Appeal from the Circuit Court of Lake County. No. 08-CF-630 Honorable Theodore S. Potkonjak, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Jorgensen
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justice Hudson concurred in the judgment and opinion.
Justice McLaren specially concurred, with opinion.
¶ 1 Defendant, Jesus R. Perez, appeals his convictions of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i), (ii) (West 2008)) related to victim S.C. Defendant argues that the trial court permitted, under section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3 (West 2008)), excessive other-crimes evidence to be introduced at trial. Further, defendant argues that inadequate limiting instructions, jury instructions, and verdict forms rendered the jury verdict unreliable in that it was potentially based on evidence of uncharged conduct. Alternatively, defendant argues that his trial attorney provided ineffective assistance where he failed to request limiting instructions when the other-crimes evidence was introduced at trial, and where he failed to request jury instructions and verdict forms that distinguished between charged and uncharged conduct. For the following reasons, we affirm.
¶ 4 On October 22, 2008, the State charged defendant with four counts of aggravated criminal sexual abuse; two charges pertained to alleged victim S.C., and two charges pertained to alleged victim D.W. As to S.C., the indictment charged that, on or before June 1, 2006, and November 30, 2007, defendant, age 17 or older, committed aggravated criminal sexual abuse against S.C., who was under age 13, in that he, for purposes of sexual gratification: (1) "fondled the breasts"; and (2) "pushed his penis against the buttocks" of S.C. On May 28, 2009, the court granted defendant's motion to sever defendant's trials, with one trial as to each victim.
¶ 5 On September 9, 2009, the trial court (Judge John T. Phillips) heard argument on the State's motion in limine to introduce other-crimes evidence pursuant to section 115-7.3 of the Code.*fn1
Specifically, in addition to the charged acts against S.C., the State wished to present evidence of other acts that defendant allegedly perpetrated against her. Further, the State wished to introduce evidence regarding the acts that defendant allegedly perpetrated against D.W. Over defendant's undue-prejudice objection, the court granted the State's motion. Specifically, the court, discussing relevant case law (People v. Donoho, 204 Ill. 2d 159 (2003); People v. Cardamone, 381 Ill. App. 3d 462 (2008)), and stating that it had weighed the evidence's probative value against its prejudicial effect, determined that the statute and case law permitted introduction of the evidence. The court refused to place a "false limitation" on the evidence, but it instructed the State to "talk about your best three or pick your best four, and I believe that the case law is such that surrounding circumstances do in fact become relevant." The court instructed the parties to prepare arguments regarding the necessity, if any, of limiting instructions; the court stated that it wished to be prepared to issue, if necessary, sua sponte limiting instructions when the evidence was introduced at trial.
¶ 7 On May 24, 2010, trial commenced before a different judge (Judge Theodore S. Potkonjak).*fn2 During voir dire, the court informed potential jurors that defendant was charged with aggravated criminal sexual abuse that occurred on or before June 1, 2006, and January 20, 2007 (a date different from that listed in the indictment, but which reflects the date that S.C. turned age 13). After the jury was selected, the following colloquy occurred between the court and defense counsel:
"COUNSEL: Judge, prior to jury selection you didn't read them the indictment. I presume you are going to do that before you swear them in.
THE COURT: I am not going to read them the indictment.
COUNSEL: Judge, we are going to ask that the indictment be read to them before hearing evidence. We are going to give reference to the charges in our opening statement. If they don't have it-haven't heard what the actual charges are-
THE COURT: They are not going to be read the indictment. They will never be read the indictment.
COUNSEL: Just let the record reflect that we request that the jury be read the indictment."*fn3 Later, the court similarly ruled that, because the jury would be instructed on the law at the end of trial, defense counsel was not permitted to read the indictment to the jury during his opening statement.
¶ 8 In opening statements, the State discussed the evidence the jury would hear but did not distinguish the acts that formed the basis of the charges from the other-crimes evidence. Similarly, defense counsel did not state what specific acts defendant was charged with committing; however, he did inform the jury that the trial and the evidence pertained only to S.C., not D.W.
¶ 9 S.C. (age 16 at trial) testified that she was born on January 20, 1994. She lives with her parents and siblings, including her mother, Grace, and her brother, Errol (who is one year older than S.C.). In addition, S.C. has an older sister, Josephine (age 33), who resides in another home. D.W. is Josephine's daughter (in other words, S.C. is D.W.'s aunt). S.C. is three years older than D.W., and the girls are close friends. After a divorce, Josephine and defendant entered into a relationship. S.C. believed that she was eight years old when Josephine and defendant began dating. S.C. had contact with defendant at various family events, including barbecues and family vacations.
Defendant often purchased gifts for S.C. on vacations or at amusement parks; S.C. viewed him like a brother.
¶ 10 In the summer of 2006, when S.C. was 12 years old, her relationship with defendant changed. When on a trip to Silver Lake, Wisconsin, defendant pulled S.C. into the water, to a depth where she could not stand, put his arms around her chest from behind and rubbed her breasts with his hands. This occurred more than five times. Errol was nearby, but the water was murky and one could not see through it. S.C. swam away and got out of the water. On their way home from the trip, when Errol was asleep in the passenger seat and D.W. was asleep on S.C.'s lap, defendant asked S.C. if the way he was touching her made her feel uncomfortable. She told him that it did. He told her that he would stop.
¶ 11 In the summer of 2006, S.C. often stayed overnight at Josephine's house; she would sleep in D.W.'s room, and she and D.W. shared D.W.'s bed. When Josephine was showering or sleeping, defendant would enter D.W.'s room. On more than 10 occasions, defendant got on the edge of the bed behind S.C. and put his hands on her breasts, sometimes under her pajama top and sometimes over it. In addition, each time he got into the bed, defendant would lie down behind S.C. and place his penis area in contact with her bottom. S.C. testified that she usually tried to pretend that she was sleeping, thinking that defendant would leave. A couple of times, S.C. tried to pull herself away or push defendant away. S.C. did not say anything to defendant when he touched her. S.C. did not, when it happened, tell an adult about defendant touching her, because she was scared that no one would believe her. She did discuss it with D.W. S.C. testified that she continued to go to Josephine's house, despite defendant's behavior, so that she could protect D.W. S.C. estimated that she slept at Josephine's "whenever [D.W.] was there" and that defendant would touch her breasts and put his penis near her bottom "most every time."
¶ 12 S.C. testified that there were also a "couple" of times that she came home from school and defendant was waiting in her driveway. S.C. testified that she was still age 12 at the time, but, at other points in the record, it appears that the after-school incidents occurred in the fall of 2007, when S.C. was over age 13. S.C. testified that she was the first person to return home at the end of a school day; her parents were at work, and Errol either would be on the bus on his way home or still at school. S.C. testified that she would go inside and into her room, and defendant would usually follow her. On one occasion, S.C. returned home and was already inside the house when defendant arrived and kept knocking on the door, calling her name and her phone, saying "I know you're in there" and "open the door." S.C. did not open the door, but she ran from her room into the bathroom and closed the door so that no one could see her. S.C. testified that defendant likely called Josephine, because Josephine telephoned S.C.'s mother and her mother then telephoned to yell at her, telling S.C. to open the door and to stop acting like a "brat." When Errol arrived home, he opened the door and defendant entered the house. Defendant came to S.C.'s room and sat next to her. When Errol passed by the room, defendant left and Errol made defendant a compact disc (CD). Defendant returned to S.C.'s room. He sat next to her on the bed and tried hugging her and kissing her on the cheek. Errol was present and, according to S.C., Errol thought that defendant was just trying to wrestle "or something." S.C. pushed defendant away, and the CD cracked. Defendant "got mad and they took it as just me being a brat again." Defendant left.
¶ 13 In October 2007, as guests were beginning to leave a family dinner at S.C.'s house, S.C. went to the basement to iron clothes. Defendant went to the basement to say goodbye. He came up behind S.C., pushed his penis against her bottom, and wrapped his arms around her stomach. Defendant was in that position for approximately 10 seconds. She agreed that she originally told the police that this incident occurred on November 15, 2007.
¶ 14 Grace saw something happen between S.C. and defendant in the basement, and she asked S.C. about it. On cross-examination, S.C. testified that Grace did not like the way defendant was hugging S.C. and had asked whether defendant had done anything other than hug her; S.C. replied that the only thing that occurred was hugging. She did not immediately tell Grace what defendant had done, because she was scared that she would not be believed. On more than one occasion, Grace asked S.C. about defendant going to the basement, but S.C. kept telling her that nothing happened. Grace stopped asking for awhile, but, on Thanksgiving Day in 2007, S.C. raised the subject with Grace and told her that defendant had actually grabbed her breasts. She did not, however, say anything about defendant pressing his private parts against her. Grace fell on her knees, was crying and trying to assure S.C. (who was also crying) that everything would be all right, and went to the bathroom to throw up. A few days later, S.C., D.W., Grace, and Josephine discussed defendant's conduct.
¶ 15 On December 3, 2007, S.C. complained to the police. In a written statement, S.C. did not mention that, when she slept with D.W. at Josephine's house, defendant got into the bed and pressed his penis to her bottom. Further, she agreed that in her written and oral statements to police she referred to defendant's "crotch area" and her own "back," as opposed to defendant's "penis" and her "butt," and, further, that she described defendant's contact as "hugging." S.C. testified that, while she told the truth in her written statement, she did not provide every detail of every touching. S.C. agreed that she spoke with Detective Sabas Mercado on December 13, 2007, and she told him that she had known defendant for more than six years, had a great relationship with him, and considered him to be a brother. S.C. told Mercado that, on about 18 occasions when defendant climbed into bed with her, his crotch region made contact with her back and "butt" area. She agreed that, when defendant thrust his front into her back, she never felt his penis, but she clarified that, in her mind, his "crotch area" is his "penis area" and, by not feeling his penis, she meant that the area, when pressed against her, felt soft, not hard.
¶ 16 According to S.C., no one told her what to say or to make anything up to get defendant in trouble, nor was her testimony the result of her being mad at defendant for anything. She had been told only to tell the truth.
¶ 17 Errol testified that, on one trip to Silver Lake (the specific date of which he could not recall), he, defendant, S.C., and D.W. were swimming in the lake. He described the lake as having murky water and gradually reaching around 15 feet in depth. Errol testified that he watched defendant playing with S.C. in water that was approximately six or seven feet deep (he estimated that S.C. was just over five feet tall). It looked like they were "horsing around," i.e., playing and dunking, with defendant grabbing S.C. and throwing her under water and S.C. coming back to the surface. Errol could not see whether defendant's hands made contact with S.C.'s body. According to Errol, after some time, S.C.'s facial expressions reflected irritation, and she got out of the water and sat by herself on a picnic bench. Errol saw defendant and S.C. have a conversation after she left the water.
¶ 18 Errol further recalled one occasion where he came home from school and defendant was present. Defendant asked Errol to burn him a CD. While Errol burned the CD, defendant walked around the living room, but Errol was focused on the CD and did not know where defendant was at all times. At some point, defendant went to talk to S.C. and they got into a "little altercation," breaking the CD. Defendant yelled at S.C., asking why she broke the ...