Appeal from the Circuit Court of Cook County. Honorable Bertina Lampkin, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
At trial the State used an uncharged crime to combat the defendant's consent defense. That evidence creates one of several issues the defendant raises in this appeal.
Following a jury trial, the defendant was convicted of two counts of aggravated criminal sexual assault, one count of armed robbery, and two counts of aggravated kidnapping. He was sentenced to natural life in prison on the aggravated criminal sexual assault and aggravated kidnapping convictions and to a concurrent term of 30 years on the armed robbery conviction.
The defendant raises the following contentions on appeal: (1) evidence of defendant's other crime was improperly admitted; (2) the victim's testimony about a statement made by the defendant was improperly admitted; (3) the trial court failed to properly instruct the jury, where the jury was denied the option of fully acquitting defendant on both the greater and lesser-included offenses; (4) the trial court's response to the jury's note misled the jury and coerced the minority jurors, and the court erred in failing to answer the jury's explicit legal question; and (5) this court must vacate one of defendant's aggravated kidnapping convictions and the predicate offense of the remaining aggravated kidnapping conviction. We affirm all but one of the defendant's convictions.
Prior to trial, the State filed a motion in limine, seeking to admit the testimony of two women who said the defendant sexually assaulted them. The State sought to introduce the evidence to prove modus operandi, common scheme or design, identity, intent, and absence of an innocent frame of mind. The alleged assaults were not charged in this case. At trial, the defense asserted the affirmative defense of consent. The jury was instructed on consent. The defense argued the only issue for the jury to decide was the credibility of the alleged victim. The trial court denied the motion as to one of the women because the facts were too dissimilar. The court granted the motion as to T.W., saying her testimony would be probative "as to defendant's frame of mind or lack of innocent frame of mind." During the instructions conference, the trial court changed the reason for allowing the evidence. The court ordered the jury to consider the evidence only as it pertained to design. The court did not explain what it meant by "design."
Because the facts of the charged and uncharged offenses are relevant to the defendant's contentions, we set out the evidence in some detail.
At trial, L.M. testified she was working as an insurance agent at an office in Hyde Park on June 23, 1998. At approximately 11:30 a.m., the defendant entered the office to sell children's books and toys. L.M. did not know the defendant, but looked at the merchandise he was selling. The defendant told her his name was Terry and that he knew L.M.'s friend's brother. L.M. invited the defendant to a meeting for an organization that sold long distance telephone service. She gave him her business card and wrote the time and place for the meeting on the back. L.M. had to leave for a training meeting. The defendant offered her a ride, but she declined. Defendant left the office.
L.M. fell on the sidewalk after leaving her office and went back inside to clean herself off. When she left again, the defendant pulled up in his car and offered her a ride. He told her he had seen her fall, and the two laughed about the incident. L.M. got into defendant's car. The defendant got on the expressway and told L.M. he knew a shortcut. He made a cell phone call. He said he needed to stop to pick up money from a friend. He drove to a neighborhood that was unfamiliar to L.M. He stopped at a house, went into the house, then returned to the car.
The defendant began driving down side streets and drove to an alley. He began shaking his leg and told L.M. he needed to use the bathroom. He got out and went to the back of the car. When he got back in the car, he put a gun in her side and told her it was a stick-up. L.M. asked if he was serious. Defendant said, "This is what I do. This is business." The defendant made her give him her purse and told her to sit on her hands. He told her he would let her go and not hurt her if she didn't make him, but that he didn't care about putting a bullet in her and leaving her in an alley somewhere. He drove to an ATM machine and told L.M. to crawl over him and withdraw money. She tried to withdraw $100, but the machine rejected the transaction because of a $1 transaction fee. She then withdrew $90 and gave it to the defendant. The parties stipulated to the testimony of a bank representative who confirmed the transactions.
The defendant drove to another alley. He checked under her bra and looked down her pants. He told L.M. to turn onto her stomach, climbed on top of her, and put the gun near her head. He tried to perform anal sex, but was unsuccessful. He forced L.M. to perform oral sex on him for five minutes. The defendant then penetrated L.M.'s anus. He told her this is what she got for getting into a car with a stranger, and he would send one of his boys for her if she told anyone. He drove a couple of blocks, returned her purse, ATM card, and bus pass, and pointed her in the direction of the Cicero bus stop.
L.M. took the bus to her work headquarters and arrived at 1:30 p.m. She told the security guard she had been robbed, but did not tell him she had been sexually assaulted. She told him she did not want him to call the police because she was scared for her safety and wanted it to be "over with." She called her mother and her friend. L.M. said she did not tell anyone about the assault because she felt stupid for getting into the car. When she got home, she took a bath. She called the police and told them she was robbed. She did not tell the police she had been sexually assaulted.
The next morning, L.M. told her roommate about the sexual assault. She went with her roommate to the hospital. She went to the police station later that evening and reported the assault. Chicago police officer Ronald Gibbs testified the police set up surveillance at defendant's address and stopped the defendant. Gibbs arrested defendant after he found L.M.'s business card in his wallet. After informing defendant of his Miranda rights, Gibbs asked defendant about a gun. The defendant said he had "tossed" the gun. L.M. identified the locations where the incidents took place and identified the defendant in a line- up.
The parties published photographs to the jury, including photographs from the ATM security camera. The defense stipulated to the foundation for the photos. The photos showed L.M. withdrawing money. L.M. testified some of the photos showed defendant in the driver's seat. The State conceded that none of the photos showed a gun.
The parties stipulated that Dr. Susan Sipay would testify she examined L.M. on June 24, 1998, using a sexual assault kit. She did not note any signs of rectal trauma. The parties stipulated that nurse David Scott would testify he took a history from L.M. He described her demeanor as cooperative and did not check any boxes on the form indicating L.M. was anxious, crying, defensive, or quiet. The parties stipulated to the chain of custody of sealed blood vials from defendant and to the sexual assault evidence collection kit. Karla Cluck, an expert in forensic DNA analysis, testified the DNA profile from a semen stain on L.M.'s underwear matched defendant's DNA profile.
The State then offered evidence of the uncharged offense. T.W. testified that on June 12, 1998, she was waiting for a bus to go to work. As she was walking down the street, a car almost hit her. She yelled at the car. She and the driver, whom she identified as defendant, started laughing and joking. She did not know the defendant, but she thought she recognized him from some high school basketball games. T.W. accepted defendant's offer of a ride to work. The defendant first dropped off a friend who was in the car. Then defendant said he had to "pee" and began bouncing his leg. T.W. told defendant he could use the bathroom at her office, which was about 50 feet away. Defendant said he could not wait, drove into an alley, parked, and got out of the car. When he returned, he drew a gun and told her it was a robbery. She told him he had to be kidding. He smacked her on the side of the face with the gun. T.W. gave defendant her jewelry, and he took her CD player, cell phone, and wallet.
Defendant told T.W. to turn onto her stomach, and he inserted his penis in her rectum. After he ejaculated, he got back into the driver's seat, told T.W. she was a good girl, and let her out of the car at the end of the alley. She walked to work a half-block away and told her supervisors she had been robbed. She did not tell them about the sexual assault because she was embarrassed. They called the police, and she reported the robbery, but not the assault. When T.W.'s boyfriend came to pick her up, she told him she had been sexually assaulted. He took her to the hospital where she was examined.
The parties stipulated to the chain of custody of the sexual assault evidence collection kit collected from T.W. Karlee Konig, an expert in DNA analysis, testified the DNA profile from rectal swabs taken from T.W. was consistent with defendant's DNA profile. The parties stipulated to the testimony of Chicago police officer Cwick, who would have testified that he interviewed T.W. and filled out a report. In the report, he wrote that T.W. said she was getting a ride from a high school friend, but she didn't know his name. The report indicated the name "Johnson" with a question mark. He also wrote that the address of the occurrence, 5245 W. Lexington, was a street, not an alley. The parties stipulated to the testimony of Chicago police officer Rosen, who would have testified T.W. told him she did not report the sexual assault because "after she had talked to her boyfriend on the phone, she forgot to mention to the reporting officer that she had been raped." T.W. denied making that statement.
The jury convicted defendant of two counts of aggravated criminal sexual assault, one count of armed robbery, one count of aggravated kidnapping predicated on aggravated criminal sexual assault, and one count of aggravated kidnapping predicated on armed robbery.
At sentencing, the State submitted evidence of defendant's prior convictions for rape, aggravated kidnapping, perjury, two burglaries, aggravated possession of a stolen motor vehicle, armed robbery, and robbery. The court sentenced defendant to natural life for each of the aggravated kidnapping and aggravated criminal sexual assault convictions and to a concurrent 30-year prison term for the armed robbery conviction. The defendant's motion for new trial was denied.
Defendant contends the trial court improperly admitted T.W.'s testimony as other-crime evidence, where such evidence was not relevant to show design. He also contends the court failed to conduct a prejudice analysis that would have revealed the prejudicial impact of the evidence substantially outweighed any probative value it might have had.
The jury received the following instruction, modeled after Illinois Pattern Jury Instruction No. 3.14 (Illinois Pattern Jury Instructions, Criminal, No. 3.14 (4th ed. 2000) (hereinafter IPI Criminal 4th)):
"Evidence has been received that the defendant has been involved in an offense other than those charged in the indictment. This evidence has been received on the issue of the defendant's design and may be considered by you only for that limited purpose. It is for you to determine whether the defendant was involved in that offense and, if so, what weight should be given to this evidence on the issue of design."
While defense counsel vigorously objected to the admission of other-crime evidence, she did not object to the limiting instruction that referred only to "design." In fact, she proposed it.
Other act evidence is admissible for any relevant purpose, such as modus operandi, intent, identity, motive, or absence of mistake. People v. Illgen, 145 Ill. 2d 353, 364-65, 583 N.E.2d 515 (1991). Pursuant to statute, it is relevant to prove a defendant's propensity to commit certain sexual assault crimes. 725 ILCS 5/115-7.3 (West 1998); People v. Donoho, 204 Ill. 2d 159, 176, 788 N.E.2d 707 (2003). A trial judge must limit evidence of other crimes "to that evidence which is relevant to the purpose for which the other crime is admitted." People v. Bennett, 281 Ill. App. 3d 814, 827, 666 N.E.2d 899 (1996); People v. Miller, 254 Ill. App. 3d 997, 1013, 626 N.E.2d 1350 (1993). Evidence is relevant "if it has any tendency to make the existence of a fact that is of consequence in the case more probable or less probable than it would be without the evidence." People v. Bedoya, 325 Ill. App. 3d 926, 937, 758 N.E.2d 366 (2001).
The admissibility of other-crime evidence is a matter within the sound discretion of the trial court, and the court's decision will not be overturned absent a clear abuse of that discretion. Illgen, 145 Ill. 2d at 364.
There is no question the trial court erred in instructing the jury to consider the evidence only as it pertained to design. The State admits design was not at issue in this case. A common design refers to a larger criminal scheme where the charged crime is only a portion. People v. Barbour, 106 Ill. App. 3d 993, 999, 436 N.E.2d 667 (1982). A common design often is relevant to show motive for the crime charged. Barbour, 106 Ill. App. 3d at 1000. There is no evidence the two incidents in this case were part of a larger common scheme.
The State says any error in admitting the evidence for the limited purpose of design was harmless because the jury simply would have ignored the evidence. That is, since design was not at issue, the jury would have disregarded the evidence rather than consider it for any other purpose, as the limiting instruction directs. Seen in that light, the court did the ...