a photograph of the bra at trial, T.C. identified it as hers. When the
officers located the bra, they observed dirt in one of the cups.
¶ 12 Approximately two years later, T.C.’s sexual assault kit was tested. A forensic scientist
identified a male DNA profile from the abdomen, breast, and neck swabs taken from T.C.
A CODIS (Combined DNA Index System) search revealed that the male DNA profile matched
defendant’s DNA. T.C. subsequently identified defendant in a photo array and defendant was
arrested. The DNA match was then confirmed through testing of a buccal swab collected from
defendant after his arrest. The DNA profile identified from defendant’s buccal swab was also
found to match DNA identified on T.C.’s oral and anal swabs.
¶ 13 The State called two witnesses to testify about defendant’s earlier sexual assault of T.B.
Before each witness took the stand—and again at the close of the case—the trial court instructed
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the jury that the other-crimes evidence was being admitted solely on the issues of defendant’s
intent and propensity to commit aggravated criminal sexual assault and could be considered by it
only for those limited purposes.
¶ 14 T.B. testified that she had been drinking and getting high when, around 3:15 a.m. on
August 26, 1999, defendant approached her on the street. Defendant told her that he had crack
cocaine and asked her if she had something to smoke it with and if she knew of a place where they
could go to get high. T.B. responded that she had a crack pipe and directed defendant to a nearby
park. The park was located along CTA tracks, near a cemetery, and was “pretty isolated.” When
they arrived at the park, defendant asked to see T.B.’s crack pipe. She handed it to him, and he
looked at it and handed it back. Defendant reached into his pocket like he was going to retrieve his
drugs, but he instead punched T.B. in the eye, dazing her and causing blood to run down her face.
Defendant then told T.B. to get undressed and got on top of her on the ground, forcing his penis
into her vagina. He told T.B. that he was going to “fuck [her] all night.” T.B. struggled to get away
and was eventually able to escape by hitting defendant with the crack pipe. Wearing only her shirt,
she ran across the park toward an alley, where she flagged down a police car.
¶ 15 The State also called one of the police officers that T.B. flagged down. The officer testified
that he and his partner were on patrol when they observed T.B. walking toward them quickly. T.B.
was naked from the waist down and her breasts were exposed through her torn shirt. She was
bleeding from a cut over her right eye. The officer got out of his vehicle and spoke with T.B., who
reported that she had been sexually assaulted. The officer went to the location where T.B. said the
assault occurred and observed defendant behind some bushes, getting dressed. The officer detained
defendant and brought him to the police vehicle, where T.B. identified him as her attacker. The
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officers then transported defendant to the police station for questioning. Defendant admitted to
having sex with T.B. but claimed it was consensual. He was eventually released and no charges
were filed.
¶ 16 After the State rested, defendant took the stand. He testified that, around 1 a.m. on June 3,
2014, he was walking home with a female friend. As he approached his house, which he shared
with his mother, sister, and two nephews, he saw T.C. sitting on the front porch. T.C. told him she
was waiting for Noel. Defendant testified that, after his friend left, he and T.C. stayed on the porch
and talked for about 30 minutes. He then decided to go inside, and T.C. asked if she could wait for
Noel inside. According to defendant, he and T.C. then went to his bedroom in the basement and
sat on the bed together and talked. Defendant testified that he put his arm around T.C. and kissed
her, and that T.C. “cozied” up to him in response. According to defendant, he and T.C. then
undressed and engaged in consensual sexual activity, including oral, vaginal, and anal sex, for
about an hour. They remained in defendant’s bedroom until about 3:30 or 4 a.m., when T.C.
decided to leave. According to defendant, T.C. grabbed her belongings and the two went upstairs.
T.C. put on her pants and shirt, but did not put on her bra, which she instead carried with her as
she left. Defendant then went back downstairs and went to sleep.
¶ 17 Defendant also addressed the earlier incident with T.B. He testified that, when he
encountered T.B., she asked him if he used drugs. Defendant told her that he did and asked her if
she had a pipe. According to defendant, T.B. told him that she knew a place where they could go
to get high. They then walked to a secluded area and proceeded to get high for nearly two hours.
During that time, defendant testified, they engaged in consensual sexual activity. The activity
ceased when defendant decided he wanted to leave. He grabbed T.B.’s crack pipe and tried to
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make off with it, but T.B. resisted and a scuffled ensued. As they tussled over the pipe, defendant
pushed T.B. into a wall, causing her to hit her head. T.B. then flagged down the police officers and
defendant overheard her telling them she had been sexually assaulted. When an officer questioned
defendant about what happened, he told the officer that he and T.B. had been getting high and had
consensual sex. The officers handcuffed defendant and took him to the police station, but they
eventually let him go without charges.
¶ 18 On cross-examination, the State first questioned defendant about his version of the incident
with T.B., going through the details of defendant’s account of his initial encounter with T.B., their
drug use and allegedly consensual sex, the subsequent scuffle over T.B.’s crack pipe during which
defendant allegedly pushed T.B. into a wall and caused the cut above her right eye, and defendant’s
ensuing interaction with the police. After questioning spanning approximately ten pages of the
trial transcript, the trial court called a sidebar conference. The court explained that the State was
entitled to cross-examine defendant about the description of his interaction with T.B. that he gave
on direct examination, but the court reminded the prosecutor that the focus of the trial should
remain on the charged incident with T.C. The court admonished the prosecutor to avoid turning
the “other crime stuff” into a “[t]rial within a [t]rial.” After the sidebar concluded, the State asked
defendant two more questions about his encounter with T.B. and then turned its attention to the
charged offenses. The latter portion of the State’s cross-examination, addressing defendant’s
version of his encounter with T.C., spans approximately 20 pages of the transcript.
¶ 19 Finally, defendant called Noel as a witness. Noel testified that, while having sex with T.C.
in the garage behind his grandmother’s house, he put his hands around T.C.’s neck in a “rough”
manner. He conceded, however, that he did not use enough force to hurt T.C. and that she looked
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okay after their encounter. In addition, following Noel’s testimony, the parties stipulated that, in
an interview with an investigator from the State’s attorney’s office, Noel denied that he and T.C.
had “rough” or “violent” sex and described it as “more like caressing.”
¶ 20 In closing argument, the State stressed that the case boiled down to a credibility contest
between defendant and T.C. and argued that the jury should believe T.C.’s testimony because it
was corroborated by the physical evidence, including the injuries to T.C.’s neck and hand, the dirt
in her pubic hair and bra, and the DNA evidence. The State also urged the jury to credit T.B.’s
testimony about defendant’s prior sexual assault of her. After reminding the jury that T.B.’s
testimony could only be considered on the questions of defendant’s intent and propensity, the State
noted various similarities between the assaults that T.B. and T.C. described, including that both
occurred late at night, in outdoor, secluded areas, that defendant and both victims were strangers,
and that defendant used physical violence in both instances. In light of the similarities, the State
argued, T.B.’s testimony about defendant’s prior sexual assault provided added support for T.C.’s
account of defendant’s assault against her.
¶ 21 The jury returned guilty verdicts on all counts. Defendant filed a motion for new trial,
arguing (among other things) that the trial court erred in allowing the State to introduce other-
crimes evidence. The court denied the motion. The court sentenced defendant to consecutive terms
of 18 years in prison on each conviction and denied defendant’s motion to reconsider the sentence.
Defendant then filed a timely notice of appeal.
¶ 22 II. ANALYSIS
¶ 23 On appeal, defendant contends that the trial court erred in allowing the State to introduce
evidence that he committed a prior, uncharged sexual assault against T.B. to demonstrate his intent
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and propensity to commit the charged sexual assaults against T.C. In particular, he argues that the
probative value of the evidence was substantially outweighed by the danger of unfair prejudice
and that the State’s allegedly excessive focus on the other-crimes evidence created an improper
“mini-trial” on the uncharged conduct that denied him a fair trial. We review the trial court’s
decision to admit other-crimes evidence for an abuse of discretion. People v. Chapman, 2012 IL
111896, ¶ 19.
¶ 24 In general, evidence of a defendant’s prior criminal acts is inadmissible to establish his
propensity to commit a charged offense, although such evidence may be admitted for other
purposes, including to prove the defendant’s motive, intent, opportunity, knowledge, identity,
modus operandi, or absence of mistake. People v. Donoho, 204 Ill. 2d 159, 170 (2003); Ill. R.
Evid. 404(b) (eff. Jan. 1, 2011). Section 115–7.3 of the Code of Criminal Procedure (725 ILCS
5/115–7.3 (West 2014)), however, creates an exception to that general rule in cases involving
certain sex offenses. Under that provision, when a defendant is charged with an enumerated sex
offense, including (as here) aggravated criminal sexual assault, evidence of the defendant’s
commission of another such offense may be admitted for its bearing on any matter to which it is
relevant, including to prove the defendant’s propensity to commit the charged offense. Donoho,
204 Ill. 2d at 176; 725 ILCS 5/115–7.3(b) (West 2014).
¶ 25 As with any relevant evidence, otherwise admissible other-crimes evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” Ill. R. Evid. 403 (eff. Jan. 1, 2011); see People
v. Dabbs, 239 Ill. 2d 277, 284 (2010) (“Even if offered for a permissible purpose, [other-crimes]
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evidence will not be admitted if its prejudicial effect substantially outweighs its probative value.”).
When weighing the probative value of other-crimes evidence against the danger that it will cause
unfair prejudice, section 115–7.3 directs a trial court to consider three factors: (1) the proximity in
time between the other offense and the charged offense, (2) the degree of factual similarity between
the other offense and the charged offense, and (3) any other relevant facts and circumstances.
725 ILCS 5/115–7.3(c) (West 2014).
¶ 26 Defendant argues that his alleged sexual assault of T.B. was too remote in time and not
sufficiently factually similar to the charged sexual assault of T.C. to be admissible as other-crimes
evidence. As for proximity in time, T.B. testified that defendant sexually assaulted her in August
1999, around 15 years before defendant committed the charged sexual assault against T.C. Our
supreme court has declined to adopt any “bright-line rule” governing when a prior offense is too
old to be admitted as other-crimes evidence. Donoho, 204 Ill. 2d at 183-84. Instead the court has
explained that a prior crime’s remoteness in time from the charged offense is simply one “factor
to consider” when assessing the probative value of the other-crimes evidence. Id. at 184. Indeed,
in Donoho, the court held that “while the passage of 12 to 15 years since the prior offense may
lessen its probative value, standing alone it is insufficient” to render evidence of the prior offense
inadmissible. Id. There, the court concluded that, despite the 12 to 15 years that elapsed between
the other offense and the charged offense, the “substantial factual similarities” between the
offenses were “sufficient to justify admission of the other-crimes evidence.” Id. at 186.
¶ 27 We thus turn to consideration of the second factor specified in section 115–7.3, the degree
of factual similarity between the other offense and the charged offense. Defendant contends that
his alleged prior sexual assault of T.B. lacks sufficient factual similarities to the charged sexual
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assault of T.C. to justify admitting evidence of the former offense as other-crimes evidence. We
disagree. Our review of the record reveals numerous and significant factual similarities between
the two offenses. Both assaults occurred in the early morning hours and in secluded areas. T.B.
testified that defendant attacked her around 3:15 in the morning, after the two went to an isolated
park to use drugs. T.C. similarly testified that defendant attacked her in an alley shortly after
1 a.m. There was also evidence that neither T.B. nor T.C. was acquainted with defendant prior to
their respective assaults. In addition, defendant used physical violence to commit both sexual
assaults. He sucker punched T.B. in the eye, dazing her and causing blood to run down her face.
And he grabbed T.C. by the neck and dragged her with such force that it caused both sides of her
neck to bruise. Finally, both offenses involved acts of forcible sexual penetration. T.B. testified
that defendant forced his penis into her vagina, while T.C. testified that defendant forcibly
penetrated her mouth, vagina, and anus with his penis.
¶ 28 Defendant discounts the similarities between the sexual assaults on T.B. and T.C. and
focuses instead on the presence of certain dissimilarities. He notes that, while T.C. testified that
defendant approached her from behind, dragged her into an alley, and threatened to kill her, T.B.
did not describe similar actions by defendant. Instead, T.B. testified that defendant approached her
on the street and asked if she knew where they could go to get high. And though T.B. testified that
defendant punched her after she showed him her crack pipe, she did not recount any threats from
defendant or testify that he grabbed her from behind and dragged her to the site of the assault. But
“[t]he existence of some differences between the prior offense and the current charge does not
defeat admissibility because no two independent crimes are identical.” Donoho, 204 Ill. 2d at 185.
Instead, where other-crimes evidence is offered, as here, for a purpose other than establishing
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modus operandi, “mere general areas of similarity will suffice to support admissibility.” (Internal
quotation marks omitted.) Id. at 184. Despite certain differences in the methods defendant used to
carry out the respective assaults, we think the substantial general areas of similarity described
above are sufficient to support the trial court’s decision to admit the other-crimes evidence for
purposes of establishing defendant’s intent and propensity, notwithstanding a 15-year gap between
the offenses.
¶ 29 Relatedly, defendant complains that, in its pretrial motion to admit the other-crimes
evidence, the State described defendant’s assault of T.B. in a manner that differed in several
respects from what T.B. ultimately described at trial and gave the impression that the assault of
T.B. was more akin to the charged assault of T.C. than it actually was. In particular, the State
proffered that defendant grabbed T.B. by the arm, forced her into an alley, and threatened to hurt
her if she screamed. At trial, however, T.B. gave a different account of the events leading up to
defendant’s sexual assault of her, which involved defendant asking her if she knew of a place they
could go to use drugs and then sucker punching her after they arrived at that location.
¶ 30 But defendant did not ask the trial court to reconsider its pretrial ruling on the admissibility
of the other-crimes evidence after T.B. testified. Nor did defendant raise the discrepancy between
the State’s pretrial proffer and T.B.’s trial testimony in his motion for a new trial. Defendant thus
forfeited any argument that the discrepancy alone warrants reversal of the trial court’s evidentiary
ruling. See People v. Thompson, 238 Ill. 2d 598, 611 (2010) (“To preserve a claim for review, a
defendant must both object at trial and include the alleged error in a written posttrial motion.”).
Forfeiture aside, because (as explained above) the details of the sexual assault to which T.B.
testified at trial were sufficiently similar to the details of the charged sexual assaults against T.C.
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to support admission of the other-crimes evidence, defendant has not shown that he was prejudiced
by the inaccuracies in the State’s pretrial proffer.
¶ 31 Finally, defendant contends that the State relied excessively on the other-crimes evidence,
creating an improper “mini-trial” or “trial within a trial” on that evidence. “Even when relevant
and probative, other-crimes evidence must not become a focal point of the trial.” (Internal
quotation marks omitted.) People v. Smith, 406 Ill. App. 3d 747, 755 (2010). When “admitting
evidence of other crimes to show propensity,” therefore, “a trial court should not permit a ‘mini-
trial’ of the other, uncharged offense[s], but should allow only that which is necessary to illuminate
the issue for which the other crime was introduced.” (Internal quotation marks omitted.) Id. Having
reviewed the record, we cannot say that the State’s reliance on the other-crimes evidence was
excessive or denied defendant a fair trial.
¶ 32 To begin, the State presented evidence of a single, prior sexual assault. And it presented
that evidence through the testimony of just two witnesses—T.B. and the police officer to whom
she reported the assault. Before each witness testified, the trial court admonished the jury that
testimony about defendant’s assault of T.B. could be considered only for the limited purposes of
assessing defendant’s intent and propensity. T.B.’s testimony accounts for just over seven pages
of the trial transcript. After answering a few introductory questions, T.B.’s testimony was limited
to a description of her initial encounter and interaction with defendant, his subsequent sexual
assault of her, and her contemporaneous report to the police. The officer’s testimony spans an
additional 12 and a half pages (although about two and a half of those pages are devoted to a
sidebar conference) and focused on the officer’s observations of and interactions with both T.B.
and defendant in the aftermath of the assault. Neither T.B. nor the officer offered repetitive or
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unnecessary details of the assault that were unrelated to the issues for which the other-crimes
evidence was introduced, namely, defendant’s intent and propensity to commit the charged sexual
assaults against T.C.
¶ 33 Nor did the testimony offered by the other-crimes witnesses become a focal point of the
trial or amount to an improper trial within a trial. As noted, the testimony of T.B. and the officer
takes up less than twenty pages of the trial transcript. By contrast, T.C.’s testimony spans about
55 pages of transcript (excluding sidebars and other unrelated matters). And the State presented
six other witnesses—and offered numerous stipulations—that also focused exclusively on the
charged assaults against T.C. This was thus not a case in which an excessive volume of other-
crimes evidence overwhelmed the evidence related to the charged offenses. Cf. People v.
Cardamone, 381 Ill. App. 3d 462, 491 (2008) (finding that danger of unfair prejudice substantially
outweighed probative value of other-crimes evidence where “the vast majority of the State’s case
consisted of other-crimes evidence.”).
¶ 34 Nonetheless, defendant contends that the State improperly shifted the focus of the trial to
the other-crimes evidence by over-emphasizing the prior assault of T.B. in its cross-examination
of defendant and closing argument. We again disagree. The State’s entire cross-examination of
defendant covers approximately 30 pages of the trial transcript. Yet only ten of those pages are
devoted to the State’s questioning of defendant about the details of his assault against T.B. On
direct examination, defendant denied T.B.’s allegations and offered an alternative version of their
encounter, in which he claimed (as he did with respect to T.C. as well) that their sexual activity
was consensual. As the trial court properly noted, the State was entitled to cross-examine defendant
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on those points and we cannot say, when viewed in context of the full record, that its questioning
crossed the line from appropriate to excessive.
¶ 35 The State was likewise entitled to discuss defendant’s alleged assault of T.B. in closing
argument. In doing so, the State reminded the jury that the other-crimes evidence could be
considered only on the questions of defendant’s intent and propensity and then appropriately
addressed the similarities between the two assaults, which were relevant to establishing both of
the permissible points for which the evidence was admitted. Considering the relatively limited
nature of the other-crimes testimony presented in the State’s case-in-chief, and the limiting
instructions concerning that testimony that the trial court delivered both during trial and at the
close of the case, we cannot say that the State’s references to the other-crimes evidence when
cross-examining defendant or in closing argument created an improper mini-trial on the uncharged
conduct or otherwise raised a risk of unfair prejudice to defendant that substantially outweighed
the probative value of the other-crimes evidence. For all these reasons, we conclude that the trial
court did not abuse its discretion in allowing the State to present the other-crimes evidence.
¶ 36 III. CONCLUSION
¶ 37 For the foregoing reasons, we affirm the circuit court’s judgment.
¶ 38 Affirmed.
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