Circuit Court of Clinton County. No. 01-CF-53 Honorable Dennis M. Huber, Judge, presiding.
The opinion of the court was delivered by: Justice Chapman
In September 2001, a jury convicted the defendant, David E. "Chip" Wilson, of two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(f) (West 2000)). The charges stemmed from allegations that he had touched two female high school students in a sexual manner. At the trial, two additional young women testified about similar conduct by the defendant, for which he was not charged. On appeal, the defendant contends that the trial court erred in denying his motion to exclude this testimony. We affirm.
From September 1999 to March 2001, the defendant was employed at Central High School in Breese, Illinois. His primary duties were to supervise students who had been given in-school suspensions and to act as an assistant coach of the football team. When he had no students to supervise in the in-school suspension room, he often offered assistance to other teachers or visited the art classroom. The art classroom and the in-school suspension room were actually one room, separated only by cabinets and room dividers. James Falconio, the art teacher, was the head coach of the football team. Often, football players sat in the back of Falconio's classroom watching videos of football plays during their study hall periods. When the defendant visited the art room, he generally talked to these players. However, occasionally he walked around the room and chatted with the art students as well.
In January 2001, the school administration received a complaint from a female student alleging that, in December 2000, the defendant had initiated physical contact with her that was sexual in nature. The superintendent and the principal met with the defendant to discuss the student's allegations. In March 2001, the defendant was fired from his position after the administration received two additional complaints.
On March 25, 2001, the State charged the defendant by information with two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(f) (West 2000)). Count I alleged that he had knowingly touched Carol Z.'s breasts for the purpose of sexual gratification. Count II alleged that he had knowingly touched Crystal H.'s breasts for the purpose of sexual gratification. No other charges were filed.
On April 3, 2001, Sergeant Mike Kreke interviewed the defendant in his home. According to Sergeant Kreke's trial testimony, the defendant told him that he was a "touchy-feely" person who often greeted students by slapping them on the shoulder or putting his arm on their back, although Sergeant Kreke could not recall the defendant's exact words. The defendant also gave Sergeant Kreke a written statement, in which he stated: "It is not uncommon for me to put my hand on somebody's shoulder while talking to them. I will sometimes put my hand on their waist or back also. There is no sexual connotation. To me what I have done is not inappropriate conduct."
On September 11, 2001, the defendant filed a motion in limine to exclude the testimony of Lisa V.-who also had alleged sexual contact by the defendant-on the basis that her testimony would relate to uncharged conduct. On September 17, the State filed its written response to the defendant's motion. The State noted that the defendant was expected to contend that any physical contact was "of a nonsexual and harmless nature," and the State argued that the testimony was relevant because it showed the defendant's intent and modus operandi. On September 17, the defendant filed a motion in limine to exclude the testimony of both Lisa V. and Ashley A. (another student who had alleged sexual contact by the defendant). He objected to Ashley A.'s testimony both because it involved uncharged conduct and because the State had not disclosed her identity to the defendant until September 14, three days before the trial. On September 17, 2001, the trial court denied both motions, stating, "[In] cases such as this[,] *** the State is entitled to present this type of evidence in its case-in-chief."
The trial took place over two days, on September 17 and 18, 2001. Crystal H. testified that in March 2001, when she was a first-year high school student, she received an in-school suspension. The in-school suspension room was furnished with desks separated by room dividers to form cubicles. When Crystal H. sat at one of these desks, the defendant approached her from behind and put his hands around her waist. He then moved his hands up from her stomach to touch her breasts from underneath. She further testified that at other times, he approached her in art class and put his hands around her waist in a similar manner and touched her stomach; however, she stated that he only touched her breasts the one time.
Carol Z. testified that the defendant made physical contact with her approximately 15 times throughout the 2000-2001 school year. These incidents took place both in the art room and in the hallways. She stated that the defendant made contact with her in a variety of ways. On some occasions, he hugged her; on others, he held her hand or touched her lower back; sometimes he touched her eyes or her lips or brushed her hair out of her face. She testified that some of these times he approached her from behind but that at other times he approached her from the front. She alleged that he had touched both her breasts and her buttocks. She stated that the defendant was always "subtle," touching her in such a way that others would not be able to see that he was doing anything more than hugging her. Carol Z. further testified that the defendant often chatted with the students in Falconio's art class. She stated that on one occasion, he asked her about her sex life, which made her feel uncomfortable. She further testified that she witnessed the defendant hugging other female students but could not see whether he was doing anything more than hugging them.
Lisa V. testified to three incidents of sexual contact with the defendant. All three incidents took place in November and December 2000. The first time, Lisa V. was seated at a desk in her study hall. According to her testimony, the defendant approached her from behind, grabbed her sides, and then put his fingers under her breasts so that the sides of his index fingers touched her breasts. The second time was also in study hall. Lisa V. testified that the defendant did the same thing he had done the first time. He then sat across from her at a table to talk to her and two other girls who were sitting at the same table. She testified that he winked at her and took her daily planner and drew a picture of a little devil in it and wrote next to the picture, "Lisa is a horny devil."
The third incident occurred when Lisa V. was taking a make-up test for her chemistry teacher. She testified that she went into the driver's education classroom, which was apparently not being used at the time, to wait for her chemistry teacher to bring her the test. The defendant followed her into the room. The chemistry teacher came in after the defendant and asked the defendant if he was going to act as a proctor and watch to make sure Lisa V. did not cheat on her test. She testified that, as she took the test, the defendant twice approached her from behind, squeezed her shoulders, and rubbed her breasts and her shoulders. He then approached her from the left side, put his right hand on her back, and rubbed his crotch against her arm. She stated that "there was an obvious bulge in his pants" when he did this.
Ashley A. testified to two incidents that had occurred toward the end of the 1999-2000 school year. She had obtained permission to go to the art room when no art class was in session, because she "didn't have anything to do" and she "just wanted to draw." She testified that she was sitting on a stool, drawing, when the defendant came up behind her, brushed his hand against her back, which she "didn't think was a big deal," and then stood very close to her and "rubbed his genital area on [her] leg." The second incident took place in the hall. Ashley A. was showing a group of friends a tattoo she had just gotten on her shoulder. She wore a shirt over a tank top and had pulled the shirt back so as to expose the tattoo. The defendant approached the group, and she showed him the tattoo also. She stated that he then rubbed against her breast. At the time, she thought he did it accidentally, but in retrospect, she believed that it was intentional.
The defendant took the stand in his own defense. When asked if he had any physical contact with Crystal H. in the in-school suspension room, he stated, "I walked over and maybe put my hand on her arm and asked her if she had anything to do." He testified that he could not have touched her in the way she described because the type of chair in which she was sitting would have made it impossible. When he was asked to demonstrate, the following exchange took place:
"Q. [Defense counsel:] Okay. And could you[-]can you try to
put your hands higher up?
A. If I was[-]only if I was standing above."
A photograph of the desks and chairs in the in-school suspension room was admitted into evidence. The photograph reveals that the chair had a solid back, the height of which was approximately level with the height of the desk. The chair did not have arms and was not attached to the desk. When asked if he had any additional physical contact with Crystal H. in the art room, the defendant responded, "The only[-]what we discussed before [the incident in the in-school suspension room] is the only time that I really had any contact with her."
The defendant testified that it would not have been possible for him to approach Lisa V. from behind while she was taking a make-up test in the driver's education classroom. He testified that she was seated in the first row of seats. The desks had chairs attached to them and were arranged so that the front of each desk was nearly touching the chair of the desk in front of it. Because of this, he stated, he would have had to move the desk behind her entirely out of the way in order to stand behind her. Although the defendant denied any physical contact with Lisa V. during her make-up exam, when he was asked on cross-examination if he had ever had contact with her during her study hall, he stated, "If I ever did anything to her was [sic] just put my hand around her shoulder."
When asked if he had any physical contact with Carol Z., the defendant stated, "None that I can recall." He testified that on one occasion she began talking to him about her dating relationship and that he quickly changed the subject. When asked if he had any physical contact with Ashley A., he replied, "None that I am aware of." He further testified that he did not recall ever being alone with Ashley A.
On October 16, 2001, the defendant filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial. He raised the same objections to Lisa V.'s testimony and Ashley A.'s testimony that he had raised in his motions in limine. The trial court denied the motion and, on November 28, 2001, sentenced the defendant to concurrent sentences of 180 days in the Clinton County jail and 30 months of probation. This appeal followed.
Ordinarily, evidence of prior criminal conduct or prior bad acts is inadmissible if it is only relevant to show a defendant's propensity to commit the crime charged. People v. McKibbins, 96 Ill. 2d 176, 182, 449 N.E.2d 821, 823 (1983). However, if it is relevant for any other purpose, such as to show a defendant's modus operandi or to show intent, it is admissible. McKibbins, 96 Ill. 2d at 182, 449 N.E.2d at 824. We will not reverse the trial court's ruling on the admissibility of such evidence absent a clear showing that the trial court abused its discretion. People v. Thingvold, 145 Ill. 2d 441, 452-53, 584 N.E.2d 89, 93-94 (1991). The defendant contends that the trial court abused its discretion by admitting the testimony of Lisa V. and Ashley A. He argues that their testimony served only to prove that he had the propensity to sexually molest female students. He contends that his intent was not at issue in the trial and that the testimony did not show a modus operandi. As a result, he concludes, it did not fit within either exception the State contends was applicable. We disagree.
Modus operandi literally means "method of working." The term refers to "a pattern of criminal behavior so distinct that separate crimes or wrongful conduct are recognized as the work of the same person." People v. Kimbrough, 138 Ill. App. 3d 481, 486, 485 N.E.2d 1292, 1297 (1985). The connection between the uncharged conduct and the crime charged must be clear enough to create "a logical inference that if defendant committed one of the acts, he may have committed the other act." Kimbrough, 138 Ill. App. 3d at 486, 485 N.E.2d at 1297.
First, the defendant argues that, because his identity was not at issue, modus operandi evidence was improper. We disagree. Often, evidence of uncharged conduct is used to help establish the fact that the defendant was indeed the perpetrator. However, modus operandi evidence can be relevant even where the defendant's identity is not an issue. For example, modus operandi evidence is admissible to prove that a crime occurred at all. Kimbrough, 138 Ill. App. 3d at 487, 485 N.E.2d at 1298. Illinois courts have also found such evidence to be relevant where a defendant charged with sexual abuse presents "an innocent construction" to his conduct. People v. Novak, 163 Ill. 2d 93, 116-17, 643 N.E.2d 762, 774 (1994); see People v. Soler, 228 Ill. App. 3d 183, 203, 592 N.E.2d 517, 531 (1992) (modus operandi evidence was admissible where a stepfather contended that he was merely being physically affectionate with his stepdaughter in a non-sexual way); Kimbrough, 138 Ill. App. 3d at 486, 485 N.E.2d at 1297 (evidence of modus operandi was admissible where the defendant claimed that the encounter was consensual).
In the instant case, the defendant presented an innocent construction to his conduct. Although he denied engaging in all the precise conduct the girls alleged, he did not deny that he engaged in physical contact with students. Rather, he stated that such contact was non-sexual in nature. The defendant contends that he merely argued at the trial that the girls were lying and that his assertions that any "incidental touching" was non-sexual did not amount to an assertion that any incidental touching of the girls' breasts was accidental. He states in his brief, "[I]t is at best an overbroad interpretation of the record to assert that the defense was that Mr. Wilson had no prurient motive in accidentally touching breasts." We find this contention unpersuasive.
First, we note that the defendant's intent was at issue at the trial. The defendant testified that he believed that Lisa V. "misunderstood" his actions toward her. Defense counsel argued in closing that even if the jury found the evidence that the defendant had engaged in any physical contact with the girls credible, the State was also required to prove that he did so with sexual intent. The statute does not require the State to prove that the defendant touched the students' breasts. It merely requires the State to prove that the defendant engaged in "an act of sexual conduct with a victim" between the ages of 13 and 17, where the defendant "held a position of trust, authority[,] or supervision in relation to the victim." 720 ILCS 5/ 12-16(f) (West 2000). Thus, although it is certainly harder to refute the undeniably sexual nature of touching their breasts, it was possible for the jury to find sexual conduct in the other types of touching that he admitted occurred, even if it believed that he did not intentionally touch any of the students' breasts or recall doing so accidentally. Moreover, the defendant's testimony shows that he did refer to the ...