                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Young, 2013 IL App (2d) 120167




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    NICOLE L. YOUNG, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-12-0167


Filed                      September 24, 2013


Held                       Although the trial court erred in failing to properly instruct the jury on the
(Note: This syllabus       limitations applicable to the use of other-crimes evidence and the
constitutes no part of     prosecutor improperly bolstered the credibility of the police officers who
the opinion of the court   testified during closing arguments, those errors did not amount to plain
but has been prepared      error that would require reversal of defendant’s conviction for unlawful
by the Reporter of         possession of cocaine.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Kane County, No. 10-CF-2414; the
Review                     Hon. Patricia P. Golden, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Thomas A. Lilien and Jack Hildebrand, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                           Bauer and Matthew J. Schmidt, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                           Justices Hudson and Birkett concurred in the judgment and opinion.




                                             OPINION

¶1          Defendant, Nicole L. Young, appeals her conviction of unlawful possession of less than
        15 grams of cocaine (720 ILCS 570/402(c) (West 2010)). She contends that it was plain error
        when (1) the court allowed the jury to hear evidence of other crimes involving possession of
        drugs and then gave a limiting instruction that the evidence could be considered as to her
        knowledge and “possession,” and (2) the State improperly bolstered the credibility of the
        testifying police officers during closing arguments. We determine that both were error, but
        not plain error. Accordingly, we affirm.

¶2                                       I. BACKGROUND
¶3          Defendant was charged in connection with events that occurred on September 24, 2010,
        in which she was seen parking her vehicle outside of a house, her passenger entered the
        house for approximately three minutes, and cocaine was later found in the glove
        compartment of her vehicle. Before trial, defendant moved in limine to exclude statements
        she made to police officers about her previous drug use and about drug purchases she had
        previously made from the resident of the house. The State noted that the matter was one of
        constructive possession and argued that the evidence could be used to show knowledge. The
        court held that it would allow the evidence and would give a limiting instruction that it could
        be considered only on the issues of knowledge and possession. The court specifically asked
        if defendant wanted an instruction derived from Illinois Pattern Jury Instructions, Criminal,
        No. 3.14 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 3.14) that informed the jury that
        the evidence was received on only the issues of defendant’s knowledge and possession.
        Defendant’s counsel stated “that’s correct.” A jury trial was then held.
¶4          Elgin police detective James Bisceglie testified about his qualifications and that he had
        previously participated in about 400 investigations and over 300 or 350 arrests, including
        work with federal agencies. On September 24, 2010, he and his partner, Beth Sterricker, were


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     in an unmarked surveillance vehicle. Bisceglie saw defendant park in front of a house on
     Fourth Street and saw a man, later identified as Michael Mallory, in the passenger seat.
     Mallory got out of the vehicle and entered the house. About three minutes later, Mallory
     returned to the vehicle. Bisceglie believed that narcotics activity had taken place and he
     contacted Elgin police officer Bernie Bajak to assist in stopping the vehicle.
¶5       Bajak stopped the vehicle when defendant pulled into a gas station. Bajak testified that
     Mallory was standing outside of the vehicle with the door open and that there were stacks
     of money on the passenger seat. The glove compartment was open, and Mallory shut it, but
     he put the money in his pockets. Mallory then struggled with Bajak for a moment, while
     defendant remained in the driver’s seat.
¶6       Bisceglie arrived a few minutes later, searched Mallory, and found $300 and marijuana
     in his pockets. Bisceglie then talked to defendant, who, when asked, said that she did not
     have anything illegal in the vehicle. Defendant gave permission to search and, in the glove
     compartment, Bisceglie found a cocaine pipe and six small packets of cocaine, which later
     were tested and found to weigh 1.3 grams. In the center console, he found a rose tube with
     a dark smudge on it and a piece of steel wool inside. Bisceglie testified that this would be
     used for smoking cocaine.
¶7       The State called Sterricker to testify about statements defendant made to the police.
     Before she testified, the State reminded the court that she would provide the statements that
     were previously objected to. The court then said “[s]o I would read this before,” and defense
     counsel said “[y]es.” The court then told the jury:
         “I have an instruction to read before this witness. It is a cautionary instruction. And it is
         that evidence may be received that the defendant has been involved in conduct other than
         that charged in the indictment.
             This evidence will be received on the issue of the defendant’s knowledge and
         possession and may be considered by you only for those limited purposes. It is for you
         to determine whether the defendant was involved in that conduct, and if so, what weight
         should be given to this evidence on the issues of knowledge and possession.”
¶8       Sterricker testified that, after defendant was arrested and taken to the police station, she
     told officers that she knew the man who lived in the house where the drugs were purchased.
     Defendant said that the man’s name was Vance and that she had purchased marijuana from
     him in the past. Defendant said that she had recently moved back to Illinois from Florida, had
     begun purchasing both marijuana and cocaine from Vance, and had done so within three days
     of the arrest. She also smoked marijuana and cocaine during that period. Defendant said that
     she and Mallory went to Vance’s house on September 24 to purchase marijuana, but she did
     not know about the cocaine. The interview was not recorded, and Sterricker did not write a
     report. Bisceglie wrote a report that purportedly included statements from defendant, but
     Sterricker stated on cross, without additional explanation, that she did not trust that what he
     put in his report was accurate.
¶9       Defendant testified and denied knowledge of the cocaine. She testified that Mallory was
     her boyfriend, that he had previously used cocaine and heroin, but that, until the arrest, she
     thought he was clean. She said that she allowed Mallory to use her vehicle three to four times

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       per week when she was not with him and that he had used it within a week of the arrest. On
       September 24, 2010, she picked up her salary of $330 in cash, and she and Mallory went to
       buy $25 worth of marijuana from Vance. She and Mallory did not discuss purchasing
       cocaine. She did not see Mallory open the glove compartment and to her knowledge there
       was no cocaine or drug paraphernalia in her vehicle. When she pulled into the gas station,
       she asked Mallory to fill up the vehicle and gave her money to him. When Bajak pulled up,
       she saw the glove compartment open and saw Mallory shut it, but she did not see him put
       anything inside of it. Defendant said that she allowed the officers to search her vehicle
       because she did not believe that there was any contraband inside of it and she assumed that
       Mallory put the marijuana in his pocket. However, defendant also said that she told the
       officers that they would find some marijuana.
¶ 10       Defendant said that she told the police that she tried cocaine when she was 16 and that
       she recently bought and smoked marijuana. She told the police that she thought Mallory
       bought the cocaine from Vance because Mallory had recently moved to the area and Vance
       was the only person he knew. Sterricker was then called as a rebuttal witness and she
       reaffirmed that defendant said that she had previously bought both marijuana and cocaine
       from Vance.
¶ 11       During closing arguments, with regard to the evidence of other conduct, the State
       discussed constructive possession and circumstantial evidence, recited the limiting
       instruction, and told the jury:
               “Now what does that mean? That means that you can take the evidence and the
           testimony by Detective Beth Sterricker that the Defendant was–when she was
           interviewed, drove and knew why she was driving to her drug supplier’s house, the
           evidence that she has smoked both cocaine and marijuana in the past three days, the fact
           that she has bought cocaine and marijuana from him before, that goes to the knowledge
           and possession. That goes to why the Defendant knowingly possessed the cocaine.”
¶ 12       The State then stressed that defendant was guilty of unlawful possession of cocaine
       because she and Mallory both possessed it. The State later repeated the idea that defendant
       must have known that the drugs were in the vehicle, because of the things that had happened
       in the past.
¶ 13       The State also referenced Bisceglie’s experience and then said:
           “[A]ll of that goes to why Detective Bisceglie and Detective Sterricker do what they did.
           They’ve been trained on this. Two to three minutes at the house, out-of-state plates that
           made them suspicious. They’re pretty good at what they do. They found drugs in the car.
           They knew exactly what happened.”
¶ 14       In response to an argument that the officers lied, the State argued:
           “The best thing I can say about that, if an Officer is going to get on the stand and take an
           oath, and they’re going to lie, why not make it a good one? Why not get up there on the
           stand–they’re going to risk perjury, risk their career, risk everything to put her away for
           whatever–why don’t they just sit there and say, ‘Hey, we found the drugs on her.’ ”
¶ 15       There were no objections to the State’s comments in closing. Without objection, the trial
       court gave the jury the limiting instruction again before deliberations. The court also

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       instructed the jury on the definition of constructive possession and instructed that closing
       arguments are not evidence. The jury found defendant guilty, and she moved for a new trial,
       arguing that the court erred in allowing evidence of her prior drug use and purchases. She did
       not argue that the limiting instruction was improper. The motion was denied, and defendant
       appeals.

¶ 16                                        II. ANALYSIS
¶ 17                                 A. Other-Crimes Instruction
¶ 18       Defendant concedes that she did not object to the jury instruction, but contends that it
       was plain error for the court to instruct the jury that the evidence of other crimes could be
       considered on the issues of knowledge and possession. She argues that the use of the term
       “possession” was the same as instructing the jury that it could use the evidence to establish
       her propensity to commit the crime of unlawful possession of cocaine.
¶ 19       Both an objection at trial and raising the issue in a posttrial motion are necessary to
       preserve the issue for appellate review. See People v. Herron, 215 Ill. 2d 167, 175 (2005).
       However, “[u]nder the plain-error doctrine, this court will review forfeited challenges when:
       (1) a clear or obvious error occurred and the evidence is so closely balanced that the error
       alone threatened to tip the scales of justice against the defendant; or (2) a clear or obvious
       error occurred, and the error is so serious that it affected the fairness of the defendant’s trial
       and the integrity of the judicial process, regardless of the closeness of the evidence.” People
       v. Taylor, 2011 IL 110067, ¶ 30.
¶ 20       “[U]nder Illinois Supreme Court Rule 451(c) (eff. July 1, 2006), where a jury instruction
       suffers from a substantial defect, claims of error are not subject to forfeiture on appeal.”
       People v. Johnson, 2013 IL App (2d) 110535, ¶ 76. “An erroneous instruction constitutes a
       substantial defect, or plain error, when the instruction created a serious risk that the
       defendant was incorrectly convicted because the jury did not understand the applicable law,
       so as to threaten the fundamental fairness of the defendant’s trial.” Id. Also, “ ‘[w]hen there
       is error in a close case, we choose to err on the side of fairness, so as not to convict an
       innocent person.’ ” Id. (quoting Herron, 215 Ill. 2d at 193). Thus, in this context, “[p]lain
       error arises in two circumstances: (1) when the flawed instruction was provided in a case
       where the evidence was closely balanced or (2) when the flaw in the instruction is ‘grave’
       or so serious that it denied the defendant a substantial right and undermined the integrity of
       the judicial process.” Id. (citing Herron, 215 Ill. 2d at 178-79).
¶ 21       The defendant has the burden of persuasion under both prongs of the plain-error analysis.
       People v. Lewis, 234 Ill. 2d 32, 43 (2009). Before determining whether plain error occurred,
       however, we first determine whether error markgriffin@example.org. Id. If error did occur, we then
       consider whether either prong of the plain-error doctrine has been satisfied. People v.
       Sargent, 239 Ill. 2d 166, 189-90 (2010).
¶ 22       “Other-crimes evidence encompasses misconduct or criminal acts that occurred either
       before or after the alleged criminal conduct for which the defendant is standing trial.”
       Johnson, 2013 IL App (2d) 110535, ¶ 61. “Other-crimes evidence is admissible to prove any
       material fact relevant to the case [citation], but is inadmissible if it is relevant only to

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       demonstrate the defendant’s propensity to engage in criminal activity [citation].” Id. “Such
       evidence may be admissible when it is relevant to show, among other things, motive, intent,
       identity, absence of mistake or accident, modus operandi, or the existence of a common plan
       or design.” Id. “However, relevant other-crimes evidence may yet be excluded if its
       prejudicial effect substantially outweighs its probative value.” Id.
¶ 23        Here, defendant does not dispute that the evidence was admissible to show knowledge
       and intent. Instead, she takes issue with the limiting instruction, which said that the evidence
       could show “possession” when possession was the crime charged.
¶ 24        “Jury instructions give the jurors the correct principles of law applicable to the facts so
       they can reach a correct conclusion according to the law and the evidence.” Id. ¶ 68. “In a
       criminal case, the applicable Illinois Pattern Jury Instruction ‘shall be used, unless the court
       determines that it does not accurately state the law.’ ” Id. (quoting Ill. S. Ct. R. 451(a) (eff.
       July 1, 2006)). “In determining the adequacy of instructions, a reviewing court will consider
       all the instructions as a whole to ascertain if they fully and fairly cover the law.” Id.
¶ 25        IPI Criminal 4th No. 3.14 provides as follows:
                “[1] Evidence has been received that the defendant[s] [(has) (have)] been involved
            in [(an offense) (offenses) (conduct)] other than [(that) (those)] charged in the
            [(indictment) (information) (complaint)].
                [2] This evidence has been received on the issue[s] of the [(defendant’s)
            (defendants’)] [(identification) (presence) (intent) (motive) (design) (knowledge) (____)]
            and may be considered by you only for that limited purpose.
                [3] It is for you to determine [whether the defendant[s] [(was) (were)] involved in
            [(that) (those)] [(offense) (offenses) (conduct)] and, if so,] what weight should be given
            to this evidence on the issue[s] of ____.”
¶ 26        There does not appear to be any Illinois authority addressing the use of “possession” in
       the limiting instruction. However, we have addressed an instruction that mistakenly allowed
       a jury to consider evidence for purposes of showing propensity.
¶ 27        In Johnson, we held that the use of a defective jury instruction regarding other-crimes
       evidence was plain error. Johnson, 2013 IL App (2d) 110535, ¶ 76. There, the defendant was
       charged with two counts of unlawful possession of a weapon by a felon, which alleged that
       he knowingly possessed a firearm and ammunition. He was also charged with domestic
       battery. We determined that evidence of previous threats was admissible to show intent and
       lack of mistake with regard to the battery charge. By statute, some of the evidence could also
       arguably have been admissible to show propensity as to the battery charge. However, the trial
       court did not narrowly tailor the limiting instruction to those purposes and instead listed
       “ ‘intent, motive, design, knowledge, absence of mistake, and propensity.’ ” Id. ¶ 35. We
       determined that this was error, since the jury was wrongly instructed that it could consider
       the evidence for propensity even as to the weapons charges. We then determined that it was
       plain error because, regardless of the closeness of the evidence, the error was so grave that
       it denied the defendant a fair trial and undermined the integrity of the judicial process. Id.
       ¶ 76.
¶ 28        Here, it was error not to specifically tailor the instruction to the reasons the evidence was

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       properly admitted. Given that defendant was charged with “possession,” and that the
       instruction told the jury that it could use the evidence to determine “possession,” the
       instruction implied that the evidence could show propensity. Thus, we determine that the
       failure to tailor the instruction to explain the proper use of the evidence was error. The next
       question, however, is whether it amounted to plain error.
¶ 29       Defendant first argues that the case depended on the credibility of the witnesses, making
       the evidence closely balanced. We disagree.
¶ 30       “To sustain a charge of possession of a controlled substance, the State must prove the
       defendant had knowledge of the presence of an illicit substance and that the substance was
       in his immediate and exclusive control.” People v. Carodine, 374 Ill. App. 3d 16, 24-25
       (2007). The elements of possession can be proved by circumstantial evidence. See People
       v. Chavez, 327 Ill. App. 3d 18, 25 (2001). “[K]nowledge may be established by evidence of
       acts, declarations or conduct of the defendant from which it may be inferred that the
       defendant knew of the existence of the narcotics.” Id. at 24. “ ‘[T]he mere presence of illegal
       drugs on premises which are under the control of the defendant gives rise to an inference of
       knowledge and possession sufficient to sustain a conviction absent other factors which might
       create a reasonable doubt as to the defendant’s guilt.’ ” Id. at 26 (quoting People v. Smith,
       191 Ill. 2d 408, 413 (2000)). Undisputed control of a vehicle gives rise to an inference of the
       defendant’s knowledge of the presence of contraband inside of that vehicle. See id.
       Furthermore, possession may be joint. See People v. Ingram, 389 Ill. App. 3d 897, 901
       (2009). Mere access by others does not defeat a finding of constructive possession. People
       v. Bui, 381 Ill. App. 3d 397, 424 (2008).
¶ 31       Here, the case was not closely balanced. The State presented evidence that the cocaine
       was found inside of defendant’s vehicle after she was seen parked briefly outside of a house,
       and she admitted that she knew that Mallory had purchased drugs inside. She further
       admitted that she had previously purchased both cocaine and marijuana from the occupant
       of the house and that she had used cocaine and marijuana within the past week. When the
       vehicle was stopped, defendant saw the glove compartment open and saw Mallory shut it.
       The cocaine was found in the glove compartment, and used paraphernalia for smoking
       cocaine was also found in the vehicle. Meanwhile, defendant’s evidence was merely her self-
       serving testimony that she had not admitted buying cocaine from Vance and that she thought
       that Mallory had purchased only marijuana. Given defendant’s undisputed control of the
       vehicle and the other circumstantial evidence, the case was not close.
¶ 32       As to the second prong, its purpose is to guard against errors that erode the integrity of
       the judicial process and undermine the fairness of the defendant’s trial. Sargent, 239 Ill. 2d
       at 190-91. “Unlike the first prong, prejudice need not be established. Rather, because of the
       importance of the right involved, prejudice is presumed.” Id. at 191. “The erroneous
       omission of a jury instruction rises to the level of plain error only when the omission creates
       a serious risk that the jurors incorrectly convicted the defendant because they did not
       understand the applicable law, so as to severely threaten the fairness of the trial.” Id. “This
       standard is a difficult one to meet.” Id. For example, “it is not necessarily plain error to omit
       the definition of a term used to instruct the jury on the essential issue in the case.” Id. “Even
       an incorrect instruction on an element of the offense is not necessarily reversible error.” Id.

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¶ 33        Here, while the instruction had the potential to be confusing, the error was not as grave
       as it was in Johnson, where the jurors were specifically told that they could use the evidence
       to find the defendant guilty based on propensity. Standing alone, the instruction here
       certainly presented a problem, and we caution the State and the trial court to be more careful
       when presenting limiting instructions in the future. However, the instruction was not given
       in a vacuum. At trial, defendant denied knowledge of the cocaine. The jury was presented
       with the definition of constructive possession, and the State noted the limiting instruction and
       argued how the other-crimes evidence could show defendant’s knowledge and thus her
       constructive possession. Therefore, the danger was greatly lessened that the jury mistakenly
       thought that it could use the evidence for propensity. Accordingly, in the context of the entire
       case, we cannot say that the error created a serious risk that the jurors incorrectly convicted
       defendant because they did not understand the applicable law, so as to severely threaten the
       fairness of the trial.

¶ 34                                      B. Closing Arguments
¶ 35       Defendant next argues that it was plain error for the court to allow the State to bolster the
       testimony of the officers during closing arguments by referring to their credentials and the
       risks they would face by lying.
¶ 36       “During closing arguments, a ‘prosecutor may comment on the evidence and any fair,
       reasonable inferences it yields.’ ” People v. Sykes, 2012 IL App (4th) 111110, ¶ 45 (quoting
       People v. Nicholas, 218 Ill. 2d 104, 121 (2005)). “A court will reverse a judgment because
       of improper closing arguments only if the defendant identifies remarks made by the
       prosecutor that were (1) improper and (2) so prejudicial that real justice was denied or the
       jury may have reached its verdict because of the error.” Id.
¶ 37       “The prosecutor may comment on a witness’s credibility only if the remarks are fair
       inferences from the evidence.” People v. Barraza, 303 Ill. App. 3d 794, 797 (1999). To
       determine whether a prosecutor’s comment is proper, courts must view it in context of the
       entire closing argument. Sykes, 2012 IL App (4th) 111110, ¶ 47. “Challenging a witness’s
       credibility may invite a prosecutor to respond, but it does not give the prosecutor carte
       blanche to make up evidence during closing argument.” Id.; see People v. Rivera, 277 Ill.
       App. 3d 811, 820-21 (1996) (reversible error occurred when the prosecutor, in response to
       defense counsel attacking the credibility of a State witness, argued that the witness was
       putting his life at risk by testifying because the defendant was a known gang member, when
       no evidence was presented that the witness feared for his life).
¶ 38       In People v. Adams, 2012 IL 111168, ¶¶ 20-23, our supreme court held that it was
       improper for the State to comment to the jury that police officers should be believed because
       they would not risk their jobs by lying on the witness stand, but that the comments did not
       amount to plain error. There, the defendant was indicted for unlawful possession of a
       controlled substance. During closing argument, the State commented to the jury that, if it
       believed the defendant’s case, it would have to believe that the two police officers involved
       were risking their credibility, their jobs, and their freedom over 0.8 grams of cocaine. The
       State repeated the concept during rebuttal and also commented that one of the officers was


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       an 8½ -year veteran of the sheriff’s department and that the other was a 5-year veteran of the
       forest preserve police. The defendant appealed his conviction, arguing in part that the State’s
       comments constituted plain error and required reversal of his conviction because they were
       so prejudicial. The appellate court agreed and reversed. People v. Adams, 403 Ill. App. 3d
995, 1008 (2010), rev’d, 2012 IL 111168, ¶ 31.
¶ 39        The supreme court agreed that the comments were improper as impermissible
       speculation, since no evidence was introduced at trial from which it could be inferred that
       the officers would risk their careers if they testified falsely. The State also implied that the
       officers were more credible solely because they were police officers, which violated the
       principle that a prosecutor may not argue that a witness is more credible because of his or her
       status as a police officer. Adams, 2012 IL 111168, ¶ 20. However, while it agreed that the
       comments were improper, the supreme court disagreed with the appellate court’s conclusion
       that the comments amounted to plain error. The court reviewed the evidence and determined
       that it was not closely balanced; it also noted that the jurors had been properly instructed that
       counsels’ arguments were not evidence and that they were the judges of the witnesses’
       credibility. See id. ¶¶ 22-23. Therefore, the supreme court concluded that, though improper,
       the prosecutor’s comments were not inflammatory enough to have threatened to tip the scales
       of justice against the defendant. See id. ¶ 23. The supreme court also concluded that the
       prosecutor’s comments did not rise to the level of affecting the fairness of the defendant’s
       trial and the integrity of the judicial process. See id. ¶ 24.
¶ 40        Here, the State did not present evidence that a police officer would be at risk of losing
       his or her job or being charged with perjury if he or she lied on the stand. By emphasizing
       their credentials, the State also indicated that the police officers were more credible simply
       because they were police officers. Accordingly, under Adams, the State’s comments were
       improper. Thus, the next question is whether the error amounts to plain error.
¶ 41        As to the first prong, defendant argues that the case was closely balanced because it
       depended upon the credibility of the witnesses. As previously noted, however, defendant’s
       self-serving denial of knowledge was overwhelmed by the State’s evidence. Thus, we are
       unable to determine that the improper comments threatened to alter the outcome of the case.
¶ 42        As to the second prong, defendant argues that the error, compounded with the error
       regarding the other-crimes evidence, affected the fundamental fairness of her trial. In Adams,
       the supreme court held that the prosecutorial comments, similar to those in this case, did not
       amount to second-prong plain error. Id. However, there is some precedent for finding plain
       error when multiple errors have occurred in a case. See, e.g., Johnson, 2013 IL App (2d)
110535, ¶ 81; Sykes, 2012 IL App (4th) 111110, ¶ 56. While the errors in this case trouble
       us, we ultimately conclude that, even when combined, they do not amount to plain error.
       When the context of the entire case is considered, we do not believe that the errors became
       so serious that they affected the fairness of defendant’s trial and the integrity of the judicial
       process.

¶ 43                                    III. CONCLUSION
¶ 44       The trial court erred when it failed to properly tailor the limiting instruction on the use

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       of other-crimes evidence. The State also improperly bolstered the credibility of the testifying
       police officers during closing arguments. However, the errors do not constitute plain error.
       Accordingly, the judgment of the circuit court of Kane County is affirmed.

¶ 45      Affirmed.




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