2018 IL App (3d) 160186

                                Opinion filed December 18, 2018
       _____________________________________________________________________________

                                                    IN THE

                                     APPELLATE COURT OF ILLINOIS

                                              THIRD DISTRICT

                                                      2018

       THE PEOPLE OF THE STATE OF                       )       Appeal from the Circuit Court
       ILLINOIS,                                        )       of the 12th Judicial Circuit,
                                                        )       Will County, Illinois,
              Plaintiff-Appellee,                       )
                                                        )       Appeal No. 3-16-0186
              v. 	                                      )       Circuit No. 15-CF-1745

                                                        )

       ERIC W. CATCHINGS,                               )       Honorable

                                                        )       Edward A. Burmila Jr.,
              Defendant-Appellant.                      )       Judge, Presiding.
       _____________________________________________________________________________

             PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.
             Justices Holdridge and Lytton concurred in the judgment and opinion.
       _____________________________________________________________________________

                                                   OPINION

¶1            Defendant, Eric W. Catchings, appeals from his convictions for aggravated domestic

       battery and domestic battery. Defendant raises two issues on appeal: (1) he was denied a fair trial

       where the court allowed the State to use his prior felony conviction for possession of a weapon

       by a felon for impeachment purposes and (2) his conviction and sentence on count IV is subject

       to vacatur under the one-act, one-crime rule. We affirm in part and vacate in part.

¶ 2	                                          I. BACKGROUND

¶3            In September 2015, the State charged defendant with two counts of aggravated domestic

       battery (720 ILCS 5/12-3.3(a-5), (a) (West 2014)) and two counts of domestic battery (id. § 12­
     3.2(a)(1)). Relevant to this appeal, count II alleged that defendant “knowingly caused great

     bodily harm to Misty Bronzell, a household member of the defendant, in that said defendant

     struck Misty Bronzell about the head.” Count IV alleged that “defendant knowingly and without

     legal justification caused bodily harm to Misty Bronzell, a family or household member, in that

     said defendant struck Misty Bronzell about the head.”

¶4          Before trial, defendant filed a motion in limine to prevent the State from introducing

     evidence of his prior felony convictions. The motion alleged that defendant had two prior felony

     convictions for possession of a weapon by a felon in 2011 and aggravated assault in 1995. The

     court ruled that the State could not use defendant’s 1995 conviction for impeachment, and it

     reserved its ruling on the 2011 conviction. Regarding the State's use of defendant’s 2011

     conviction, the court was concerned

                    “that the jurors will get the impression that the defendant has a habit of going

                    around armed. I don’t know what the facts of the case are going to be, and they

                    would be determinative in my mind of whether I’m going to allow you to use this

                    even to impeach the defendant.”

     Defendant’s case proceeded to a jury trial.

¶5          The State called the victim, Misty Bronzell, as its first witness. Bronzell stated that she

     had a dating relationship with defendant. On August 19, 2015, around 7 p.m., defendant visited

     Bronzell at her apartment. At that time, defendant was drinking an alcoholic beverage and

     appeared drunk. Defendant acted “real belligerent,” and Bronzell told defendant that she did not

     want him drinking in her home. Defendant responded “F that” and “I can do what I want. You

     are not my woman ***. I am a free man.”




                                                      2

¶6          Approximately one or two hours later, Bronzell and defendant were sitting on the couch

     when defendant punched Bronzell in the head. Bronzell was afraid and did not move. Defendant

     appeared very angry and punched Bronzell another 15 to 20 times on her head. Bronzell thought

     she was going to die and began to lose consciousness. Defendant then placed his hands around

     Bronzell’s neck, applied firm pressure, and said “you’re going to die, you’re going to die.”

     Bronzell could not breathe and the chokehold bruised the skin on her neck. When defendant saw

     blood in Bronzell’s mouth, defendant began to cry and said “my God, what did I do to you?”

     Defendant retrieved ice from the freezer and instructed Bronzell to place it on her swollen face.

     Bronzell asked defendant to leave and assured defendant that she was not going to call the

     police. Bronzell told defendant that she would tell anyone who asked about her injuries that she

     had fallen and hit her head on a table. At the time, Bronzell did not realize the severity of her

     injuries and feared that defendant would kill her if she notified the police.

¶7          When defendant left the apartment, Bronzell fell asleep. Around 6 or 7 a.m. the next

     morning, Bronzell’s roommate, Jamie Albert, entered the apartment. Upon seeing Bronzell’s

     injuries, Albert said he was taking Bronzell to the hospital. Bronzell told Albert that defendant

     had caused her injuries and she was afraid to notify the police because she thought defendant

     would kill her.

¶8          Two police officers met Bronzell at St. Joseph Medical Center. Before the trial, the State

     showed Bronzell the written statement that she made at the hospital to an officer. Bronzell was

     otherwise unable to recall making the statement. At the time of Bronzell’s hospital admission,

     Bronzell’s face was so swollen that she could barely open her mouth. A computerized

     tomography (CT) scan of Bronzell’s head showed a subdural hematoma. Following the scan,




                                                       3

       Bronzell was admitted into the neurological intensive care unit (ICU). Bronzell spent three days

       in the ICU and one day in a regular hospital room before being released.

¶9             The State introduced photographs of Bronzell’s injuries. Bronzell explained that exhibit

       Nos. 1 and 2 showed bruising to her arm. Bronzell thought the bruises were caused by defendant

       grabbing her arm. Bronzell said that she tried to cover her head with her arm while she was

       sitting on the couch. Exhibit No. 3 showed the bruising on the right side of Bronzell’s face.

       Bronzell explained that the bruising remained for nearly one month. Bronzell also suffered from

       disorientation, memory loss, and anxiety.

¶ 10           Bronzell said that no one was present in the apartment at the time of defendant’s attack.

       Bronzell also said that she did not incur her injuries as a result of a fall.

¶ 11           Albert testified that at around 7 a.m., on August 20, 2015, he returned to the apartment

       that he shared with Bronzell. Albert noticed that Bronzell’s face was very swollen and she had

       several cuts and bruises. Albert took Bronzell to the hospital.

¶ 12           Joliet Police Officer Joe Hernandez testified that he met with Bronzell at the hospital.

       Hernandez recalled that Bronzell had suffered bruising to her face and arm and she seemed

       disoriented. Bronzell made a written statement and told Hernandez that defendant had caused her

       injuries. Two other officers then arrested defendant.

¶ 13           Joliet Police Officer Shawn Wascher testified that he assisted Hernandez in interviewing

       Bronzell at the hospital. Wascher and Hernandez met with Bronzell while she was in the

       neurological ICU. Bronzell had bruising on her neck, face, and arm, and bleeding on her brain.

       Bronzell had a difficult time communicating with the officers. After speaking with Bronzell,

       Wascher interviewed defendant. Defendant told Wascher that he and Bronzell had gotten into an

       argument and that Bronzell tripped over her sundress and fell onto a stool.


                                                           4

¶ 14          Emergency room (ER) nurse Christine Somodi testified that she treated Bronzell on

       August 20, 2015. Bronzell’s face was swollen and her arm was bruised. Bronzell told Somodi

       that the injuries were the result of being physically punched and choked. Bronzell made no

       reference to a fall. Bronzell stayed in the ER until the medical personnel received the results of

       her CT scan.

¶ 15          Dr. Richard Louissaint testified that he treated Bronzell in the ER. At the time, Bronzell

       complained of suffering injuries in an assault and battery. Bronzell appeared to be in moderate

       distress, but was able to answer Louissaint’s questions. Louissaint observed bruising along

       Bronzell’s arm and right angle of her jaw. Following a CT scan, Louissaint diagnosed Bronzell

       with a subdural hematoma. Louissaint explained a subdural hematoma is usually caused by the

       application of “a great amount of force.” The force applied to the patient causes bleeding in an

       area surrounding part of the brain. Typically, a subdural hematoma results from a vehicle

       collision, fall, or an assault with a weapon. Louissaint further explained that subdural hematomas

       can be mortal injuries because the bleeding causes pressure to build around the brain.

       Additionally, a subdural hematoma can cause a patient to suffer memory loss and weakness on

       one side of the body. Following the subdural hematoma diagnosis, Louissaint admitted Bronzell

       to the neurological ICU for observation. Louissaint opined that Bronzell’s injuries were not

       consistent with a fall because she had injuries to more than one area of her face and body.

¶ 16          Neurosurgeon Dr. Tamir Hersonskey testified that he treated Bronzell on August 20,

       2015. Bronzell had been admitted to the hospital with a traumatic subdural hematoma.

       Hersonskey monitored and treated the hematoma while Bronzell was in the hospital. Hersonskey

       explained that




                                                        5

                      “a small percent of people who present with intercranial bleed, we call them the

                      people who speak and die. They can initially present with an intact neurological

                      examination, but later there can be development of increase in the size of the

                      hematoma or brain swelling, potentially seizure, which can create a neurological

                      deterioration and potentially even death.”

       Hersonskey said that Bronzell’s injury could cause cognitive deterioration or dementia.

¶ 17          Bronzell’s mother, Joan Woods, testified that on August 20, 2015, she received a

       telephone call from St. Joseph Medical Center that Bronzell had been admitted to the

       neurological ICU. Upon entering Bronzell’s hospital room, Woods did not recognize Bronzell.

       Woods explained “[i]t was like the most horrifying thing a mother could see. She looked

       bludgeoned. There was bruising on the right side, the left side. There was blood coming out of

       her mouth. Horrible pain.” Bronzell’s speech was mostly incomprehensible, but Woods was able

       to glean that Bronzell had been repeatedly punched and lost consciousness three times. When

       Bronzell was released from the hospital, she suffered from memory loss and nightmares. Woods

       said Bronzell’s bruises did not fade for two weeks.

¶ 18          The State rested after Woods’s testimony. The court then ruled on the admissibility of

       defendant’s 2011 conviction for possession of a weapon by a felon.

                      “After reviewing all of the evidence in this case, there wasn’t any argument that

                      the defendant used a weapon, which is what I was most concerned about. So in

                      regard to the Motion in Limine, if the defendant chooses to testify, the State will

                      be able to use the fact of his felony conviction to impeach his credibility.”

¶ 19          Following the court’s ruling, defendant elected to testify in his defense. Defendant said

       that he dated Bronzell “off and on” starting in December 2014. Around 5 p.m. on August 19,


                                                        6

       2015, defendant went to visit Bronzell at her apartment. Defendant and Bronzell conversed,

       drank an alcoholic beverage, ate, and watched movies. Defendant said that neither he nor

       Bronzell were drunk that night. A few hours later, defendant went to leave, Bronzell said she did

       not want defendant to leave, and an argument ensued. During the argument, Bronzell jumped up

       off the couch, slipped on her sundress, and fell on the floor. Bronzell then sat up and made eye

       contact with defendant, and defendant left the apartment. Defendant did not check to see if

       Bronzell was okay, but recalled that he did not see any injuries. Defendant said that he did not

       punch, choke, or grab Bronzell.

¶ 20          After defendant’s testimony, the State moved to admit into evidence a certified copy of

       defendant’s prior felony conviction. The court admitted the certified copy over defense counsel’s

       objection. The State proposed the following phrasing for the introduction of defendant’s prior

       conviction:

                      “In rebuttal we wish to present a certified conviction of the defendant dated

                      November 9, 2011, for the felony charge of possession of weapon by a felon, not

                      as a habitual criminal.”

       The court ordered the State to remove the words “habitual criminal” from the statement and

       allowed the State to use it to impeach defendant’s credibility. Thereafter, the State introduced a

       certified copy of defendant’s 2011 conviction for possession of a weapon by a felon.

¶ 21          At the beginning of the jury instruction conference, the State submitted its proposed

       instructions to the court. The court then reviewed the list of proposed instructions with the

       parties. Included with the State’s proposed instructions was Illinois Pattern Jury Instructions,

       Criminal, No. 3.12 (approved Oct. 17, 2014) (hereinafter IPI Criminal No. 3.12) “regarding the

       use of a prior conviction.” In response to the court’s reference to IPI Criminal No. 3.12, defense


                                                        7

       counsel said “[n]o objection.” Subsequently, the court instructed the jury that “[e]vidence that a

       witness has been convicted of an offense may be considered by you only as it may affect the

       believability of that witness.”

¶ 22           The jury found defendant guilty of each of the charged offenses.

¶ 23           Defendant filed a motion for a new trial, arguing that the court erred in denying

       defendant’s pretrial motion to exclude evidence of defendant’s prior conviction. The court

       denied the motion.

¶ 24           The court sentenced defendant on counts I and II to concurrent terms of six years’

       imprisonment. The court sentenced defendant on counts III and IV to concurrent terms of 90

       days in jail. Defendant appeals.

¶ 25                                              II. ANALYSIS

¶ 26                                        A. Prior-Crimes Evidence

¶ 27           Defendant argues that the court infringed on his right to a fair trial where it allowed the

       State to impeach his credibility with his 2011 felony conviction for possession of a weapon by a

       felon. Defendant contends that the court abused its discretion in admitting this evidence because

       (1) defendant’s prior conviction was irrelevant, (2) the court failed to balance the prejudicial

       effect of the conviction against its probative value, (3) the court compounded this error by

       reading the prior-crimes instructions for a testifying witness instead of a testifying defendant, and

       (4) the admission of defendant’s possession of a weapon by a felon conviction violated the mere-

       fact rule.

¶ 28           Generally, evidence of a defendant’s other crimes is inadmissible to show a defendant’s

       propensity to engage in criminal activity. People v. Donoho, 204 Ill. 2d 159, 170 (2003).

       However, where defendant elects to testify, the State may impeach his credibility with evidence

                                                         8

        of a prior conviction. People v. Tribett, 98 Ill. App. 3d 663, 675 (1981). In People v.

        Montgomery, 47 Ill. 2d 510, 516-19 (1971), the supreme court adopted the 1971 proposed draft

        of Rule 609 of the Federal Rules of Evidence. Congress subsequently enacted a different form of

        Rule 609, but the Montgomery rule continues to apply in the Illinois courts. People v. Naylor,

        229 Ill. 2d 584, 596 (2008). On January 11, 2011, the supreme court codified and adopted the

        Illinois Rules of Evidence. Illinois Rule of Evidence 609 (eff. Jan. 6, 2015) codified the

        Montgomery rule. Rule 609 states:

                               “(a) General Rule. For the purpose of attacking the credibility of a witness,

                       evidence that the witness has been convicted of a crime, except on a plea of

                       nolo contendere, is admissible but only if the crime, (1) was punishable by death

                       or imprisonment in excess of one year under the law under which the witness was

                       convicted, or (2) involved dishonesty or false statement regardless of the

                       punishment unless (3), in either case, the court determines that the probative value

                       of the evidence of the crime is substantially outweighed by the danger of unfair

                       prejudice.

                               (b) Time Limit. Evidence of a conviction under this rule is not admissible

                       if a period of more than 10 years has elapsed since the date of conviction or of the

                       release of the witness from confinement, whichever is the later date.” Ill. R. Evid.

                       609(a), (b) (eff. Jan. 6, 2015).

¶ 29	          In this case, the court allowed the State to impeach defendant’s credibility with evidence

        of defendant’s 2011 possession of a weapon by a felon conviction. This impeachment falls under

        the first proposition—it was a crime punishable by imprisonment in excess of one year. Id.




                                                          9

¶ 30          We review the circuit court’s ruling for an abuse of discretion. People v. Patrick, 233 Ill.

       2d 62, 68 (2009). “An abuse of discretion will be found only where the trial court’s ruling is

       arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by

       the trial court.” People v. Hall, 195 Ill. 2d 1, 20 (2000).

¶ 31                                                1. Relevancy

¶ 32          Defendant first contends that the court abused its discretion in admitting his prior

       conviction because his “prior conviction for possession of a weapon by a felon is *** not very

       relevant to the issue of credibility” and this should have caused the court to give little, if any,

       weight to the probative value of the prior conviction. See People v. Adams, 281 Ill. App. 3d 339,

       345 (1996).

¶ 33          Historically, the impeachment by prior conviction rule was “premised upon the

       assumption that a person with a criminal record has a bad general character, evidenced by his

       willingness to disobey the law, and that his bad general character would lead him to disregard his

       oath to testify truthfully.” Michael H. Graham, Cleary and Graham’s Handbook of Illinois

       Evidence § 609.1, at 552-53 (2018 ed.). Under this rule, evidence of a defendant’s prior criminal

       offense was relevant to impeach his credibility because it showed a propensity to disregard the

       law. This theory has fallen out of favor because “evidence of a prior conviction tends to persuade

       the jury that, on the basis of past conduct, defendant is a probable perpetrator of the crime or [it]

       influence[d] jurors to convict simply because they feel he is a bad person deserving of

       punishment.” Id. at 553. Partly in response to these concerns, Montgomery adopted a balancing

       test. Montgomery, 47 Ill. 2d at 517. A defendant’s prior conviction would be excluded from

       evidence where its probative value was substantially outweighed by the danger of unfair

       prejudice. Id. at 517-18.


                                                         10 

                      “On one side of the scale the trial judge was to place the probative value of the

                      prior conviction. That is, the judge must consider the relevance of the prior

                      conviction to an evaluation of the defendant’s credibility as a witness. On the

                      other side of the scale, the trial judge was to place all the factors that could result

                      in unfair prejudice to the testifying defendant.” People v. Elliot, 274 Ill. App. 3d

                      901, 906 (1995), abrogated on other grounds by People v. Williams, 173 Ill. 2d

                      48 (1996).

       In conducting this test, a circuit court should consider

                      “the nature of the earlier crimes, the length of the defendant’s criminal record, his

                      age and circumstances, whether it was more important for the jury to hear the

                      defendant’s version of the facts than to know of his earlier conviction, the

                      nearness or remoteness of the earlier conviction, the defendant’s career after the

                      conviction and whether the earlier crime was similar to the one charged.” People

                      v. Barner, 374 Ill. App. 3d 963, 969-70 (2007).

¶ 34          In this case, defendant’s prior conviction for possession of a weapon by a felon was a

       “status-based” offense. See People v. McFadden, 2016 IL 117424, ¶ 29. In contrast to the

       charged offense, this conviction included no element of serious harm, and it bore little similarity

       to the charged offenses. The lack of similarity reduced the prejudice to defendant as it avoided

       the propensity problems that generally bar prior convictions. See Donoho, 204 Ill. 2d at 170.

       Further, this conviction was probative of defendant’s credibility because it was part of

       defendant’s larger criminal history. Defendant’s criminal history included the more remote, but

       similar, 1995 conviction for aggravated assault. Additionally, defendant’s possession of a

       weapon by a felon conviction was relatively recent to the charged offense as it occurred


                                                        11 

       approximately four years earlier. In light of these factors, we find that defendant’s 2011

       conviction for possession of a weapon by a felon was relevant to and probative of defendant’s

       credibility.

¶ 35                                             2. Balancing Test

¶ 36           Defendant argues the court failed to conduct a proper Montgomery hearing because it

       merely mentioned the dissimilarity of the charged offenses to defendant’s 2011 conviction and

       did not balance the probative value of the conviction against its prejudicial effect.

¶ 37           At the outset, we note that the court need not expressly conduct the Montgomery

       balancing test on the record. People v. Mullins, 242 Ill. 2d 1, 16 (2011) (citing People v.

       Atkinson, 186 Ill. 2d 450, 462 (1999)).

¶ 38           The record in the instant case establishes that the court implicitly conducted the

       Montgomery balancing test. During the hearing on defendant’s motion in limine, the court

       expressed concern that defendant’s prior conviction might be more prejudicial than probative

       because it was potentially similar to the charged offenses. Therefore, the court reserved its ruling

       until it heard the State’s evidence. Ultimately, the State’s case, which included no reference to

       the use of weapon, allayed the court’s prejudice concerns as the evidence did not show that

       defendant had used a weapon. While the court did not know if defendant intended to testify, it

       was aware that defendant’s credibility was a central issue to the case. This made the State’s

       impeachment evidence relevant to the overall case. Therefore, the record establishes that the

       court did not abuse its discretion as it implicitly balanced these factors when it ruled the State

       may use defendant’s 2011 conviction for possession of a weapon by a felon for purposes of

       impeachment.




                                                        12 

¶ 39                                            3. Jury Instruction

¶ 40          Defendant argues that the court’s allegedly erroneous admission of his prior crimes was

       exacerbated by the court’s mistaken use of the IPI Criminal No. 3.12, the impeachment of a

       witness by prior conviction instruction, instead of IPI Criminal No. 3.13, for the impeachment of

       a defendant by his prior conviction.

¶ 41          Initially, we reaffirm our finding that the court did not err when it allowed the State to

       impeach defendant’s testimony with his 2011 conviction. Supra ¶ 38. However, in the interest of

       completeness, we address defendant’s argument.

¶ 42          Defendant’s argument fails for two reasons. First, defendant acquiesced to the court’s use

       of IPI Criminal No. 3.12 when he expressly did not object to the instruction or independently

       seek the use of IPI Criminal No. 3.13. Second, any error caused by the court’s use of IPI

       Criminal No. 3.12 was harmless.

¶ 43          Both IPI Criminal Nos. 3.12 and 3.13 instruct the jury on the proper use of prior crimes

       impeachment evidence. However, IPI Criminal No. 3.12 is directed at the impeachment of a

       testifying witness and states “[e]vidence that a witness has been convicted of an offense may be

       considered by you only as it may affect the believability of the witness.” IPI Criminal No. 3.13

       instructs the jury on the use of a defendant’s prior conviction and directly instructs the jury not to

       consider defendant’s prior conviction as evidence of guilt. It states, “[e]vidence of a defendant’s

       previous conviction of an offense may be considered by you only as it may affect his

       believability as a witness and must not be considered by you as evidence of his guilt of the

       offense with which he is charged.” (Emphasis added.) IPI Criminal No. 3.13.

¶ 44          In this case, the State impeached defendant’s testimony with evidence of defendant’s

       2011 conviction for possession of a weapon by a felon. Therefore, IPI Criminal No. 3.13 was the


                                                        13 

       more appropriate jury instruction. However, the Committee Note to IPI Criminal No. 3.13 states,

       “[t]his instruction should be given only at the request of the defendant when there has been

       impeachment of the defendant by proof of a prior conviction.” (Emphasis added.) See People v.

       Cook, 262 Ill. App. 3d 1005, 1019 (1994) (“Giving this instruction at the behest of the State may

       unfairly accentuate defendant’s past criminal record.”).

¶ 45          The record establishes that defendant did not request IPI Criminal No. 3.13. Instead,

       when the court referenced IPI Criminal No. 3.12, defense counsel responded “[n]o objection.”

       Defense counsel thus acquiesced to the use of IPI Criminal No. 3.12. As a result, defendant

       cannot complain of this alleged instruction error. See People v. Rachel, 123 Ill. App. 3d 600, 606

       (1984) (“It is axiomatic that a defendant cannot complain of error in instructions to which he has

       acquiesced, induced or invited or which were given at his request ***.”).

¶ 46          Even if we set aside defendant’s acquiescence, we find the court’s issuance of IPI

       Criminal No. 3.12 was harmless error. “An error in a jury instruction is harmless if it is

       demonstrated that the result of the trial would not have been different if the proper instruction

       had been given.” People v. Johnson, 146 Ill. 2d 109, 137 (1991).

¶ 47          Here, the evidence at trial was heavily weighted against defendant. Bronzell testified that

       defendant choked and beat her to the point that she lost consciousness. As a result of defendant’s

       actions, Bronzell suffered bruising to her arm, neck, and head, and a subdural hematoma that

       necessitated a stay in the neurological ICU. Altogether, Bronzell spent four days in the hospital

       and continues to suffer from cognitive and memory issues. Bronzell’s explanation of the cause of

       her injuries was corroborated by Dr. Louissaint’s testimony that Bronzell’s injuries were

       inconsistent with a fall. Defendant’s testimony contradicted Bronzell, as he said that Bronzell

       suffered the injuries as a result of a fall. However, defendant’s testimony failed to refute


                                                        14 

       Louissaint’s statement that Bronzell’s injuries were too extensive to have been caused by a fall.

       Moreover, defendant’s explanation that he observed Bronzell’s fall, but did not render aid,

       despite the severity of her injury, was implausible. According to defendant, he was in a

       relationship with Bronzell at the time, but did not help Bronzell after she fell on the stool and

       instead left the apartment. In light of this evidence, any error incurred by the court’s use of IPI

       Criminal No. 3.12 was harmless, as it did not affect the outcome of the trial.

¶ 48                                            4. Mere-Fact Rule

¶ 49             Defendant argues that the court should have excluded his prior conviction for possession

       of a weapon by a felon because its use violated the “mere-fact” impeachment approach that was

       rejected by the Illinois Supreme Court in Atkinson, 186 Ill. 2d at 458. Defendant contends that

       the State impeached his credibility with two convictions—possession of a weapon by a felon and

       the unnamed predicated felony. Defendant argues that the unnamed predicated felony

       impermissibly resulted in his impeachment by the “mere fact” that he had a prior unspecified

       felony.

¶ 50             “The mere-fact method of impeachment informs the jury only of the ‘mere fact’ of a

       witness’ prior conviction, but not the nature of that conviction.” Id. at 457. In Atkinson, the

       supreme court expressly rejected the mere-fact method of impeachment and reaffirmed the use of

       the Montgomery analysis. Id. at 458, 461. In People v. Cox, 195 Ill. 2d 378, 386 (2001), the

       supreme court reasserted its rejection of mere-fact impeachment, stating “[i]n Atkinson, however,

       we held that ‘trial courts should not consider the mere-fact method of impeachment.’ (Emphasis

       added.) Atkinson, 186 Ill. 2d at 461. We find no suggestion in this unequivocal language that a

       trial court’s discretion encompasses mere-fact impeachment.”




                                                        15 

¶ 51           The record in the present case establishes that the court did not admit defendant’s prior

       conviction in contravention of Atkinson. The State impeached defendant’s credibility with

       evidence of his 2011 conviction for possession of a weapon by a felon. The nature of this

       conviction required reference to defendant’s status as a felon. This reference is not tantamount to

       the introduction of a second conviction, as it does not describe the name or nature of the

       predicate felony. It is simply a part of the prior conviction that was used for impeachment.

       Moreover, the prejudicial effect of the State’s reference to defendant’s prior felon status was

       limited because the State did not provide the name or nature of defendant’s prior felony. See,

       e.g., People v. Williams, 2015 IL App (1st) 130097, ¶ 51 (finding the court did not err in

       allowing the State to enter the name of the prior conviction—unlawful use of a weapon by a

       felon—because it accurately informed the jury of the nature of the prior crime); People v.

       Lillard, 200 Ill. App. 3d 173, 181 (1990) (finding the court did not err when it allowed the State

       to impeach defendant with his prior conviction for unlawful use of a firearm by a felon where the

       court deleted reference to the predicate felony). Therefore, the State’s reference to defendant’s

       felon status did not contravene the supreme court’s rejection of “mere-fact” impeachment. The

       reference was simply a necessary part of the felony that the State used to impeach defendant’s

       credibility.

¶ 52                                        B. One-Act, One-Crime

¶ 53           Defendant argues that his conviction and sentence entered on count IV must be vacated

       under the one-act, one-crime rule because it is included in count II. The State concedes that

       defendant’s conviction on count IV is subject to vacatur.

¶ 54           Upon review of the record, we accept the State’s concession and find defendant’s

       domestic battery conviction, entered on count IV, is included within defendant’s count II


                                                       16 

       conviction for aggravated domestic battery. The one-act, one-crime rule disallows multiple

       convictions that are “ ‘carved from the same physical act.’ ” People v. Miller, 238 Ill. 2d 161,

       165 (2010) (quoting People v. King, 66 Ill. 2d 551, 566 (1977)). We review de novo the issue of

       whether defendant’s conviction is subject to vacatur under the one-act, one-crime doctrine.

       People v. Almond, 2015 IL 113817, ¶ 47.

¶ 55          In this case, counts II and IV of the indictment contained the similar and nonspecific

       allegation that “defendant struck Misty Bronzell about the head.” The trial evidence regarding

       these charges was similarly general, as the State did not differentiate which punch or strike to

       Bronzell’s head caused each injury. Therefore, the conviction imposed on counts II and IV arise

       out of a single physical act. Accordingly, we vacate the less serious conviction for domestic

       battery. See People v. Rodriguez, 169 Ill. 2d 183, 186 (1996) (multiple convictions are improper

       if they are based on the same physical act).

¶ 56                                          III. CONCLUSION

¶ 57          The judgment of the circuit court of Will County is affirmed in part and vacated in part.

¶ 58          Affirmed in part and vacated in part.




                                                       17