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12/08/87 the People of the State of v. John Manley

December 8, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOHN MANLEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

516 N.E.2d 1343, 163 Ill. App. 3d 950, 114 Ill. Dec. 949 1987.IL.1804

Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. HOPF and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, John Manley, was charged with two counts of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(b).) He was found guilty by a jury of one count of the same and was sentenced to a term of five years' imprisonment in the Department of Corrections. Defendant filed a timely appeal, arguing that evidence of his past bad acts was improperly admitted, that the statute under which he was convicted is unconstitutional, and that the trial court erred in not declaring a mistrial. We affirm.

Defendant does not contend that he was not proved guilty beyond a reasonable doubt, so a detailed recitation of his conduct is not necessary. Suffice it to say that he was charged with one count of aggravated criminal sexual abuse in that, on various occasions between February 1985 and November 1985, he fondled the vaginal area of one of his three adopted daughters with intent to arouse himself sexually. The second count charged that during the same period, he likewise fondled the buttocks of another of his adopted daughters. Both victims were under 18 years of age at the time of the fondlings. A jury convicted defendant of the first count, but acquitted him of the second charge. Defendant's motion in arrest of judgment was denied.

Defendant first argues that the trial court erred in admitting evidence of prior sexual misconduct between defendant and his adopted daughters. Prior to trial, the trial court had granted defendant's motion in limine to exclude evidence of such prior misconduct. After defendant's opening statement, however, the prosecution requested a reconsideration of the order in limine. The prosecutor noted that defense counsel had promised to introduce evidence of the complainants' prior silence and denials. He then explained that the complainants had told him that they had not made complaints sooner because they felt their complaints of prior abuse had been useless. The trial court then modified the order in limine such that if defendant questioned the complainants about their delay in reporting the charged abuse, the prosecution would be able to rehabilitate them by asking the reasons for their silence.

When defense counsel cross-examined the first complainant, the oldest daughter, he asked if she had told her mother of the abuse or if she had reported the abuse to the Illinois Department of Children and Family Services . She answered that she had not reported the abuse to her mother or the DCFS until after she ran away from home late in November 1985. On redirect, she testified that the reason she had not reported the abuse to her mother earlier was because she had not been believed when reporting previous abuse. The prosecutor then asked who had previously abused her, to which she replied, "John Manley."

She then testified that defendant had sexually abused her in 1980 and that she had reported the abuse to a social worker, but that no action was taken other than counseling. She went on to testify that defendant had been taken out of the house by the DCFS in 1983 because of abuse to her two sisters, but that he was allowed to return after one year. It was approximately four months after defendant was allowed to return to the home that the latest abuse started. She testified that she did not call the DCFS this time because in the years that she had been dealing with them, they had never helped her or kept her and her sisters safe. She did not elaborate, however, on the acts which constituted the previous abuse. After the oldest daughter testified, the trial court instructed the jury that the evidence of prior abuse was admitted only to explain her prior silence and not as evidence of the crime charged.

Similar, although less extensive, evidence of defendant's past misconduct was also elicited during redirect examination of the second complainant, the middle daughter. She explained that she had denied being abused at first because she was scared, since nothing had happened before when she complained of abuse, and she felt that nothing would happen again. The limiting instruction was again given after the middle daughter's testimony.

As defendant correctly notes, the general rule is that evidence of offenses other than those for which a defendant is being tried is inadmissible if offered merely to establish a propensity to commit such acts. (People v. Romero (1977), 66 Ill. 2d 325, 330; People v. Davis (1984), 130 Ill. App. 3d 41, 50.) On the other hand, "it is also well settled that evidence of other crimes is admissible for the limited purpose of proving motive, intent, identity, or common design. [Citations.] In fact, if it is relevant for any purpose other than to show propensity to commit a crime, evidence of other crimes is admissible. [Citation.]" (Emphasis added.) People v. Shum (1987), 117 Ill. 2d 317, 352.

It is within the sound discretion of the trial court to decide whether the probative value of evidence is substantially outweighed by the risk that its admission will create a danger of undue prejudice to the accused. (People v. Friedman (1980), 79 Ill. 2d 341, 355; People v. Myles (1985), 131 Ill. App. 3d 1034, 1043.) Thus, a reviewing court will not overturn the trial court's decision to admit such evidence unless there has been a clear abuse of that discretion. (People v. Partin (1987), 156 Ill. App. 3d 365, 370.) After reviewing the record here, it does not appear that the trial court abused its discretion in allowing the complainants to testify to defendant's past misconduct.

The complainants' testimony regarding defendant's past misconduct was clearly not offered merely to show defendant's propensity for abuse. No evidence of prior abuse was offered during direct examination. Defense counsel's cross-examination of both complainants, however, raised the inference that they were untruthful because they did not report the abuse sooner and because the middle daughter at first denied that she was being abused. At this point the complainants were entitled to explain their earlier silence and denials. It was thus the defendant's cross-examination which "opened the door" to this rehabilitation. ...


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