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People v. Wassell

May 17, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
TERRY L. WASSELL, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Pike County No. 98CF51 Honorable Richard D. Greenlief, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Steigmann

In May 1998, the State charged defendant, Terry L. Wassell, with predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West Supp. 1997)). In September 1998, the State filed a petition to proceed under the Sexually Dangerous Persons Act (Act) (725 ILCS 205/0.01 through 12 (West 1998)). In May 1999, the State filed notice of its intent to call four witnesses at trial who would testify that defendant sexually assaulted them on prior occasions, pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3 (West 1998)). In June 1999, defendant filed a motion in limine seeking to prohibit that testimony, which the trial court granted. The State filed an interlocutory appeal from that order, and this court later dismissed the appeal for lack of jurisdiction (People v. Wassell, 312 Ill. App. 3d 506, 509, 512, 727 N.E.2d 413, 415, 417 (2000), vacated, 193 Ill. 2d 598, 741 N.E.2d 988 (2001)).

In February 2000, the Supreme Court of Illinois entered a supervisory order vacating this court's judgment and reinstating the State's appeal for reconsideration in light of its decision in People v. Drum, 194 Ill. 2d 485, 743 N.E.2d 44 (2000). We affirm.

I. BACKGROUND

Pursuant to the May 1998 indictment, the State charged defendant with predatory criminal sexual assault of a child, in that on or about September 27, 1997, he committed an act of sexual penetration with P.S.W. (his three-year-old granddaughter) by placing his finger in her vagina.

In September 1998, the State filed a petition to have defendant adjudicated a sexually dangerous person under the Act (725 ILCS 205/3 (West 1998)). In November and December 1998, the State filed amended petitions to proceed under the Act, and in May 1999, the State filed a notice of intent to offer into evidence at defendant's trial the testimony of four witnesses, including L.M. and J.R. The State expected the four witnesses to testify that defendant had sexually assaulted them when they were minors. (The State appeals only the trial court's ruling to bar the testimony of L.M. and J.R.)

Pursuant to the State's second-amended petition to proceed under the Act, L.M. and J.R. would testify as follows. L.M. would testify that she is defendant's niece and defendant sexually assaulted her on numerous occasions between the years 1972 and 1981, when she was between the ages of 4 and 15. The alleged assaults occurred when she was a visitor in defendant's home. Defendant would enter the room where L.M. slept, lift her nightgown, and fondle her breasts and vagina. On five occasions, defendant inserted his finger in her vagina. When L.M. was 11 years old, defendant inserted his penis into her mouth. The incidents ceased between 1981 and 1983, but, in 1984, L.M. awoke to find defendant sitting on the edge of her bed, masturbating.

J.R. would testify that between 1972 and 1976, when she was between the ages of 13 and 17, she frequently baby-sat at defendant's home. While driving her home, defendant would make sexually suggestive comments. On one occasion, defendant pulled off the road and forced J.R. to masturbate him. One night when she was sleeping at defendant's home, she awoke to find defendant kissing her, fondling her breasts, and rubbing his penis against her vaginal area.

In June 1999, defendant filed a motion in limine, seeking to bar L.M. and J.R.'s testimony, arguing that (1) the testimony was not "otherwise admissible," as is required by section 115-7.3 of the Code (725 ILCS 5/115-7.3 (West 1998)); and (2) its prejudicial effect outweighed its probative value. Defendant further asserted that the likely prejudicial effect was particularly aggravated by the following facts: (1) the incidents involving L.M. purportedly occurred over 15 years earlier, and the incidents involving J.R. purportedly occurred over 23 years earlier; and (2) none of the incidents were reported, charged, or otherwise corroborated prior to this case.

The trial court later granted defendant's motion in limine, finding that L.M. and J.R.'s testimony was not admissible under section 115-7.3 of the Code nor "generally admissible." On June 7, 1999, the State filed a certificate of impairment and a notice of appeal.

II. ANALYSIS

The State argues that the trial court erred by barring L.M. and J.R.'s testimony because that evidence was admissible to establish defendant's modus operandi. We disagree.

Section 115-7.3 of the Code provides that if a defendant is accused of predatory criminal sexual assault of a child, evidence that the defendant committed predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse, or criminal sexual abuse on other occasions may be admissible if that evidence is otherwise admissible under the rules of evidence. 725 ILCS 5/115-7.3(b) (West 1998). When weighing the probative value of the evidence against the undue prejudice to the defendant, the trial court may consider the following factors: (1) the proximity in time to the charged or predicate offense, (2) the factual similarity to the charged or predicate offense, and (3) other relevant facts and circumstances. 725 ILCS 5/115-7.3(c)(1) through (c)(3) (West 1998). Determinations of evidentiary value lie within the trial court's sound discretion. See People v. Buss, 187 Ill. 2d 144, 219, 718 N.E.2d 1, 42 (1999) (trial court did not abuse its discretion in finding that the probative value of the testimony outweighed its prejudicial effect).

Evidence of a defendant's commission of other crimes is generally admissible when it is relevant to prove a material question other than the defendant's propensity to commit the crime charged, such as modus operandi, intent, identity, motive, or absence of mistake. People v. Kliner, 185 Ill. 2d 81, 146, 705 N.E.2d 850, 883 (1998). A trial court's ruling on the admissibility of other-crimes evidence ...


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