Appeal from the Circuit Court of Cook County. Honorable Stanley J. Sacks, Judge Presiding.
The opinion of the court was delivered by: Justice LAMPKIN*fn1
Faced with overwhelming DNA evidence, the defense in this sexual assault and aggravated kidnapping case attempted to persuade the jury the State could not prove the defendant's sexual contact with the alleged victim was forcible. The defense did not succeed. Defendant Lorell Johnson was convicted of two counts of aggravated criminal sexual assault and one count of aggravated kidnapping. He was sentenced to two consecutive 25-year prison terms.
On appeal, defendant contends: (1) the trial court erred in admitting the inculpatory DNA evidence because sufficient foundation was not established for the forensic scientist's opinion testimony on the matter; (2) the forensic scientist's opinion testimony violated the defendant's sixth amendment confrontation rights; and (3) the trial court erred in allowing the State to present evidence of an uncharged sexual assault, under section 115-7.3 of the Code of Criminal Procedure (Code) (725 ILCS 5/115-7.3(c) (West 2006)), to prove defendant had a propensity to commit sexual offenses. We affirm defendant's convictions and sentences.
At trial, the victim, T.W., testified she was walking past an alley at around 9:30 p.m. on March 2, 2002, when defendant grabbed her and said "if you do what I say, you won't get hurt." T.W. said defendant did not have a weapon. Defendant then led T.W. through an alley to a large abandoned building, dragged her into an L-shaped corridor, and pushed her down some stairs. T.W. said defendant threatened to kill her if she did not do what he said.
T.W. said defendant told her to "suck his dick." After T.W. pulled defendant's penis out of her mouth and told him she was so scared that she might bite him, defendant pressed her against a brick wall, placed a finger in her vagina, and then put his penis inside her vagina. Once finished, defendant hopped over a fence and fled. T.W. was not anally penetrated.
T.W. went back to the street, flagged down a police officer, and told him that she had been raped. After T.W. led the police back to the abandoned building, she was taken to St. Bernard's Hospital, where she provided a blood sample and vaginal and oral swabs for a sexual assault evidence collection kit. The oral and vaginal swabs were sent to the Illinois State Police Forensic Science Center in Chicago. After the vaginal swabs tested positive for the presence of semen, they were sent to Orchid Cellmark, a private lab in Maryland, for DNA testing.
Cellmark prepared a male DNA profile from the vaginal swabs. Cellmark also prepared a DNA profile for the victim. The male DNA profile was entered into the Illinois State Police DNA database. In June 2004, the database reported an association between the male DNA profile prepared by Cellmark and defendant's DNA profile.
After defendant was arrested, T.W. identified him as her attacker in a lineup on January 25, 2005.
Following a jury trial, defendant was found guilty of two counts of aggravated criminal sexual assault and one count of aggravated kidnapping. The trial court sentenced defendant to two consecutive 25-year prison terms.
Defendant contends evidence of his involvement in an uncharged sexual assault was inadmissible to prove his propensity to commit sexual offenses under section 115-7.3 of the Code. Specifically, defendant contends the unfairly prejudicial effect of the other-crimes evidence clearly outweighed its probative value in this case because the charged and uncharged offenses were not substantially similar.
Before trial, the State filed a motion to allow other-crimes evidence to show defendant's propensity pursuant to section 115-7.3 of the Code, defendant's intent, and lack of consent. Specifically, the State sought to introduce evidence of three uncharged sexual assaults involving defendant---the sexual assault of F.F. on January 12, 2003; the sexual assault of C.V. on November 9, 2003; and the sexual assault of O.W. on January 19, 2005.
Following a hearing, the trial court, over defense counsel's
objection, granted the State's motion. In reaching its
the court said:
"THE COURT: There's evidence to show propensity on the part of Lorell Johnson to commit sexual crimes, and I'm not sure how you'd word the limiting instruction, they might even say that, if there's admission to show propensity. That could be argued out as far as the wording itself, but the case law indicates they're admissible for that purpose, propensity. *** And I think the cases sort of suggest or even say that they're admissible to show the likelihood or lack or likelihood that more than one woman would have consent to having sex under the same circumstances months to years or different times apart. So I'm not a big fan of the statute, but the law requires me to follow it. And I think under the circumstances of these cases, the evidence of other sexual assaults alleged to be committed by Lorell Johnson are admissible in the [T.W.] case March of 2002, which show what the statute refers to in the case law is [sic] propensity in sexual assault. *** The facts are sufficient enough to show arguably a propensity to commit sex crimes by Lorell Johnson, so those crimes will be admitted with a limiting instruction.
At trial, C.V., the witness in the uncharged sexual assault, testified that around 5 p.m. on November 10, 2003, she was walking home from the grocery store when a car pulled into an alleyway and blocked her path. A man, whom C.V. identified as defendant in open court, got out of the passenger side of the car and asked C.V. for directions. Defendant then pulled C.V. into the backseat of the car and started removing her clothes. When C.V. tried to get out of the car, defendant hit her on the temple and said "don't scream or else I'm going to kill you." The car then started to drive down the alley.
Defendant and the black male driver pulled C.V. from the car, dragged
her inside a dark abandoned building, and closed the door. After
defendant removed C.V.'s clothes, the driver put his penis inside
C.V.'s mouth while defendant put his penis inside her anus. Defendant
orally, anally, and vaginally penetrated C.V. during the assault. At
some point during the assault C.V. had an asthma attack and blacked
out. When she awoke, she was alone in the abandoned building. C.V.
returned home and called
the police. C.V. was then taken to a hospital where the
staff collected biological samples. C.V. admitted she told police
defendant had blown cocaine in her face and given her alcohol during
On January 25, 2005, while C.V. was in the hospital receiving treatment for an unrelated medical problem, Detective Hagan showed C.V. four photographs and asked if she could identify her attacker. C.V. testified she immediately identified defendant as the attacker from the photographs.
The State did not present evidence at trial regarding defendant's involvement in the uncharged sexual assaults of F.F. on January 12, 2003, or of O.W. on January 19, 2005.
Following closing arguments, the jury was given the following instruction regarding other-crimes evidence:
"Evidence has been received that the defendant has been involved in an offense other than that charged in the indictment. This evidence has been received on the issue of the defendant's propensity to commit criminal sexual assault and may be considered by you only for that limited purpose. It's 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 propensity to commit criminal sexual assault."
A trial court's decision to admit other-crimes evidence will not be reversed absent an abuse of discretion. People v. Donoho, 204 Ill. 2d 159, 182, 788 N.E.2d 707 (2003); People v. Childress, 338 Ill. App. 3d 540, 552, 789 N.E.2d 330 (2003). We will find an abuse of discretion if the trial court's evaluation is unreasonable, arbitrary, or fanciful, or where no reasonable person would adopt the trial court's view. Donoho, 204 Ill. 2d at 182.
Under the common law, other-crimes evidence normally is inadmissible if offered only to demonstrate the defendant's propensity to commit the charged crime. Donoho, 204 Ill. 2d at 169; People v. Manning, 182 Ill. 2d 193, 213, 695 N.E.2d 423 (1998). Evidence regarding other crimes generally is admissible only if offered to prove intent, modus operandi, identity, motive, absence of mistake, or any relevant fact other than propensity. Donoho, 204 Ill. 2d at 170; People v. Illgen, 145 Ill. 2d 353, 364-65, 583 N.E.2d 515 (1991).
However, section 115-7.3 of the Code provides an exception to the general rule in criminal cases, where, as here, a defendant is accused of criminal sexual assault. 725 ILCS 5/115- 7.3(a)(1) (West 2006). In such cases, "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 of 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." 725 ILCS 5/115-7.3(b) (West 2006).
In Donoho, our supreme court held the legislature enacted section 115-7.3 of the Code to "enable courts to admit evidence of other crimes to show defendant's propensity to commit sex offenses if the requirements of section 115-7.3 are met." Donoho, 204 Ill. 2d at 176.
Where other-crimes evidence meets the preliminary statutory requirements, the evidence is admissible if it is relevant and if its probative value is not substantially outweighed by its prejudicial effect. Donoho, 204 Ill. 2d at 182-83. "The key to balancing the probative value of other crimes evidence to prove propensity against its possible prejudicial effect is to avoid admitting evidence that entices a jury to find defendant guilty 'only because it feels he is a bad person deserving punishment.' " ...