JUSTICE KUEHN delivered the opinion of the court:

"[P]roof of other crimes, unrelated to those alleged in the charging instrument, cannotbe introduced merely to show a propensity for criminal wrongdoing." People v. Hale, 326Ill. App. 3d 455, 462, 762 N.E.2d 59, 65 (2001) (citing People v. Lindgren, 79 Ill. 2d 129,137, 402 N.E.2d 238, 242 (1980)).

This well-settled principle, as a general rule, bans rather persuasive evidence ofsomeone's guilt from the State's arsenal of proof. However, if a prosecutor can find somelegitimate issue that presents a need to admit evidence of other criminality, the State can useit, even though a clear and unmistakable message about an accused's criminal propensitiesresonates from its admission. Several recognized exceptions to the rule allow other-crimesevidence to be heard.

Everyone understands the persuasive potential that proof of other criminality packs,but those charged with the task of proving people guilty beyond a reasonable doubtunderstand it best. Whenever evidence of other criminal conduct surrounds a particularaccused, expect a universal prosecutorial response. The prosecution's modus operandi, givenits intent to convict, is quite certain to be motivated by a common design to introduce other-crimes evidence under one of the exceptions to the general rule. Make no mistake about it,any prosecutor worth his salt will try very hard to persuade a judge that reason other thanproof of criminal propensity exists, in order to introduce evidence of extraneous criminality. There simply is nothing better than full exposure of an accused's evil ways.

We are presented a case where the prosecution was allowed to present evidence aboutthree burglaries other than the one for which the defendant stood trial. The trial judge'sdecision to permit the other-crimes evidence as proof of the defendant's intent, motive, anddesign, in addition to showing an absence of mistake, is challenged in this appeal.

While evidence of three other burglaries was ostensibly admitted to prove four things,the defendant's intent, motive, and design, in addition to an absence of mistake, the evidencenecessarily conveyed a message that the defendant harbored a penchant for burglary andtheft. Indeed, this was the message driven home by the prosecutor during his summation. No one tried to explain how proof of three other burglaries served to establish intent, motive,design, or a lack of mistake. Rather, the evidence of other criminality was linked to anargument about the kind of person with whom the Massac County jurors were dealing. Having recounted the evidence establishing four burglaries, the State's Attorney argued thatthe defendant was the kind of person who would come to southern Illinois to gamble and,when he wagered himself short of money, would fund his habit by roaming rural MassacCounty in search of unlocked barns, garages, and sheds to burglarize. The argument was asuccinct picture of what the evidence adduced at the defendant's trial conveyed.

The defendant stands convicted of the November 16, 1999, burglary of a barn ownedby a man named Harry Foss. The defendant also stands convicted of the theft that hecommitted during the course of that burglary. He currently serves a 365-day jail sentencefor theft, along with a five-year prison term for burglary, the punishment imposed upon theMassac County jury verdicts.

On appeal, we are asked to overturn the convictions based upon the admission of theother-crimes evidence. The following is the defendant's argument.

The admission of evidence about three burglaries, other than the burglary at issue,resulted in verdicts predicated upon evidence of the defendant's criminal propensity forburglary and theft. There was no other reason to admit evidence about the three otherburglaries. While the State convinced the trial judge that the other-crimes evidence shouldbe admitted to show intent, motive, design, and absence of mistake, none of those questionswere placed at issue by the evidence presented at the defendant's trial. There was noquestion about the intent with which someone entered Harry Foss's barn. There was noquestion about any of the earlier burglaries serving as the motive for this one. There was noclaim made that the barn was entered under some mistaken belief that the defendant hadauthority or consent to enter. And the burglary of the barn was a separate and distinct crime. Whoever entered the barn did so without some larger criminal objective to achieve. Therewas no common scheme or design being fulfilled by the burglary for which the defendantstood trial.

It follows that the State was permitted to introduce evidence about three otherburglaries to show the defendant's intent, motive, design, and absence of mistake when theevidence was neither pertinent to nor helpful for the resolution of any of those things. Without a legitimate purpose to admit it, the other-crimes evidence was improper. It onlyserved to demonstrate the defendant's criminal propensity for burglary and theft. Therefore,the defendant deserves a new trial.

The State counters this argument by insisting that the evidence about the other threeburglaries was properly admitted to show intent, motive, design, and absence of mistake. Asa backup position, the State asks us to consider any error in the admission of the other-crimesevidence as harmless error.

The facts of the case are as follows.

Between October 26, 1999, and November 16, 1999, the rural areas surroundingMetropolis, Illinois, were struck by a rash of tool thefts from workshops housed in unlockedbarns, garages, and farm sheds. Farmers living on the outskirts of Metropolis discoverednumerous tools missing from their unsecured workshops during that three-week time span. Metropolis is a relatively crime-free town that lies on the northern bank of the OhioRiver, at the southernmost tip of the state, a town that boasts two things that set it apart frommost other southern Illinois communities. First, it is home to a gambling boat docked on theOhio River. The casino provides a venue for those interested in games of chance. In the fallof 1999, the defendant left his Decatur, Alabama, home and drove to Metropolis in order toplace some wagers.

In addition to the riverboat gambling casino, Metropolis is home to a bronze statuteof the man of steel. This symbol of truth, justice, and the American way rests but a shortdistance from the J & D Jewelry and Loan, an establishment that the defendant visited fourtimes between October 26, 1999, and November 16, 1999. On the first three occasions, hemarketed a variety of stolen tools from the back of his pickup. Someone had pilfered thetools from a rural workshop shortly before each of the defendant's three arrivals at the pawnshop. When the defendant arrived with a pickup load full of tools for a fourth time, theproprietor of the J & D Jewelry and Loan told him about a visit from the sheriff and thevictim of a burglary. The burglary victim found one of his missing tools at the pawn shop. It was one of the tools purchased from the defendant. The defendant was also told that thesheriff was aware of all the defendant's earlier transactions.

The defendant promptly left Illinois and returned to his home in Decatur, Alabama. More than two years passed before his arrest in Alabama.

At the trial, four farmers, three from Metropolis and one from close-by Vienna,Illinois, were permitted to testify that their unlocked barns or sheds had been unlawfullyentered by someone who removed numerous workshop tools. In addition, the proprietor ofthe J & D Jewelry and Loan was permitted to testify about every transaction that took placebetween himself and the defendant, all of which involved the pawn shop's purchases of itemsremoved from the four unlawfully entered workshops.

Here is a look at how the State presented its case.

The State's first witness was Jeff Jordan, a Johnson County deputy sheriff, whotestified about his arrest of the defendant in Decatur, Alabama, and about a gratuitouscomment made by the defendant during the trip back to Illinois. The defendant, who knewthat he was returning to face burglary and theft charges, speculated out loud, "[The charges]must be about the barn that I went into."

The State then called Don Fairfield, the owner of the J & D Jewelry and Loan. Fairfield told the jury that the defendant first appeared at his pawn shop on October 26,1999, driving a pickup truck loaded down with tools. Fairfield explained how he surveyedeverything that the defendant wanted to sell and, thereafter, purchased a Campbell-Hausfield4.5-horsepower air compressor, a Dewalt 4.5-horsepower hand grinder, and a Black &Decker Sawzall. He also purchased a number of hand tools.

Fairfield had insisted upon a seller's bill of sale, which the defendant executed inFairfield's presence. He identified this October 26, 1999, document and testified that he hadwitnessed the defendant sign it. The bill of sale was introduced into evidence.

The date on which the bill of sale was executed and the recorded list of items soldcoincided with the burglary of Arthur Meinders' unlocked workshop on October 26, 1999. Someone had entered Meinders' work shed located on the edge of Metropolis and removeda Campbell-Hausfield 4.5-horsepower air compressor and a Dewalt 4.5-horsepower handgrinder shortly before the defendant sold them to Fairfield.

Fairfield identified a second bill of sale executed by the defendant on October 26,1999. The date and the recorded item, a Sawzall, coincided with Randall Conley's report ofitems missing from his Vienna, Illinois, farm that very day. The Sawzall was recovered fromthe J & D Jewelry and Loan and identified by Randall Conley.

According to Fairfield, the defendant reappeared at the J & D Jewelry and Loan onNovember 4, 1999. The defendant again had his pickup truck loaded with tools. Fairfieldlooked them over and purchased a Craftsman cordless drill, a Sawzall, and a Craftsmanjigsaw. He also bought other assorted hand tools. Fairfield identified a November 4, 1999,bill of sale that he had witnessed the defendant execute. It was admitted into evidence. The date on the bill of sale and the recorded list of the items sold proved significantto another rural burglary. At some point in time on November 4, 1999, someone had enteredSteve Foss's unsecured workshop on the outskirts of Metropolis and removed a Craftsmancordless drill, a Craftsman jigsaw, and a host of other hand tools.

Fairfield then testified about the items taken in the burglary and theft for which thedefendant stood trial. He told the jury that the defendant drove up with another pickup loadfull of tools on November 16, 1999. Fairfield inspected the load and purchased a jigsaw,another drill, and a host of other hand tools. Another bill of sale was executed. Fairfieldidentified the November 16, 1999, document and testified that he had witnessed thedefendant sign it on that date. It was introduced into evidence.

The date on the bill of sale and the listed items again coincided with a reportedburglary. At some point in time on November 16, 1999, someone had entered Harry Foss'sunlocked work shed, just outside of Metropolis, and had pilfered two drills, a saw, and ahand grinder.

Fairfield explained how the sheriff came by the pawn shop as a part of hisinvestigation into the sudden, and uncommon, rash of rural burglaries in Massac County. Harry Foss accompanied the sheriff and was able to find one of his tools in Fairfield'spossession.

Fairfield testified that when the defendant reappeared with another load of used tools,he confronted the defendant. According to Fairfield, when he told the defendant that heneeded to straighten things out with the sheriff, the defendant assured him that he would,indicating that the items had been purchased from someone else. The defendant toldFairfield that everything would be taken care of and that he would return in an hour totransact more business.

Finally, Fairfield testified that the defendant did not return and that Fairfield did notlay eyes on the defendant again until he walked into the courtroom.

The State's next witness was Randall Conley, who identified the Sawzall taken fromhis unlocked rural workshop on October 26, 1999.

The State called Bradley Meinders, the son of Arthur Meinders, to identify his father'sgrinder and to describe the air compressor, which was never recovered after it disappearedfrom his father's workshop on October 26, 1999.

The State called Steve Foss. Foss testified about the November 4, 1999, burglary ofhis workshop. Foss recovered some of the tools from the J & D Jewelry and Loan.

The State called Harry Foss. Foss testified about the November 16, 1999, burglaryof a workshop housed in his barn. He told the jury that a lot of tools were taken. Heidentified the only one recovered, a Craftsman drill that was retrieved from the J & DJewelry and Loan.

The State's final witness was Ted Holder, chief deputy for the Massac County sheriff'sdepartment. He testified about a written statement taken from the defendant on September12, 2001. Holder read its entire contents to the jury. In the statement, the defendant claimedto have purchased the tools that he presented for sale to Don Fairfield. According to thedefendant, a hard-luck fellow gambler at the Metropolis riverboat casino sold them to himfor $100. In his written statement the defendant laid claim to only one transaction with DonFairfield.

Holder gave his views about the statement's veracity. He pointed out that thedefendant made no mention of the air compressor, a piece of equipment that one man couldbarely handle, much less forget handling. Holder explained how the defendant had insistedupon only one visit to the J & D Jewelry and Loan and how he readily acknowledged the billof sale for that visit. Thereafter, Holder confronted the defendant with the three other billsof sale that also bore the defendant's signature. Holder told the jury that after being shownall the bills of sale, the defendant stopped the interrogation and refused to talk any further.⁽¹⁾

The foregoing was the State's formidable evidence of the defendant's guilt.

After the State rested, the defendant rested.

We return to the long-standing rule of evidence that prohibits proof of an accused'sother crimes. "Evidence of crimes for which a defendant is not on trial is inadmissible ifrelevant merely to establish his propensity to commit crime." People v. Thingvold, 145 Ill.2d 441, 452, 584 N.E.2d 89, 93 (1991). If the State has no other legitimate reason forproving extraneous criminality, we will not countenance the use of such proof. People v.Bobo, 278 Ill. App. 3d 130, 132-33, 662 N.E.2d 623, 625-26 (1996). "Even where the Statehas good reason to introduce other-crimes evidence, we acknowledge that an inference ofcriminal propensity will necessarily accompany its use and will require the trial judge toweigh the probative value of such evidence against its potential for producing an improperprejudicial effect, before deciding whether to allow for its admission." Hale, 326 Ill. App.3d at 462, 762 N.E.2d at 65 (citing People v. Heard, 187 Ill. 2d 36, 58, 718 N.E.2d 58, 71(1999)). We will not disturb a conviction, based upon the admission of other-crimesevidence, unless the trial judge's admission of that evidence constitutes a clear abuse ofdiscretion. Thingvold, 145 Ill. 2d at 452-53, 584 N.E.2d at 93-94.

On appeal, the State defends the admission of the other-crimes evidence with theposition that evidence of all four burglaries was necessary to show the defendant's intent,motive, and design. In addition, the State maintains that the other criminality served todiscount the possibility that the burglary of Harry Foss's barn was the product of an innocentmistake.

The State's argument mirrors the arguments tendered by the State's Attorney, whenhe convinced the trial judge to allow the other-crimes evidence. The trial judge accepted theState's Attorney's explanation for why the jury needed to know about the three otherburglaries and admonished jurors several times about the limited reasons for the other-crimesevidence. At the close of the case, the trial judge again admonished the jury about thelimited purpose such evidence served and about how jurors should treat that evidence. Hegave the following instruction:

"Evidence has been received that the defendant has been involved in offensesother than those charged in the information. This evidence has been received on theissues of the defendant's intent, motive, design[,] and lack of mistake and may beconsidered by you only for that limited purpose. It is for you to determine whetherthe defendant was involved in those offenses and[,] if so, what weight should be givento this evidence on the issues of intent, motive, design[,] and lack of mistake."

Initially, we note that the admission of evidence establishing the commission of threeburglaries, other than the one for which a defendant stands trial, is a step that should not betaken lightly. Since it harbors such potential for juror misuse, the admission of evidenceabout three burglaries other than the burglary at issue should find support in sound reasonfor its need and in how it is relevant to prove something other than a defendant's penchantfor crime.

The first step in deciding whether to admit such evidence is to define what is truly atissue during the trial. The reasons for the admission of evidence proving unchargedcriminality need to be linked to contested issues. The tender of four recognized exceptionsto the general ban of such evidence, without an articulation of how those exceptions relateto proof of the charge at hand, is unacceptable.

The only contested issue in this case was identity. The jury was being asked to decidewho committed the unlawful entry of Harry Foss's barn and who purloined the tools thatwere kept there.

The intent exception to the general ban on other-crimes evidence arises in the contextof defenses that challenge the intent, or the state of mind, with which the defendant commitssome act. Here is an example of how evidence of other crimes would prove admissible toshow intent.

The hypothetical charge on trial is shoplifting. Wal-Mart security arrested thisdefendant after he exited Wal-Mart with an item of merchandise for which he did not pay. The defendant immediately claimed, and maintains at the trial, that he forgot about the itemthat he pocketed and that he fully intended to pay for the item when he removed it from theshelf. Under such a circumstance, the State could properly introduce security tapes fromother stores that record the defendant shoplifting from them, because the defendant's otherventures are relevant on the question of the defendant's intent when he exited Wal-Mart. Theother crimes tend to show that when the defendant removed merchandise from a Wal-Martshelf, pocketed it, and walked out of the store, he did so with the intent to permanentlydeprive Wal-Mart of the item and its worth.

Here, the intent with which someone entered Harry Foss's barn simply was not atissue. Whoever entered the barn left with a host of tools that the defendant ended up sellingto the local pawn shop. The defendant did not claim that he entered the barn and took a toolonly to fix a flat tire and that when he did so he fully intended to return it. The jury was notbeing asked to wrestle with the intent, or the state of mind, with which the defendant enteredHarry Foss's barn. Nor was the intent to permanently deprive Harry Foss of his tools andtheir worth being contested. Thus, the other burglaries were not legitimately admitted to helpprove a question of intent.

The motive exception to the general ban on other-crimes evidence arises in the contextof other crimes that serve as the motive behind the crime charged. Here is an example ofhow the exception works.

The defendant stands trial for first-degree murder. The deceased victim of thishomicide was scheduled to testify against the defendant at his approaching trial on anotherpending murder charge. The State may properly introduce its evidence that the defendantcommitted the earlier murder, in order to establish the motive for the murder for which hestands trial. See Hale, 326 Ill. App. 3d 455, 762 N.E.2d 59 (a number of car hijackings, andthe murders that accompanied them, were all admissible to show that the charged murder andcar hijacking were motivated by a desire to avoid capture, arrest, and prosecution for theearlier crimes).

Here, none of the other earlier burglaries were a motive for the burglary of HarryFoss's barn. Thus, the other burglaries were not legitimately introduced to provide the jurywith a proper understanding of the motive behind that burglary.

The common-scheme-and-design exception to the general ban on other-crimesevidence applies to that rare instance when two or more crimes are really a part of a grandercriminal objective. It is confined to those situations where several crimes are necessary inorder to complete the overall design of the criminality and accomplish the true criminalobjective. Here is an example.

The defendant once had a wealthy and aged father who took a young and expensivenew bride. At the defendant's trial for the murder of his father, the State could properlyadmit evidence that the defendant had murdered his stepmother as well, both murders beinga part of a common scheme and design to protect, preserve, and hasten a full inheritance ofthe family fortune.

People v. Jones, 156 Ill. 2d 225, 620 N.E.2d 325 (1993), demonstrates how courts areapt to misapply this exception, treating it as authorizing other-crimes evidence when severalcrimes are committed in a common way or with a common method. There, the IllinoisSupreme Court confronted a case where the defendant stood trial for aggravated criminalsexual assault and murder. Jones, 156 Ill. 2d at 234, 620 N.E.2d at 328. The Stateintroduced evidence that the defendant had sexually assaulted another woman three monthsafter the charged sexual assault occurred. Jones, 156 Ill. 2d at 235, 620 N.E.2d at 328. Thejury was instructed that the second sexual assault could be considered by it as evidence ofa common scheme and design. Jones, 156 Ill. 2d at 239, 620 N.E.2d at 330. The IllinoisSupreme Court ruled that the instruction had been given in error, finding, "Since the tworapes were not portions of one larger crime, but rather two separate and independent crimes,the trial court incorrectly instructed the jury that it could consider the [second] rape asevidence of design." Jones, 156 Ill. 2d at 239, 620 N.E.2d at 330.

The State's evidence did not show that the burglary itself was driven by some schemeor design common and related to another crime. The State was not trying to show that thedefendant entered Harry Foss's barn and stole a power drill and shovel in order to dismemberhis slain girlfriend and bury her parts. The burglary was a separate and distinct crime,without a larger scheme and design to necessitate its commission. Thus, the other threeburglaries were not legitimately admitted to show a common scheme and design toaccomplish some overall larger criminal plan.

The admission of other-crimes evidence to show an absence of mistake on adefendant's part arises when the defendant claims that his otherwise criminal acts were theresult of a mistake. For example, the defendant might have claimed that he entered HarryFoss's barn with the belief that he was on Uncle Earl's land and that Uncle Earl had givenhim permission to remove tools from his barn. Had the defendant tendered such a claim, theother three burglaries would have become instantly relevant to dispel the notion that such amistake had been made.

Here, there was no claim of mistake. Thus, the other three burglaries were notlegitimately admitted to help prove an absence of that claim.

None of the reasons that the State tendered were legitimate reasons to admit theevidence of extraneous criminality. None of the tendered reasons were pertinent to what wasat issue. Instructing the jurors that the other burglaries should only be considered to decideintent, motive, design, and absence of mistake implied that intent, motive, design, andabsence of mistake were the important issues for determination, based upon the evidenceheard. Such instruction actually diminishes the consideration of the only question that wasat issue-identity. The limiting instruction implied that the question of who had enteredHarry Foss's barn and taken his tools was a foregone conclusion.

We are asked to consider it harmless error to admit evidence of three other burglaries,because of the overwhelming evidence of the defendant's guilt. We are not asked to considerthe mistake harmless because a legitimate reason, other than those tendered, could validatethe admission of the other-crimes evidence.

The harm in admitting evidence of three burglaries other than the one for which thedefendant stood trial, coupled with how the evidence was argued to the jury, is manifest. Wethink it likely that the jury convicted the defendant because of a dislike for the kind of personwho would roam rural Massac County and help himself to the various tools that residentshoused in open barns and sheds. We think the jurors convicted the defendant, in large part,because the evidence clearly demonstrated his propensity for burglary and theft.⁽²⁾ We are leftto wonder how jurors were supposed to limit their consideration of the three other burglariesto matters of intent, motive, design, and lack of mistake, when none of those matters wereat issue.

We cannot end our examination of this case without a discussion of another exceptionto the general ban on other-crimes evidence that may well have allowed for the admissionof the other-crimes evidence. When, like here, the question of who committed a crime is theissue, evidence of other crimes can be admissible to show modus operandi.

"Modus operandi *** refers to a pattern of criminal behavior so distinctive thatseparate crimes are recognizable as the handiwork of the same wrongdoer. [Citation.]***

*** While a showing of modus operandi does not require that the similaritiesbe unique to the offenses being compared, there must be 'some distinctive featuresthat are not common to most offenses of that type.' " People v. Barbour, 106 Ill. App.3d 993, 999-1000, 436 N.E.2d 667, 672 (1982) (quoting People v. Tate, 87 Ill. 2d134, 142-43, 429 N.E.2d 470, 475 (1981)).

Here is an example of how the modus operandi exception to the general ban of other-crimes evidence works.

"Most gas station armed robberies involve the use of a pistol to relieve an attendantof all the money in the cash register. Evidence of a series of gas station robberiescommitted by a masked man who, while armed with a pistol, forces attendants toempty their cash registers would not qualify for admission in order to show modusoperandi, even though every armed robbery was committed in identical fashion. There would be no distinctive features to the methodology uncommon to most gasstation holdups. However, if this same armed robber repeatedly demanded all of theFritos that the station had on hand, instead of its cash, the robberies would take on adistinctive feature to suggest that they were the work of the same individual. Authorities would know that they were dealing with the Frito Bandito, and upon hisarrest, the prosecution would be armed with all the robberies to prove his identity inthe crime charged." People v. Wilson, ___ Ill. App. 3d ___, ___, 798 N.E.2d 772,783-84 (2003) (Kuehn, J., dissenting).

Here, the various burglaries share common and distinctive features that suggest thework of one person. Someone targeted the easiest kind of building to steal from-remoteunlocked rural barns and sheds that housed workshops. The entries and thefts occurredduring broad daylight. The same kinds of tools were always pilfered. And, most importantof all, the tools all arrived at the J & D Jewelry and Loan on the same day of theirdisappearance, via transport in the defendant's pickup truck. Certainly, an argument couldbe made that evidence about all the burglaries should be admitted to show the defendant'smodus operandi, the same distinctive method used to purloin the tools from Harry Foss'sbarn. The other burglaries would help prove that the defendant was the person who enteredthe barn and took the tools.

When the State's Attorney initially announced that he intended to introduce evidenceof all the burglaries, he mentioned the modus operandi exception to the general prohibitionagainst other-crimes evidence. The trial judge did not rule at that time. Weeks later, priorto the trial, the State's Attorney apparently abandoned that reason for the use of the evidence,tendering "intent, motive, design, and lack of mistake" as the reasons it should be admitted. The trial judge weighed the probative value of the other-crimes evidence against itsprejudicial potential, based upon that submission, and ruled that the three other burglarieswould be allowed to show "intent, motive, design, and lack of mistake."

We suspect that the trial judge would have allowed the State to use evidence of theother three burglaries to show the defendant's modus operandi, in order to enhance the State'sproof of who burglarized Harry Foss's barn. He would have probably determined that theprobative effect of the other-crimes evidence outweighed the prejudice that accompanied itsadmission, had that reason been tendered instead of intent, motive, design, and absence ofmistake. However, we are not ready to declare that to be the case.

More important, since we presume that jurors take direction from limiting instructionsand consider evidence only in a manner in which they are told to consider it, the instructionon the use of other-crimes evidence, if given, needs to be accurate. When jurors are told toconsider this kind of evidence for intent, motive, design, and lack of mistake and theevidence has no bearing on those matters, jurors have no way to use the evidence in anappropriate limited manner. When evidence that harbors such a potential for misuse hasbeen admitted and jurors have been told to consider it for the wrong reasons, we cannotpresume that jurors used the evidence for a limited valid reason about which they were notinformed.

Finally, the decision to admit this kind of evidence requires a balancing process. Thatprocess requires more than mindless submission of every possible exception to the generalban of other-crimes evidence, with a hope and a prayer that one of the exceptions fits. Whenever other-crimes evidence is admitted, ostensibly to show "intent, motive, design, andabsence of mistake," and any one of those reasons, much less all of them, is inapplicable tothe issues at hand, the balancing process by which the evidence was allowed to be heard isinherently flawed. The trial judge has mistakenly viewed its use for an illegitimate reasonand thereby misjudged the probative value of the evidence. Under such a circumstance, thedecision to admit the other crimes-evidence constitutes an abuse of discretion.

For these reasons, we reverse and remand for a new trial.

Reversed; cause remanded.

HOPKINS, J., concurs.

JUSTICE WELCH, dissenting:

I respectfully dissent. Although I agree with the majority's conclusion in footnote onethat the defendant's ineffective-assistance-of-counsel claim fails, I do not agree with themajority's conclusion that the admission of other-crimes evidence in this case requires us togrant the defendant a new trial. Assuming, arguendo, that the admission of the other-crimesevidence was error, I do not believe that any prejudice that might have resulted to thedefendant is sufficient to warrant a reversal and a new trial. Even when one casts aside thepurportedly tainted evidence, there is still overwhelming evidence of the defendant's guilt onthe charges of burglary and theft. As the majority itself points out, there was ample evidenceproperly before the jury that pertained to the burglary and theft for which the defendant stoodtrial. Don Fairfield, the owner of the pawn shop to which the defendant sold the tools he hadstolen from Harry Foss, testified that the defendant drove up to the pawn shop with a pickupload of tools on November 16, 1999, that Fairfield inspected the load and purchased ajigsaw, another drill, and a host of other hand tools, and that a bill of sale for the tools wasexecuted. Fairfield identified the November 16, 1999, document and testified that he hadwitnessed the defendant sign the document on that date. The bill of sale was introduced intoevidence.

Harry Foss testified that he lives in rural Metropolis and that on November 17, 1999,he reported to the Massac County sheriff that several drills, tools, and wrenches weremissing from his barn. Foss also testified that he found one of the stolen items at Fairfield'spawn shop. Foss identified as his a Craftsman drill that Fairfield identified as one of thetools he had purchased from the defendant. The evidence adduced from the testimony ofFairfield and Foss and directly related to the crimes with which the defendant was chargedwas without a doubt properly before the jury.

Johnson County deputy sheriff Jeff Jordan testified that the defendant, who knew thathe was returning to Illinois to face burglary and theft charges, speculated out loud that thecharges "must be about the barn that [he] went into." Although it is not clear from theremark itself which barn it was to which the defendant was referring, it could well have beenHarry Foss's barn, and thus Jordan's testimony was properly before the jury as well. Accordingly, the jury had before it evidence that the jury could have found directly linkedthe defendant to the scene of the crime, as well as evidence directly implicating him in thesale of the goods stolen from that scene.

In the past, we have held error to be harmless where the evidence supporting adefendant's conviction is so overwhelming that the defendant would have been convictedeven if the error was eliminated. See People v. Tucker, 317 Ill. App. 3d 233, 243 (2000). The majority claims the error in this case is not harmless because the majority believes theallegedly improper evidence led the jury to convict the defendant on the basis of thedefendant's "propensity for burglary and theft" rather than, presumably, the one burglary andtheft the State easily would have proven even had the other-crimes evidence been excluded. I find this reasoning highly speculative and simply do not believe the outcome of this casewould have been any different had the other-crimes evidence been excluded. Because Ibelieve the evidence properly before the jury in this case is overwhelming, I would hold anyerror in the admission of other-crimes evidence harmless and would affirm the defendant'sconviction and sentence.

1. The defendant raises an ineffective-assistance-of-counsel claim over his lawyer'sfailure to object when Chief Deputy Holder commented upon the assertion of the right toremain silent. Even if an appropriate challenge had been made to this testimony, the trial'soutcome would not have changed. A different outcome is simply not a reasonablepossibility, in light of the remaining evidence against the defendant.

2. Our dissenting colleague believes that the State's case, absent the other-crimesevidence, was overwhelming. However, if the evidence had been confined to one sale ofstolen tools between the defendant and Don Fairfield, the State's case would have beendramatically weakened. A juror's conclusion that the defendant committed burglary wouldrest entirely upon the inference drawn from the sale of the stolen tools. The defendant'swritten statement could not have been introduced into evidence without supplying thedefendant with an explanation for the one-time possession of stolen tools. That explanationwould have been far more compelling without evidence of three separate sales to the pawnshop, all involving tools recently stolen from different rural workshops. The statement'scontents, if introduced, would even explain the defendant's flight when he heard that Fossand the sheriff had visited the pawn shop. Having claimed to have paid only $100 for all ofFoss's tools, the defendant could have argued that his flight evidenced guilt, but not guilt forhaving committed burglary. The defendant could have claimed that he ran to Alabamabecause he knowingly possessed and sold stolen merchandise. He could have claimed thathe knew he had committed a crime but that he had not committed the crime of burglary. Contrary to the dissent, we cannot conclude that the jury would have readily dispatched aguilty verdict in the absence of the error.