The opinion of the court was delivered by: Justice Garman
Docket No. 92988-Agenda 2-November 2002.
Defendant, Shannon Donoho, was tried for one count of criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 1998)) and four counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 1998)) based on incidents that occurred between November 1, 1995, and November 29, 1998, involving defendant and his two step-children, K.B. and D.B. Pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-7.3 (West 1998)), the trial court allowed the admission of evidence about defendant's 1983 conviction for indecent liberties with a child arising from a single incident with a 7-year-old girl and an 11-year-old boy. The jury found defendant guilty of all five charges.
The trial court sentenced defendant to a 14-year prison term for criminal sexual assault and to concurrent 7-year terms for each of the four counts of aggravated criminal sexual abuse. The trial court entered the 14-year sentence pursuant to sentence enhancement under section 12-13(b)(4) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-13(b)(4) (West 1998)) because of defendant's prior conviction for indecent liberties with a child. The appellate court vacated defendant's convictions, remanded for a new trial, and found the trial court erred in enhancing defendant's sentence. 326 Ill. App. 3d 403, 411, 413. We granted the State's petition for leave to appeal (177 Ill. 2d Rs. 315, 612(b)) to address two issues: (1) whether evidence regarding defendant's 1983 conviction for indecent liberties with a child was properly admitted into evidence pursuant to section 115-7.3 of the Code, and (2) whether defendant's conviction for criminal sexual assault was properly enhanced from a Class 1 felony to a Class X felony for sentencing under section 12-13(b)(4) of the Criminal Code based upon his conviction for indecent liberties with a child.
Defendant married Lori Donoho on June 10, 1995. Lori had two children from a previous marriage. Her daughter, K.B., was born July 25, 1987; her son, D.B., was born June 9, 1990. Defendant and Lori had a daughter together, A.D., on March 28, 1995.
On April 20, 1999, the State filed an information in Will County against defendant; the subsequent bill of indictment alleged the same six counts, five of which were presented at trial. Count II charged defendant with criminal sexual assault, in that defendant knowingly committed an act of sexual penetration on K.B. by putting his mouth upon her vagina. Count III alleged that defendant committed aggravated criminal sexual abuse because he knowingly touched K.B.'s vaginal area. Count IV stated that defendant committed aggravated criminal sexual abuse by knowingly making K.B. touch his penis. Count V charged defendant with aggravated criminal sexual abuse, in that defendant knowingly touched D.B.'s penis. Finally, count VI alleged that defendant committed aggravated criminal sexual abuse, in that defendant knowingly made D.B. touch defendant's penis. The State filed a superceding bill of indictment on November 24, 1999, to amend count II by classifying it as a Class X felony, enhanced from a Class 1 felony, because of defendant's conviction for indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11-4(a)(3)) in Grundy County in 1983 pursuant to section 12-13(b)(4) of the Criminal Code (720 ILCS 5/12-13(b)(4) (West 1998)).
Defendant's jury trial was conducted May 3 through 5, 2000. Terry Marketti, the detective from the Grundy County sheriff's department who worked on defendant's 1983 case, testified for the State. That case involved two children, T.Q., a 7-year-old girl, and M.Q., an 11-year-old boy. Defendant was 18 years old when the incident took place. Marketti testified that at first defendant's statement did not match the children's explanation of the incident. When confronted with this inconsistency, defendant admitted that he put his finger in T.Q.'s vagina. Marketti witnessed defendant sign a two-page statement detailing the incident.
At this point in the testimony, the State requested jurors be given written copies of the statement, to utilize an exhibit that displayed the statement blown up to a larger size, and/or to read the statement aloud, citing section 115-7.3 of the Code. After a sidebar discussion, the trial court sustained the defense objection to publishing the statement to the jury. Marketti then testified that defendant admitted to having both a boy and a girl touch his penis while riding in a car with no one else present.
Lori Donoho testified that in December 1998, she and defendant separated and defendant moved out of the house. After K.B. and D.B. told her about incidents of sexual abuse by defendant, she immediately filed a police report on April 12, 1999.
D.B. testified that he was nine years old and in fourth grade. He demonstrated that he knew the difference between the truth and a lie. D.B. described four incidents of abuse. The first two incidents occurred during the summer before second grade. First, when he and defendant were by a tree in the side yard of the house, defendant touched D.B. "in the pee pee." Second, defendant touched D.B.'s penis while they were alone in the living room. Third, the following summer, they were visiting defendant's parents. Defendant and D.B. were in the shower together, and defendant touched D.B.'s penis. Finally, defendant and D.B. were driving to Farmer City for the Buffalo Festival. Defendant touched D.B.'s penis and made D.B. touch defendant's penis. D.B. explained he never told anyone because defendant told him he would be grounded if he did. One day his sister K.B. came home crying, and they talked about defendant's conduct. They decided to tell their mother about the sexual abuse together. On cross-examination and redirect, D.B. said no one told him what to say; everything that he said really happened.
K.B. testified that she was 12 years old and in sixth grade. More than 10 times, when she and defendant were alone in a room, he told her to pull down her pants and underpants, defendant pulled his pants down, and defendant touched "around my crotch." Sometimes, defendant also made her touch his penis. K.B. testified about four specific instances of these acts of abuse, including while she was playing Nintendo in the bedroom, in the living room (where defendant kissed her crotch), by a pond when they stopped during a drive home from Midway Airport, and in their backyard pool. She did not tell anyone because defendant told her she would be grounded if she did. K.B. finally decided to tell during the spring of the previous year after talking to a friend at school, who encouraged her to tell her mother. She also confirmed that she had not been told what to say and that these events actually happened.
Defendant denied all of the allegations made by D.B. He noted that he and D.B. had showered together once to save hot water, but he did not touch D.B. and D.B. did not touch him. Defendant also denied all of K.B.'s allegations. Although he did give K.B. a bath to remove lice from her hair, he never touched her.
He explained that when he moved out, he took A.D. with him. Lori had threatened to use his "past" if he did not give up custody of A.D. Since the current charges were filed, he has not seen A.D. There had been no other charges against him after those in 1983; he received counseling as part of his 1983 guilty plea and sentence.
On cross-examination, defendant was questioned about the 1983 incident. Defendant said it happened while he and two children drove to church. He did not remember anything happening on the return trip, but it happened 18 years ago. He drove the car into a ditch during the return trip because he hit a patch of ice on the road. During a sidebar discussion, the attorneys and the judge discussed how the State could use defendant's 1983 statement to impeach this testimony. The court ruled that the State could not quote the confession, but counsel could show it to defendant to refresh his memory. Before the jury, the defendant admitted that his statement said that sexual contact also had occurred during the return trip, including when he lost control of the car.
The trial court admitted the 1983 statement into evidence but did not allow it to go back to the jury during deliberations. The statement was made on May 13, 1983, approximately two months after the incident took place. According to the statement, defendant got permission from their parents to take T.Q. and M.Q. with him to church in Coal City. He wanted to take them so that they could play a game in the car involving touching each other. T.Q. sat in the middle next to defendant, and M.Q. sat closest to the passenger door. Defendant had them both take their pants down, and several times he put his finger in T.Q.'s vagina. He made both children touch defendant's penis several times. On the way home, he again put his finger in T.Q.'s vagina and had M.Q. touch his penis, during which he lost control of his car and drove it into a ditch. He had planned to make it a game, but after a while, he was mostly ordering them around. The statement also specified that after he had been told that the children's story was different from his initial statement, defendant made this voluntary statement of the complete truth.
The jury found defendant guilty on all five counts. The court denied the defense motion for a new trial that cited errors as to the other-crimes evidence presented. At the sentencing hearing, the State offered without objection a certified copy of the prior conviction to show enhancement of the criminal sexual assault to a Class X felony for sentencing. The court noted that this prior conviction was for a Class 1 felony offense that existed only in a prior version of the Criminal Code. The court asked defense counsel whether section 12-13(b)(4) of the Criminal Code enhanced the penalty to Class X sentencing levels because he was convicted of a Class 1 felony, the indecent liberties with a child; defense counsel agreed. The trial court sentenced defendant to 14 years for the Class X felony of criminal sexual assault, with concurrent sentences of 7 years for each of the four convictions for aggravated criminal sexual abuse. Defense counsel filed a motion to reconsider the sentence but did not challenge the sentence enhancement.
The appellate court found that the trial court abused its discretion in admitting the evidence of the prior conviction because of the significant time lapse and noteworthy factual differences between the 1983 incident and the present case. The "obvious prejudicial effect" of this evidence was not outweighed by the "discernible probative value." Even though the court found the children in this case gave credible testimony, it was impossible to tell how the evidence of the other crime influenced the jury. Thus, the admission of this evidence was not harmless error. The court vacated the convictions and remanded the cause for a new trial. 326 Ill. App. 3d at 411.
The appellate court also found that the trial court erred in enhancing the criminal sexual assault conviction to a Class X felony for sentencing. Although the defense conceded the enhancement during sentencing and did not raise the issue in its posttrial motion challenging the sentence, the court addressed the issue under the plain error doctrine because the evidence was closely balanced. 326 Ill. App. 3d at 412-13. The court compared the elements of criminal sexual assault and indecent liberties with a child. Although both crimes were Class 1 felonies at the times they were charged, criminal sexual assault requires proof of the element of penetration, whereas indecent liberties with a child does not. As a result, the prior offense is lesser than, not substantially equivalent to, criminal sexual assault, as required under section 12-13(b)(4). 326 Ill. App. 3d at 413.
The State, as petitioner, raises two issues before this court: (1) whether the evidence related to defendant's 1983 conviction for indecent liberties with a child was properly admitted into evidence at trial pursuant to section 115-7.3 of the Code (725 ILCS 5/115-7.3 (West 1998)); and (2) whether defendant's conviction for criminal sexual assault was properly enhanced from a Class 1 to a Class X felony due to his prior conviction for indecent liberties with a child pursuant to section 12-13(b)(4) of the Criminal Code (720 ILCS 5/12-13(b)(4) (West 1998)).
I. Other-Crimes Evidence Under Section 115-7.3
The State argues that section 115-7.3 of the Code allows the court to admit evidence of other sexual offenses to establish a defendant's propensity to commit the charged sexual offense. Defendant contends this argument is waived because it was not included in the State's petition for leave to appeal nor was it presented to the appellate court.
Under Supreme Court Rules 341(e)(7) and 315(g), a party must raise its arguments and provide citation to legal authority or to the record in its petition for leave to appeal to avoid waiver. 177 Ill. 2d R. 315(g); 188 Ill. 2d R. 341(e)(7); see also People v. Patterson, 154 Ill. 2d 414, 454-55 (1992). Rule 341(e)(7) admonishes the parties, but it does not limit the jurisdiction of the reviewing court. People v. Pecor, 153 Ill. 2d 109, 116 (1992). Waiver limits the parties' ability to raise an issue, not this court's ability to consider an issue. People v. Kliner, 185 Ill. 2d 81, 127 (1998).
In addition, the State was the appellee before the appellate court, so waiver will not apply on this basis. " `Where the trial court is reversed by the Appellate Court and the appellee in that court brings the case here for further review, he may raise any question properly presented by the record to sustain the judgment of the trial court, even though those questions were not raised or argued in the Appellate Court.' " People v. Schott, 145 Ill. 2d 188, 201 (1991), quoting Mueller v. Elm Park Hotel Co., 391 Ill. 391, 399 (1945). Therefore, we will address the merits of the State's argument.
A. Interpretation of Section 115-7.3
Evidence regarding other crimes is generally inadmissible to demonstrate propensity to commit the charged crime (propensity). Such evidence is not considered irrelevant; instead, it is objectionable because such evidence has "too much" probative value. People v. Manning, 182 Ill. 2d 193, 213 (1998). Courts generally prohibit the admission of this evidence to protect against the jury convicting a defendant because he or she is a bad person deserving punishment. Manning, 182 Ill. 2d at 213-14. Defendant is entitled to have his guilt or innocence evaluated solely on the basis of the charged crime. People v. Lampkin, 98 Ill. 2d 418, 430 (1983).
Other-crimes evidence is admissible, however, to prove intent, modus operandi, identity, motive, absence of mistake, and any material fact other than propensity that is relevant to the case (exceptions). People v. Illgen, 145 Ill. 2d 353, 364-65 (1991). Even if other-crimes evidence falls under one of these exceptions, the court still can exclude it if the prejudicial effect of the evidence substantially outweighs its probative value. Illgen, 145 Ill. 2d at 365.
The State argues that section 115-7.3 allows the admission of other-crimes evidence to show defendant's propensity if it involves one of the specified sex offenses. The State further contends that the provision is constitutional. In contrast, the defense argues that the statute only allows the admission of other-crimes evidence under the exceptions. In addition, defendant asserts that the trial court's admission of evidence of defendant's prior conviction for indecent liberties with a child was an abuse of its discretion because it did not fall within an exception and its prejudicial effect outweighed its probative value.
Section 115-7.3 states in pertinent part:
"(a) This Section applies to criminal cases in which:
(1) the defendant is accused of predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse, criminal sexual abuse, or criminal transmission of HIV;
(2) the defendant is accused of battery or aggravated battery when the commission of the offense involves sexual penetration or sexual conduct as defined in ...