Court of Appeals of Illinois, First District, Sixth Division
Defendant’s conviction for aggravated criminal sexual assault was upheld over his contentions that the trial court erred in admitting evidence of his prior aggravated criminal sexual assault conviction and in allowing the prosecution to cross-examine him about that conviction, since the similarities between the offenses were sufficient to qualify as “general areas of similarity, ” and cross-examination of defendant about the prior offense was relevant and admissible to impeach defendant’s contention that his conduct with the instant victim was consensual.
Appeal from the Circuit Court of Cook County, No. 08-CR-21582; the Hon. Nicholas Ford, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, Jonathan Steffy, and Brett C. Zeeb, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Anthony O’Brien, and Iris G. Ferosie, Assistant State’s Attorneys, of counsel), for the People.
Justices Gordon and Reyes concurred in the judgment and opinion.
LAMPKIN, PRESIDING JUSTICE
¶ 1 Following a bench trial, defendant, Mark Stevens, was convicted of three counts of aggravated criminal sexual assault and sentenced to 60 years' imprisonment. On appeal, defendant contends the trial court abused its discretion in admitting proof of a prior aggravated criminal sexual assault. Defendant additionally contends the trial court erred in allowing the State to question him on cross-examination regarding evidence of the prior aggravated criminal sexual assault in violation of his right against self-incrimination. Based on the following, we affirm.
¶ 2 FACTS
¶ 3 Prior to trial, the State filed a motion in limine seeking to admit other crimes evidence regarding three aggravated criminal sexual assaults. Defendant filed an objection and answer. A hearing was held on the motion. The State argued that the three aggravated criminal sexual assaults occurred within six years of the offense at issue, that all of the sexual assaults were factually similar, and that the three sexual assaults were probative to show defendant's identity, intent, motive, common scheme or design with regard to the sexual assault at issue, as well as defendant's propensity to commit sex crimes. Defendant argued that the circumstances of the other cases varied greatly from those related to the offense in question and that the evidence of the other sexual assaults was "inherently unreliable." The trial court granted the State's motion and admitted the other crimes evidence, finding there were no differences between all of the sexual assaults that precluded them from being relied upon in the case at bar, that the cases were relevant to show motive, identity, and propensity, and that the probative value of the other crimes evidence outweighed any prejudicial effect on defendant.
¶ 4 At trial, the victim, B.P., testified that on October 1, 2002, she was 13 years old. On that date, she returned home from school around 3:30 p.m. and then proceeded to the mall to buy her mother a birthday present. The mall was located approximately 10 blocks from her home, which was located on N. Lawler Avenue, in Chicago, Illinois. B.P. intended to return home by her curfew of 8:30 p.m. B.P. was with a friend while at the mall; however, the friend had to leave at some point. As a result, B.P. left the mall alone and began walking home. It was dark outside at the time. After walking for approximately one block, B.P. heard a male voice say "come here." B.P. ignored the man and continued walking without turning around. The man, however, repeatedly demanded that B.P. "come here." B.P. attempted to walk faster, but the man ran up from behind and grabbed B.P. The man, whom B.P. later identified as defendant, forced B.P. into the back of a car parked nearby. Another male was already seated in the back of the car. Defendant proceeded to the driver's seat. B.P. testified that she tried to exit the car by "yanking on the door, " but the doors were locked and the windows did not function. According to B.P., she noticed an object on defendant's hip that appeared to be the handle of a handgun.
¶ 5 B.P. testified that defendant drove the car for approximately one hour. Defendant then stopped the car, exited, and instructed B.P. to exit the car as well. Defendant grabbed B.P. by the arm and led her to the basement of an apartment building where she was left alone for 5 to 10 minutes. B.P. testified that she attempted to flee from the basement, but it was dark and she could not find an exit. When defendant returned to the basement, he ushered B.P. to the front of the apartment building. B.P. did not observe the man that had been seated in the backseat of the car nor anyone else in the building. B.P. testified that defendant directed her to a landing between the first and second floors of the building and instructed her to remove her clothes. B.P. complied and defendant removed his pants. Defendant demanded that she put her mouth "on his dick." B.P. was afraid so she complied, performing oral sex for approximately 5 to 10 minutes. Then, defendant instructed B.P. to get up and turn around at which time he forced his penis inside B.P.'s anus. B.P. was in pain and testified that defendant engaged in anal sex for about 10 to 15 minutes. Thereafter, defendant instructed B.P. to move yet again at which time he forced his penis into B.P.'s vagina for 20 to 30 minutes. According to B.P., she could not stop defendant or move from underneath his weight.
¶ 6 B.P. further testified that she heard an individual enter the apartment building. In response, defendant stopped, put on his clothes, and left the building. B.P. dressed, but waited approximately 10 to 15 minutes before leaving the building for fear that defendant was lingering outside or would return. When she exited the building, B.P. ran to the nearest bus stop. B.P. rode two buses in order to get home. Upon arriving home, B.P. observed that her mother, Sheila Thomas, was speaking to a police officer. B.P. testified that she refused to tell the officer where she had been. However, once the officers left her home, B.P. informed Thomas about the offense.
¶ 7 According to B.P., Thomas took her to the hospital where a doctor performed a pelvic exam and swabbed her vagina and anus. While at the hospital, B.P. described the offense to the police and gave the police the clothes that she had been wearing. A couple of days after the offense, the police returned to B.P.'s house and requested that she show them where the sexual assault occurred. B.P. refused out of fear for her safety.
¶ 8 B.P. additionally testified that she spoke to the police in 2008. At that time, B.P. agreed to view a photographic array. B.P. identified defendant as the assailant in 2002 and became physically ill and vomited after doing so. A couple of weeks later, B.P. viewed a lineup and again identified defendant as her assailant. B.P. identified defendant for a third time in court.
¶ 9 According to B.P., she observed defendant at least two times prior to the offense in question. B.P. said she observed defendant standing across the street from her school. B.P. noticed defendant because he was older than the kids at school and he would "just stand there." B.P. never spoke to defendant prior to the offense.
¶ 10 On cross-examination, B.P. could not recall having told police on the night of the offense that defendant pointed a gun at her head, that there were three attackers, and that the assault took place in an apartment unit within the building.
¶ 11 Thomas testified that, on October 1, 2002, her 13-year-old daughter, B.P., had a curfew of 8:30 p.m. When B.P. was not home by her curfew, Thomas called the police. Sometime after the police arrived at her home, B.P. walked into the house. According to Thomas, B.P. appeared frightened. B.P. informed Thomas that she had been raped. Thomas could not recall whether B.P. provided the information regarding the rape in the presence of the police. Thomas then took B.P. to the hospital emergency room to be examined by a doctor.
¶ 12 The parties stipulated that, if called by the State, Doctor Monique Karaganis, an expert in pediatric medicine, would testify that she examined B.P. on October 1, 2002, at Cook County Hospital. Dr. Karaganis conducted a pelvic exam and observed a two-millimeter tear in B.P.'s hymen and two tears in her rectum, as well as bloody semen in B.P.'s vagina and rectum. Dr. Karaganis collected vaginal and oral swabs from B.P. and placed the swabs in an Illinois State Police sexual assault collection kit. Dr. Karagnis would testify that her findings were consistent with the use of force or forceful intercourse, but that she could not opine on the degree of force used or whether the intercourse was consensual.
¶ 13 The parties additionally stipulated that, if called by the State, a number of individuals would testify regarding the chain of custody of the sexual assault evidence kit, as well as B.P.'s undergarments, which were tested by the Illinois State Police crime lab. One male DNA profile was recovered from the samples in addition to B.P.'s DNA profile.
¶ 14 R.G. testified that, on September 3, 2008, she was 21 years old and lived on E. 68th Street in Chicago, Illinois. At the time, R.G. worked as a security officer at the Home Depot located on Cicero and Armitage in Chicago, Illinois. On the date in question, she left work at 9 p.m. and was on the Roosevelt Street "L" train platform when a man approached her from behind, pointed something hard and sharp in her back, and told her to go with him. The man warned R.G. that he would kill her if she screamed; R.G. complied out of fear. R.G. testified that she had never observed the man, whom she later identified as defendant, prior to that day. Defendant ...