People v. Smart

2025 IL 130127

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 130127)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

CECIL SMART, Appellee.

Opinion filed June 5, 2025.

JUSTICE NEVILLE delivered the judgment of the court, with opinion.

Chief Justice Theis and Justices Overstreet, Holder White, and Rochford

concurred in the judgment and opinion.

Justice O’Brien dissented, with opinion, joined by Justice Cunningham.

OPINION

¶1 This case presents an evidentiary question: when a defendant denies the

commission of a charged crime and does not present any evidence or argument that

his acts were accidental, incidental, or inadvertent, may the State introduce

evidence of other misconduct to prove intent? The Cook County circuit court

permitted the State to introduce evidence of prior uncharged acts of misconduct to

prove that the defendant, Cecil Smart, intended his contact with the victim to

produce sexual gratification, even though Smart denied that he made any contact

with the victim and did not present any evidence to contest intent. 2023 IL App

(1st) 220427, ¶ 37. The appellate court found the court erred by permitting the State

to present prior misconduct evidence and the error required reversal.

¶2 We find that Smart’s decision not to contest intent, under the facts of this case,

had no effect on the admissibility of the evidence proffered here. The State could

use evidence of prior acts of misconduct to prove intent because the State charged

Smart with a specific-intent crime, thereby placing Smart’s intent at issue.

However, because the relevance of the proffered evidence of prior acts of

misconduct to the charged offense depended on a propensity inference—that the

defendant’s prior misconduct showed he probably had the same intent when he

committed the charged offense—and because the evidence did not meet the specific

statutory criteria for the admissibility of propensity evidence (see 725 ILCS 5/115-

7.3, 115-7.4, 115-20 (West 2018)), we agree with the appellate court that the circuit

court erred when it permitted the State to present evidence of Smart’s prior acts of

misconduct.

¶3 We disagree with the appellate court’s holding that the trial court’s admission

of Smart’s prior acts of misconduct required reversal. We hold that the trial court’s

admission of evidence of Smart’s prior acts of misconduct was a harmless

evidentiary error, and therefore, we reverse the appellate court’s decision and

remand the case to the appellate court for further consideration of Smart’s

arguments that the appellate court did not address in the initial appeal. See 2023 IL

App (1st) 220427, ¶ 38.

¶4 I. BACKGROUND

¶5 In July 2018, J.P., then 16 years old, visited his sister, Ciera Smith, in Chicago.

Smith introduced J.P. to Smart, who had coached basketball for Breakthrough

Urban Ministries (Breakthrough), where Smith worked. In mid-July and again on

July 25, 2018, J.P. joined Smart and Smart’s nephews for outings in Chicago, and

in connection with those outings, twice J.P. slept in Smart’s bed.

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¶6 In October 2018, J.P. told his mother that Smart had molested him. J.P. then

told Chicago police about the incident, and in October 2019, a grand jury indicted

Smart on three counts of aggravated criminal sexual abuse: one count for

penetration by placing his mouth on J.P.’s penis, one count for fondling J.P.’s penis,

and one count for bringing J.P.’s hand into contact with Smart’s penis. See 720

ILCS 5/11-0.1, 11-1.60(d) (West 2018).

¶7 A. Pretrial Motion

¶8 The State filed a pretrial motion asking the court to admit evidence of three

prior incidents involving Smart’s interactions with teenage boys. The State sought

to introduce evidence (1) that Smart wrestled inappropriately with a teenage boy at

Sterling College, (2) that Smart took a teenage boy alone to a prayer room at

Breakthrough, and (3) that Smart inappropriately grabbed the buttocks of a teenage

boy at Breakthrough and made an inappropriate sexual remark to the boy. The court

found the first two incidents not sufficiently similar to the charged offenses because

they did not involve sexual conduct. The court found the third incident admissible,

as the court said, “a hand to the buttocks could be perceived as sexual behavior.”

¶9 B. Trial

¶ 10 1. The State’s Case

¶ 11 J.P. testified that Smart invited J.P. to go to the zoo with Smart and his nephew

in mid-July 2018. To save Smith the trouble of dropping off J.P. on her way to

work, the night before the zoo outing, J.P. stayed overnight in Smart’s bed, without

incident.

¶ 12 A few weeks later, on July 25, 2018, J.P. agreed to go with Smart and three of

his nephews to see fireworks. J.P. testified that in the car Smart pressured J.P. to

drink some alcohol Smart had in a cup. They arrived downtown too late for the

fireworks. Smart bought the boys a takeout dinner. After they returned home, Smart

again pressured J.P. to drink alcohol, and again J.P. drank some. J.P. ate dinner and

vomited. J.P. went to the bed where he slept on his prior overnight stay. About 20

minutes after J.P. got in bed, Smart joined him. J.P. testified that, while he

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pretended to sleep, Smart touched J.P.’s penis, then placed J.P.’s penis in his mouth

until J.P. ejaculated.

¶ 13 Smith corroborated J.P.’s testimony about the outings with Smart. She testified

that J.P. did not say anything to her about sexual abuse, but she noticed that after

July 25, 2018, J.P. became withdrawn and hostile to Smart.

¶ 14 Smith testified that Breakthrough had a policy of preventing employees from

spending time alone with any of the students. If an employee drove several students

home, the employee, according to protocol, would text or call a supervisor and the

parent of the last student to be dropped off once the employee was alone in the car

with one student. When Breakthrough laid off Smart in June 2018, Smart told Smith

that he had violated protocol by having a student alone in his car without notifying

his supervisor.

¶ 15 2. Smart’s Case

¶ 16 Robert Muzikowski testified for the defense that Smart had a good reputation

for “chastity or morality.” The prosecutor asked Muzikowski on cross-examination,

“Are you aware of why the defendant stopped working at Trinity Christian

Academy in Texas?” Muzikowski answered no to that question and to the next

question, “Are you aware that the defendant was reprimanded for being alone with

a student and drinking with a student when he was an employee at Sterling College

in Kansas?”

¶ 17 Smart’s brother, Frank Smart, testified that his sons went with Smart and J.P.

in the failed effort to see fireworks. According to Frank Smart, his sons (Smart’s

nephews) slept in the room with Smart and J.P. on the night of July 25, 2018. Frank

Smart checked on the boys and saw nothing amiss.

¶ 18 The following exchange took place during Frank Smart’s cross-examination:

“Q. *** Did you later find out the defendant was fired for driving a kid

home and grabbing his butt?

A. No, ma’am.

Q. You never asked your brother why he was fired?

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A. I just assumed they [were] downsizing. ***

***

Q. You’re also aware that back in 2014, the defendant was an assistant

coach at Sterling College in Kansas, right?

A. Yes.

Q. And he was reprimanded at that job for being alone with a student and

drinking alone with a student too, correct?

A. Not that I knew of.”

¶ 19 Next, on direct examination, Smart testified that he took J.P. on two outings

with his nephews. Smart testified that he did not have alcohol in the car on July 25,

2018. Smart explained that J.P. vomited the food, but not because of alcohol. Smart

testified (1) that J.P. and his nephews all slept in Smart’s bedroom for some hours

before Smart went to bed and (2) that he did not touch J.P. at all.

¶ 20 On cross-examination the prosecutor asked about the incident that led

Breakthrough to fire him. Smart explained that he drove a boy home alone without

notifying his supervisor or the boy’s parents. The boy later sent a group text

message saying, “coach slapped my butt.” One of the parents saw the text and

complained to Breakthrough. The next day Breakthrough’s director of human

resources fired Smart. Smart admitted at trial that he had slapped the boy’s buttocks

and that in March 2018 he attempted to take a boy he was coaching alone into

Breakthrough’s prayer room but that a security guard stopped him.

¶ 21 The prosecutor asked, “you were reprimanded when you were worked at

Sterling College, correct?” Smart answered, “I was never reprimanded.” The

prosecutor asked, “Did you receive a letter from Sterling College dated March 11th,

2013, reading letter of reprimand to Cecil Smart?” Smart answered, “I don’t believe

I ever received a letter, ma’am, no.” Smart explained:

“There was a kid, I cut him from the team as a collegian. A year later, his father

was an attorney. His father tried to sue the school.

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My name came up, it got—I was never reprimanded. I continued it very

well and successfully, and I left on my terms in 2013.”

¶ 22 3. Stipulation to Evidence of Other Acts of Misconduct

¶ 23 The parties stipulated that Breakthrough’s director of human resources would

testify:

“[O]n June 22nd, 2018, this defendant was notified by mail that he was

terminated from employment at Breakthrough Ministries due to the fact that on

June 12th, 2018, while transporting a participant *** home it was alleged that

the defendant touched [the participant] inappropriately.

On March 29th, 2018, it was discovered that the defendant was working

with a program participant alone in the family plex prayer room ***.

*** [A]s a culmination of policy violations, the defendant’s employment at

Breakthrough Urban Ministries was terminated effective June 21st, 2018.”

¶ 24 Thus, the stipulation included two acts of misconduct involving teenage boys:

one on June 12, 2018, and an act on March 29, 2018. The prosecutor introduced no

further evidence to rebut Smart’s testimony about Sterling College or the cause for

his discharge from Breakthrough. The prosecutor did not introduce the evidence

promised in the pretrial motion, as the State presented no evidence Smart grabbed

the boy’s buttocks or that Smart made an improper sexual remark.

¶ 25 4. Closing Arguments

¶ 26 In closing arguments the attorneys focused on the credibility of J.P. and Smart.

Defense counsel did not object when the prosecutor argued

“on that same line of inappropriate adult behavior, what you have here is the

person who was a few months before he meets [J.P.], he is reprimanded for

being alone with a student. A child who is approximately the same age as [J.P.],

a male child, a few months before.

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Despite that reprimand, he then is in a car one month before this incident

with [a boy] driving him home and slaps his butt. *** That is inappropriate

adult behavior.

***

*** It’s character, a pattern of taking jobs that put him around children in

places where he can be alone with children and ingratiate himself to children

and their families so that he can be alone with them and then abuse them.

We saw two times before he was fired from Breakthrough and the one with

[J.P.] Offered to babysit [J.P.] straight down to actually physically putting his

mouth on [J.P.’s] penis. That is a pattern.

It is exactly his character using his position of proper authority to abuse a

child, that is his character.”

¶ 27 5. The Trial Court’s Decision

¶ 28 The trial court extensively reviewed the evidence it considered in reaching its

decision. The court said:

“The evidence on the State’s behalf basically it consists of the testimony of

[J.P.] He was the only one actually present when the alleged incidents occurred.

His sister, Ciera Smith, can corroborate the fact that she dropped [J.P.] off

at the defendant’s house on two occasions, which she wasn’t actually physically

present when the alleged incident happened.

So basically the State’s case rises and falls with the testimony of [J.P.] I did

find many aspects of [J.P.’s] testimony credible, however, I do find the defense

witness[es] credible too.

*** [Frank Smart and his wife testified credibly, but] they really can’t

testify to everything that happened in that bedroom.

***

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I find [J.P.’s] testimony credible to sustain Counts 1 and 2. I do not find it

credible to sustain Count 3. He said his eyes were closed and he felt something

touch his hand. He didn’t open his eyes at that point.”

¶ 29 The trial court found Smart guilty of fondling and penetration but not guilty of

the charge that Smart brought his penis into contact with J.P.’s hand. The court

made no reference to the evidence of other misconduct.

¶ 30 In a motion for a new trial, Smart again objected to the court’s ruling on the

pretrial motion permitting the prosecution to present evidence concerning contact

with another boy’s buttocks. Smart did not raise any issue concerning the

discrepancy between the evidence the State promised in the pretrial motion and the

evidence actually presented. The court summarily denied the motion, stating “I

reviewed all the paragraphs in the defendant’s motion for new trial. I find that they

do not rise to the level of granting a new trial.” The court sentenced Smart to 30

months of probation.

¶ 31 C. The Appellate Court’s Decision

¶ 32 The appellate court reversed the convictions and remanded for a new trial. The

court reasoned that,

“if a defendant denies the commission of the crime and does not offer any

evidence or argument that his actions were or may have been accidental,

incidental, or inadvertent, other acts evidence may not be admitted to prove

intent ***.

*** Because Smart consistently denied any physical contact with J.P., his

intent was not at issue; therefore, we find that the trial court abused its discretion

when it admitted the other acts evidence here.” 2023 IL App (1st) 220427,

¶¶ 33-34.

¶ 33 The appellate court found the error prejudicial, and therefore the court reversed

the conviction without addressing Smart’s argument that he received ineffective

assistance of counsel. Id. ¶¶ 37-38.

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¶ 34 We granted the State’s petition for leave to appeal to resolve a conflict between

appellate court decisions on the issue of whether the trial court may admit evidence

of other acts of misconduct to prove intent when the defendant does not contest

intent. See People v. Wilson, 214 Ill. 2d 127, 137 (2005) (noting the conflict and

leaving it unresolved).

¶ 35 II. ANALYSIS

¶ 36 The State argues on appeal that (1) the trial court did not abuse its discretion by

allowing evidence of Smart’s prior misconduct to prove his intent and, (2) if the

trial court erred, the error was harmless.

¶ 37 A. Standard of Review

¶ 38 We must decide whether the trial court committed reversible error when it

allowed the State to present evidence that in June 2018 Smart made contact with a

boy’s buttocks. The trial court has discretion to decide whether to admit evidence

of prior misconduct, and this court will not disturb the trial court’s determination

unless the trial court abused its discretion. People v. Smith, 2022 IL 127946, ¶ 25

(“A trial court’s decision whether to admit evidence is reviewed for an abuse of

discretion.”); People v. Illgen, 145 Ill. 2d 353, 364 (1991) (“The admissibility of

evidence at trial is a matter within the sound discretion of the trial court, and that

court’s decision may not be overturned on appeal absent a clear abuse of

discretion.”); see People v. Donoho, 204 Ill. 2d 159, 182 (2003) (“We will not

reverse the trial court’s decision to admit other-crimes evidence unless we find that

the court abused its discretion.”).

¶ 39 To answer the admissibility question here we must interpret the Illinois Rules

of Evidence, and our review is de novo. Smith, 2022 IL 127946, ¶ 25 (“When

considering the interpretation of the Illinois Rules of Evidence, we employ the

de novo standard of review.”); see People v. Gorss, 2022 IL 126464, ¶ 10 (“ ‘As

with statutes, the interpretation of a supreme court rule presents a question of law,

which we review de novo.’ ” (quoting People v. Tousignant, 2014 IL 115329, ¶ 8)).

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¶ 40 If the trial court erred by admitting evidence, the State bears the burden of

proving that, even without the inadmissible evidence, defendant had no reasonable

probability of achieving a better result. In re E.H., 224 Ill. 2d 172, 180-81 (2006)

(for evidentiary errors, defendant did not suffer prejudice if he had no reasonable

probability of achieving a better result); People v. Jackson, 2022 IL 127256, ¶ 23

n.1 (the State bears burden of showing the error was harmless).

¶ 41 B. Illinois Rules of Evidence

¶ 42 The appellate court held that the trial court committed reversible error by

admitting evidence that in June 2018 Smart touched a boy’s buttocks. Rules 401

through 405 of the Illinois Rules of Evidence govern the admissibility of evidence

of uncharged acts of misconduct. See Ill. Rs. Evid. 401 (“Definition of ‘Relevant

Evidence’ ”), 402 (“Relevant Evidence Generally Admissible; Irrelevant Evidence

Inadmissible”), 403 (“Exclusion of Relevant Evidence on Grounds of Prejudice,

Confusion, or Waste of Time”), 404 (“Character Evidence Not Admissible to Prove

Conduct; Exceptions; Other Crimes”), 405 (“Methods of Proving Character”) (eff.

Jan. 1, 2011).

¶ 43 Rule 402 of the Rules of Evidence codifies the axiom that the court must not

admit irrelevant evidence. Ill. R. Evid. 402 (eff. Jan. 1, 2011) (“Evidence which is

not relevant is not admissible.”). Evidence is relevant if it has “any tendency to

make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” Ill.

R. Evid. 401 (eff. Jan. 1, 2011).

¶ 44 Rule 404 codifies the common-law propensity rule. People v. Peterson, 2017

IL 120331, ¶ 19 (“ ‘Illinois Rules of Evidence codified the existing rules of

evidence in this state’ ” (quoting People v. Nixon, 2016 IL App (2d) 130514, ¶ 49));

People v. Dabbs, 239 Ill. 2d 277, 283 n.1 (2010). The rule establishes the limits on

the use of character evidence, expressly limiting the use of character evidence to

show propensity:

“(a) Character Evidence Generally. Evidence of a person’s character or a

trait of character is not admissible for the purpose of proving action in

conformity therewith on a particular occasion, except:

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(1) Character of Accused. In a criminal case, evidence of a pertinent trait

of character offered by an accused, or by the prosecution to rebut the same[.]

***

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action

in conformity therewith except as provided by sections 115-7.3, 115-7.4, and

115-20 of the Code of Criminal Procedure (725 ILCS 5/115-7.3, 725 ILCS

5/115-7.4, and 725 ILCS 5/115-20). Such evidence may also be admissible for

other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Ill. R. Evid. 404(a)(1),

(b) (eff. Jan. 1, 2011).

¶ 45 Rule 405 limits the means parties may use to present character evidence: “In all

cases in which evidence of character or a trait of character of a person is admissible,

proof may be made by testimony as to reputation, or by testimony in the form of an

opinion.” Ill. R. Evid. 405(a) (eff. Jan. 1, 2011).

¶ 46 In this case Smart presented character evidence when Muzikowski testified to

Smart’s reputation for “chastity or morality.” Under Rule 404(a)(1), Smart’s

introduction of character evidence permitted the State to present contrary evidence

in rebuttal. Ill. R. Evid. 404(a)(1) (eff. Jan. 1, 2011); see People v. Lewis, 25 Ill. 2d

442, 445 (1962) (“Once the accused offers proof of his good character, the

prosecution may cross-examine and offer evidence of bad character in rebuttal.”).

¶ 47 All relevant evidence, including evidence of prior acts of misconduct, must also

meet the requirement of Rule 403: “Although relevant, evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.” Ill. R. Evid. 403

(eff. Jan. 1, 2011).

¶ 48 The court should not reach the probative versus prejudicial balancing test of

Rule 403 unless it first determines that the evidence meets the relevance

requirement of Rules 401 and 402. Dabbs, 239 Ill. 2d at 289 (“Relevance is a

threshold requirement that must be met by every item of evidence.”); see People v.

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Pinkett, 2023 IL 127223, ¶ 31 (court did not reach issue of balancing probative

value against prejudicial effect of evidence of the defendant’s postarrest silence

because the evidence “ ‘is considered neither material nor relevant to proving or

disproving the charged offense’ ” (quoting People v. Sanchez, 392 Ill. App. 3d

1084, 1096 (2009))). We will consider the application of Rule 403’s balancing test

to the evidence that Smart touched a boy’s buttocks only if we first find that the

evidence of the prior misconduct is relevant to prove Smart’s intent—that he

touched J.P. for the purpose of sexual gratification. See 720 ILCS 5/11-0.1 (West

2018) (definition of “sexual conduct”); id. § 11-1.60.

¶ 49 C. The Admissibility of Evidence of Other Acts of Misconduct

to Prove Intent When the Defendant Does Not Contest Intent

¶ 50 We granted the State’s petition for leave to appeal in this case to resolve a

conflict between decisions of the appellate court on the issue of whether, when the

defendant has not contested intent for a charged offense, the trial court may admit

evidence of other misconduct to prove the defendant’s intent. Compare People v.

Bobo, 278 Ill. App. 3d 130, 132-33 (1996) (trial court improperly admitted evidence

of prior misconduct to show intent when the defendant did not contest intent), with

People v. Davis, 2019 IL App (1st) 160408, ¶ 63 (“[T]he State can introduce

otherwise admissible other-crimes evidence to prove intent even where the

defendant does not put intent directly in issue.”).

¶ 51 This court noted, but did not resolve, the conflict in Wilson, 214 Ill. 2d at 137.

We will (1) examine Wilson, (2) examine two cases finding the evidence

inadmissible, (3) examine two cases finding the evidence admissible, and

(4) examine a federal case that explores the conflict and suggests a resolution of the

issue.

¶ 52 1. Wilson

¶ 53 The State charged Wilson, a high school teacher, with touching the breasts of

two of his students for sexual gratification. Id. at 129. The trial court permitted the

State to present testimony from the two alleged victims and from two other students

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who said Wilson similarly molested them. Id. A jury found Wilson guilty as

charged. Id. at 135.

¶ 54 On appeal, Wilson argued that, “because he denied any improper touching, his

intent was not at issue and the other-crimes evidence was therefore not admissible.”

Id. The Wilson court, in a split decision, noted that a charge of aggravated criminal

sexual abuse requires proof of the defendant’s specific intent of touching for sexual

gratification. Id. at 137. The court added:

“some courts hold that intent is automatically at issue for purposes of deciding

whether to admit other-crimes evidence, regardless of whether the defendant

has made intent an issue in the case. [Citations.] Other courts have taken the

opposite approach. See, e.g., State v. Lipka, 174 Vt. 377, 391-92, 817 A.2d 27,

39-40 (2002) (intent was not ‘genuinely in issue’ even though the sexual assault

charge at issue was a specific-intent crime; this was because no jury that

believed the sexual acts testified to by the victim could have believed that they

happened accidentally).” Id.

¶ 55 The Wilson court held that, even under the more restrictive line of cases (e.g.,

Bobo, 278 Ill. App. 3d at 132-33; State v. Lipka, 817 A.2d 27, 39-40 (Vt. 2002)),

the trial court properly admitted the evidence of other misconduct because Wilson

placed his intent in issue by presenting evidence and arguing that “he was a ‘touchy

feely type person,’ who often placed his hands on students.” Wilson, 214 Ill. 2d at

138. The Wilson court held that a defendant who denies that he committed a

criminal act puts his intent in issue if he advances an explanation for the

questionable conduct. Id.

¶ 56 Smart advanced no similar explanation for J.P.’s testimony that Smart touched

him inappropriately. To decide whether the trial court erred by admitting the

evidence of other acts of misconduct here, we must address the issue the Wilson

court left unresolved and the conflict between the decisions in Bobo and Davis.

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¶ 57 2. Cases That Hold Evidence of Other Acts of Misconduct

Inadmissible to Prove Intent Unless the Defendant Contests Intent

¶ 58 The Wilson court cited Bobo, 278 Ill. App. 3d at 132-33, as a case where the

court disallowed evidence of prior acts of misconduct to show intent because the

defendant had not contested intent. In Bobo, a student testified during a jury trial

that Bobo, a teacher, sexually abused her. Id. at 131. An investigator for the

Department of Children and Family Services testified that other students made

similar claims against Bobo. Id. at 132. The appellate court reversed Bobo’s

conviction, explaining:

“the State introduced evidence of other wrongful acts, allegedly committed by

defendant against several other female students ***. *** Admitting into

evidence separate acts of sexual misconduct with other students at other times

and places for the purposes of showing intent, guilty knowledge, accident, or

absence of mistake simply is unnecessary, as these factors are shown by

testimony concerning the act itself. [Citation.] The erroneous admission of such

evidence, being highly prejudicial in nature, calls for reversal.” Id. at 132-33.

¶ 59 The Iowa Supreme Court reasoned similarly in State v. Thoren, 970 N.W.2d

611 (Iowa 2022). The State charged Thoren, a massage therapist, with sexually

abusing L.R., one of his massage clients. Id. at 618-19. The trial court permitted

other clients to testify that Thoren sexually abused them. Id. at 618. The Iowa

Supreme Court reversed the conviction, reasoning:

“The State can offer evidence from Thoren’s former clients to prove intent

only if Thoren’s intent is a legitimate disputed issue the jury needs to decide.

***

***

*** [T]he elements of a charged offense do not automatically become

legitimate, disputed factual issues in a case. We have cautioned that [e]vidence

of an unconnected prior crime is always evidence of propensity and never

evidence of a specific intent to commit the crime charged. *** Where intent is

merely a formal issue derived from the elements of the offense, and is not being

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controverted, the argument for receiving [other acts] evidence falters.” (Internal

quotation marks omitted.) Id. at 628-30.

See Lipka, 817 A.2d at 39-40 (trial court improperly admitted evidence of prior

misconduct to show intent when the defendant did not contest intent); United States

v. Sumner, 119 F.3d 658 (8th Cir. 1997) (same); United States v. Colon, 880 F.2d

650, 659-61 (2d Cir. 1989) (same); State v. Wells, 221 P.3d 561, 571 (Kan. 2009)

(trial court should have barred prosecutor from referring to prior convictions in

opening statement when defendant offered to remove issue of intent from case).

¶ 60 The aforementioned cases accord with the reasoning of Edward J.

Imwinkelried, who argued that, in deciding whether to admit evidence of other

misconduct, the court should focus on the inference the trier of fact must draw to

find that the evidence increases the probability that the accused committed the

offense at issue. Edward J. Imwinkelried, The Use of Evidence of an Accused’s

Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to

Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575, 580-84 (1990).

He contended that, when the prosecution uses a prior similar offense to prove intent,

the prosecution relies on an inference that the defendant “probably harbor[ed] the

same intent at the time of the charged offense,” violating the prohibition on

propensity evidence. (Internal quotation marks omitted.) Id. at 579.

¶ 61 3. Cases That Hold Evidence of Other Acts of Misconduct

Admissible to Prove Intent Regardless of

Whether the Defendant Contests Intent

¶ 62 The Illinois Appellate Court in Davis, 2019 IL App (1st) 160408, ¶¶ 60-63,

disagreed with Bobo. The State, in a prosecution for possession of cocaine,

introduced evidence that Davis also possessed several guns. Id. ¶ 57. The State

contended, “ ‘the combination of the guns and the drugs *** demonstrate[s]

Defendant’s intent in this case.’ ” Id. Davis pointed out that he had never contested

intent. Id. The appellate court held that “evidence of other crimes can be used to

prove intent, even if intent is not put expressly at issue because the burden remains

on the prosecution to prove intent beyond a reasonable doubt regardless of whether

the defendant disputes it.” Id. ¶ 62. The court added that, if courts adopted the

reasoning of cases like Bobo, “a defendant could deprive the State of its right to

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introduce relevant, competent evidence simply by staying silent about certain

elements of the offense for which he or she has been charged. That is out of step

with the high burden placed on the State in a criminal prosecution.” Id. ¶ 63.

¶ 63 The United States Court of Appeals for the Ninth Circuit also approved a

decision to admit evidence of prior acts of misconduct to prove intent even though

the defendant did not contest intent. In United States v. Hadley, 918 F.2d 848, 851

(9th Cir. 1990) (quoting 18 U.S.C. § 2245(3) (1988)), the prosecution charged

Hadley with abusive sexual contact, and to prove the charge, the prosecution

needed to prove that Hadley acted “ ‘with an intent to abuse, humiliate, harass,

degrade, or arouse or gratify the sexual desire of any person.’ ” The trial court

permitted the prosecution to present evidence of similar misconduct to prove his

specific intent. Hadley argued the court should not have admitted the evidence

because Hadley flatly denied that he made any contact with the alleged victim and

he “offered not to argue the issue of intent.” Id.

¶ 64 The Hadley court said:

“The government must prove every element of a crime beyond a reasonable

doubt. [Citation.] This burden is not relieved by a defendant’s promise to forgo

argument on an issue. [Citation.] Hadley cannot preclude the government from

proving intent simply by focusing his defense on other elements of his crime.

Hadley’s choice of defense did not relieve the government of its burden of proof

and should not prevent the government from meeting this burden by an

otherwise acceptable means.” Id. at 852.

See United States v. Monzon, 869 F.2d 338, 344 (7th Cir. 1989) (“In cases involving

specific intent crimes, intent is automatically in issue, regardless of whether the

Defendant has made intent an issue in the case.”); United States v. Johnson, 27 F.3d

1186, 1192 (6th Cir. 1994) (the State may use other crimes evidence to prove intent

even where the defendant does not contest intent); State v. Davidson, 2000 WI 91,

¶ 65, 236 Wis. 2d 537, 613 N.W.2d 606 (same); Henderson v. State, 900 S.E.2d

596, 600-01 (Ga. 2024) (same).

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¶ 65 4. Balancing the Competing Concerns

¶ 66 In the conflicting decisions, the courts have focused on competing concerns: on

the one hand, the State has the burden of proving intent for specific-intent crimes,

and the choice of defenses should not determine presentation of the State’s case; on

the other hand, other crimes evidence usually has unfair prejudicial effect and little

probative value when the defendant does not contest intent. We find that the United

States Court of Appeals for the Seventh Circuit persuasively addressed these

competing concerns in United States v. Gomez, 763 F.3d 845 (7th Cir. 2014). The

prosecution charged Gomez with selling cocaine. Id. at 850. The evidence showed

that numerous sales occurred in the home Gomez shared with his brother. To prove

that Gomez, rather than his brother, sold the cocaine, the prosecution presented

evidence that Gomez had some cocaine in his bedroom. The jury found Gomez

guilty. Id.

¶ 67 The court of appeals delineated the rules for proving intent for a charged offense

by presenting evidence of other misconduct. Id. at 852. First, the trial court must

determine whether the evidence is relevant for a purpose other than showing

propensity. Id. at 855-56. Under Rule 404 of the Federal Rules of Evidence, as

under the Illinois Rules of Evidence, the permissible purposes include, but are not

limited to, “proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(1); see Ill.

R. Evid. 404(b) (eff. Jan. 1, 2011).

¶ 68 Second, the court must determine how the evidence advances the stated

purpose.

“[I]t’s not enough for the proponent of the other-act evidence simply to point

to a purpose in the ‘permitted’ list and assert that the other-act evidence is

relevant to it. *** [T]he rule allows the use of other-act evidence only when its

admission is supported by some propensity-free chain of reasoning.” Gomez,

763 F.3d at 856.

¶ 69 The court explained:

“When one looks beyond the purposes for which the evidence is being offered

and considers what inferences the jury is being asked to draw from that

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evidence, and by what chain of logic, it will sometimes become clear *** that

despite the label, the jury is essentially being asked to rely on the evidence as

proof of the defendant’s propensity to commit the charged offense.” (Internal

quotation marks omitted.) Id.

“This is not to say that other-act evidence must be excluded whenever a propensity

inference can be drawn; rather, Rule 404(b) excludes the evidence if its relevance

to ‘another purpose’ is established only through the forbidden propensity

inference.” (Emphasis in original.) Id.

¶ 70 Third, once the trial court determines that the evidence is relevant without

relying on a propensity inference, the trial court must determine whether the danger

of unfair prejudice substantially outweighs the probative value of the evidence. Id.

at 856-57; see Ill. R. Evid. 403 (eff. Jan. 1, 2011). In balancing the probative value

of the evidence against its prejudicial effect, “the degree to which the non-

propensity issue actually is disputed in the case will affect the probative value of

the other-act evidence.” Gomez, 763 F.3d at 857; see United States v. Kinchen, 729

F.3d 466, 473 (5th Cir. 2013) (“The prejudicial effect of extrinsic evidence

substantially outweighs its probative value when the relevant exception, i.e.

[intent], is uncontested, because the incremental probative value of the extrinsic

offense is inconsequential when compared to its prejudice.”).

¶ 71 The Gomez court summarized the applicable rule:

“when intent is ‘at issue’—in cases involving specific-intent crimes or because

the defendant makes it an issue in a case involving a general-intent crime—

other-act evidence may be admissible to prove intent, but it must be relevant

without relying on a propensity inference, and its probative value must not be

substantially outweighed by the risk of unfair prejudice. And again, the degree

to which the non-propensity issue actually is contested may have a bearing on

the probative value of the other-act evidence.” (Emphasis omitted.) Gomez, 763

F.3d at 859.

¶ 72 We apply the reasoning of Gomez to our interpretation of Rule 404 and hold

that propensity evidence—“[e]vidence of other crimes, wrongs, or acts *** to prove

the character of a person in order to show action in conformity therewith”—is not

admissible unless it qualifies under the specific exceptions allowing for propensity

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evidence in the limited circumstances “as provided by sections 115-7.3, 115-7.4,

and 115-20 of the Code of Criminal Procedure (725 ILCS 5/115-7.3, 725 ILCS

5/115-7.4, and 725 ILCS 5/115-20).” Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). The

trial court may admit evidence of other crimes, wrongs, or acts of misconduct to

prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident” (id.), but the evidence “must be relevant without

relying on a propensity inference” (Gomez, 763 F.3d at 859). The reasoning of

Gomez reflects Rule 404 and its express limitation that “[e]vidence of a person’s

character or a trait of character is not admissible for the purpose of proving action

in conformity therewith on a particular occasion, except *** as provided by sections

115-7.3, 115-7.4, and 115-20.” Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). If the State

shows the evidence relevant without relying on a propensity inference, the court,

applying Rule 403 (Ill. R. Evid. 403 (eff. Jan. 1, 2011)), must determine whether

the prejudicial effect of the evidence substantially outweighs its probative value.

¶ 73 D. Application of Rule 404 to the Case Against Smart

¶ 74 1. Use of Other Acts of Misconduct in Rebuttal of Character Evidence

¶ 75 We begin our application of Rule 404 by noting that the State did not introduce

any evidence of Smart’s other acts of misconduct in its case-in-chief. Prosecutors

first mentioned the acts of misconduct in their cross-examination of Muzikowski

after Smart called Muzikowski as a witness, and Muzikowski testified, to prove

Smart’s good character, that he had a good reputation for chastity and morality. The

State asked Muzikowski whether he knew why Smart stopped working for Sterling

College. On cross-examination of both Frank Smart and Smart, the State suggested

that Sterling College reprimanded Smart for his alleged prior acts of misconduct

with a boy.

¶ 76 Illinois courts do not allow prosecutors to use particular acts of misconduct to

rebut evidence of good character or to cross-examine defense character witnesses.

See Ill. R. Evid. 405, Comment (eff. Jan. 1, 2011) (“Specific instances of a person’s

conduct as proof of a person’s character *** are not generally admissible as proof

that the person acted in conformity therewith.”); People v. Anderson, 337 Ill. 310,

332 (1929) (“On cross-examination or in rebuttal of proof of good character

particular acts of misconduct may not be shown.”); People v. Patterson, 154 Ill. 2d

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414, 464 (1992) (“specific prior acts are not admissible to show another person’s

character as evidence of his conduct on a particular occasion”); Michael H.

Graham, Cleary and Graham’s Handbook of Illinois Evidence § 405.1, at 282 (10th

ed. 2011) (“Specific instances of relevant conduct of the person whose character

has been testified to may not be brought out on either direct [citation] or cross-

examination of the character witness or on rebuttal.”).

¶ 77 However, Smart forfeited the issue. Defense counsel did not object to the

State’s questions, during the cross-examinations of Muzikowski, Frank Smart, or

Smart, on the basis of improper examination concerning specific acts of

misconduct. See Ill. R. Evid. 103(a)(1) (eff. Oct. 15, 2015) (“Error may not be

predicated upon a ruling which admits or excludes evidence unless a substantial

right of the party is affected, and *** a timely objection or motion to strike appears

of record, stating the specific ground of objection ***.”); People v. Brand, 2021 IL

125945, ¶ 32 (“ ‘defendant must both specifically object at trial and raise the

specific issue again in a posttrial motion to preserve any alleged error for review’ ”

(quoting People v. Woods, 214 Ill. 2d 455, 470 (2005))). Because defense counsel

failed to object to the questions about specific acts of misconduct or raise the issue

in a posttrial motion, the trial court had no opportunity to consider the reference to

Smart’s alleged specific acts of misconduct, and therefore he forfeited the issue.

See Jackson, 2022 IL 127256, ¶ 15 (failure to object at trial and in a posttrial motion

forfeits the issue because the “failure *** deprives the circuit court of an

opportunity to correct the error, thereby wasting time and judicial resources”).

¶ 78 Plain errors or defects affecting substantial rights may be noticed, although they

were not brought to the attention of the trial court. Ill. S. Ct. R. 615(a) (eff. Jan. 1,

1967); People v. Smith, 2019 IL 123901, ¶ 14; People v. McNeal, 175 Ill. 2d 335,

364 (1997). But Smart has not asked this court to address as plain error the forfeited

issue of whether the trial court should have barred the prosecution from cross-

examining Muzikowski, Frank Smart, and Smart about specific acts of alleged

misconduct. Thus, Smart has forfeited the issue of whether the prosecutor

improperly referred to specific acts of misconduct on cross-examination of defense

witnesses. People v. Mudd, 2022 IL 126830, ¶ 21; Brand, 2021 IL 125945, ¶ 32.

Accordingly, we find no reversible error in the trial court’s rulings on the cross-

examination of defense witnesses, and we find no reversible error in the court’s

decisions permitting the use of evidence of other misconduct to rebut Smart’s proof

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of his good character.

¶ 79 2. Use of Other Acts of Misconduct to Prove Intent

¶ 80 a. The Code of Criminal Procedure of 1963 Permits Evidence of

Specific Prior Acts to Show Propensity in Limited Circumstances

¶ 81 The State introduced evidence of two of Smart’s prior acts of misconduct by

way of stipulation and used the evidence in closing argument to support an

inference that Smart knowingly touched J.P. “for the purpose of sexual

gratification.” See 720 ILCS 5/11-1.60(d) (West 2018); id. § 11-0.1 (definition of

“sexual conduct”). The State may use prior acts of misconduct as propensity

evidence for proof of aggravated criminal sexual abuse under certain limited

circumstances. See 725 ILCS 5/115-7.3 (West 2018); Donoho, 204 Ill. 2d at 176

(“the legislature enacted section 115-7.3 to enable courts to admit evidence of other

crimes to show defendant’s propensity to commit sex offenses if the requirements

of section 115-7.3 are met”); People v. Ward, 2011 IL 108690, ¶ 25 (“[O]ur

legislature has chosen to provide a limited exception to this general rule of

inadmissibility for other-crimes evidence intended to show the defendant’s

propensity to commit crimes. If a defendant is tried on one of the enumerated sex

offenses, section 115-7.3(b) of the Code [citation] allows the State to introduce

evidence that the defendant also committed another of the specified sex offenses.”).

¶ 82 The Code of Criminal Procedure of 1963 permits only the evidence of prior

enumerated crimes to prove certain specified sexual offenses and limits the

admissible evidence to proof of

“predatory criminal sexual assault of a child, aggravated criminal sexual

assault, criminal sexual assault, aggravated criminal sexual abuse, criminal

sexual abuse, child pornography, aggravated child pornography, criminal

transmission of HIV, or child abduction[;] ***

*** battery, aggravated battery, first degree murder, or second degree

murder when the commission of the offense involves sexual penetration or

sexual conduct[;] ***

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*** rape, deviate sexual assault, indecent liberties with a child, or

aggravated indecent liberties with a child.” 725 ILCS 5/115-7.3(a)(1), (2), (3)

(West 2018).

See id. § 115-7.3(b).

¶ 83 b. The Trial Court Erred by Admitting Propensity Evidence

in the Case Against Smart

¶ 84 The State admits that the evidence here does not show that Smart committed

any of the crimes listed in section 115-7.3 (id. § 115-7.3), and therefore the

evidence here does not meet the strict statutory criteria for use of the prior

misconduct as propensity evidence. The State asked the court to infer that on July

25, 2018, Smart intended to touch J.P. for the purpose of sexual gratification, based

on evidence that on June 18, 2018, Smart touched a different boy’s buttocks. The

State has not explained how the parties’ stipulation that Smart touched a boy’s

buttocks in June 2018 supports an inference that Smart, on July 25, 2018, intended

his acts with J.P. to produce sexual gratification without relying on an inference of

a propensity to sexually molest teenage boys.

¶ 85 Under Rule 404, the trial court should have excluded the stipulation to facts

about the June 2018 incident as propensity evidence. See Gomez, 763 F.3d at 856.

Assuming the evidence of touching the boy’s buttocks had some relevance to

showing Smart’s intent for the specific-intent crime of aggravated criminal sexual

abuse, the State did not show the evidence admissible, at the second step in the

analysis under Rule 404, because it relies on an inference that Smart had a

propensity for molesting teenage boys and it does not meet the requirements for the

permission granted in section 115-7.3 for the use of prior misconduct to prove

propensity. See id. Therefore, we do not reach the issue, at the third step of the

analysis, of whether the probative value of the evidence outweighs its prejudicial

effect. See (Ill. R. Evid. 403 (eff. Jan. 1, 2011)); Gomez, 763 F.3d at 857.

Accordingly, we hold that the trial court erred by permitting the State to introduce

evidence that Smart slapped the buttocks of another boy at Breakthrough, because

the State relied on a propensity inference to establish its relevance to the criminal

sexual abuse charges against Smart.

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¶ 86 E. Does the Circuit Court’s Evidentiary Ruling Require Reversal?

¶ 87 Our inquiry does not end with our finding of error in the trial court’s decision

to permit the State to present propensity evidence. An error in the admission of

evidence of other misconduct warrants reversal “only if the evidence was a material

factor in the defendant’s conviction such that, without the evidence, the verdict

likely would have been different.” (Internal quotation marks omitted.) People v.

Adkins, 239 Ill. 2d 1, 23 (2010); People v. Hall, 194 Ill. 2d 305, 339 (2000). Here,

the appellate court made a finding that the trial court’s errors required reversal

because the appellate court could not find beyond a reasonable doubt that the

evidence did not affect the trial court’s decision. 2023 IL App (1st) 220427, ¶¶ 36-

37. We find that the appellate court applied the standard appropriate for review of

constitutional errors, rather than the standard applicable here, for review of

evidentiary errors.

¶ 88 1. The Standard for Finding Harmless Error

¶ 89 The appellate court, quoting People v. Quintero, 394 Ill. App. 3d 716, 728

(2009), asserted, “ ‘The State bears the burden of persuasion to prove beyond a

reasonable doubt that the result would have been the same without the error.’ ”

2023 IL App (1st) 220427, ¶ 36. The standard for review of trial court errors stated

in Quintero derives (through People v. Herron, 215 Ill. 2d 167 (2005), and People

v. Thurow, 203 Ill. 2d 352, 363 (2003)) from Chapman v. California, 386 U.S. 18,

24 (1967), where the United States Supreme Court said that, “before a federal

constitutional error can be held harmless, the court must be able to declare a belief

that it was harmless beyond a reasonable doubt.”

¶ 90 In In re E.H., 224 Ill. 2d at 180, this court explained that the reasonable doubt

standard applied to constitutional errors but that “evidentiary error is harmless

where there is no reasonable probability that the [trier of fact] would have acquitted

the defendant absent the error” (emphasis in original and internal quotation marks

omitted). See People v. Heineman, 2023 IL 127854, ¶ 95 (“evidentiary error is

harmless where there is no reasonable probability that the jury would have acquitted

the defendant absent the error” (internal quotation marks omitted)). The rule of

evidence barring use of other acts of misconduct to prove propensity is “not of

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constitutional dimension.” People v. Chapman, 2012 IL 111896, ¶ 32; see Dabbs,

239 Ill. 2d at 293.

¶ 91 We find that the appellate court applied the standard for constitutional error,

inapplicable here to the trial court’s evidentiary error, when it required the State to

prove beyond a reasonable doubt that the erroneous admission of other misconduct

evidence had no effect on the result. 2023 IL App (1st) 220427, ¶ 36.

¶ 92 2. Evidentiary Errors in Bench Trials

¶ 93 Next, we must determine whether the trial court’s error in the admission of

evidence of other misconduct requires reversal of Smart’s convictions. Applying

the correct standard, we address the issue of whether we find a reasonable

probability that the trial court would have acquitted Smart if the court had excluded

the propensity evidence. See In re E.H., 224 Ill. 2d at 180-81; Heineman, 2023 IL

127854, ¶ 95.

¶ 94 “[W]hen a trial court is the trier of fact a reviewing court presumes that the trial

court considered only admissible evidence and disregarded inadmissible evidence

in reaching its conclusion.” People v. Naylor, 229 Ill. 2d 584, 603 (2008). The

presumption “ ‘may be rebutted where the record affirmatively shows the

contrary.’ ” Id. at 603-04 (quoting People v. Gilbert, 68 Ill. 2d 252, 258-59 (1977)).

We find no such affirmative showing on the record here.

¶ 95 Cases from other jurisdictions in similar circumstances—where the trial court

erroneously allowed evidence of other misconduct—found that the records in those

cases did not overcome the presumption that the trial court relied on only admissible

evidence. In Cox v. State, 2020 WY 147, ¶ 3, 477 P.3d 82, M.F., 14 years old, slept

overnight at the home of her friend, M.M. After M.F. reported an incident with

M.M.’s 26-year-old brother, Cox (id. ¶¶ 3-6), prosecutors charged Cox with sexual

abuse of a minor (id. ¶ 8). At the bench trial, M.F. testified that Cox asked her to

perform oral sex on him and that she did so. Id. ¶ 9. The court permitted M.F. to

testify that sometime before the oral sex incident, M.F. wrestled with Cox and that

Cox put his finger in her vagina. Id. ¶ 12. Cox admitted he wrestled with M.F., but

he testified he did not put his finger in her vagina, he never asked her for oral sex,

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and she never performed oral sex on him. Id. ¶¶ 11-12. The trial court found Cox

guilty of sexual abuse of a minor. Id. ¶ 13.

¶ 96 On appeal, the Supreme Court of Wyoming found the trial court erred by

permitting prosecutors to present evidence about the wrestling encounter because

the prosecution failed to disclose the evidence before trial. Id. ¶¶ 20-21. The Cox

court said:

“Mr. Cox’s case was tried as a bench trial. The concerns raised by admission

of other misconduct evidence are less critical in a bench trial than in a trial to a

jury. *** [A] trial judge is learned in the law and understands the need to convict

a defendant of the charged crime rather than on the basis of a general belief the

defendant has a criminally-oriented disposition. [Citation.]

The district court made detailed findings in support of its verdict with no

mention of the wrestling incident[.] ***

[M.F.] testified that Mr. Cox had her perform oral sex, and the district court

found this testimony credible. *** We find no reasonable probability that the

verdict against Mr. Cox would have been more favorable had the wrestling

incident evidence not been admitted.” (Internal quotation marks omitted.) Id.

¶¶ 23-25.

¶ 97 The United States Court of Appeals for the Seventh Circuit reasoned similarly

in United States v. Menk, 406 F.2d 124 (7th Cir. 1969). The prosecution charged

Menk with selling amphetamine. Id. at 125. The prosecution’s key witness testified

that Menk told him about Menk’s prior involvement in other drug offenses,

prostitution, dealing in stolen goods, and attacking excise men. Id. The Menk court

found the admission into evidence of the testimony about other crimes constituted

error. Id. at 126. The court said:

“However, since this was a bench trial and since it appears from the record that

the trial judge did not consider the erroneously admitted evidence in reaching

his findings of fact, we hold that the error does not justify reversal.

***

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*** [T]he only evidence used to determine this issue was that adduced from

the testimony of the defendants themselves. The District Court, in its Findings

of Fact, analyzes the defendant’s testimony in detail and comes to the

conclusion that appellant’s word could not be believed, regarding the offenses

charged, over that of the government agent.” Id.

¶ 98 In Birmingham v. State, 279 N.W. 15, 16 (Wis. 1938), the trial court found

Birmingham guilty of “carnal knowledge and abuse” of a girl not yet 18 years old.

The appellate court agreed with Birmingham that the court erred “in admitting

evidence which tended to prove that the defendant on other occasions had

committed other criminal offenses and had been guilty of other grossly immoral

acts.” Id. at 16-17. The court emphasized: “Had this trial been to the court and a

jury we would not hesitate to reverse the judgment and to order a new trial.” Id. at

17.

¶ 99 The court affirmed the conviction despite the improper evidence, reasoning:

“The record reveals that the trial court was cognizant of the rule which renders

evidence of other crimes incompetent to prove a defendant guilty of a particular

crime charged, which crime is wholly disconnected from the other crimes

sought to be proved. *** The trial court several times admonished the attorneys

present to confine their questions to March 31, 1937, the date of the alleged

offense. The trial court was, no doubt, familiar with the established rule

applicable to the admission of incompetent evidence when a trial is had to the

court alone. The knowledge of that rule may have been responsible for the

failure of the court promptly to exclude such incompetent testimony. The rule

which this court applies in reviewing a finding of a trial court, in either a civil

or a criminal case, tried to the court, is that it is presumed that improper

evidence taken under objection was given no weight in reaching the final

conclusion unless the contrary appears.” Id.

¶ 100 In accord with Naylor, Cox, Menk, and Birmingham, we hold that the trial

court’s erroneous admission of other misconduct evidence during Smart’s bench

trial does not justify reversal unless the record supports an inference the trial court

relied on the inadmissible evidence.

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¶ 101 3. Does the Trial Court’s Ruling on the Pretrial Motion

Show It Relied on Inadmissible Evidence?

¶ 102 The appellate court here reasoned that, “[w]here an objection has been made to

the evidence and overruled, it cannot be presumed that the evidence did not enter

into the court’s consideration. The ruling itself indicates that the court thought the

evidence proper.” (Internal quotation marks omitted.) 2023 IL App (1st) 220427,

¶ 37 (citing People v. Hampton, 96 Ill. App. 3d 728, 731 (1981)). The dissent adopts

this reasoning and also cites Naylor in support. Infra ¶ 115. In Hampton and Naylor

the trial court heard the evidence before determining its admissibility. We find

Hampton and Naylor distinguishable because the trial court here heard no testimony

on the State’s pretrial motion for permission to use evidence of other misconduct.

The trial court based its ruling solely on the proffer of the evidence the State would

introduce, and the evidence eventually introduced did not match the proffer. The

trial court held that two of the incidents the State described had insufficient

relevance because the proffer did not show sexual conduct. The court permitted the

State to put in evidence about the third incident because “a hand to the buttocks

could be perceived as sexual behavior.” At the trial, the court accepted the parties’

stipulation to evidence of two acts of misconduct that led Breakthrough to discharge

Smart.

¶ 103 The State did not present any evidence of other acts of misconduct in its case-

in-chief. The prosecutor first suggested other acts of misconduct in the questions

asked on cross-examination of defense witnesses, questions that implied the State

had evidence of sexual misconduct. But the State never introduced any evidence of

prior sexual misconduct: there was no evidence of prior predatory criminal sexual

assault of a child, no evidence of criminal sexual assault, no evidence of criminal

sexual abuse, and no evidence of any of the other offenses listed in section 115-7.3.

See 725 ILCS 5/115-7.3 (West 2018). The State presented only the stipulation that

Breakthrough dismissed Smart because (1) he violated protocol when he tried to

take a boy, alone, into the prayer room and (2) he violated protocol when he drove

a boy home alone without notifying his supervisor and he then made inappropriate

physical contact with the boy. The State did not rebut Smart’s testimony that the

only contact with the other boy was a slap on the buttocks, which led to the

discharge only because the boy posted on social media, “coach slapped my butt,”

and a parent thought the contact improper.

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¶ 104 The judge, in ruling on the pretrial motions, explicitly recognized that, without

proof of conduct of a specifically sexual nature with teenage boys, the prior alleged

misconduct was not relevant to this case. The stipulation here does not show that

Smart engaged in the prior conduct for the purpose of sexual gratification. The

judge also did not refer to the evidence of other misconduct at all in her summary

of the evidence supporting the convictions. See Cox, 2020 WY 147, ¶¶ 23-25;

Menk, 406 F.2d at 125-27.

¶ 105 F. The Dissent

¶ 106 The dissent maintains that the record fails to establish (1) that Smart’s

inadmissible acts of misconduct were not a material factor in the trial judge’s

decision to convict and (2) that the trial judge’s decisions—(a) granting the State’s

pretrial motion in limine admitting one of Smart’s acts of misconduct and

(b) denying Smart’s posttrial motion objecting to the trial court’s erroneous

admission of Smart’s acts of misconduct during the trial—rebut the presumption

that the trial court only considers admissible evidence when it makes a decision.

Infra ¶ 121. The trial judge’s explicit recognition that only prior sexual misconduct

would be relevant and its summary of the evidence, making no reference to the

prior misconduct, establish that Smart’s acts of misconduct were not a material

factor in the court’s decision. The evidence here does not overcome the

presumption that the court considered only the admissible evidence of Smart’s

conduct with J.P. See Naylor, 229 Ill. 2d at 603. The trial court considered J.P.’s

testimony and Smart’s testimony and concluded that J.P. was the more credible

witness. We find nothing in the record to support a conclusion that the trial court

relied on the inadmissible evidence, and we find no reasonable probability that the

improperly admitted evidence affected Smart’s convictions. Therefore, we hold the

trial court’s error does not justify reversal.

¶ 107 III. CONCLUSION

¶ 108 In sum, we hold that the trial court may admit evidence of other acts of

misconduct to prove the defendant’s intent if the State shows either (1) the

relevance of the evidence does not depend on a propensity inference or (2) the

evidence meets the specific requirements for admissibility of evidence to show

propensity under Rule 404. Ill. R. Evid. 404 (eff. Jan. 1, 2011). If the State shows

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that intent is at issue and the proffered evidence does not depend on a propensity

inference or it meets the requirement for propensity evidence, the State must also

show that the risk of unfair prejudice does not substantially outweigh the probative

value of the evidence. Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 109 The State put intent at issue by charging Smart with a specific-intent offense,

and Smart’s decision not to contest intent does not negate the State’s need to prove

intent as an element of the offense. However, the evidence proffered here (that

Smart touched another boy’s buttocks) depends on a propensity inference—that

because Smart inappropriately touched one boy, he likely intended his conduct with

J.P. to produce sexual gratification—for its relevance to the charged offense.

Because the State did not show the evidence fell within the specific exception in

Rule 404 for propensity evidence, the trial court should have excluded it. We do

not reach the issue of whether the unfair prejudice from the evidence outweighed

its probative value, and therefore Smart’s decision not to contest intent has no

bearing on the result here.

¶ 110 Next, we find the trial court’s error in admitting the propensity evidence does

not require reversal because the State has met its burden of showing there was no

reasonable probability that Smart would have achieved a better result without the

error. We also find that the trial court did not commit reversible error when it

permitted the prosecutor to cross-examine defense witnesses about their knowledge

of the circumstances under which Smart left some of his jobs, because the evidence

rebutted Smart’s evidence of his good character and Smart forfeited his claim that

the trial court erred by permitting the State to use specific acts of misconduct to

rebut his character evidence.

¶ 111 Accordingly, we reverse the appellate court’s judgment and remand for the

appellate court to consider the arguments it did not address in the initial appeal.

¶ 112 Appellate court judgment reversed; cause remanded.

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¶ 113 JUSTICE O’BRIEN, dissenting:

¶ 114 I agree with the majority that the circuit court erred in admitting evidence of

defendant’s prior uncharged act of misconduct (slapping the buttocks of another

boy at Breakthrough) to prove defendant intended his contact with the victim in this

case (J.P.) to produce sexual gratification. The evidence did not meet the criteria

for admission as propensity evidence under section 115-7.3 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/115-7.3 (West 2018)). See supra ¶ 84. I also agree

that Illinois Rule of Evidence 404 (eff. Jan. 1, 2011) did not permit the admission

of the evidence to prove defendant’s intent because the State failed to explain how

the evidence supported an inference that defendant “intended his acts with J.P. to

produce sexual gratification without relying on an [impermissible] inference of a

propensity to sexually molest teenage boys.” Supra ¶ 84.

¶ 115 Despite the erroneous admission of this evidence, the majority affirms

defendant’s convictions, holding the error harmless. Supra ¶ 105. In doing so, the

majority correctly acknowledges that reversal based on such an error is required

“ ‘only if the evidence was a material factor in the defendant’s conviction such that,

without the evidence, the verdict likely would have been different.’ ” Supra ¶ 87

(quoting People v. Adkins, 239 Ill. 2d 1, 23 (2010)). However, the majority fails to

apply this substantive test and instead chooses to focus on the arbitrary fact that this

case involved a bench trial rather than a jury trial. Supra ¶ 94. Reasoning that we

must presume a trial court only considers evidence that is relevant and disregards

inadmissible evidence, the majority postulates that the trial court here must have

ignored the prejudicial propensity evidence, despite the court’s explicit decision to

allow the evidence at trial over defendant’s objection and subsequent posttrial

motion challenging the admission. I dissent from this specific finding and would

instead reverse defendant’s convictions and remand the matter for a new trial as

provided in People v. Naylor, 229 Ill. 2d 584 (2008).

¶ 116 The majority relies on several foreign jurisdiction decisions (Cox v. State, 2020

WY 147, 477 P.3d 82; State v. Mahogany, 07-360, p. 11 (La. App. 5 Cir. 10/30/07);

970 So. 2d 1150, 1157; United States v. Menk, 406 F.2d 124 (7th Cir. 1968);

Birmingham v. State, 279 N.W. 15 (Wis. 1938)) (see supra ¶¶ 95-99) to conclude

“the trial court’s erroneous admission of other misconduct evidence during Smart’s

bench trial does not justify reversal unless the record supports an inference the trial

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court relied on the inadmissible evidence” (supra ¶ 100). In so holding, the majority

distinguishes precedent from this court (Naylor, 229 Ill. 2d 584). I disagree and

believe Naylor is directly on point. Because I believe Naylor is controlling, I hold

that the majority’s cited decisions should not factor into our analysis. See Bayer v.

Panduit Corp., 2016 IL 119553, ¶ 35 (finding no need to explore decisions from

foreign jurisdictions where there is Illinois precedent on point).

¶ 117 In Naylor a dispute arose over whether the defendant’s prior conviction for

aggravated battery could be admitted for the purpose of impeaching defendant’s

credibility. Naylor, 229 Ill. 2d at 591. Over the defendant’s objection, the trial court

admitted the evidence, finding the conviction occurred within the required 10-year

period. Id. The trial court found the defendant guilty. Id. On appeal to this court,

we determined the trial court erred by admitting the evidence, specifically finding

the evidence of the defendant’s prior conviction barred by the 10-year rule. Id. at

598.

¶ 118 We then considered whether the error was reversible. Id. at 602. We recognized

the general principle that the trier of fact in a bench trial is presumed to disregard

improperly admitted evidence. Id. at 603. However, we noted that the presumption

is rebutted when an objection is made and the trial court erroneously admits the

evidence. Id. We reasoned, “ ‘ “[w]here an objection has been made to the evidence

and overruled, it cannot be presumed that the evidence did not enter into the court’s

consideration. The ruling itself indicates that the court thought the evidence

proper.” ’ ” Id. at 605 (quoting People v. Hampton, 96 Ill. App. 3d 728, 731 (1981),

quoting People v. De Groot, 108 Ill. App. 2d 1, 11 (1968)). We therefore held “the

trial court improperly considered this incompetent evidence and, consequently,

committed reversible error.” Id. Put more plainly, the holding in Naylor illustrates

the reality that, once the trial court actively allows a skunk into the evidentiary

equation, we cannot simply presume that the trial court ignores the smell. See

generally Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962).

¶ 119 Like the record in Naylor, the record before us rebuts the general principle that

the trial court in a bench trial is presumed to disregard improperly admitted

evidence. Naylor, 229 Ill. 2d at 603. The only factual difference between Naylor

and the instant case is that the defendant in Naylor failed to preserve the issue. See

id. at 591. Even though the defendant in Naylor made an objection, the defendant

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never included the issue in his posttrial motion. Id. Therefore, Naylor went on to

examine whether the evidence was closely balanced under the first prong of the

plain error doctrine. Id. at 605-06. Finding the evidence closely balanced, this court

reversed and remanded for a new trial. Id. 609-10.

¶ 120 Here, the issue regarding the trial court’s erroneous admission of improper

evidence is preserved, as defendant objected at trial and subsequently filed a

posttrial motion challenging the court’s admission of such evidence. Thus, the

record before us acts to rebut the presumption that the trial court disregarded

improper evidence even more so than the record in Naylor. With the trial court

having initially admitted the improper evidence over defendant’s objection and then

proceeding to erroneously deny defendant’s posttrial motion on the matter, we can

only conclude that the trial court believed the inadmissible evidence could properly

be considered when determining defendant’s guilt.

¶ 121 To be clear, a trial court’s erroneous admission of improper evidence in a bench

trial may not always constitute reversible error if, for example, the trial court

expressly states that it was not affected by the evidence or that it did not consider

the evidence. See, e.g., People v. Schmitt, 131 Ill. 2d 128, 137-38 (1989) (trial court

confronted with an incriminating statement by a codefendant in a separate but

simultaneous bench trial was presumed to have only considered admissible

evidence where trial court stated that it would not consider the inadmissible

statement against defendant); People v. Williams, 246 Ill. App. 3d 1025, 1034

(1993) (same); People v. Castillo, 2018 IL App (1st) 153147, ¶ 42 (same); People

v. Littleton, 2014 IL App (1st) 121950, ¶ 45 (presumption not rebutted where trial

court explicitly stated that it only considered the prior misconduct evidence for the

proper, limited purpose of establishing modus operandi). The record before us,

however, is devoid of any such statement by the trial court. Accordingly, I would

hold that when (1) the admission of improper evidence is allowed over defendant’s

objection, (2) the defendant’s posttrial motion challenging the admission of the

improper evidence is denied, and (3) the trial court fails to make a limiting

statement with respect to the improper evidence, a reviewing court cannot simply

presume that the improper evidence had no effect on the trial court’s judgment.

¶ 122 The majority’s strained attempt to excuse the trial court’s actions in this case

by distinguishing Naylor is unavailing. The majority finds it significant that the trial

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court based its pretrial motion ruling solely on the proffer of evidence the State

would introduce and that the stipulation then did not match the proffer. Supra ¶ 102.

In particular, the proffer alleged a specific act of sexual misconduct (touching a

boy’s buttocks), and the eventual stipulation at trial only generally showed that

defendant was dismissed by Breakthrough because defendant “touched [a

participant] inappropriately.” Because the trial court explicitly noted “that, without

proof of conduct of a specifically sexual nature with teenage boys, the prior alleged

misconduct was not relevant to this case,” the majority believes the trial court must

not have considered this evidence because the stipulation “does not show that

[defendant] engaged in the prior conduct for the purpose of sexual gratification.”

Supra ¶ 104. Such reasoning prompts the question: Why then did the trial court

allow the admission of this irrelevant stipulation into evidence? If the majority were

correct, then the trial court would have disallowed the admission of the stipulation.

That did not happen, however, because the trial court already determined the

evidence would be admitted as propensity evidence. It was this ruling that resulted

in the evidence being stipulated to. Since the trial court allowed the evidence to be

admitted as prior bad acts evidence, the only conclusion that can be drawn is that

the court considered the evidence that defendant “touched [a participant]

inappropriately” to be of sexual nature. Moreover, the record belies the majority’s

conclusion that the trial court determined the evidence irrelevant because the

stipulation did not include a specific allegation of sexual misconduct. Again, the

trial court allowed the evidence to be admitted because it involved contact that

“could be perceived as sexual behavior. *** So I am introducing that incident as

other crimes evidence.” The sole purpose of the stipulation was to serve as

propensity evidence that defendant previously touched a young boy

inappropriately. The only inference to be drawn from this evidence is the improper

inference that, because defendant previously touched a young boy inappropriately,

it is more likely than not that he committed the sexual acts alleged in this case. The

State repeated this theory in its closing argument by describing the encounter as

inappropriate behavior “[l]eveled upon children,” adding, “there is a pattern here.”

In light of this context, the record affirmatively rebuts the majority’s conclusion

that the trial court determined the admitted stipulation was irrelevant simply

because the stipulation only generally referenced inappropriate touching, rather

than a specific sexual act.

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¶ 123 My inquiry, however, does not end here. While I cannot presume that the

improper evidence had no effect on the trial court’s judgment convicting defendant

of the charged offenses, the question still remains whether defendant is entitled to

reversal of his convictions based on the trial court’s erroneous admission of the

improper evidence. Reversal based on such an error is required “ ‘only if the

evidence was a material factor in the defendant’s conviction such that, without the

evidence, the verdict likely would have been different.’ ” Supra ¶ 87 (quoting

People v. Adkins, 239 Ill. 2d 1, 23 (2010)); see People v. Hall, 194 Ill. 2d 305, 339

(2000); People v. Nieves, 193 Ill. 2d 513, 530 (2000); People v. Cortes, 181 Ill. 2d

249, 285 (1998); People v. Placek, 184 Ill. 2d 370, 385 (1998); People v. Manning,

182 Ill. 2d 193, 215 (1998).

¶ 124 Again, Naylor is directly on point. There, the “evidence boiled down to the

testimony of the two police officers against that of defendant.” Naylor, 229 Ill. 2d

at 608. We found the evidence closely balanced, noting “no additional evidence

was introduced to contradict or corroborate either version of events. Thus,

credibility was the only basis upon which defendant’s innocence or guilt could be

decided.” Id. (citing People v. Agee, 307 Ill. App. 3d 902, 906 (1999), and People

v. Gagliani, 210 Ill. App. 3d 617, 627 (1991)). The instant case requires the same

result.

¶ 125 I initially note that the State relied heavily on the improper evidence at trial to

establish defendant engaged in a “pattern” of sexual misconduct that ultimately

concluded with the charged acts against J.P. See People v. Lindgren, 79 Ill. 2d 129,

140 (1980) (explaining the highly prejudicial nature of prior bad acts evidence);

People v. Thingvold, 145 Ill. 2d 441, 452 (1991) (admission of highly prejudicial

other-crimes evidence substantially outweighed its probative value, necessitating

reversal); Placek, 184 Ill. 2d at 385 (reversing and remanding for a new trial in light

of the trial court’s admission of highly prejudicial other-crimes evidence);

Manning, 182 Ill. 2d at 213-14 (reversing and remanding for a new trial where the

highly prejudicial evidence of prior bad acts clearly outweighed its probative

value). I also note that only two of the witnesses that testified at trial know what

happened in defendant’s bedroom: defendant and J.P. Without physical evidence,

this case came down to a credibility contest between J.P. and defendant. The other

bad acts evidence, which the trial court erroneously admitted for the purpose of

showing defendant’s propensity to commit inappropriate sexual contact, made it

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easier to credit J.P.’s testimony rather than defendant’s testimony because it

suggested defendant had a propensity for molesting teenage boys. The error has

even more significance in this case because the trial court did have issues with J.P.’s

credibility. While it found J.P. credible with respect to two of the charges, it did not

find him credible regarding the third charge and found defendant not guilty of count

III. Given the trial court had some hesitation regarding J.P.’s credibility, I would

hold that there is a reasonable probability defendant would have been acquitted

absent the admission of the prior misconduct evidence. See Lindgren, 79 Ill. 2d at

140; Placek, 184 Ill. 2d at 385; Manning, 182 Ill. 2d at 213-14; Naylor, 229 Ill. 2d

at 610.

¶ 126 In sum, the majority opinion not only violates the precedent set out in Naylor,

but it also fails to appreciate the serious nature of the error that occurred in this

case. Again, the erroneous admission of propensity evidence carries a high risk of

prejudice. This court has not hesitated to reverse convictions based on this type of

error. See, e.g., Lindgren, 79 Ill. 2d 129 at 140; Thingvold, 145 Ill. 2d at 452;

Placek, 184 Ill. 2d at 385; Manning, 182 Ill. 2d at 213-14; Naylor, 229 Ill. 2d at

610. The reason for this is simple: this type of evidence carries the risk that a trier

of fact will convict a defendant merely because it believes the defendant is a bad

person who deserves punishment. Placek, 184 Ill. 2d at 385. “The law distrusts the

inference that because a man has committed other crimes he is more likely to have

committed the current crime. And so, as a matter of policy, where the testimony

has no value beyond that inference, it is excluded.” People v. Lehman, 5 Ill. 2d 337,

342 (1955). As this court has previously explained, this type of error involves a

“matter of the integrity of the [judicial] system.” Lindgren, 79 Ill. 2d at 143. A

defendant’s right to a trial by an unbiased trier of fact is violated where the trier of

fact based its decision “on extraneous matters.” Id. “This is a substantial right

normally afforded to guilty and innocent defendants alike. Collateral-crimes [or

prior bad acts] evidence is likely to violate this right.” Id. Defendant’s prior

misconduct—driving a young boy home and touching him on the buttocks—was

erroneously admitted based on a propensity assumption that one who has

committed prior acts of misconduct that are sexual in nature more likely than not

committed the sex acts charged in the case he was on trial for. Given the highly

prejudicial nature of the erroneously admitted propensity evidence, the record’s

rebuttal of the presumption that the trial court disregards inadmissible evidence,

and the closeness of the other evidence at trial, I would affirm the judgment of the

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appellate court, which reversed defendant’s convictions and remanded for a new

trial.

¶ 127 JUSTICE CUNNINGHAM joins in this dissent.

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