The People may not invoke collateral estoppel to obtain a jury instruction about counts on which the defendant was convicted at a first trial if that conviction is still subject to appeal. Burns entered a home at 4:00 a.m. out of concern for the welfare of a woman with whom he had a quasi-romantic relationship. The two male occupants tried to get him to leave the house. Burns then sprayed both men with pepper spray before they overpowered him and removed him from the house. At a first trial, Burns was convicted of misdemeanor aggravated trespassing but a mistrial was declared as to felony use of tear gas not in self-defense and he faced that charge in a second trial. It was error for the court to instruct the second jury about the conviction from the first trial. The final judgment prerequisite for collateral estoppel requires the time for seeking a new trial or appeal of the judgment has expired and any appeal is final. The conviction from the first trial did not meet this requirement. While it was error to so instruct, it was not structural error because the jury was left to determine whether, when he used the pepper spray, he was trespassing. The error was also found to not result in a miscarriage of justice because it was unlikely to have had any effect on the verdict.