People v. Heller, 2017 IL App (4th) 140658 (January). Episode 304 (Duration 5:23)

Use this modified IPI 3.14 when other crimes evidence is admitted in a domestic battery pursuant to 725 ILCS 5/115-7.4.

Facts

Defendant punched his ex-wife in the face 10 times and told her he would “slit my throat”.

In the trial the victim recanted. She testified nothing happened the night of the incident.

The state impeached here with a recorded statement she made to police. On the recording, she was seen and heard telling police that defendant sat on top of her while she was on the bed and choked her twice—once using his hands and once using his forearm.

The victim also told police that defendant punched her in the chest and jaw.

Other Crimes Evidence

In this domestic battery the state admitted a prior domestic battery pursuant to 725 ILCS 5/115-7.4.

The other-crimes evidence may be introduced for any relevant purpose, including to establish the defendant’s propensity to commit the charged offense.

As required by section 115-7.4, the trial court must—as with any evidence—balance the probative value of the proffered evidence against its prejudicial effect. 725 ILCS 5/115-7.4(b).

In conducting that balancing test, the court should consider, in particular, the other crime’s

(1) proximity in time and
(2) degree of factual similarity to the charged offense,

in addition to any other relevant facts and circumstances.

To be admissible under section 115-7.4, the other-crimes evidence must bear merely “general similarity” to the charged offense.

Not His First Time

In this case, the other crime and the charged offense were similar enough to support admitting the other-crimes evidence.

During both alleged offenses, defendant positioned himself on top of his victim and struck her on the face.

In addition, both offenses were a reaction by defendant to the prospect of another romantic partner being involved with the victims, who had both been romantic partners with defendant.

Both attacks occurred in the home of the victim.

The differences between the offenses highlighted by defendant are not so significant as to bar the other-crimes evidence.

Not Really That Different

Defendant points to the following differences to support his argument that the other-crimes evidence should not have been admitted: the charged offenses involved choking instead of punching; defendant was married to the other crimes victim but merely dating this victim; the incident with his ex wife resulted from a long argument, while the attack on his finance was spontaneous; a child was present during the attack on the ex, but nobody witnessed the incident with this victim.

Basically The Same

Defendant’s acts of violence both resulted from the possibility that his victims were involved romantically with another person.

During both incidents, defendant responded to that perceived threat by violently assaulting his victim in her home. Those key facts established a level of similarity between the offenses that is not undone by the minor differences noted by defendant.

The trial court did not abuse its discretion by admitting the other-crimes evidence.

Further, the State did not focus unduly on the other-crimes evidence, such that the trial became a “mini-trial.” Instead, the State properly focused its case on both the other-crimes testimony and the impeachment of the victim with her prior inconsistent statements.

The trial court’s decision to admit the evidence was not arbitrary, fanciful, or unreasonable.

Modified IPE 3.14

A modified IPI 3.14 is recommended.

Other-crimes evidence admitted pursuant to section 115-7.4 of the Code (725 ILCS 5/115-7.4) may be considered by the jury for any relevant matter, including the defendant’s propensity to commit the charged crime.

A recent unpublished order from the First District illustrates an example of how to adapt IPI Criminal 4th No. 3.14 to instruct the jury on the proper use of other-crimes evidence admitted pursuant to either section 115-7.4 or section 115-7.3 of the Code.

In People v. Banks, 2016 IL App (1st) 131009, ¶ 116, the trial court gave the jury the following instruction concerning other-crimes testimony admitted pursuant to section 115-7.3 of the Code:

The instruction given here was wrong but harmless.

In this case, the jury instruction informed the jury that the other-crimes evidence could be considered only “on the issues of the factual similarity and proximity in time.”

That instruction was incorrect.

The issues of factual similarity and proximity in time are to be considered by the trial court when determining whether the other-crimes evidence should be admitted. Once admitted, the evidence may be used by the jury for “any relevant matter.”

To say that the evidence may be used by the jury only on the issues of factual similarity and proximity in time confuses the role of the jury with that of the trial court.