Modified upon denial of rehearing Oct. 28, 2013.
Mark D. Fisher, of State Appellate Defender's Office, of Ottawa, for appellant.
Terence M. Patton, State's Attorney, of Cambridge (Stephen E. Norris and Patrick D. Daly, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
delivered the judgment of the court, with opinion. Justice Lytton specially
concurred, with opinion, joined by Justice Schmidt.
[376 Ill.Dec. 359] ¶ 1 Defendant, Albert L. Fields, was convicted of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)), three counts of criminal sexual assault (720 ILCS 5/12-13(a) (1), (a)(3) (West 2006)), and two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 2006)).
¶ 2 Defendant appealed his convictions. We reversed and remanded for a new trial on the sole ground tat defendant was denied effective assistance of counsel because his attorney was laboring under a per se conflict of interest. We did not reach defendant's remaining issues on appeal. People v. Fields, 409 Ill.App.3d 398, 350 Ill.Dec. 221, 948 N.E.2d 290 (2011).
¶ 3 Thereafter, the supreme court reversed our decision and directed us to consider " those issues previously raised but left unresolved owing to [our] disposition." People v. Fields, 2012 IL 112438, ¶ 43, 366 Ill.Dec. 235, 980 N.E.2d 35. Upon subsequent review, we affirmed the trial court's decision. Defendant has now filed a petition for rehearing. The petition is denied but this opinion is modified to address its issues.
¶ 4 FACTS
¶ 5 On January 5, 2007, defendant was charged by information alleging that between 1999 and October 27, 2004, defendant, age 17 or older, did, on two separate occasions, place his penis in K.N.J.'s mouth when she was younger than 13 (counts I and II predatory criminal sexual assault of a child); between 1999 and February 2006, did place his penis in K.N.J.'s mouth by the use or threat of force (count [376 Ill.Dec. 360]
III criminal sexual assault); between 1999 and February 2006, did, on two separate occasions, place his penis in K.N.J.'s mouth when she was younger than 18 and he was her stepfather (counts IV and V criminal sexual assault); and between 2001 and February 2006, did fondle K.N.J.'s breasts and vagina and made her fondle his penis for his sexual arousal or gratification when she was younger than 18 and he was her stepfather (counts VI and VII aggravated criminal sexual abuse).
¶ 6 Prior to trial, the circuit court granted the State's motion to introduce other-crimes evidence pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-7.3 (West 2008)). Specifically, the court allowed evidence regarding an incident of aggravated criminal sexual abuse which formed the basis for a conviction in Rock Island County. The parties disputed the form in which that evidence would be presented. Defendant argued that testimony about the prior incident would be appropriate but not a certified copy of conviction. The State contended, and the circuit court agreed, that the prosecution could present both. Ultimately, the court held that the State could present the certified copy of conviction as well as testimony.
¶ 7 During trial, the State tendered People's Exhibit No. 8, a certified copy of defendant's conviction of aggravated criminal sexual abuse in Rock Island County. The circuit court admitted the exhibit and told the jurors it was admitted on the issue of defendant's propensity to commit the offenses with which he was charged in this case, and it was up to them to determine how much weight it should be given. The court expressly ruled, however, that the conviction could not be used to impeach defendant's credibility if he chose to testify.
¶ 8 The State also called C.S. to offer testimony concerning defendant's conviction of aggravated criminal sexual abuse in Rock Island County. C.S. testified that she was born on September 12, 1996. She lived in Moline with her mother and defendant. One morning, defendant gave her a book containing photographs of naked women and told her to put it on his weight set in the basement. He then followed C.S. downstairs, put her hand on his " wee wee" and made her rub it. Defendant also put his hand down C.S.'s pants and stuck his finger inside her. C.S. was nine years old at the time. Defendant told C.S. that he would spank her if she told anyone. C.S. eventually told her mother after defendant had kicked them out of the house.
¶ 9 K.N.J. testified that she lived with her mother, brother, two sisters, and her mother's boyfriend, defendant. At some point, defendant and K.N.J.'s mother married. K.N.J. testified to a series of sexual incidents involving her and defendant. On one occasion, defendant asked K.N.J. to lift her shirt and her bra. She did so and defendant stared at her. He said it was punishment because she had been mean to her mother. On subsequent occasions, defendant would ask her to lift her shirt and bra and defendant would touch her breasts. Sometimes, defendant would touch her breasts with one hand and masturbate with the other. K.N.J. also recalled other incidents in which defendant made her touch his penis with her hand and put his penis in her mouth. She also recalled him touching her " private area." All these incidents happened at home and when everyone else living in the home was either asleep or not around. K.N.J. could not remember how many times these things happened, nor could she recall all the particulars of each incident.
[376 Ill.Dec. 361] ¶ 10 K.N.J. further testified that defendant moved out for good after a woman from DCFS came to the home to speak with her and other members of her family. When K.N.J. was told the woman wanted to talk to her, defendant made a gesture to K.N.J. as if to tell her to keep her lips " zipped." The woman subsequently asked if defendant had ever touched K.N.J. K.N.J. responded no and stated she would tell her mother if anyone had inappropriate contact with her. At this point, DCFS had not received any complaints about defendant abusing K.N.J. The visit to K.N.J.'s home resulted from C.S.'s complaints against defendant. K.N.J. eventually informed her mother of defendant's alleged abuse. K.N.J.'s mother subsequently contacted the authorities.
¶ 11 Officer Richard Turley testified that he interviewed defendant. Defendant denied he abused K.N.J. He stated that K.N.J.'s mother must have put her up to it after learning he ...