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06/07/94 PEOPLE STATE ILLINOIS v. WILLIAM JOHNSON

June 7, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WILLIAM JOHNSON, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macon County. No. 92CF954. Honorable John K. Greanias, Judge Presiding. This Opinion Substituted by the Court for Withdrawn Opinion of May 20, 1994, Previously

Petition for Leave to Appeal Denied October 6, 1994.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, J., Honorable Robert W. Cook, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In March 1993, a jury convicted defendant, William Johnson, of five counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-14(b)(1)), and two counts of home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12-11). The trial court later vacated the second home invasion conviction as duplicitous and sentenced defendant to consecutive prison terms of 30 years on one count and 10 years on each of the other four counts of aggravated criminal sexual assault, and a consecutive 20-year term for the home invasion count. Defendant appeals, arguing that the court (1) erroneously admitted DNA testimony linking defendant to these crimes, (2) improperly permitted the State to elicit testimony that defendant staked out the victim's home, and (3) abused its discretion by imposing an excessive sentence.

We affirm.

I. BACKGROUND

Prior to trial, defendant made several motions in limine, including motions to preclude (1) Harold Deadman's expert testimony about DNA (deoxyribonucleic acid) identification, and (2) Maurice Witherspoon's testimony about prior crimes, wrongs, or acts committed with defendant. Regarding defendant's motion in limine concerning Deadman's expert testimony, the trial court reserved ruling on the admissibility of the DNA evidence to allow defendant an opportunity to submit authority on the issue. Defendant neither objected to this procedure nor requested a pretrial ruling. The trial court subsequently took judicial notice of this court's decision that DNA identification evidence is admissible because it is recognized by the relevant scientific communities. See People v. Lipscomb (1991), 215 Ill. App. 3d 413, 432, 574 N.E.2d 1345, 1357, 158 Ill. Dec. 952.

Defendant's motion concerning Witherspoon sought to preclude his testimony that he acted as a lookout while defendant looked in the windows of the victim's home. In response, the State informed the trial court that it would not ask Witherspoon to testify about crimes committed with defendant, but would only inquire about defendant's presence at the victim's house and his looking in the windows. The court then denied defendant's motion.

At trial, the victim, a 12-year-old girl, testified that on December 10, 1990, she was awakened during the night by someone putting an object which felt like a gun to her head. The person covered her face with a pillow and proceeded to commit five separate acts of sexual assault upon her. After ejaculating on her leg, the assailant used a stuffed animal to wipe her leg off. Even though she was not able to see the assailant's face, she could see that he was a black man.

Her younger brother was sleeping in her room that night. He was also awakened by someone placing what felt like a gun to his head. He also did not see the assailant because a sheet covered his head during the entire incident. His testimony closely paralleled his sister's. After the assailant fled, the children lay in bed for some time and then told their mother what had happened. The victim was taken to an emergency room, where the medical staff followed standard procedures for a rape case in order to preserve evidence.

A police officer who investigated the scene testified that no latent fingerprints matching defendant's were found at the scene. Further, some hairs found at the scene did not match either the victim or defendant. However, a serology expert testified that defendant's blood type was consistent with the semen stains left on the stuffed animal and the victim's underwear.

Witherspoon testified that he received a reduced charge in exchange for his testimony against defendant. Witherspoon knew defendant because Witherspoon's brother used to be married to defendant's sister. Witherspoon testified that he and defendant had been at the victim's house in the fall of 1990 to "check it out." He explained that he helped defendant move outdoor furniture closer to the house and then stood lookout while defendant looked in the windows. Both the victim and the victim's mother testified that someone had moved their outdoor furniture during the fall of 1990, and they did not know who. An officer testified that Witherspoon had pointed out the victim's house while they drove by it in February 1991.

Defendant denied ever having been present at the victim's home and denied the acts of sexual assault. Defendant also testified that he did not consider Witherspoon a friend. Two friends of defendant testified that they believed defendant was with them at their home on December ...


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