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People v. Brewer





Appeal from the Circuit Court of Tazewell County; the Hon. Ivan L. Yontz, Judge, presiding.


Rehearing denied October 14, 1983.

The defendant, Frank Roy Brewer, appeals his convictions for attempted indecent liberties with a child and indecent solicitation following a jury trial in Tazewell County. The defendant was sentenced to an extended term of imprisonment for 12 years on the attempt conviction.

The defendant has raised numerous issues on appeal, i.e., that (1) his identity was not proved beyond a reasonable doubt; (2) reversible error occurred when the trial court allowed over defendant's objection, evidence of other crimes under a modus operandi exception to the general rule barring such evidence; (3) he was denied effective assistance of counsel when his court-appointed attorney (a) resumed representation following the disclosure of an alleged conflict of interest, (b) failed to seek suppression of the identification testimony; (4) his conviction for indecent solicitation must be vacated since it was based upon the same act as his conviction for attempt; (5) the imposition of a recoupment order for attorney fees was improper because, (a) the statute authorizing same is unconstitutional, (b) the defendant was denied adequate notice and hearing, and (c) the assessment of $2,000 was arbitrary.

The facts indicate that on August 16, 1982, six-year-old Adam Olinski and seven-year-old Jeremy Bamber stopped at Lincoln Park in Washington, Illinois, to play on the swings and merry-go-round on their way to school. At the park they saw a man, later identified as the defendant, who gave them cigarettes. At the defendant's request, Bamber left his friend alone momentarily, to continue playing on the park equipment. At this time the defendant unzipped his pants, exposed his penis and asked the Olinski boy if he would "suck his pecker" for $5. The child refused but did not tell his parents about the incident until the following day.

Based upon descriptions given by the boys, the police asked each of them if they could identify the individual from a group of six photographs. Each child selected the defendant's photograph as the man in the park. Later each boy identified the defendant in open court.

• 1 On appeal, the defendant contends that the identification testimony was not clear and convincing because there were discrepancies in the boys' testimony with regard to their description of the man's clothing and the color of his hair, etc.

The defendant contends that the testimony of the boys changed from an earlier trial of the defendant which ended in a mistrial when the jury was unable to agree on a verdict.

The State acknowledges that while there were some discrepancies in the children's testimony, the trier of fact was in the best position to afford the requisite weight to be given such testimony. We agree.

Where the identification of the accused is at issue, the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused (the defendant admitted being in the park on the day in question but denied meeting the boys), providing the witness is credible and viewed the accused under such circumstances as would permit a positive identification to be made. People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313; cert. denied (1978), 435 U.S. 937, 55 L.Ed.2d 533, 98 S.Ct. 1513.

In determining the admissibility of identification testimony, the following factors should be considered: (1) the opportunity to view the defendant at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his prior description of the defendant; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 97 S.Ct. 2243.) The weight to be given regarding identification testimony is a question for the trier of fact and that determination will not be disturbed unless it is so contrary to the evidence that it cannot be justified. People v. Smith (1977), 52 Ill. App.3d 53, 367 N.E.2d 84.

In light of the foregoing factors, we believe it is apparent that the witnesses' in-court identification of the defendant was sufficiently reliable to support the defendant's conviction. Each child had ample opportunity to view the defendant during the course of their encounter with him. Their testimony concerning the events of the day in question reflects sufficient attention to detail when measured in light of what children of their age would reasonably be expected to recall about such an incident. Their descriptions of the defendant were reasonably accurate in view of their ages, despite the fact that they were easy prey for the skilled cross-examination techniques of a trial lawyer. Each description accurately depicted an older individual with black and gray hair who had a large nose. Their failure to notice the defendant's tattoos, while important, was not critical. Their photographic identification was unequivocal and sufficiently close in time to the incident to be reliable. Their in-court identification was positive.

While we are aware that in cases dealing with alleged sexual crimes against children, accusations are "easily made, hard to prove, and harder to be defended" (People v. Everhart (1974), 22 Ill. App.3d 727, 317 N.E.2d 720), the testimony need not be so crystal clear that it is perfect (People v. Voight (1979), 72 Ill. App.3d 472, 391 N.E.2d 219; People v. Newbern (1974), 18 Ill. App.3d 532, 310 N.E.2d 42). Minor discrepancies in a child's testimony do not necessarily render the testimony incompetent, unbelievable or necessarily impeached. People v. Sharp (1943), 384 Ill. 503, 51 N.E.2d 554.

We believe that the identification evidence presented sufficiently established the defendant's guilt beyond a reasonable doubt. People v. Walls (1980), 87 Ill. App.3d 256, 408 N.E.2d 1056.

• 2 Next, the defendant claims he was denied a fair trial when the trial court denied his motion in limine to prevent the State from introducing evidence of other crimes at defendant's retrial.

While evidence that the defendant has committed other crimes is inadmissible to show that he has a propensity to commit crimes generally, or to show that he has a propensity to commit certain crimes specifically (People v. McDonald (1975), 62 Ill.2d 448, 343 N.E.2d 489), such evidence is admissible if relevant to show identity by way of proving a modus operandi (common design) in the commission of the prior and current crimes. (People v. Osborn (1977), 53 Ill. App.3d 312, 368 N.E.2d 608.) While the crimes need not be "identical" to be admissible, they should share features that are distinctive or peculiar. People v. Tate (1981), 87 Ill.2d 134, 429 N.E.2d 470; People v. Pavic (1982), 104 Ill. App.3d 436, 432 N.E.2d 1074.

The State sought admission of evidence of other crimes committed by the defendant to prove the defendant's identity in the case in question. The other crimes evidence consisted of the testimony of three children to whom the defendant made offers of money in exchange for acts of oral copulation.

The State argued that a modus operandi was established by the following similar features: (1) all victims were young children; (a) all offers were of oral-genital contact; (3) all victims were offered something of value in return for the act; (4) all victims were secluded from the public. The trial court ruled that evidence of the defendant's other crimes would be admitted provided there was evidence that the defendant offered Adam Olinski money.

When the Olinski boy testified that he was offered $5 to perform an act of oral copulation, the trial court allowed the evidence of the ...

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