APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
After a jury trial on February 22, 1980, Jerry Wojtasik, defendant, was found guilty of attempted deviate sexual assault (Ill. Rev. Stat. 1977, ch. 38, par. 8-4). In a separate jury trial on a second indictment, defendant was charged with aggravated kidnapping, unlawful restraint, deviate sexual assault and indecent liberties with a child (Ill. Rev. Stat. 1977, ch. 38, pars. 10-2, 10-3, 11-3, 11-4(a) (2)). On February 26, 1980, defendant was found guilty of those charges. On March 20, 1980, defendant was sentenced for convictions in both trials, receiving concurrent sentences of 30 years for deviate sexual assault, 15 years for attempted deviate sexual assault, 15 years for indecent liberties with a child, and 3 years for unlawful restraint. Defendant appeals from these convictions.
On appeal, the following issues are presented for review: (1) whether it was error to admit evidence of both sexual assaults in each of defendant's trials when the two assaults for which defendant was tried were dissimilar and not probative of any issues at the trial of the other assault; (2) whether defendant's conviction for indecent liberties with a child can stand when based on the same incident as his conviction for deviate sexual assault; and (3) whether defendant's sentence is excessive.
Defendant was charged by indictment No. 79-5028 with deviate sexual assault, indecent liberties with a child, aggravated kidnapping and unlawful restraint of a 9-year-old girl. Indictment No. 79-5029 charged defendant with attempted deviate sexual assault and aggravated battery of a 16-year-old girl. The cases were tried separately before separate juries. Prior to each trial, defendant filed a motion in limine to exclude evidence of any sexual assault other than the specific one for which he was being tried. The trial court denied both motions.
In the first case to be tried, the victim testified that on August 4, 1979, she was 16 years old. On her way home from work, she stopped at a 7-Eleven store. After leaving the store, she walked through an alley where she noticed defendant approaching her. As she passed him, he grabbed her from behind, around the neck, and turned her so that she was facing him. He ordered her to perform an act of fellatio. Defendant held her head and kept pushing his lower body into her as he asked her to perform the act. After struggling with him for some time, she was able to escape. She walked to 61st and Kolmar where she met her friends, told them what had occurred, and gave them a description of her assailant. The victim went home, told her father about the attack, and called the police.
The victim stated that later that evening she went to the police station where she identified defendant as her assailant in a lineup. At trial, the victim was shown a picture of the lineup and identified defendant in the photo. She also positively identified defendant in court.
The State presented other witnesses who testified that they had detained defendant near the scene of the attack. The police officers who arrested defendant also testified.
Another victim, aged 9, testifying for the State, stated that on August 2, 1979, she was coming from the Post Office, walking down Central Park Avenue, when defendant grabbed her by her waist, picked her up, and carried her into a garage. She testified that defendant performed cunnilingus on her and forced her to perform an act of fellatio on him. She stated that whenever she began to cry, defendant would hit her across her face; when she attempted to talk, he would choke her.
The jury returned a verdict of guilty for attempted deviate sexual assault of the 16-year-old victim. Defendant was acquitted of aggravated battery. Following a hearing in aggravation and mitigation, defendant was sentenced.
In the other trial, the 9-year-old victim repeated her testimony concerning defendant's sexual assault upon her. She also stated that when she returned home she told her mother of the attack, gave her mother a description of her assailant, and the police were called. Two days later, the victim identified defendant in a lineup. She also identified defendant at trial. The victim in the first trial testified in this trial and repeated her earlier statements concerning defendant's sexual assault upon her.
The jury verdict in the trial involving the 9-year-old victim found defendant guilty of deviate sexual assault, indecent liberties with a child, aggravated kidnapping, and unlawful restraint. Following a hearing in aggravation and mitigation, defendant was sentenced. No sentence was imposed for the aggravated kidnapping conviction.
Defendant first contends the trial court committed reversible error when it allowed evidence of both sexual assaults to be introduced in each of defendant's trials, claiming the two assaults were dissimilar and, thus, not probative of any issues at the trial for the other offense.
Defendant correctly states the general rule that evidence of other crimes for which defendant is not on trial is inadmissible. (People v. Lehman (1955), 5 Ill.2d 337, 342, 125 N.E.2d 506, 509.) However, there are exceptions to this rule. Thus, such evidence is admissible where it goes to show common scheme or modus operandi. (People v. McDonald (1975), 62 Ill.2d 448, 455, 343 N.E.2d 489, 492-93; People v. Martin (1979), 80 Ill. App.3d 281, 293, 399 N.E.2d 265, 275.) In fact, it has been broadly held that evidence of other offenses ...