APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
539 N.E.2d 1368, 184 Ill. App. 3d 149, 132 Ill. Dec. 562 1989.IL.898
Appeal from the Circuit Court of Douglas County; the Hon. Frank W. Lincoln, Judge, presiding.
JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH, P.J., and SPITZ, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT
On appeal, the defendant's sole contention is the circuit court erred in admitting sexual misconduct testimony of a second family member under the design exception to the exclusionary rule on evidence of other crimes. We affirm.
Prior to trial, the defendant filed a motion in limine to suppress any testimony on acts of sexual misconduct extraneous to the instant charge. The defendant argued the extraneous sexual misconduct testimony was irrelevant to prove any issue other than propensity to commit the charged crime. As such, the extraneous sexual misconduct testimony was inadmissible under the exclusionary rule on evidence of other crimes. In response, the State argued the extraneous sexual misconduct testimony was relevant to prove the issues of either (1) the common design, plan, and scheme of the defendant or (2) the modus operandi of the defendant. As a result, the extraneous sexual misconduct testimony was admissible under the exceptions to the exclusionary rule on evidence of other crimes. The circuit court took the motion in limine under advisement pending an offer of proof about the exceptions to the exclusionary rule on evidence of other crimes from the State.
In support of its argument, the State offered the testimony of the two daughters of the defendant: T.M. and K.M. T.M., a minor, is the victim of the instant charge. K.M., an adult, is the victim of the acts of sexual misconduct extraneous to the instant charge.
T.M. testified the defendant first sexually abused her at age six or seven. The sexual abuse continued on a biweekly basis through the time of the instant charge in September of 1986. The sexual abuse progressed from genital fondling to vaginal intercourse. T.M. next testified the defendant met her attempts at resistance with threats of physical violence. T.M. lastly testified the defendant threatened family separation and parental strife to discourage her from reporting the sexual abuse.
K.M. testified the defendant first sexually abused her at age three or four. The sexual abuse continued on a sporadic basis through the time K.M. left the parental home in the late summer of 1984. The sexual abuse progressed from genital fondling to vaginal and anal intercourse. K.M. next testified the defendant met her attempts at resistance with physical violence. K.M. lastly testified she first became aware the defendant had also sexually abused T.M. in 1977. K.M. did not make any attempt to report the sexual abuse of either herself or T.M. until 1982. At that time, K.M. suspected she had previously suffered a miscarriage and reported the sexual abuse of the defendant to school authorities. K.M. subsequently recanted her sexual abuse report under the threats of abandonment, family separation, and parental strife from the defendant.
After the offer of proof from the State, the circuit court denied the motion in limine of the defendant. In its evidentiary ruling on the motion in limine, the circuit court stated:
"The evidence here does show a similarity of other occurrences or other instances, whereby similar conduct is alleged to have occurred between this defendant and the daughters. It cannot be used for any purpose other than to show the common scheme, plan, design and modus operandi identification, intent -- and whether the person has a propensity to commit a crime."
At trial, however, the circuit court prefaced the testimony of K.M. with a brief cautionary instruction to the jury on only the design exception to the exclusionary rule on evidence of other crimes. Given the discrepancy between the evidentiary ruling and the limiting instruction, it is apparent the circuit court used the design and modus operandi exceptions to the exclusionary rule on evidence of other crimes in an interchangeable manner.
Relying on People v. Testa (1984), 125 Ill. App. 3d 1039, 466 N.E.2d 1126, the State initially contends the defendant has waived review of this allegation of error in failing to file a motion for a new trial. As a general rule, an allegation of error is waived for the purpose of review where a litigant fails to file a motion for a new trial. (See Ill. Rev. Stat. 1987, ch. 38, par. 116-1; People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) At the discretion of the reviewing court, however, this general rule is excepted where a litigant has in some manner brought the alleged error to the attention of the circuit court. (People v. Wilson 1981), 92 Ill. App. 3d 370, 379, 415 N.E.2d 1315, 1322.) In the instant action, the defendant objected to the admission of the extraneous ...