The opinion of the court was delivered by: Justice Thomas
Docket No. 97354-Agenda 12-September 2004.
A jury convicted defendant, David E. Wilson, of two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(f) (West 2000)). Defendant appealed, arguing that the circuit court of Clinton County had erred in allowing the State to introduce other-crimes evidence from two witnesses whose testimony about defendant's conduct toward them was similar to the circumstances surrounding the two charged offenses, but where defendant denied any sexual touching of the alleged victims. The appellate court affirmed defendant's convictions, with one justice dissenting. 343 Ill. App. 3d 742. We allowed defendant's petition for leave to appeal. 177 Ill. 2d R. 315.
At the time of the alleged offenses, defendant was employed by Central High School in Breese, Illinois. His primary duties were to supervise students during in-school suspensions and to act as an assistant football coach. The two alleged victims were students at the high school. Count I of the information filed against defendant charged that he knowingly touched Carol Z.'s breasts for the purpose of sexual gratification, and count II charged that he knowingly touched Crystal H.'s breasts for the purpose of sexual gratification. Prior to trial, defendant filed a motion in limine to exclude testimony from Lisa V. and Ashley A., two other female high school students who had come forward to claim that defendant had sexually abused them in ways similar to the charged offenses. Defendant alleged that both students' testimony would involve uncharged conduct and that the State had not disclosed Ashley A.'s identity to defendant until three days prior to the scheduled trial date. The trial court denied defendant's motion, and the case proceeded to trial.
During defendant's opening statement, defense counsel told the jury that witnesses against the defendant would complain about conduct of defendant that occurred mostly in a third-period art class. He further stated that to show that the alleged touching did not happen, he would present the testimony of a teacher and several students of that class who would testify that they had not observed any physical contact between defendant and the two alleged victims. Defense counsel then acknowledged that there would be some evidence presented that would show that defendant touched people. He then told the jury that "that's the type of person [defendant] is, that he will occasionally shake people's hands, that he pats them on the back." Defense counsel concluded his opening remarks by telling the jury "that if there was ever any type of contact whatsoever between my client and any of these people who are going to make complaints against him here that it was simply incidental contact and it had absolutely no sexual nature whatsoever."
Crystal H. testified that in March 2001, when she was a 14-year-old high school freshman, she received an in-school suspension. The in-school suspension room was furnished with desks separated by room dividers to form cubicles. Crystal was seated at one of these desks serving a suspension when defendant approached her from behind and placed his hands around her waist. He then moved his hands up from under her stomach to touch her breasts from underneath. As he touched her breasts, he whispered into her ear, asking her what she was doing there. At the time, there was only one other person in the room-a student in another cubicle. She noted that defendant had touched her on other occasions, but this was the only time he touched her breasts.
Crystal further testified that after the incident in the in-school suspension room, defendant touched her on at least 10 other occasions during art class. On those occasions, defendant came up from behind her and placed his hands around her stomach with his crotch area close to her body. She observed defendant hug other girls in the same way in the art room. She later told several of her friends, including Carol Z., about what had happened. On March 21, 2001, Crystal passed a note to another student, describing what defendant had done to her. The note stated, "I was sitting in ISS and the teacher comes up behind me and tries to touch me. What a pervert." The note was intercepted by a teacher and taken to the principal. That day, Crystal told the principal about defendant's conduct and gave a statement to the police. At that time, Crystal did not know anything about Lisa V.
Carol Z. testified that when she was a 15-year-old sophomore during the 2000-01 school year, defendant made physical contact with her in the art room and hallways some 15 times. Some of these times he approached from behind, but other times he approached from the front. 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 further testified that defendant touched both her breasts and her buttocks, noting that he 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. She also stated that, on one occasion, defendant asked her about her sex life, which made her feel uncomfortable.
Carol further testified that after Crystal's note was intercepted, Carol told the principal what had happened to her and gave a statement to police. She had noticed defendant touching other girls, but did not know if he had touched them on the breasts. However, a number of other girls, including Ranee T., Mica H., Natalie J. and Rachel J, told her that the same thing had happened to them. When questioned, however, those girls did not want to have any part of the case and would not talk about it. Carol did not know about Lisa V.'s complaints about defendant.
Lisa V. testified to three incidents of sexual contact with defendant that took place in the fall semester of 2000, when she was a 17-year-old junior. The first time, she was seated at a desk in study hall, when 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, and the defendant did the same thing he did the first time. He then sat across from her, winked at her, and took her daily planner and drew a picture of a little devil and wrote next to it, "Lisa is a horny devil." The third incident occurred during a makeup test for chemistry class just before Christmas break. Defendant was acting as a proctor to make sure that Lisa did not cheat on the test. During the test, defendant twice approached her from behind and rubbed her shoulders and breasts. 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. After the holiday break and after consulting with her family about the problem, she reported the incident to a school counselor. Defendant later received a letter of reprimand from the school authorities over the matter.
Ashley A. testified about two incidents that occurred with the defendant, the first when she was a sophomore in the spring of 2000 and the second when she was a junior in November of 2000. The first physical contact defendant made with her took place in the art room where she had gone to draw when no class was in session there. She was sitting at a stool, drawing, when defendant came up from behind her, brushed his hand against her back, and then stood very close to her and "rubbed his genital area against her leg." The second incident took place in study hall. There, she showed a group of friends a new tattoo she had gotten on her shoulder. She wore a shirt over a tank top and had pulled the shirt back to expose the tattoo. Defendant approached the group, and she showed him the tattoo also. He came from behind her to look at it, then rubbed his hand against her breast. At the time, she thought it could have been accidental, but in retrospect, she believed it was intentional. After the last incident, she tried to avoid defendant as much as she could.
Sergeant Mike Kreke of the Clinton County sheriff's department talked to defendant in April 2001, and took a signed, written statement from him, which is as follows: "It's not uncommon for me to put my hand on somebody's shoulder while talking to them. I will sometimes put my hand on the waist or back also. There is no sexual connotation. To me what I have done is not inappropriate conduct." Defendant also told the officer that he is a "touchy feely type person."
Defendant testified on his own behalf. He denied any sexual contact with the victims, but did not deny touching them. When asked if he had any contact with Crystal H. in the in-school suspension room, defendant answered that he "walked over and maybe put [his] hand on her arm and asked her if she had anything to do." He further testified that he could not have touched her in the way she described because the kind of chair she was sitting in made it impossible. A photograph of the desks and chairs used in the in-school suspension room was admitted into evidence. The photograph shows that the chair had a solid back, the height of which was level with the height of the desk. The chair did not have arms and was not attached to the desk.
Defendant acknowledged that he did speak to Carol Z. at times during her third-period art class. He explained that the art room was a large, open area with numerous tables, and students would move around while doing work there. When asked if he had any physical contact with Carol Z. in the art room, defendant responded, "None that I can recall."
When asked if he had any physical contact with Ashley A., defendant replied, "None that I am aware of." He denied touching her breasts. He also stated that he did not remember the incident with the tattoo at all.
When asked if he had any physical contact with Lisa V. on the day of her makeup test, defendant answered, "None that I can recall." Defendant claimed that because of the structure of the chairs and closeness of the rows of chairs, it would have been impossible for him to rub her breasts in the way she described. When asked about the "horny devil" note in Lisa's school planner, defendant said, "I don't recall that at all." On cross-examination, defendant was asked whether he thought Lisa V. was "lying or misinterpreting" when she said defendant touched her during study hall. Defendant answered, "Misinterpreting," and then explained that "if ever I did anything to her [I] just put my arm around her shoulder."
A number of other witnesses testified on defendant's behalf. Several students from the art class testified that they did not observe defendant improperly touch anyone. A couple of students testified that Carol Z.'s reputation for truthfulness was poor. Mica H. And Rachel J. testified that defendant had never touched them inappropriately during third-period art class, and that they had never told anyone that he had touched them in that manner. Jared F. testified that he dated Carol Z. during the 2000-01 school year, although they later had an unfriendly breakup. During that year, Carol told him that defendant was a pervert, but did not explain it further. Shortly before defendant was fired, however, she explained to Jared, while crying, that defendant had been touching her breasts and buttocks, and coming up behind her and placing his hands on her lower stomach.
During closing argument, defense counsel argued that the victims were not telling the truth and that the evidence supported a finding that defendant never touched them. Similar to assertions he had made in his opening statement, defense counsel told the jury, "[I]t's possible there was some incidental touching by [defendant] with these girls but there is certainly nothing to show that he touched either girl with any sexual intent." Defendant was convicted on both counts and sentenced to 180 days in jail and 30 months of probation.
The appellate court affirmed, finding that the other-crimes evidence was admissible because it was relevant to show defendant's modus operandi and to show his intent, which are two recognized exceptions to the prohibition against other-crimes evidence. 343 Ill. App. 3d at 748. One justice dissented, believing that the majority's conclusion was contrary to People v. Bobo, 278 Ill. App. 3d 130 (5th Dist. 1996), where the court found that the State was prohibited from presenting evidence of uncharged fondling incidents of students because the defendant teacher denied touching his accusers, and intent was therefore not an issue. See 343 Ill. App. 3d at 753-54 (Kuehn, J., dissenting). The dissent also believed that the modus operandi exception was not applicable because the uncharged offenses were not so similar to the charged offenses as to earmark them as the handiwork of a single person. 343 Ill. App. 3d at 755-56 (Kuehn, J., dissenting).
Defendant argues that the testimony of Lisa V. and Ashley A. did not fit within any recognized exception to the prohibition against other-crimes evidence so that it could be introduced at trial. Defendant further argues that because he denied any improper touching, his intent was not at issue and the ...