Appeal from the Circuit Court of Cook County Honorable James Rhodes Judge Presiding.
The opinion of the court was delivered by: Justice Gallagher
Defendant, Darryle Childress, was charged with aggravated criminal sexual assault, criminal sexual assault, aggravated kidnaping, kidnaping, aggravated battery and unlawful restraint in connection with an attack on June 13, 1999. At issue in this appeal are the charges of aggravated criminal sexual abuse and criminal sexual abuse. Prior to trial, defendant filed a motion in limine to bar the use of prior crimes committed by him for purposes of impeachment. The State filed a motion seeking to admit evidence of prior sexual offenses pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 2000)). Following a simultaneous hearing on the motions, the circuit court of Cook County ruled that the State would not be permitted to introduce into evidence any of defendant's prior convictions in either its case in chief or in rebuttal. The State filed a certificate of substantial impairment alleging that, without the evidence of the other crimes, the State would be substantially impaired in its prosecution of the case. This appeal followed. We have jurisdiction over this appeal pursuant to Illinois Supreme Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1); see also People v. Drum, 194 Ill. 2d 485, 491, 743 N.E.2d 44, 47 (2000)). We now affirm in part, reverse in part, and remand for further proceedings.
Section 115-7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 2000)) provides as follows:
"§ 115-7.3 Evidence in certain cases.
(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 section 12-12 of the Criminal Code of 1961; or (3) the defendant is tried or retried for any of the offenses formerly known as rape, deviate sexual assault, indecent liberties with a child, or aggravated indecent liberties with a child.
(b) If the defendant is accused of an offense set forth in paragraph (1) or (2) of subsection (a) or the defendant is tried or retried for any of the offenses set forth in paragraph (3) of subsection (a), evidence of the defendant's commission of another offense or offenses set forth in paragraph (1), (2), or (3) of subsection (a), or evidence to rebut that proof or an inference from that proof, may be admissible (if that evidence is otherwise admissible under the rules of evidence) and may be considered for its bearing on any matter to which it is relevant.
(c) In weighing the probative value of the evidence against undue prejudice to the defendant, the court may consider:
(1) the proximity in time to the charged or predicate offense;
(2) the degree of factual similarity to the charged or predicate offense; or
(3) other relevant facts and circumstances.
(d) In a criminal case in which the prosecution intends to offer evidence under this Section, it must disclose the evidence, including statements of witnesses or a summary of the substance of any testimony, at a reasonable time in advance of trial, or during trial if the court excuses pretrial notice on good cause shown." 725 ILCS 5/115-7.3 (West 2000).
In deciding that the evidence of defendant's two prior sexual assault convictions was not admissible, the trial court stated as follows:
"I'm looking at the statute, and the statute says [evidence of the prior offenses may be admissible] if it's otherwise admissible under the rules of evidence. And it may be considered for any issue for which it is relevant. Because if you do that, then, you also have to look at the probative value against the undue prejudice to the defendant. It asks you to look at the proximity in time, and the degree of factual similarity, and then also allows you to consider other relevant facts and circumstances.
My ruling is that, without reaching the other issues, I'm just dealing with subsection (c) (1) and (2). If the statute is okay, if everything else is okay, then I still find that this 86 - allowing it in when - from what I have been presented, really dealt with a different issue of consent based on age, when the defendant was, maybe, seventeen or eighteen based on what I have been told about his age now. And I feel that the prejudice of allowing that in, prejudice would [accrue] to the defendant that would outweigh the probative value of that particular conviction.
As to the 93 conviction, from what I have been presented, it seems that there [were] two people, and it had something to do with somebody cheating somebody else and somebody decided they were going to punish this person by raping [her]. To me, that would show that he's a mean, nasty ...