Appeal from the Circuit Court of Cook County. The Honorable John E. Morrissey, Judge Presiding.
The opinion of the court was delivered by: Justice Gordon
Following a jury trial, defendant Corey Jackson was convicted of two counts of aggravated criminal sexual assault with a weapon and one count of aggravated kidnaping and was sentenced to consecutive prison terms of eight, seven and six years, respectively. On appeal, defendant contends that his convictions and sentences should be vacated because: (1) the trial court erred in admitting other crimes evidence to show defendant's modus operandi; (2) the trial court improperly refused to tender defendant's non-pattern jury instruction defining modus operandi; (3) defendant was improperly convicted of aggravated kidnaping when the aggravated kidnaping was incidental to the sexual assault; and (4) the trial court improperly considered defendant's failure to admit his guilt or show remorse in imposing sentence. We reverse and remand.
Prior to the commencement of defendant's trial, the State moved to present evidence of other crimes to establish defendant's modus operandi. The State argued that defendant was previously convicted of sexually assaulting L.S, and that there were many similarities between the assault against L.S. and the assault against D.R., the victim in the instant case. Specifically, the State argued that the profiles of the victims chosen by defendant were similar because D.R. and L.S. were both African-American, adult females who were alike in age insofar as D.R. was 39 years old and L.S. was 33 years old. The State further argued that the crimes were similar because defendant was a stranger to both victims, acted alone in committing both offenses, took both victims to abandoned buildings, engaged in vaginal sex with both victims and ejaculated during both offenses. Although defendant used a gun when assaulting D.R. and a knife when assaulting L.S., he nevertheless used a weapon in both instances. Further, defendant kidnaped both victims by dragging L.S. into a nearby abandoned building and forcing D.R. into his vehicle and driving her several blocks to a different abandoned building. Finally, the State argued that the offenses were similar because Nautica apparel was involved in both offenses in that defendant stole L.S.'s Nautica coat after assaulting her and was wearing a Nautica coat while assaulting D.R. Notably, the State did not present any evidence at trial which established that the Nautica coat worn during D.R.'s assault was the same coat stolen from L.S.
Defendant argued that the evidence was insufficient to establish modus operandi because it was "not probative or significant enough to earmark this work as being the signature of Corey Jackson." Defendant asserted that there were several sex offenders on the south side of Chicago who used abandoned buildings and weapons to assault African-American, adult females. Defendant also pointed out that the abandoned buildings used in this case were miles apart, in different neighborhoods, and that there was no connection established between him and the buildings. Further, defendant argued that different weapons were used in each offense and that the offender approached and kidnaped the victims in a different manner. Defendant also asserted that vaginal penetration was an element of the crime charged and that this evidence did not support the State's modus operandi argument. Finally, defendant argued that the State's argument concerning Nautica clothing was a "red herring" because "[t]here are 3-million people in the City of Chicago with access to Nautica clothing."
The trial court concluded that there were "eight strikingly similar points of comparison" between these offenses, namely: (1) that the victims in each case were abducted on the street on the south side of Chicago; (2) each abduction occurred in "hours of darkness"; (3) the assailant was a stranger to the victims; (4) vaginal sex acts occurred in both cases; (5) the assailant used a weapon; (6) the assailant acted alone; (7) the victim was alone when she was abducted and assaulted; and (8) Nautica clothing was involved in both offenses.
The following testimony was presented at trial. D.R. stated that she was 39 years old on May 25, 1998, the date of the instant offense, and was living in the area of 48th and Indiana Streets in Chicago. Although she was unemployed at the time, she was not working as a prostitute. At approximately 10:45 p.m. on the date in question, D.R. was walking towards the area of 50th and Indiana Streets when a man approached and asked if he could accompany her. When D.R. refused, the man, whom D.R. identified as defendant, placed his gun against the left side of her rib cage and told her to get into his car. D.R. testified that defendant was alone and that he was a stranger to her.
D.R. explained that she got into defendant's car and he drove her to an abandoned building located at 88th and Dauphin Streets. Defendant took D.R. inside the abandoned building and told her to undress. He then forced D.R. to engage in acts of oral and vaginal sex. When the acts were completed, defendant told D.R. to wait four minutes before leaving the building. He then dressed himself and left. According to D.R., defendant was wearing "a baseball cap, a Nautica jacket, a [T]-shirt, some jeans and some tennis shoes" at this time. After defendant left, D.R. dressed and ran out of the building. She was eventually picked up by two women who drove her to the police station.
Officer Percy Alexander testified that he spoke with D.R. at the police station after the assault. D.R. directed him to a second-floor apartment located in an abandoned building at 8800 South Dauphin and identified the apartment as the scene of the assault. Officer Alexander averred that the apartment was obviously vacant and that debris was strewn throughout.
The State subsequently called L.S. as a witness. Prior to her testifying, defendant requested that the trial court instruct the jury on the proper manner of considering other crimes evidence by inserting the term modus operandi into Illinois Pattern Jury Instruction, Criminal, No. 3.14 (2000) (hereinafter IPI Criminal No. 3.14). The trial court agreed and instructed the jury as follows:
"Members of the jury, before this witness testifies, I must instruct you that through [L.S.], evidence will be received that the defendant, Mr. Jackson, has been involved in conduct other than that charged in the indictment. This evidence will be received on the issue of the Defendant's modus operandi, and may be considered by you only for that limited purpose. It is for you to determine whether the defendant was involved in that conduct, and if so, what weight should be given to this forthcoming evidence on the issue of modus operandi."
Defendant also requested that the trial court given the jury a non-IPI instruction tendered by defense counsel which defined modus operandi based on the definition set forth in Black's Law Dictionary 1020 (7th ed. 1999) and People v. Kimbrough, 138 Ill. App. 3d 481, 486, 485 N.E.2d 1292, 1297 (1985). Defendant's tendered instruction read: "MODUS OPERANDI refers to a pattern of behavior so distinct that separate acts or conduct are recognized as the work of the same person." The trial court declined to tender this instruction to the jury. In making this decision, the trial court stated:
"The IPI recognize[s] that any non-IPI given to the jury *** should be as to the law and should not be argumentative or segment. A certain rule of law, which could lead the jury to be confused or be mislead [sic]. And I think by giving the definition of MO [modus operandi] as it appears in People versus Kimble [sic], could lead to jury confusion. Given the fact that IPI 314 [sic] contains a very plain and distinct definition of proof of evidence of other crimes."
L.S. subsequently testified that she was walking in the area of 64th and Hermitage Streets at about 4 a.m. on September 26, 1998, when defendant jumped out of the bushes and grabbed her by the hood of her Nautica coat. Defendant, carrying a long cake knife, pulled L.S. into an abandoned building located nearby, and with his hands around her neck, dragged her to the second floor of the building in the living room part of the house. According to L.S., the living room was dirty and there was a blanket spread out in the corner of the room. L.S. explained that defendant got on top of her, pulled off her pants and coat, vaginally penetrated her and ejaculated. L.S. stated that she was kicking and struggling throughout the assault and lost one of her shoes as a result. Nevertheless, she was unable to fend off defendant. When the assault was over, defendant got up and began swinging his knife at L.S. She averred that she blocked the knife with her hand and sustained a cut to her finger. She then got up and ran out of the building. L.S. explained that she was 33 years old at the time of the assault. She denied knowing defendant prior to the assault or working as a prostitute.
Officer Possada testified that he spoke to L.S. after the assault and then went to the abandoned building located at 6457 South Hermitage where the assault allegedly occurred. He observed debris scattered throughout the building and found L.S.'s shoe, as well as a blanket on the floor. According to Officer Possada, defendant was picked up by other patrol officers in the area shortly thereafter and brought back to the abandoned building. L.S. identified defendant at that time.
The parties then stipulated that a vaginal swab taken from D.R. at the hospital tested positive for semen and that the swab was sent to a forensic scientist for DNA testing. Likewise, blood was drawn from defendant and the blood sample was forwarded to the same forensic scientist. DNA analysis established that the mixture of DNA on the swab was consistent with having originated from D.R. and defendant.
Defendant testified on his own behalf. He stated that he lived at 2438 West 63rd Street in Chicago in 1998 at the time of the assaults in question. During that time period, he was in the habit of going to 47th or 63rd Streets two to three times per week to "buy sex" from prostitutes. Defendant explained that he would pay the prostitutes $10 and then have sex with them in backyards or gangways. Defendant asserted that, prior to March 25, 1998, he had purchased sex from D.R. more than five times, and on the night in question, he met D.R. in the area of 49th and Prairie and paid her $10 in exchange for vaginal sex. Afterwards, D.R. demanded $50 from defendant in addition to the $10 he had already paid her. Defendant stated that he refused to pay the extra money and D.R. told him that she would "fix" him. At that point, defendant left D.R. and walked to 49th and King Drive to get a cab. Defendant denied engaging in oral sex with D.R. and denied driving her to 88th and Dauphin.
Defendant testified that he similarly met L.S. in the area of 62nd and Ashland at about 1:30 a.m. on September 26, 1998. Defendant had a conversation with L.S. and then she asked him if she could "sell him sex." Defendant agreed and he and L.S. went to a nearby hotel where L.S. had previously rented a room. Defendant paid L.S. $10 and they engaged in both oral and vaginal sex. At some point in their encounter, L.S. told defendant that she was selling her coat and defendant agreed to buy it for $20. After having intercourse with L.S., defendant took the coat and left the hotel room. He went across the street to a sandwich shop and ate. After about 45 minutes, defendant encountered L.S. again in the same area. He agreed to pay her for sex a second time and gave her $10. According to defendant, L.S. led him to an abandoned building at 65th and Hermitage. Defendant explained that he was frightened of the abandoned building and did not want to go inside, but L.S. assured ...