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People v. Geitz





Appeal from the Circuit Court of St. Clair County; the Hon. Stephen M. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Defendant, James B. Geitz, was convicted, after a jury trial, in the circuit court of St. Clair County of deviate sexual assault, aggravated indecent liberties with a child, and home invasion. He was sentenced to 25 years' imprisonment for deviate sexual assault, 25 years for aggravated indecent liberties with a child, and 10 years for home invasion, with all three terms to run concurrently.

On appeal, defendant claims error in (1) the admission of evidence of another offense, (2) the admission of evidence of items found in the trunk of his mother's car, (3) the admission of evidence of acts of defendant which did not tend to prove the crimes charged, (4) the court's exclusion of surrebuttal evidence, and (5) remarks in the prosecutor's closing argument. Defendant also contends he was not proved guilty beyond a reasonable doubt and that the State failed to prove an essential element of the crime of home invasion. We affirm.

The evidence showed that a 14-year-old girl went to a home in Belleville around 7 p.m. on December 1, 1983, to baby-sit for the couple's three-year-old daughter. While taking care of the child, the babysitter received a phone call from a man who wanted to know if Janet was there. He also asked the babysitter who she was and who else was in the home. The babysitter gave the man this information. She also told the man the parents would be home around 10 p.m.

Later in the evening, while the babysitter was with the child in the child's room sitting on her bed, a man walked into the room. The babysitter testified he wore a white nurse's stocking over his face, that he was six feet tall, weighed 200 pounds and wore dirty green work pants, a gray shirt, a dirty brown jacket and dark cloth gloves. The man asked where Janet was. The babysitter knew of no one in that household named Janet.

The man then told the two girls to face the wall, and he proceeded to walk around inside the house. He came back and told the girls to go into the bathroom. Once in the bathroom, the babysitter turned to look at the man. He had pulled the stocking up to the top of his forehead, and she was able to view his face for about three seconds before he told her to turn back around. He then gave her a pillowcase and told her to put it over her head. She testified she was still able to see the man through the pillowcase.

The man then ordered the babysitter to take off her clothes. He left the bathroom and went into the kitchen, returning with a plastic measuring cup. He told her to urinate into the cup, and she did so. The intruder took the cup and appeared to drink from it, then forced the babysitter to drink from the cup as well. Next he told her to defecate, but she told him she was unable to do so. The man then ordered her to drink water from the toilet. He next made the babysitter pull down the pants of the three-year-old and lick her anus. Following this, he removed his penis from his pants and told her to put it in her mouth. He ejaculated into her mouth, ordered her to spit the fluid into the cup, and then he appeared to drink it. He ordered the babysitter not to tell anyone what had happened or he would "beat you up," then left the house.

The babysitter positively identified defendant at trial as the attacker. A police officer testified the babysitter was able to pick defendant's picture out of a photographic lineup.

The State's evidence also showed that defendant, after being arrested, was at the Belleville police station on December 12, 1983. He tried to escape from police custody and was shot three times.

Defendant testified at the trial and denied being the attacker. He stated he was at home with his parents at the time the attack took place. Regarding his escape attempt, he testified he was afraid of the police officers because he thought they would do anything to make him confess, so he ran.

Defendant's mother testified that her son arrived home around 8:30 p.m. on December 1, 1983, and did not leave the house again that night. She also stated he did not own green work pants or a brown cloth jacket.

Defendant first claims the court erroneously admitted evidence of an offense allegedly committed by defendant in Ferguson, Missouri. A woman testified at trial in the present case that a man entered her home in the early morning hours of July 19, 1983. She testified the man told her he wanted to perform an act of cunnilingus upon her. She offered instead to perform fellatio upon him and he agreed. After the act of oral sex, the man ordered the woman to lick his anus. He then began masterbating, put his penis into the woman's mouth and ejaculated. The man also asked for money. At the trial in the case sub judice, the woman identified defendant in court as her attacker, and also testified she had identified him in a lineup.

Defendant has a two-prong attack against this evidence. First he claims the lineup procedure used in the Ferguson incident was suggestive, and that the Ferguson woman's identification of defendant was not reliable. Even if an identification is made under suggestive conditions, the identification is admissible if reliable. (People v. Bryant (1983), 94 Ill.2d 514, 520, 447 N.E.2d 301, 304.) Without deciding if the lineup was suggestive, the evidence here shows the woman's identification was reliable under the factors set forth in Bryant. 94 Ill.2d 514, 520-21, 447 N.E.2d 301, 304.

• 1 Defendant also argues there was no showing of similarity between the Belleville and Ferguson offenses to establish modus operandi. "[T]he general rule is that evidence of other crimes is not admissible if it is relevant merely to establish the defendant's propensity to commit crime." (People v. Stewart (1984), 105 Ill.2d 22, 61, 473 N.E.2d 840, 859.) Such evidence is admissible if relevant for other reasons, and proving modus operandi is one of those reasons. (105 Ill.2d 22, 61, 473 N.E.2d 840, 860.) For evidence of another crime to be probative with regard to modus operandi, "there must be a strong and persuasive showing of similarity of the offenses and the evidence must show that both crimes were `so nearly identical in method as to earmark them as the handiwork of the accused.'" (People v. Byas (1983), 117 Ill. App.3d 979, 987, 453 N.E.2d 1141, 1145-46.) There must be some distinctive features that are not common to most offenses of the type being considered. People v. Barbour (1982), 106 Ill. App.3d 993, 1000, 436 N.E.2d 667, 672.

The State has listed what it considers the similarities between the two offenses. The State points out, among other similarities, that the attacker in both cases wore dark colored cloth gloves, was fascinated with oral-anal activity, and ejaculated into the mouth of the victim. The attacker in both cases asked about a person's name when no one by ...

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