Before the next witness was called, the assistant State's Attorney argued that the testimony of J.C., minor No. 3, should be admitted not to establish design, plan, scheme, or modus operandi, but to identify the defendant. The assistant State's Attorney urged:
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
509 N.E.2d 662, 156 Ill. App. 3d 365, 109 Ill. Dec. 1 1987.IL.712
Appeal from the Circuit Court of Cook County; the Hon. Arthur J. Cieslik, Judge, presiding.
JUSTICE MURRAY delivered the opinion of the court. LORENZ, J., concurs. JUSTICE PINCHAM, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Following a jury trial in the circuit court of Cook County, defendant, Richard Partin, was found guilty of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11-4(a)(2)) and child pornography (Ill. Rev. Stat. 1981, ch. 38, par. 11-20(a)) and sentenced to a term of 15 years' imprisonment in the Illinois Department of Corrections. He now appeals, contending that the trial court erroneously allowed testimony of other crimes into evidence and that the sentence imposed was excessive. For the reasons set forth below, we affirm.
At trial, complainant testified that he met defendant in the fall of 1979 at the John Maloney Funeral Home in Chicago where he was seeking a job. Defendant hired him to perform general maintenance work during the evening, such as mopping floors and dusting, and paid him $10 to $15 per job. Complainant continued working for defendant through 1982 and, in July 1982, when he was 14 years old, he visited defendant in his apartment, located on the second floor of the funeral home. He asked defendant what he could do to build up his body, and defendant replied that if he ate the right food and exercised he could build himself up. Defendant offered to help him and took his photograph with a Polaroid camera while complainant was fully clothed and seated in a chair.
Defendant then instructed complainant to take his clothes off and stand by the bed. Complainant testified that he agreed to do so because defendant often told him that he had the power to execute people, and he was afraid of defendant. After complainant had undressed, defendant used a cloth tape measure to measure parts of his body and then wrote these measurements on a legal pad. After measuring complainant's arm, leg and chest, defendant began to rub complainant's penis for two to three minutes until complainant sustained an erection; defendant then measured complainant's penis and recorded this measurement. Defendant also photographed complainant while he was naked and told him how and where to pose. These three photographs, as well as the one taken while complainant was fully clothed, were later introduced into evidence.
After he had been photographed, complainant dressed, and defendant told him not to tell anyone what had occurred. Complainant testified that he was frightened of defendant and did not inform his parents or the police of what had happened at that time. He continued working at the funeral home for a short time thereafter and never spoke to any of the other employees there about defendant.
The State also called S.B. as a witness. After defense counsel moved to prevent his testimony, the trial court allowed him to testify. S.B. stated that in August 1982, when he was 14 years old, complainant introduced him to defendant and defendant hired him to take over complainant's job after complainant quit. Defendant told S.B. that he was to clean up after wakes and to dust and vacuum once a week after John Maloney left the funeral home.
Defendant later informed S.B. that he was preparing a study on adolescents and would be taking measurements of S.B.'s body for the study. Although S.B. initially refused, in September or October 1982 S.B. agreed to go to defendant's room in the funeral home for the measurements. Defendant asked S.B. to undress and then measured S.B.'s erect and nonerect penis. At a subsequent visit, defendant measured S.B.'s nonerect penis and then, after they "masturbated each other," measured S.B.'s erect penis. S.B. continued to work for defendant at the funeral home until May 1983 and had sexual contact with him about once a week until leaving the job. During two of S.B.'s visits to defendant's apartment, defendant showed him the photographs he had taken of complainant while he was naked.
J.C., another State witness who also testified over defendant's objections, stated that his mother had worked at the Maloney Funeral Home and that he obtained a job there working for defendant. He was paid by defendant and never received a check from John Maloney. During the summer of 1982, when he was 14 years old, J.C. visited defendant's apartment at the funeral home to talk to defendant. Defendant rubbed J.C.'s penis with his hand. J.C. continued to have these encounters with defendant once a week until January 1984, when he left his job at the home. During his employment, he was shown the pictures defendant had taken of complainant, which defendant kept in an urn on his desk, and noticed that defendant had an Instamatic camera.
The final witness, Samuel Christian, a youth officer for the Chicago police department, testified that on March 27, 1984, he and his partner, Brian Killacky, executed a search warrant for defendant's apartment at the Maloney Funeral Home. The warrant was obtained as a result of an investigation which involved another youth, E.B. The officers seized several items from defendant's apartment, including a Polaroid camera and pictures of naked youths -- the four photographs of complainant among them -- and took defendant into custody. They brought defendant to the station, processed him, and, after advising him of his Miranda rights, questioned him about several photographs they had found. Defendant told the officers that some of the photographs were of complainant and that he had taken them. He stated that he touched the boy's penis to cause an erection. Defendant later repeated these statements to an assistant State's Attorney who prepared a written statement.
After closing arguments, the jury found defendant guilty of indecent liberties with a child and child pornography. Defendant's motion for a new trial was denied, and he was sentenced to a term of 15 years' imprisonment. After sentence was imposed, defendant pleaded guilty to indecent liberties with a child for offenses committed with S.B. and J.C. and was sentenced to two 10-year terms of imprisonment to run concurrently with the 15-year term he received in the case at bar.
Defendant now contends that the trial court committed reversible error when it allowed testimony of other offenses by defendant into evidence. The State asserts that defendant waived this issue by failing to include it in his motion for a new trial. Alternatively, the State argues that even if defendant had not waived the issue, the trial court did not err in allowing the testimony of S.B. and J.C., who were victims of crimes similar to the crime of which complainant was a victim; i.e., their testimony was admissible as evidence of a common scheme or design or modus operandi.
We first observe that the general rule is that failure by a defendant to raise an issue in a written motion for a new trial waives that issue and it cannot constitute grounds for reversal on review. (People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.) A reviewing court, however, may notice plain errors or defects affecting substantial rights of a defendant even if they are not brought to the attention of the trial court. (54 Ill. 2d 280, 282, 296 N.E.2d 856.) In the instant case, we find no reason to depart from the general rule and note that even if defendant had not waived the issue of whether the contested testimony was properly admitted into evidence, the trial court's admission of this testimony into evidence would be upheld.
Moreover, evidence of other crimes is admissible if it is relevant for any purpose other than to show the defendant's character or propensity to commit crime. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 484, 485 N.E.2d 1292.) If the evidence is relevant to prove modus operandi, knowledge, intent, lack of mistake, or that the crime charged was part of a common design, scheme or plan of the defendant, it is admissible. (138 Ill. App. 3d 481, 484-85, 485 N.E.2d 1292.) It is within the discretion of the trial court to decide whether evidence of other crimes is relevant to a material issue in the case and whether the probative value of the evidence outweighs its prejudicial effect; a reviewing court will overturn the trial court's decision to admit such evidence only if there has been a clear abuse of discretion. People v. Fuller (1983), 117 Ill. App. 3d 1026, 1036, 454 N.E.2d 334.
In the case at bar, the trial court admitted into evidence the testimony of S.B. and J.C. under the common design or scheme and modus operandi exceptions to the general rule requiring exclusion of evidence of other offenses. Many courts, like the trial court here, use the terms "common design or scheme" interchangeably with " modus operandi " (see People v. Fuller (1983), 117 Ill. App. 3d 1026, 454 N.E.2d 334; People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251), but the terms have separate and distinct meanings. "Common design" refers to a larger criminal scheme of which the crime charged is only a portion and is often relevant to show the motive for the crime charged. (People v. Barbour (1982), 106 Ill. App. 3d 993, 999-1000, 436 N.E.2d 667.) " Modus operandi " means method of working and refers to a pattern of criminal behavior that is so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer; it is useful in showing that the accused is the perpetrator of the crime charged. (106 Ill. App. 3d 993, 999-1000, 436 N.E.2d 667.) Here, defendant contends that the testimony of S.B. and J.C. did not fall within either the common design or modus operandi exceptions, while the State asserts that the evidence falls under both exceptions.
Evidence of a separate offense is found to be relevant and admissible as proof of modus operandi only upon a strong and persuasive showing of similarity of the crime charged and the separate offense; there must be a substantial and meaningful link between the offenses being compared. (People v. Tate (1981), 87 Ill. 2d 134, 141, 143, 429 N.E.2d 470.) Although the similarities of the offenses being compared need not be unique, some distinctive feature not common to most offenses of that type must be present to show modus operandi. (87 Ill. 2d 134, 142-43, 429 N.E.2d 470.) The State must prove that another offense did take place and was committed by defendant, but the proof need not be beyond a reasonable doubt. People v. Fuller (1983), 117 Ill. App. 3d 1026, 1036, 454 N.E.2d 334.
In the case at bar, the testimony of S.B. and J.C. established that they were victims of lewd fondling committed by defendant. We find that their testimony was admissible as evidence of defendant's modus operandi. All of defendant's victims were adolescent males, 14 or 15 years of age, whom he had hired to work for him at the funeral home to do general maintenance or custodial duties. He would fondle their genitals until they obtained an erection and, for two of the victims, he measured their erect penises. He always committed these offenses in his room at the funeral home, usually in the evening, and the incidents occurred during the summer and autumn of 1982. Defendant took several photographs of complainant, who was naked, showed them to the other two boys, and requested them to pose for him. We find the offenses against complainant, S.B., and J.C. are so substantially similar that they show a common method of procedure and are relevant to prove defendant's modus operandi. People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251.
Defendant also contends that the testimony of S.B. and J.C. was not admissible to show his modus operandi for the offense of child pornography against them. While defendant may not have committed the offense of child pornography against these two victims, we find that their testimony was admissible as evidence of defendant's modus operandi for the offense of indecent liberties with a child; defendant's failure to photograph S.B. and J.C. did not weaken the link of similarities between the offenses committed against them and the offense committed against complainant. Exact identity of the offenses is not required to admit evidence of other crimes. (People v. Fuller (1983), 117 Ill. App. 3d 1026, 1035, 454 N.E.2d 334.) In People v. Anderson (1982), 108 Ill. App. 3d 563, 439 N.E.2d 65, for example, the reviewing court upheld the trial court's admission of evidence that defendant committed similar attacks against women other than the complainant in affirming defendant's convictions for attempted murder, armed robbery, and aggravated battery even though he had not shot either of the other two victims and only one of the victims had been raped.
We further find that the testimony of S.B. and J.C. was properly admitted as evidence of a common design or scheme. Clearly, defendant planned to hire male adolescents to work directly for him, not the owner of Maloney's Funeral Home, and to lure them to his room to engage in lewd acts. Although he only photographed complainant, he requested the other two boys to be photographed and showed them his camera as well as the pictures of complainant.
Defendant next contends that even if the contested testimony was admissible as evidence of a common design or modus operandi, it is irrelevant and that any probative value it might have was outweighed by its prejudicial effect. In Illinois, any evidence which tends to prove a fact in issue is relevant. (People v. Burgin (1979), 74 Ill. App. 3d 58, 69, 392 N.E.2d 251.) Defendant placed in issue whether a crime was committed and who committed it. We find that the testimony of S.B. and J.C. was probative and relevant as to those issues and that its probative value was not outweighed by any prejudice it may have created in the jury against defendant. The trial court carefully limited the testimony to offenses which occurred around the same time period in which the offense occurred against complainant and instructed the jury to consider the testimony only for the limited purpose for which it was admitted, thereby alleviating any potential prejudice. (See People v. Carter (1981), 98 Ill. App. 3d 720, 724, 424 N.E.2d 367.) The trial court must be afforded some latitude in assessing the relevance of testimony to be admitted (People v. Matthews (1985), 137 Ill. App. 3d 870, 875, 485 N.E.2d 403), and we find that the trial court here did not abuse its discretion when it found the contested testimony to be relevant and admitted it into evidence. Finally, although the Dissent herein concludes that the evidence of other crimes was unfair and unnecessary, we note that the issue in this appeal is not the fairness of the evidence or its necessity but rather its admissibility under settled rules of evidence.
Defendant also contends that the sentence imposed by the trial court was excessive and that the court failed to properly weigh the factors favoring mitigation of his sentence. The State asserts that the trial court properly considered the seriousness of the offense of which defendant was found guilty with all mitigating factors and correctly imposed the maximum sentence.
Defendant was convicted of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11-4(a)(2)) and child pornography (Ill. Rev. Stat. 1981, ch. 38, par. 11-20(a)), offenses punishable by a sentence of not less than four years or more than 15 years (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(a)(4)). After a sentencing hearing during which two witnesses testified for the State, the trial court sentenced defendant to a term of 15 years' imprisonment.
At the hearing, the mother of a fourth boy, E.B., identified pictures of her son taken by defendant. Youth officer Samuel Christian testified that those photographs, which showed E.B. in various states of undress and sexual arousal, were recovered from defendant's room at the funeral home on March 28, 1984. Defendant admitted to the officer that he took the photographs and performed sexual activities on E.B. However, defense counsel requested that the trial court consider defendant's presentence investigation report which showed that defendant was married, had no criminal record, was steadily employed, was a graduate of the University of Chicago, and had heart trouble for which he took medication. Counsel also stated that there was no evidence that any of defendant's victims were permanently injured by his acts or that defendant had any record of violence and requested that defendant receive the minimum sentence. After hearing the parties' arguments, the trial court imposed a sentence of 15 years' imprisonment based on its consideration of the nature of the offenses against defendant and the presentence investigation report.
Defendant contends that the trial court did not weigh the factors in aggravation or mitigation of his sentence but instead disregarded any mitigating factors because they failed to absolve defendant of the crime charged. Although the Illinois Constitution requires the trial court to determine all penalties both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship (Ill. Const. 1970, art. I, sec. 11), a trial court is not required to give greater weight to the possibility of rehabilitation than to the seriousness of the offense. (People v. Green (1985), 136 Ill. App. 3d 361, 368, 483 N.E.2d 606.) There is a strong presumption that a trial court's sentencing decision is based upon proper legal reasoning, and the court will be presumed to have considered any evidence of mitigation which is before it. (People v. Goodman (1983), 116 Ill. App. 3d 125, 127-28, 451 N.E.2d 607.) The court has no obligation to recite and give value to each fact presented at the sentencing hearing. (116 Ill. App. 3d 125, 128, 451 N.E.2d 607.) The trial court is the proper forum in which to determine a suitable sentence, and the trial court's decision regarding sentencing is entitled to great deference and weight. (People v. La Pointe (1982), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344.) This decision will be modified by a reviewing court only if there has been an abuse of discretion. People v. Williams (1985), 130 Ill. App. 3d 758, 762, 474 N.E.2d 1330.
We find defendant's contention that the trial court failed to weigh the aggravating and mitigating factors to be without merit and find no abuse of the trial court's discretion. While at one point the court stated that "[the] only thing I am concerned with is the nature of the charges you are accused of," the court's next statement involved the consideration of defendant's health condition. The court also stated that the presentence investigation report was considered in making its determination. Clearly, the court considered all the aggravating and mitigating factors before it in the sentencing hearing and determined that defendant's behavior justified the imposition of the maximum penalty for the offenses of which he was found guilty. Because this penalty is within the statutory limits and the trial court did not abuse its discretion in imposing the term of imprisonment, we find no reason to vacate or reduce defendant's sentence.
Accordingly, the judgment of the circuit court is affirmed. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal.
JUSTICE PINCHAM, Dissenting:
I Dissent. Although I am of the opinion that the 15-year imprisonment sentence was not excessive but was appropriate for the dastardly sex offenses the defendant committed upon E.B., minor No. 1, for which the defendant was on trial, I am also of the opinion that the admission of the evidence of the defendant's commission of other sex offenses upon S.B. and J.C., minors Nos. 2 and 3, for which the defendant was not on trial, circumvented the letter and spirit of the defendant's constitutional rights to be informed of and tried on the accusation alleged in the indictment, against being twice placed in jeopardy for the same offense, to due process, to fundamental fairness, and to a fair trial. The defendant's conviction should therefore be reversed and the cause should be remanded for a new trial.
The State presented adequate and unrebutted evidence to establish the defendant's guilt beyond a reasonable doubt of the commission of the sex offenses upon E.B., minor No. 1. That evidence was the testimony of E.B., the pornographic pictures of E.B. which were recovered from the defendant's possession and corroborated E.B.'s testimony, and the defendant's confession. But there is not one set of evidentiary rules for the guilty and another set of rules for the innocent. A defendant, guilty or innocent, is entitled to a fair, orderly, and impartial trial in accordance with the law of the land. The defendant in this case did not receive such trial. People v. Galloway (1956), 7 Ill. 2d 527, 536, 131 N.E.2d 474; People v. Savage (1967), 84 Ill. App. 2d 73, 79, 228 N.E.2d 215.
The law does not fluctuate in order to more certainly reach a guilty finding. The prejudicial and inadmissible evidence of the defendant's commission of other sex offenses upon S.B. and J.C., minors Nos. 2 and 3, might be appropriately characterized as the prosecutor's attempt to gild the lily, overtry his case, and overkill in the adversarial proceedings. The greater portion of the trial evidence was about the defendant's commission of the sex offenses upon S.B. and J.C., minors Nos. 2 and 3.
Count I of the indictment No. 84-4395 in the case at bar alleged, "[on] or about July 1, 1982 and continuing on through July 31, 1982 at and within the County of Cook, Richard Partin a male person of the age of seventeen years and upwards committed the offense of indecent liberties with a child in that he, with the intent to arouse and satisfy his sexual desires, lewdly fondled and touched E.B., [minor No. 1], a child under the age of sixteen years, in violation of Chapter 38, Section 11 -- 4 -- A(2) of the Illinois Revised Statutes 1983 . . .."
Count II of the indictment alleged that on the aforesaid dates and place, "Richard Partin committed the offense of child pornography in that he photographed child pornography, to wit: he photographed E.B., [minor No. 1], a child under the age of sixteen, while he was nude, in violation of Chapter 38, Section 11 -- 20 -- A -- B(2) of the Illinois Revised Statutes 1983 . . .."
In another indictment, No. 84-4410, the defendant was charged with the offense of indecent liberties with S.B., minor No. 2, on or about February 9, 1983. A third indictment, No. 84-4397, charged the defendant with indecent liberties with J.C., minor No. 3, on September 7, 1983.
Prior to the jury selection, the following colloquy occurred:
"[Assistant State's Attorney]: [The] State plans on calling all victims involved in the cases before you, besides the victim in the elected case, to show -- scheme and pattern.
[Defendant's attorney]: That, of course, your Honor, I would object to.
THE COURT: [You] can show correlation between the activity involved with these other individuals; point of time, and in -- of the changes before this Court, and common scheme, plan or design it is constantly been held that it is admissible and I will not restrict the State with reference to that . . . other knowledge of that kind can only be used for purposes of showing common scheme, plan or design." (Emphasis added.)
The State acknowledged in its brief before this court that the trial court's basis for admitting evidence of the defendant's commission of the other sex offenses for which the defendant was not on trial was to show common scheme, plan, or design. Then, apparently recognizing that common scheme, plan or design is legally an unsound basis for admitting evidence of the defendant's commission of the other sex offenses, the State abandoned the common scheme, plan, and design basis in its brief and shifted to a modus operandi basis to justify the admission of the evidence of the commission of the other sex offenses by the defendant.
The State was not authorized to join the different alleged sex offenses upon the three minors in the same indictment because the offenses were not based on the same act or on two or more acts which were part of the same comprehensive transaction, which is a prerequisite for a joinder of offenses under section 111-4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 111-4(a)). See People v. Harris (1986), 147 Ill. App. 3d 891, 498 N.E.2d 621 (Pincham, J., Dissenting).
Section 114-7 of the Code of Criminal Procedure (Ill. Rev. Stat. 1985, ch. 38, par. 114-7) provides: "The court may order 2 or more charges to be tried together if the offenses and the defendants could have been joined in a single charge." The trial court was not authorized in the case at bar to order the alleged offenses against the three minors to be tried together under section 114-7. The different alleged offenses against the three minors could not have been joined in a single charge because they were not part of the same comprehensive transaction, which is a prerequisite under section 111-4(a). Because the alleged offenses against the three minors were not and could not have been joined in a single indictment, the defendant could not make a motion for a severance based on a prejudicial joinder of the offenses under section 114-8. (Ill. Rev. Stat. 1985, ch. 38, par. 114-8.) That section provides: "If it appears that a defendant or the State is prejudiced by a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial the court may order separate trials, grant a severance of defendants, or provide any other relief as Justice may require."
At trial, the State's first witness was the mother of E.B., minor No. 1, who testified as to E.B.'s birthdate. E.B. then testified that in the fall of 1979, when he was 10 years old, the defendant hired him to work in general maintenance at the funeral home where the defendant was employed and lived. E.B. worked there from 1979 to the second week in July 1982, at which time E.B. went to the defendant's room and talked to him about body building. The defendant told E.B. if he ate the right food and exercised he would be able to build his body up. The defendant took a picture of E.B., who was clothed. The defendant told E.B. to take his clothes off and E.B. did. The defendant measured various parts of E.B.'s body with a cloth tape measure and recorded the measurements on a yellow pad. The defendant then rubbed E.B.'s penis and genitals and told E.B. he was doing that to measure his penis. The defendant measured E.B.'s erect penis and recorded the measurements on the pad. While E.B. was nude, the defendant directed E.B. to pose and the defendant took pictures of him. E.B. identified the pictures that the defendant took of him as State's exhibit No. 1, a picture of E.B. while dressed, and Nos. 2, 3 and 4 which were nude pictures of E.B. The defendant told E.B. not to tell anyone about the pictures or measurements. E.B. testified that July 1982 was three months before his 15th birthday and that he had not finished the eighth grade.
E.B.'s direct-examination testimony constituted 18 pages of the trial record and his cross-examination testimony constituted 11 pages.
At the Conclusion of E.B.'s testimony, the defendant's attorney again objected to the testimony of other "supposed victims of Mr. Partin. . . . My objection is that they cannot be brought in on this case, despite the Court's ruling on common scheme, pattern, and design. . . . The State is going to inflame the jury and mislead them . . .. It shows that if somebody ten times [ sic ], they are bound to be guilty at least once. I see no other purpose than that is what the State is trying to do." (Emphasis added.)
The assistant State's Attorney then gave a litany of grounds for the admission of evidence of the defendant's commission of the offenses against S.B. and J.C., minors Nos. 2 ...