Opinion filed April 5, 2019 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2019

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-16-0334 v. ) Circuit No. 12-CF-911 ) TIMOTHY DEWAYNE FOREMAN, ) The Honorable ) David A. Brown, Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________

JUSTICE CARTER delivered the judgment of the court, with opinion. Justices Holdridge and O’Brien concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 After a jury trial, defendant, Timothy Dewayne Foreman, was convicted of unlawful

possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2012))

and was sentenced to 9½ years in prison. Defendant appeals his conviction and sentence, arguing

that the trial court erred in (1) admitting certain other-crimes evidence at defendant’s trial and

(2) sentencing defendant as a Class X offender. We affirm defendant’s conviction, vacate his

sentence, and remand this case for a new sentencing hearing. ¶2 I. BACKGROUND

¶3 In August 2012, defendant was arrested and charged with two drug offenses—unlawful

possession of a controlled substance with intent to deliver, a Class 1 felony (1 gram or more but

less than 15 grams of cocaine), and unlawful possession of a controlled substance, a Class 4

felony (less than 15 grams of cocaine). The charges stemmed from the execution of a search

warrant at the residence where defendant and a person named Tinique Henderson were living.

During the pretrial stage of the case, the State filed a motion in limine, seeking to admit evidence

of defendant’s prior or subsequent drug offenses as proof of defendant’s intent to deliver the

substance in the present case, his knowledge and familiarity with controlled substances, his

continued course of criminal conduct, and his lack of mistake. 1 The prior or subsequent drug

offenses involved were Peoria case Nos. 00-CF-866, 00-CF-949, 08-CF-353, 2 and 13-CF-861.

¶4 In its written motion, the State presented a detailed synopsis of the facts of each of the

other-crimes cases (other cases). The State represented that in case No. 00-CF-866, defendant

was arrested at the Shop Rite store in Peoria for driving while license suspended and was found

to have 5 bags of suspected cannabis and 10 bags of suspected cocaine in his coat pocket. The

offenses occurred in September 2000. Five of the bags of suspected cocaine were analyzed by a

forensic chemist and were found to contain cocaine with a weight of 1.7 grams. The remaining

five bags of suspected cocaine were not tested and had a weight of 1.9 grams. The case was

eventually dismissed in August 2001 pursuant to defendant’s plea of guilty in case No. 00-CF-

949. In case No. 00-CF-949, defendant was arrested and convicted of unlawful delivery of a

controlled substance after he sold 0.2 grams of cocaine to an undercover police officer. The 1 The State actually filed two separate motions in limine. For the purpose of simplicity, we will refer to them as a single motion here. 2 This case is listed as case No. 08-CF-352 at some points in the record and as case No. 08-CF-353 at other points in the record. For the purpose of consistency, we will refer to it as case No. 08-CF-353 throughout our decision in this case. 2 offense occurred in June 2000. Defendant pled guilty to the offense in August 2001 and was

sentenced to three years in prison. In case No. 08-CF-353, defendant was a backseat passenger in

a vehicle that had been stopped by police. Upon searching the vehicle, a police officer found 18

bags of suspected cocaine inside a larger bag on the rear passenger floorboard directly below

where defendant had been seated. One of the inner bags contained a large amount of suspected

cocaine and the remaining 17 inner bags each contained a small amount of suspected cocaine.

The offense occurred in March 2008. The bag containing the large amount of suspected cocaine

was analyzed by a forensic chemist and was found to contain cocaine with a weight of 6.8 grams.

The remaining 17 bags containing smaller amounts of suspected cocaine were not tested and had

a total gross weight of 6.2 grams (including the packaging). The case was dismissed in July

2008, pursuant to defendant’s plea of guilty in case No. 07-CF-661. In case No. 13-CF-861,

defendant was arrested on an outstanding warrant and was found to have a bag containing 3.2

grams of cocaine in his pants pocket. The offense occurred in September 2013.

¶5 Defendant opposed the State’s motion in limine, arguing that the prejudicial impact of the

other-crimes evidence substantially outweighed its probative value because the other offenses

had happened too long ago, did not involve intent to deliver, and/or did not involve criminal

charges of which defendant had been convicted.

¶6 In May 2015, a hearing was held on the State’s motion in limine. During the course of the

hearing, the trial court listened to the parties’ oral arguments and asked the parties numerous

questions. 3 The trial court asked the State how it anticipated proving intent to deliver. The

prosecutor responded that several of the typical indications of intent to deliver were present in

the instant case. The prosecutor told the trial court that two search warrants were issued in the

3 Defendant represented himself at some points in this case and was represented by counsel at other times in this case. 3 present case, that substances were found in both a residence and a vehicle, that individual

packaging was involved, that packaging materials were found in the residence, and that the

weight of the substances involved might or might not be indicative of intent to deliver. The trial

court asked defendant whether he anticipated contesting the issue of intent to deliver at trial.

Defendant responded affirmatively and indicated, when asked, that he did not believe that the

quantities of the substances involved in this case or the other facts mentioned were indicative of

intent to deliver. The trial court asked the prosecutor what the factual similarity was between the

2013 case and the current case (the prosecutor had already discussed the factual similarity of the

other cases), and the prosecutor gave the trial court a brief rendition as to the similarity. During

that rendition, the trial court asked the prosecutor additional questions as to whether defendant

had been charged or convicted in each of the other cases and how the prosecutor intended to

prove the facts of the other cases. The prosecutor indicated that she would present witnesses for

those cases that did not result in a conviction and would present certified copies of conviction for

those cases that did result in a conviction. The trial court asked defendant if he anticipated

raising a defense of mistake or lack of knowledge at his trial, and defendant responded

affirmatively.

¶7 At the conclusion of the hearing, the trial court granted the State’s motion in limine in

part and denied the State’s motion in part, discussing each of the other cases in turn. As for case

No. 00-CF-866, the trial court ruled that the State could introduce evidence of the 10 bags of

cocaine that were recovered. The trial court stated further, however, “[t]he cannabis I don’t think

is relevant unless something else were to come up, but they [(the State)] could use that offense,

the facts of that circumstance to show intent to deliver.” With regard to case No. 08-CF-353, the

trial court found that the evidence in that case was consistent with a pattern of having multiple

4 bags or multiple divided amounts of cocaine for distribution or sale. The trial court stated that it

would allow evidence of that offense to be admitted for the purpose of proving intent to deliver.

The trial court found further, however, that the prejudicial effect of the other two incidents, case

Nos. 00-CF-949 and 13-CF-861, substantially outweighed the probative value, but ruled that if

defendant claimed that he had no knowledge of or experience with cocaine, the State would be

allowed to introduce evidence from those two incidents to rebut defendant’s claim in that regard.

¶8 Shortly before the start of defendant’s first trial in this case, defendant asked the trial

court a question about the State’s ability to introduce the other-crimes evidence. A conversation

ensued that indicated that the trial court’s ruling on the other-crimes evidence may have been

broader that initially suggested. The pertinent part of that conversation was as follows:

“THE DEFENDANT: One of the—at the motion hearing she [the

prosecutor] wasn’t allowed to use the—she was allowed to bring those cases in if

I was choosing to use my defense as if I didn’t know the knowledge—basis of

cocaine. That was the only reason that she would be allowed to bring those cases

in is what—

THE COURT: No. At the time of that hearing you indicated that you were

contesting everything with regard to the charges including whether the amount

was with intent to deliver and whether you had any knowledge of it and the like.

And as a result, I said that she could present those, all right?

THE DEFENDANT: You—

THE COURT: That was the ruling. Now leading up to trial you haven’t

changed your position as far as I know on the record, and as a result, she’s

preparing for trial appropriately.

5 I mean if you after the State’s case in chief—you know, she can’t

anticipate your change in trial strategy so she’s preparing accordingly.

***

THE DEFENDANT: The only thing I’m confused on, [Y]our Honor, is

the fact with the situation on the cases for lack of mistake. That’s where I’m

confused at with the ruling.

Like if I tell the jury I know what crack cocaine is, I—I know what it is,

then she’s gonna be allowed to use it or is she automatically gonna be allowed to

use it? That’s what I’m confused on.

THE COURT: Let me ask, Ms. [Prosecutor], what’s the—I understand

you don’t have to disclose your intent necessarily or your trial strategy, but

what—what would be the intent of the State with regard to those other bad acts

I’ll say?

[THE PROSECUTOR]: Your Honor, as the State is required to prove that

the defendant knowingly possessed the substance in this case with the intent to

deliver, his prior bad acts are admissible to show that he does have a prior

knowledge of cocaine, a prior knowledge and prior history with the drug. That it

goes to what his intent was when he possessed these drugs based upon what has

occurred in the past.

Again, the Court has found that based upon the similarity of the packaging

and the amounts of drugs that were in these two particular cases, that they met the

standard under Perkins [(United States v. Perkins,

(7th Cir.

6 2008))] so it goes not only to prove intent, but it also goes to show lack of

mistake.

That he’s been involved with drugs and has quite a history of involvement

with drugs and that it’s not likely that this is just a mistake.

THE COURT: All right. So—

[THE PROSECUTOR]: It’s not whether he knows what cocaine is. It’s his

involvement with the substance and his continued involvement over a course of

time.

THE DEFENDANT: Your Honor, my problem with that is I haven’t—I

had never had a chance to put on no evidence. I was never proven to be guilty of

these drugs or how could they present it that I have a—I don’t have a lack of

mistake when I was never proven that these your drugs.

THE COURT: You can—you can certainly argue that.

THE DEFENDANT: Okay.

THE COURT: All right. And—and I’d also say, Mr. Foreman, that if—if,

in fact, you don’t present any claim or defense of lack of knowledge of what

cocaine is and something along those lines, then the jury would be instructed that

those prior bad acts would be used for purposes only of determining whether you

had the intent to deliver.”

¶9 Defendant’s jury trial went forward. For the most part, defendant claimed at the first jury

trial that he did not have possession of the substance and that the police had framed him.

Ultimately, the jury was unable to reach a verdict, and a mistrial was declared.

7 ¶ 10 After the first trial was completed, the trial court continued the prior rulings on the

various pretrial motions to the new trial. Defendant provided notice that he would argue at the

second trial that the police had framed him in this case and had planted the drugs on him in case

Nos. 00-CF-866 and 08-CF-353. The State filed a motion in limine, seeking to admit evidence of

the offenses charged in case Nos. 00-CF-949 and 13-CF-861 to rebut defendant’s claims that the

police planted the drugs on him. The State also indicated that, pursuant to the trial court’s earlier

ruling, the State would again present evidence regarding the incident that resulted in case No. 00-

CF-866. The trial court later held a hearing on, and granted, the State’s motion. 4

¶ 11 Defendant’s second jury trial in this case was held in December 2015. The trial took three

days to complete. During opening statements, the prosecutor told the jury that the evidence

would show that Peoria police officers executed a search warrant at a residence on the date in

question, that during the search, the officers recovered cocaine and several other items of

evidence that were indicative of drug sales, that defendant’s fingerprint was on one of the items

recovered, and that the fingerprint of Tinique Henderson (the other adult living at the residence)

was on one of the other items recovered. The prosecutor stated further that after all of the

evidence had been presented, she would ask the jury to find defendant guilty of unlawful

possession of a controlled substance with intent to deliver. Defendant told the jury in opening

statement that the evidence would show that he was not present at the residence when the search

warrant was executed, that the police had conducted a shoddy investigation, that defendant had

been singled out for some reason, that some of the police officers were lying, and that some of

the evidence had been fabricated. Defendant also told the jury that the State was going to present

evidence of other incidents, of which defendant had not been proven guilty, that had nothing to 4 Despite the representations that had been made, defendant did not claim at his second trial that the drugs were planted, and the State did not seek to admit the evidence from case Nos. 00-CF-949 and 13-CF-861. The State also did not seek to admit the evidence from case No. 08-CF-353. 8 do with the present case. Finally, defendant told the jury that if he proved his case, he would ask

the jury to find him not guilty.

¶ 12 After the opening statements had concluded, the trial moved into the evidence phase.

Numerous witnesses testified, including several officers who participated in the execution of the

search warrant (some of the officers testified in the State’s case and some testified in defendant’s

case), the officer who examined the items recovered for fingerprints, the officer who verified the

fingerprints that were found, and the forensic chemist who analyzed some of the items recovered.

The testimony of those witnesses established the following. On August 8, 2012, several Peoria

police officers executed a search warrant at a residence located at 1015 East Republic Street in

Peoria, Illinois, where defendant and Tinique Henderson were living. Henderson was present at

the residence at the time. Officers searched the residence and found under the bed in the

southwest bedroom a working digital scale, an open box containing a mixture of whole plastic

bags and torn-off plastic bags (bags that had both corners torn off), and a plate that had cocaine

residue on it. Officers also found in the same bedroom the defendant’s state identification card in

a cabinet, a douche box containing a possible look-a-like substance, and $700 in bundled

currency in a drawer. The currency consisted of thirty-four $20 bills, one $10 bill, and two $5

bills. In a closet that connected both the southwest and northwest bedrooms, the police officers

found a bag containing an off-white rocky substance that appeared to be cocaine. The bag was

located in the pocket of a toddler’s jacket that had been hung up in the closet. The substance

found in the jacket was later determined by forensic analysis to contain cocaine and to have a

weight of 3.1 grams. An additional amount of currency, $230, was subsequently recovered from

defendant’s person. The currency consisted of two $50 bills, four $20 bills, four $5 bills, and

thirty $1 bills. Defendant’s fingerprint was found on one of the torn-off bags, and Tinique

9 Henderson’s fingerprint was found on the douche box. A partial fingerprint was found on the

plate, and defendant could not be eliminated as the person who had left that fingerprint. A police

officer, who testified as an expert in drug sales, opined extensively that the items recovered,

including the denominations of currency and the cocaine in the toddler’s jacket, were indicative

of drug sales, rather than merely drug possession, and explained the reason for his opinion in that

regard. Another officer also described during his testimony the relationship between some of the

items recovered and the sale of drugs. The cocaine and the other items that were recovered were

admitted into evidence, along with the fingerprints and a video recording, which had been played

for the jury, showing the collection of the evidence in the residence during the search.

¶ 13 As for the other-crimes evidence, Peoria police detective Steven Garner testified for the

State about the incident that gave rise to case No. 00-CF-866. Garner stated that on September

23, 2000, he arrested defendant in the Shop Rite store in Peoria for driving while license

suspended. Defendant struggled with Garner as Garner tried to place defendant under arrest.

After handcuffing defendant, Garner found in defendant’s coat pocket 5 individually wrapped

bags of marijuana and 10 individually wrapped bags of cocaine. There were other people present

in the store at the time, and defendant shouted out that the marijuana was his but that Garner had

placed the crack cocaine on him. Charges were filed regarding the incident, but defendant was

never convicted of those charges. Instead, the case was dismissed, based upon an agreement that

had been made. There was a video recording of the incident, but the recording had been disposed

of after the case was dismissed. According to Garner, the video was consistent with his

testimony. The substances that Garner recovered were later analyzed by a forensic chemist. The

chemist tested the substance in five of the bags of suspected cocaine and found that the substance

contained cocaine with a weight of 1.7 grams. The remaining five bags of suspected cocaine

10 were not tested and had a total gross weight of 1.9 grams. The chemist also tested the substance

in all five bags of the suspected cannabis and found that the substance contained cannabis with a

weight of 11.9 grams. At the time of Garner’s testimony, defendant declined to have the jury

given a limiting instruction as to its consideration of the other-crimes evidence.

¶ 14 During his case-in-chief, defendant called Officer Todd Leach to the witness stand. Leach

had not previously been called to testify by the State. Leach was the officer who had actually

found the defendant’s state identification card in the southwest bedroom and also served as the

video officer during the execution of the search warrant. During Leach’s testimony, defendant

played a portion of the video recording from the search. Although not quite clear from the

record, apparently the portion of the video recording that defendant played had not been

previously played for the jury. In the portion of the video recording played by defendant, an

officer searched a Chevrolet Tahoe at the police station. Prior to that time in the trial, no

evidence had been presented regarding the existence or search of the Tahoe or any items

recovered from the Tahoe. Defendant pointed out with his questions that the officer searching the

vehicle could be seen in the video putting gloves on, even though the officer was already inside

the vehicle and the center console compartment was already open. Defendant was apparently

trying to advance his claim of a shoddy investigation by suggesting to the jury that the officer

had searched the interior of the vehicle without wearing gloves. Defendant also elicited from

Leach that the vehicle had been located on North Street and that it had been driven to the police

station by a police officer so that a search could be conducted.

¶ 15 On cross-examination, the State elicited from Leach that the Tahoe was searched

pursuant to a search warrant, that the vehicle was located on North Street, that defendant was

arrested on North Street, that the search of the vehicle took place a few hours after the search of

11 the residence, that defendant had been taken into custody prior to the execution of the search

warrant on the vehicle, and that the officer who searched the interior of the vehicle was wearing

gloves when he recovered 28 individually wrapped rocks of suspected cocaine from the center

console of the vehicle. The State played the remainder of the video recording for the jury. The

video recording showed the police recovering 28 individual bags of cocaine from the center

console of the Tahoe.

¶ 16 On redirect examination by defendant, Leach testified further that he did not know

whether the officer who had searched the vehicle had gloves on prior to doing so, that he did not

know who located the vehicle on North Street or who took defendant into custody, and that he

did not know what time defendant was taken into custody. Upon being asked where defendant

was taken into custody on North Street, Leach responded that it was at the probation office.5

Leach confirmed that he had never seen defendant driving the Tahoe. When defendant asked

Leach where the keys to the Tahoe had come from, Leach responded that the video stated that

the keys came from defendant.

¶ 17 Defendant also called Tinique Henderson to the witness stand. Henderson testified that

the cocaine found in the residence was hers, that she told the police when the search occurred

that the cocaine in the residence was hers for personal use, and that she showed the police where

the cocaine was located in the residence. According to Henderson, defendant moved in with her

at the residence in July 2012 because he had no place else to go. Defendant slept on the couch

and his belongings were stored in the basement. Defendant did not have a job but said that he

could help bring food into the house with his Link card. Henderson had recently received her last

work paycheck and kept currency in her bedroom. During the search, the officers found a traffic

5 Later testimony indicated that defendant was actually taken into custody at the office of his parole officer. 12 ticket and asked Henderson about the Tahoe. Henderson told the officers that the car belonged to

her ex-boyfriend, Melvin Timothy, and was registered to him. Henderson gave the keys to the

Tahoe to the police and showed the police where the vehicle was parked on Nowland Street at

the house of the mother of Timothy’s child. Some of the cocaine at the residence belonged to

Timothy. Henderson never saw defendant in possession of the drugs found in the residence, the

two were not in a relationship, and defendant did not own a vehicle or have large sums of money.

On the morning of the search, Henderson took defendant to see his parole officer on North Street

and dropped him off. The search of the residence took place after Henderson returned. In

November 2015, Henderson pled guilty to possession of a controlled substance with intent to

deliver relating to the cocaine that was found in the residence during the search.

¶ 18 On cross-examination, Henderson admitted that defendant was the father of Henderson’s

youngest child. Henderson denied telling the police that there was nothing illegal in the house

and also denied telling the police that defendant had taken the Tahoe that morning to see his

parole officer. Henderson acknowledged that she had listened to a phone call between her and

defendant, in which they discussed the facts of the case, and the State admitted and published a

telephone conversation in which defendant told Henderson to “stay low” and that if he was

acquitted, he could testify to anything he wanted at her trial.

¶ 19 On redirect examination, Henderson stated that defendant was trying to protect her and

that she felt bad because defendant was in jail for something she had done.

¶ 20 Peoria police captain Loren Marion III testified in rebuttal for the State that he and

Officer Matthew Lane had interviewed Henderson on the date of the search of the residence.

Henderson told the officers that nothing illegal would be found in the house, that nothing illegal

in the house was hers, and that defendant had driven the Tahoe that morning to meet his parole

13 officer. Officer Lane located the Tahoe on North Street about one block from the parole office,

and defendant was arrested in the parole office. The trial court admonished the jury that the line

of questioning was for the purpose of impeachment of Henderson’s testimony only.

¶ 21 Peoria police officer Clint Rezac testified in rebuttal for the State that 28 small, knotted

bags of crack cocaine were recovered from the center console of the Tahoe. The substance field

tested positive and was later analyzed by a forensic chemist. The chemist tested the substance

found in 9 of the bags and determined that the substance contained cocaine with a weight of 2.3

grams. The other 19 bags were not tested and had a total gross weight of 4.9 grams. The trial

court admonished the jury that the two charges against defendant in the instant case were not for

the substance found in the Tahoe and that defendant’s involvement in crimes not charged could

only be considered by the jury for the limited purpose of showing defendant’s intent and/or

knowledge.

¶ 22 After the presentation of the evidence had been concluded, the parties gave their closing

arguments. During the summation portion of its closing argument, the State did not refer to the

other-crimes evidence. Defendant, on the other hand, mentioned the other-crimes evidence

several times during the course of his closing argument. In the rebuttal portion of its closing

argument, the State referred to the other-crimes evidence briefly and told the jury the purpose of

that evidence was to show defendant’s intent to deliver.

¶ 23 After all of the evidence had been presented and closing arguments had been made, the

trial court instructed the jury on the law. Among other things, the trial court told the jury, over

defendant’s objection, that the jury could consider evidence of defendant’s other crimes on the

issue of defendant’s intent or knowledge and that the other-crimes evidence could be considered

only for that limited purpose (see Illinois Pattern Jury Instructions, Criminal, No. 3.14 (approved

14 Oct. 17, 2014)). The jury ultimately found defendant guilty of possession of a controlled

substance with intent to deliver. After the trial court entered the verdict, it ordered a presentence

investigation report (PSI) and continued the case for a sentencing hearing.

¶ 24 Defendant filed a motion for new trial. In the motion, defendant asserted, among other

things, that the trial court erred in allowing the State to present the other-crimes evidence.

Following a hearing, the trial court denied the motion.

¶ 25 Defendant’s PSI showed that defendant was convicted of, among other things, delivery of

a controlled substance in 2000, a Class 2 felony, and driving while license revoked (DWLR) in

2009, a Class 2 felony. 6 The State argued that defendant was subject to mandatory Class X

sentencing under section 5-4.5-95(b) of the Unified Code of Corrections (Unified Code) (730

ILCS 5/5-4.5-95(b) (West 2012)), and defendant disagreed. The trial court sentenced defendant

to 9½ years in prison as a Class X offender pursuant to section 5-4.5-95(b). Defendant filed a

motion to reconsider and argued that the sentence was excessive. The trial court denied the

motion to reconsider, and defendant appealed.

¶ 26 II. ANALYSIS

¶ 27 A. Other-Crimes Evidence

¶ 28 As his first point of contention on appeal, defendant argues that the trial court erred in

admitting the other-crimes evidence at defendant’s trial. Defendant asserts that the other-crimes

evidence should not have been admitted because the prejudicial effect of the other-crimes

evidence substantially outweighed its probative value. In support of that assertion, defendant

6 Defendant was actually convicted of two DWLR offenses in 2009. Both of the offenses were Class 2 felonies, and both occurred within a short time period in May 2009. Since the second May 2009 DWLR offense could not have been committed after defendant was convicted on the first May 2009 DWLR offense, only one of the offenses could potentially be a qualifying offense under section 5-4.5- 95(b) of the Unified Code of Corrections. See 730 ILCS 5/5-4.5-95(b) (West 2012). For the purpose of simplicity, therefore, we will refer only to a single 2009 DWLR conviction. 15 contends that (1) the other-crimes evidence lacked probative value because defendant was only

contesting at trial whether he possessed the cocaine—not whether the person who possessed the

cocaine had the intent to deliver it—and because intent to deliver was already overwhelmingly

established without the other-crimes evidence being presented and (2) the admission of the other-

crimes evidence was highly prejudicial because it resulted in an improper mini-trial being

conducted on the other offenses at defendant’s trial, because the State introduced evidence of

defendant’s other-crimes cannabis possession in violation of the trial court’s ruling on the motion

in limine, because the other-crimes evidence served only to show defendant’s propensity to

commit drug crimes, and because the trial court incorrectly instructed the jury that it could

consider the other-crimes evidence for both intent to deliver and knowledge, rather than merely

for intent to deliver as the trial court had previously ruled. For all of the reasons stated, defendant

asks that we reverse his conviction for unlawful possession of a controlled substance with intent

to deliver and that we remand this case for a new trial.

¶ 29 The State argues that the trial court’s ruling on the admissibility of the other-crimes

evidence was proper and should be upheld. In response to defendant’s specific assertions, the

State contends that the trial court’s ruling was appropriate because (1) the State was required to

prove intent to deliver beyond a reasonable doubt as an element of the offense, regardless of

defendant’s trial strategy, and was required to do so even if defendant was not contesting the

proof as to that element of the offense, (2) the State did not violate the trial court’s ruling on the

motion in limine by introducing evidence of defendant’s 2000 cannabis possession, (3) the

admission of the other-crimes evidence did not result in an improper mini-trial being conducted

during defendant’s trial, and (4) any resulting prejudice was reduced since the trial court

repeatedly instructed the jury that it could consider the other-crimes evidence only for

16 defendant’s intent and knowledge to deliver the substance in the instant case. In the alternative,

the State contends that any error that occurred in the admission of the other-crimes evidence was

harmless. For all of the reasons set forth, the State asks that we affirm defendant’s conviction.

¶ 30 A determination of the admissibility of evidence is in the sound discretion of the trial

court and will not be reversed on appeal absent an abuse of discretion. People v. Pikes,

; People v. Illgen,

(1991). Under the abuse of discretion

standard, the appellate court owes some deference to the trial court’s ability to evaluate the

evidence’s impact on the jury. People v. Donoho,

(2003). The threshold for

finding an abuse of discretion is a high one and will not be overcome unless it can be said that

the trial court’s ruling was arbitrary, fanciful, or unreasonable, or that no reasonable person

would have taken the view adopted by the trial court. See In re Leona W.,

(2008); Donoho,

. Reasonable minds can disagree about whether certain

evidence is admissible without requiring a reversal of a trial court’s evidentiary ruling under the

abuse of discretion standard. Donoho,

.

¶ 31 It is well established under Illinois law that evidence of other crimes is not admissible to

show a defendant’s propensity or disposition to commit crimes.

; Ill. R. Evid. 404(b)

(eff. Jan. 1, 2011). Other-crimes evidence is objectionable not because it has too little probative

value but because it has too much—it could overpersuade a jury to convict a defendant merely

because the jury feels that the defendant is a bad person who deserves to be punished. People v.

Manning,

(1998). However, other-crimes evidence may be admitted, in

the discretion of the trial court, when such evidence is relevant for any other material purpose,

such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake or accident, modus operandi, or the existence of a common plan or design. Ill. R. Evid.

17 404(b) (eff. Jan. 1, 2011); Pikes,

; see also Michael H. Graham, Graham’s

Handbook of Illinois Evidence § 404.5, at 241-71 (10th ed. 2010); 2 John H. Wigmore, Evidence

in Trials at Common Law §§ 301 to 307 (Chadbourn rev. 1979). When evidence of other crimes

is offered, the trial court must weigh the probative value of the evidence against the prejudicial

effect and should exclude the evidence, even if the evidence is relevant, if the prejudicial effect

substantially outweighs the probative value. Pikes,

; Manning,

; Ill. R. Evid. 403 (eff. Jan. 1, 2011). The erroneous admission of other-crimes evidence

carries a high risk of prejudice and will ordinarily require a reversal. People v. Cortes,

(1998). Nevertheless, for a reversal to be warranted, the erroneously admitted evidence

must have been a material factor in the defendant’s conviction, such that without the erroneously

admitted evidence, the verdict likely would have been different.

If the error was unlikely to

have influenced the jury, the erroneous admission of other-crimes evidence will not warrant

reversal.

¶ 32 Having reviewed the record in the present case and the law on this issue, we find that the

trial court did not commit an abuse of discretion in admitting the other-crimes evidence as some

evidence of defendant’s intent to deliver the cocaine in the instant case. See Pikes,

; Illgen,

; Leona W.,

; Donoho,

.

We reach that conclusion for three reasons. First, contrary to defendant’s assertion on appeal, the

other-crimes evidence had substantial probative value. One of the offenses that defendant was

charged with in the instant case was possession of a controlled substance with intent to deliver.

Intent to deliver, therefore, was an element of the offense, and the State was required to prove

that element beyond a reasonable doubt. See People v. Phillips,

(2005). As is

often the case where a defendant’s intent has to be proven, the evidence of defendant’s intent to

18 deliver as to the current charge was entirely circumstantial. See People v. Rudd,

(recognizing that circumstantial evidence is often the only way to prove a

defendant’s intent to commit a theft or other crime). The other-crimes evidence was a highly

probative piece of circumstantial evidence on that issue. Although defendant claims that the

probative value of the other-crimes evidence was lacking in this case because he was not

contesting intent to deliver, defendant did not stipulate or concede that issue in front of the jury.

See People v. Watkins,

; People v. Wilson,

(2005) (“[a] defendant may not use ambiguity by denying commission of the act that comprises

the offense, thereby seeking to bar other-crimes evidence, while at the same time leaving room to

argue lack of intent to the jury”); People v. Davis,

(1993) (“[a]lthough

a defendant cannot foreclose the prosecution from producing evidence of intent or motive

through other crimes evidence simply by not presenting evidence or argument regarding intent or

motive, the trial court may consider whether the defendant is making an issue of intent or motive

when deciding whether to admit other crimes evidence”). Furthermore, while it is true that

several of the common indications of drug delivery were present in the instant case, the trial

court was faced with the difficult decision of having to determine in advance how much evidence

of intent to deliver was enough—and not too much—for the State to present. We will not find in

hindsight—and with the benefit of now knowing exactly what would be presented at defendant’s

trial—that the trial court’s determination in that regard constituted an abuse of discretion under

the circumstances of the present case. See Illgen,

(stating that a reviewing court

may not simply substitute its judgment for that of the trial court on a matter within the trial

court’s discretion).

19 ¶ 33 Second, as we noted in our prior decision in Watkins, other-crimes evidence, such as

prior drug sales, may be admitted in a drug case involving delivery or possession with intent to

deliver as proof of defendant’s intent or for any other relevant and permissible purpose. Watkins,

, ¶ 46. Indeed, the Illinois Rules of Evidence specifically allow other-

crimes evidence to be admitted for the purpose of showing intent (Ill. R. Evid. 404(b) (eff. Jan. 1,

2011)), and Illinois courts have routinely allowed other-crimes evidence to be admitted for that

purpose or for any other relevant and permissible nonpropensity purpose in drug cases involving

delivery or possession with intent to deliver (see Watkins,

(collecting cases)). The facts of Watkins and of People v. Moser,

(2005), are

very similar to the facts of the present case. In both of those cases, the appellate court found that

the other-crimes evidence was properly admitted. See Watkins,

, ¶¶ 46-

50 (in a case in which the defendant was charged with unlawful possession of a controlled

substance with intent to deliver for cocaine that was found in the common area of a residence

where defendant was staying after a search warrant was executed at the residence, this court

found that the trial court properly admitted evidence of the defendant’s prior conviction for

unlawful possession of cannabis with intent to deliver as some evidence of defendant’s intent to

deliver the substance in the current case); Moser,

(in a case in which the

defendant was charged with unlawful possession of a controlled substance with intent to deliver

for cocaine that was found in a nightstand and under the bed in the master bedroom where the

defendant’s wife was located during the execution of a search warrant at the residence, the

appellate court found that the testimony that the police informant had purchased cocaine from the

defendant approximately 15 times was properly admitted to show that defendant knowingly

possessed the cocaine inside the residence).

20 ¶ 34 Third and finally, under the circumstances of the present case, we are unable to conclude

that the trial court’s determination—that the probative value of the other-crimes evidence was

not substantially outweighed by the prejudicial effect—was erroneous under an abuse of

discretion standard of review. See Illgen,

(applying an abuse of discretion

standard of review to the trial court’s determination of whether the probative value of other-

crimes evidence is substantially outweighed by its prejudicial effect); see also Ill. R. Evid. 403

(eff. Jan. 1, 2011) (stating that relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice). Nor do we find anything in the trial

court’s ruling or in the manner in which the trial court made its decision that would suggest that

the trial court’s ruling was arbitrary, fanciful, or unreasonable. See Leona W.,

;

Donoho,

.

¶ 35 To the contrary, the record shows that the trial court carefully considered this matter and

extensively questioned the parties during the hearing on the State’s motion in limine to make

sure that the court understood all of the important facts necessary for the court to make its

decision. Furthermore, the trial court carefully exercised its discretion and allowed the State to

introduce some of the evidence that it sought to admit while prohibiting the State from

introducing other portions of the other-crimes evidence. The trial court also took care to

minimize the prejudice to defendant by giving the jury a limiting instruction that the other-crimes

evidence could only be considered for the limited purpose of showing defendant’s intent and/or

knowledge as to the current offense. See Illgen,

(indicating that the trial court’s

giving of a limiting instruction regarding the jury’s consideration of the other-crimes evidence

limited and substantially reduced any prejudicial effect created by the admission of the other-

crimes evidence). The limiting instruction was given when the evidence regarding the Tahoe was

21 admitted and again when the trial court instructed the jury prior to deliberations. The trial court

did not give a limiting instruction when Detective Garner testified because defendant had

requested that an instruction not be given. Although there is some uncertainty in the record

regarding the parameters of the trial court’s other-crimes ruling, even if the trial court incorrectly

instructed the jury that it could consider the other-crimes evidence as to both knowledge and

intent, rather than as to intent only, any such possible error would not require a reversal in this

case. See People v. Spyres,

(2005) (recognizing that other-crimes

evidence that is admissible for one reason is not affected by the inadmissibility of that evidence

for another reason and that giving an overbroad limiting instruction on other-crimes evidence

does not require a reversal).

¶ 36 In addition, contrary to defendant’s assertion on appeal, the evidence presented to the

jury to establish that the other crimes had occurred was not extensive and was not equivalent to a

mini-trial being held before the jury on the other offenses. See People v. McKibbins,

(1983) (the supreme court advised against conducting a mini-trial on the prior

offense at the current trial). The initial introduction of the other-crimes evidence required only

one additional witness, Detective Garner, to testify for the State. Although a forensic chemist

also testified as to the analysis of the drugs that Detective Garner recovered from defendant, that

chemist was the same chemist who had testified for the State about the analysis of the substances

that were recovered from the residence during the execution of the search warrant.

¶ 37 With regard to the evidence presented about the bags of cannabis recovered by Detective

Garner, we cannot say that the State ran afoul of the trial court’s ruling on the motion in limine.

The trial court’s statement about the admissibility of the cannabis is somewhat ambiguous, and

22 we cannot determine from the record that has been presented whether defendant’s or the State’s

interpretation of the trial court’s ruling on the cannabis is correct.

¶ 38 As for the evidence on the search of the Tahoe and the substances recovered from the

Tahoe, defendant cannot complain on appeal about that evidence, since it was defendant—and

not the State—who first placed the search of the Tahoe before the jury. See People v. Reeves,

(2008) (recognizing that a defendant cannot complain where evidence

of his past misconduct was not offered to show propensity but, rather, was invited by his own

trial tactics). It was permissible, therefore, for the State to present additional evidence on rebuttal

to clarify the evidence defendant had placed before the jury on the police search of the Tahoe.

See

¶ 39 In sum, we conclude that the trial court did not err in admitting the other-crimes evidence

in this case. In reaching that conclusion, we have reviewed the two main cases cited by defendant

in support of his argument to the contrary—People v. Pitts,

(1994), and

People v. Chambers,

(1994)—and have found those cases to be neither

factually nor legally similar to the present case. See Pitts,

(in an

aggravated criminal sexual assault and home invasion case, the appellate court found that the

trial court erred in allowing the State to introduce the testimony of defendant’s probation officer

to establish defendant’s address for the purpose of proving identity where the defendant was

willing to stipulate to his address, the State already needed the defendant’s building manager to

testify to show that the key found at the victim’s residence fit defendant’s door lock, the building

manager’s testimony would have convincingly proved defendant’s address, and the only

conceivable purpose for presenting the probation officer’s testimony was to advise the jury of

defendant’s criminal past); Chambers,

(in a first degree murder case,

23 the appellate court found that the trial court erred in allowing the State to introduce lengthy and

detailed testimony from the State’s insanity expert regarding defendant’s prior criminal acts

where that evidence had only marginal value to the crux of the disagreement between the State’s

and the defendant’s sanity experts regarding defendant’s sanity at the time of the offense).

Because we find that the trial court’s ruling on the admissibility of the other-crimes evidence did

not constitute an abuse of discretion in this case, we affirm the trial court’s ruling on that issue.

Having reached that conclusion, we need not address the State’s other argument in the

alternative, that any error that occurred was harmless.

¶ 40 B. Class X Sentencing

¶ 41 As his second point of contention on appeal, defendant argues that the trial court erred in

imposing a Class X sentence on defendant under section 5-4.5-95(b) of the Unified Code.

Defendant asserts as a matter of statutory interpretation that his prior 2009 DWLR conviction

was not a qualifying offense under section 5-4.5-95(b) because (1) the elements of his 2009

DWLR conviction were equivalent to those of a misdemeanor offense and not a Class 2 or

greater felony and (2) the legislature intended that a defendant’s fifteenth or subsequent DWLR

conviction would constitute a Class 2 felony only if the original underlying suspension or

revocation was for one of the three enumerated offenses (leaving the scene of an accident

involving death or personal injury, driving under the influence, or a statutory summary

suspension) and all of the 14 prior DWLR convictions occurred while the defendant was

suspended or revoked for that basis, which are not the facts of the 2009 DWLR conviction.

Defendant asks, therefore, that we vacate his sentence and remand this case for a new sentencing

hearing.

24 ¶ 42 The State argues first that defendant has forfeited his claim of sentencing error by failing

to raise that specific claim in his motion to reconsider sentence. As defendant correctly points

out, however, a sentence that is not statutorily authorized affects a defendant’s substantial rights

and will generally be reviewed, despite any possible forfeiture, under the second prong of the

plain error doctrine. See People v. Mobley,

(2008) (the appellate court

reviewed alleged error regarding possible misapplication of the law during sentencing under the

second prong of the plain error doctrine because the alleged error involved a substantial right).

Second, and in the alternative, the State argues that the trial court’s sentencing decision was

proper and should be upheld. The State disagrees with defendant’s interpretation of the relevant

statutes and asserts that defendant’s interpretation is untenable and not supported by the case law

or the legislative history. The State asks, therefore, that we affirm the trial court’s sentencing

decision.

¶ 43 The interpretation of a statute is a question of law that is subject to de novo review on

appeal. People v. Baskerville,

. The fundamental rule of statutory

construction is to ascertain and give effect to the intent of the legislature.

The most reliable

indicator of that intent is the plain and ordinary meaning of the language of the statute itself.

In determining the plain meaning of statutory terms, a court should consider the statute in its

entirety and keep in mind the subject the statute addresses and the apparent intent of the

legislature in enacting the statute. Id.; 5 ILCS 70/1.01 (West 2012) (in construing a statute, “[a]ll

general provisions, terms, phrases and expressions shall be liberally construed in order that the

true intent and meaning of the General Assembly may be fully carried out”). If the statutory

language is clear and unambiguous, it must be applied as written, without resorting to further

aids of statutory construction. People v. Dabbs,

(2010). A court may not

25 depart from the plain language of the statute and read into it exceptions, limitations, or

conditions that are not consistent with the express legislative intent. Baskerville,

. However, if the language of a statute is ambiguous, in that it is susceptible to more than one

reasonable interpretation, a court may consider extrinsic aids to determine the meaning of the

statutory language. See Williams v. Illinois State Scholarship Comm’n,

(1990).

¶ 44 There are two statutes at issue in the present case—section 5-4.5-95(b) of the Unified

Code and section 6-303(d-5) of the Illinois Vehicle Code (625 ILCS 5/6-303(d-5) (West 2012)).

Section 5-4.5-95(b) of the Unified Code provides that:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2

felony, after having twice been convicted in any state or federal court of an

offense that contains the same elements as an offense now (the date the Class 1 or

Class 2 felony was committed) classified in Illinois as a Class 2 or greater Class

felony and those charges are separately brought and tried and arise out of different

series of acts, that defendant shall be sentenced as a Class X offender. This

subsection does not apply unless:

(1) the first felony was committed after February 1, 1978 (the

effective date of Public Act 80-1099);

(2) the second felony was committed after conviction on the first;

and

(3) the third felony was committed after conviction on the second.”

730 ILCS 5/5-4.5-95(b) (West 2012).

Under section 5-4.5-95(b), Class X sentencing is mandatory—a trial court must sentence a

defendant as a Class X offender if the defendant has prior qualifying felony convictions that

26 satisfy the requirements of the statute. See People v. Thomas,

(1996)

(discussing a prior version of the statute).

¶ 45 The second statute at issue in the present case, section 6-303(d-5) of the Illinois Vehicle

Code, provides that:

“Any person convicted of a fifteenth or subsequent violation of this Section is

guilty of a Class 2 felony, and is not eligible for probation or conditional

discharge, if the revocation or suspension was for a violation of Section 11-401 or

11-501 of this Code, or a similar out-of-state offense, or a similar provision of a

local ordinance, or a statutory summary suspension or revocation under Section

11-501.1 of this Code.” 625 ILCS 5/6-303(d-5) (West 2012).

¶ 46 When we review the two statutes and consider them in light of the competing assertions

of the parties in the present case, we find that defendant’s first assertion is well taken. For the

issue raised in this particular case, the language of section 5-4.5-95(b) of the Unified Code is

clear and unambiguous. The focus is on the elements of the prior offense. See 730 ILCS 5/5-4.5-

95(b) (West 2012). To constitute a qualifying offense under the statute, the prior offense must

contains the same elements as an offense now classified in Illinois as a Class 2 or greater Class

felony. See

Defendant’s 2009 DWLR conviction in the instant case was elevated from a

misdemeanor offense to a Class 2 felony based, in part, upon defendant’s prior convictions for

DWLR. Our supreme court has found, however, that those prior underlying convictions do not

constitute elements of the offense. See People v. Lucas,

(2008) (finding

that the prior convictions that served as the basis for a felony DWLR conviction were sentencing

enhancements and not elements of the offense). Rather, the elements of defendant’s prior 2009

Class 2 felony DWLR were that defendant was driving upon a highway of this State and that

27 when he did so, his driver’s license was revoked. See

; 625 ILCS 5/6-303(a) (West

2008). Those are the elements of a misdemeanor DWLR offense. See Lucas,

-

81. Thus, as defendant asserts, his 2009 DWLR conviction could not be used as a qualifying

offense to make him eligible to be sentenced as a Class X offender under section 5-4.5-95(b) of

the Unified Code.

¶ 47 Having reached that conclusion, we need not address defendant’s second assertion—that

his 2009 DWLR conviction should not be treated as a Class 2 felony for the purpose of the

application of section 5-4.5-95(b) of the Unified Code because not all of his 14 (or more) prior

DWLR convictions occurred while defendant’s driver’s license was suspended or revoked for a

violation of one of the three enumerated statutes (leaving the scene of an accident involving a

death or personal injury, DUI, or a summary suspension). We, therefore, vacate defendant’s

sentence and remand this case for defendant to be resentenced as a Class 1 offender. We must

note, however, that while our decision here lowers the minimum prison sentence for which

defendant is eligible from six years down to four years, the maximum prison sentence for which

defendant is eligible would still be 30 years because defendant has a prior conviction under the

Illinois Controlled Substances Act. See 730 ILCS 5/5-4.5-30(a) (West 2012) (indicating that the

sentence of imprisonment for a Class 1 felony, other than second degree murder, shall be a

determinate sentence of not less than 4 years and not more than 15 years); 720 ILCS 570/408(a)

(West 2012) (stating the any person convicted of a second or subsequent offense under the

Illinois Controlled Substances Act may be sentenced to a term of imprisonment of up to twice

the maximum term otherwise authorized).

¶ 48 III. CONCLUSION

28 ¶ 49 For the foregoing reasons, we affirm defendant’s conviction, vacate defendant’s sentence,

and remand this case for the trial court to conduct a new sentencing hearing.

¶ 50 Affirmed in part and vacated in part. ¶ 51 Cause remanded.

29