Appeal from the Circuit Court of Cook County. No. 99 CR 6687 Honorable John J. Moran, Judge Presiding.
The opinion of the court was delivered by: Justice Hartman
Following a jury trial, defendant, Abel Colin, was convicted on two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(A)(2) (West 1994)) and sentenced to two consecutive 60-year terms in custody of the Illinois Department of Corrections. Defendant appeals, arguing (1) the circuit court erred in admitting other-crimes evidence involving him in a prior sexual assault; and (2) his sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) (Apprendi). Defendant's conviction and sentencing are affirmed.
Prior to trial, the State moved in limine to present evidence of other crimes to establish defendant's modus operandi, *fn1 claiming sufficient similarities between the assaults of H.R., a previous victim, and S.F., the complainant in this case, which made the other-crimes evidence admissible. The State argued that in both cases, the victims were young, vulnerable females, who knew defendant and his wife, Stephanie Colin (Stephanie), as neighbors. The State emphasized that defendant and Stephanie were a husband and wife team that worked together to get their victims alone. Once alone, Stephanie restrained the victims while defendant sexually assaulted them, and threatened them with physical harm. Both victims complained about being sexually violated.
The defense responded that evidence of the sexual assault of H.R. could not be admitted as other-crimes evidence because: (1) although defendant was charged only with sexual assault he pled guilty and was convicted of aggravated kidnapping with respect to H.R.; (2) the other-crimes evidence could not establish defendant's modus operandi because the two crimes were not sufficiently unique; and (3) the prejudicial effect of this evidence outweighed its probative value.
The circuit court admitted the other-crimes evidence, noting "the facts of the two cases are stunningly similar to each other," and ruled that its probative value outweighed its prejudicial effect. The court did not limit the evidence to defendant's plea of guilty to aggravated kidnapping, but found the entire case involving H.R. admissible.
There was evidence that between 1993 and 1995, S.F., who was then six to eight-years-old, was orally assaulted and vaginally raped, sodomized and tortured by defendant on a daily basis with the aid and abetment of his wife, Stephanie. S.F., 13-years-old at the time of trial, testified she was six-years-old in 1993 and began kindergarten. Defendant and Stephanie lived two houses away and were friendly with S.F.'s family, her father having been godfather to one of defendant's five children. S.F.'s mother began work at 6:00 a.m. and her father worked nights. Stephanie began baby-sitting for S.F. She and defendant routinely drove S.F. to school in their van.
S.F. testified she dressed herself before school each morning. Stephanie arrived at S.F.'s home and brought her back to the Colins' home, where Stephanie took S.F. to defendant's bedroom, or the basement, which the Colins fixed up with a bed, toys and an Easy-Bake oven. Before going to the bedroom, Stephanie took S.F. to the second-floor bathroom, removed S.F.'s clothing and "cleaned" her vagina using a hose attached to the bathroom sink. Once "clean," Stephanie took S.F., who was naked, into the bedroom where defendant was waiting; sometimes being naked himself. Defendant would tell S.F. to get on the bed, and he would fold a large pillow, placing it behind S.F.'s back for her to lie on. She would open her legs and defendant would put his penis in her vagina and "move up and down" until a "white thing," sperm, came out, which defendant referred to as "milk." He used various slang terms for penis and vagina that S.F. never had heard before. Defendant taught her the words. Afterwards, defendant would make S.F. suck on his penis and drink his ejaculate. Sometimes S.F. would attempt to resist and bite defendant's penis. Defendant at times used a "fake penis" in S.F.'s mouth to make her mouth bigger so she would not bite his penis.
At times defendant wanted S.F. brought to the basement and, on these days, Stephanie would not "clean" her vagina. Defendant would tell S.F. to take her clothes off. Occasionally she would resist by untying and retying her shoes, so defendant would have less time to be with her, but these attempts never worked. Defendant did the same things to S.F. in the basement as he did in his bedroom. Defendant kept a baseball bat and a knife next to a makeshift bed in the basement and told S.F. if she screamed, which she once tried to do, he would stick the bat into her vagina or cut her. Defendant told her he could hurt her or her family and, since her parents were going through a divorce at the time, he threatened that she would have to live with the Colins. After defendant's attacks upon S.F., he and Stephanie would drive her to school. Then, in the afternoon, they would pick her up from school, and the violations would again take place. On some afternoons, defendant would urinate in a plastic pink cup he kept in a nearby drawer and force S.F. to drink his urine.
S.F. testified that, occasionally, defendant would bring her into the bedroom of his teenage son, Anthony. There, Anthony would put his penis in her vagina while defendant put his penis in her mouth. Sometimes, defendant and Anthony swapped positions. "Milk" would come out of Anthony's penis. Later in the course of the sexual assaults, defendant would put his penis in her anus. After he first started doing this, he did it everyday. As time went on, S.F. spent more and more time at the Colins' house. It was Stephanie's idea for S.F. to eat dinner there, visit on weekends and sleep overnight. Stephanie would go to S.F.'s house to bring S.F. to her home, but when her family wanted her to stay home, Stephanie would beg the family, telling them that she wanted S.F. to play with her daughters. Stephanie would also wash S.F.'s clothes and not return them.
S.F. testified that Stephanie's role in helping defendant grew during the course of the sexual assaults. Early on, Stephanie would remain in the room to clean or put things away, and would watch defendant sexually assault S.F. Later, she would aid defendant by grabbing S.F.'s legs while defendant put his penis in her vagina. Stephanie would also untie S.F.'s shoes when S.F. tried to stall as she was getting undressed.
S.F. stated that in October of 1994, defendant made tape recordings involving S.F., where he would tell her exactly what to say: that she went out late at night to see "gangbangers," who put their penises in her vagina. On the tape, S.F. also stated she had sex with a man named Martin and other fictitious people. S.F. denied having sex with "gangbangers" and made the tape only by reason of defendant's force.
Defendant sexually assaulted S.F. for the last time on February 6, 1995. Two days later, S.F. went to the hospital accompanied by her mother and Stephanie, with defendant driving them. Stephanie, who was carrying a pair of S.F.'s underwear in a bag, told a nurse that a man named Martin, a "gangbanger," had touched S.F. and cut her vagina with a knife. S.F. relayed the same story to a female police officer. S.F. was examined by a physician, to whom Stephanie told the fabricated story. S.F. did not remember whether her mother was present during the various conversations at the hospital, or not.
When S.F. and her mother were in the privacy of their own home, S.F.'s mother asked S.F. to tell the truth about who really touched her, and S.F. replied it was defendant.
On cross-examination, S.F. testified that during the entire time she was sexually assaulted, she never told her teachers, sisters, brothers or her parents. She admitted that she told various stories of how she had been abused to hospital personnel, but could not remember any of the details she told the nurse. She did not remember the stories she told to the examining doctor, the detective or the social worker. S.F. stated she was made to drink defendant's urine between 5 to 10 times and, afterwards, she would try to vomit.
S.F.'s older sister, N.F., testified that Stephanie came to their house almost every morning to pick up S.F., but S.F. never went to the Colins' home on her own. N.F. stated that her other younger sister, whose initials are also N.F., was supposed to pick up S.F. from school, but at some point Stephanie began picking up S.F. before her sister would arrive. As time when on, S.F. was spending an increasing amount of time with the Colins, but their daughters would never go to S.F.'s house to ask for her. N.F. stated there were occasions when she knew the Colins were home and would go to their house looking for S.F. and no one would answer the door, but she would see Anthony look out the window. Other times, the Colins would answer the door, but say S.F. was not there. N.F. also testified that she would frequently notice a smell about S.F. when she arrived home; her clothes were "stinky" and her mouth smelled. N.F. denied that S.F. would sneak out at night.
S.F.'s mother, P.F., testified through an interpreter and reiterated how defendant and Stephanie became involved with S.F. On February 8, 1995, P.F. went to the Colins' house and found Stephanie there with S.F. Stephanie told P.F. that there was blood in S.F.'s underwear and that Martin had violated her, which prompted P.F. to take her daughter to the hospital. Stephanie said, "[n]o. No. I will go with you." Stephanie spoke to the nurse at the hospital and ...