Appeal from Circuit Court of McLean County. No. 12CF229. Honorable Robert L. Freitag, Judge Presiding.
Michael J. Pelletier, Jacqueline L. Bullard, and Daaron V. Kimmel, all of State Appellate Defender's Office, of Springfield, for appellant.
Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
PRESIDING JUSTICE POPE delivered the judgment of the court, with opinion. Justices Harris and Steigmann concurred in the judgment and opinion.
POPE, PRESIDING JUSTICE
[¶1] In August 2012, a jury convicted defendant, John E. Smith, of one count of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2010)), three counts of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2010)), and one count of sexual exploitation of a child (720 ILCS 5/11-9.1(a)(2) (West 2010)) based on incidents of sexual abuse involving defendant and two unrelated children, which occurred in February or March 2012. Pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963, the trial court allowed the admission of evidence about defendant's alleged sexual abuse of his then stepdaughter and her cousin, which occurred from approximately 1994 through 2000. 725 ILCS 5/115-7.3 (West 2010). Defendant appeals, arguing his conviction should be vacated and the matter should be remanded for a new trial because the trial court abused its discretion by admitting unduly prejudicial evidence of his alleged prior sexual abuse. We affirm.
[¶2] I. BACKGROUND
[¶3] In March 2012, a grand jury indicted defendant on one count of predatory criminal sexual assault of a child, three counts of aggravated criminal sexual abuse, and one count of sexual exploitation of a child. Prior to trial, the court held a hearing on the State's motion to admit evidence of prior uncharged allegations of sexual abuse by defendant that occurred from 1994 or 1995 through 2000. The State sought to introduce this evidence through the testimony of the two prior victims for the purpose of showing propensity, intent, or absence of mistake. The court allowed
the State's motion but ruled the victims of the prior sexual abuse were not to testify as to conduct that went beyond the factual similarities to the charged conduct. At trial, the State presented seven witnesses and defendant presented six witnesses, including testimony in his own defense. We summarize only the facts and testimony necessary for the purposes of this appeal.
[¶4] A. Allegations Leading to Current Charges
[¶5] At the time of the incidents giving rise to this case, defendant was in a romantic relationship with Sarah Myers, a mother of five children. B.N. and S.N., the children of Myers' friend Georgenea N., occasionally spent the weekend at Myers' house. The Myers house has three levels: a basement, a main floor, and an upstairs floor. Myers' bedroom and the living room are on the main floor. The basement has a laundry area and a play area with baby dolls, a baby doll bed, and a play kitchen. All the alleged incidents occurred in the living room, basement, and Myers' bedroom on either the weekend of February 16 to February 19, 2012, or the weekend of March 1 to March 4, 2012.
[¶6] B.N., a nine-year-old girl, testified she was sitting on the couch in the living room on the main level of the Myers home. Defendant came into the living room and picked up B.N., cradling her like a baby. Further, she testified defendant used his hand and rubbed her vagina over her clothing. Defendant rubbed her vagina three times, all in the same incident. Defendant did not immediately stop at B.N.'s request but eventually put her down.
[¶7] B.N. further testified she saw defendant touch S.N. on one occasion. S.N. was sitting on the couch in the Myers' living room and B.N. was hiding in a hallway. B.N. stated she hid in the hallway because she suspected defendant would touch S.N., just as he had touched her. The State ...