Motion to publish granted, May 20, 2015.
Rule 23 Order Filed: April 17, 2015.
Appeal from the Circuit Court of Marion County. No. 11-CF-334. Honorable Michael D. McHaney, Judge, presiding.
For Appellant: Mark Tungate, Tungate Law Office, Flora, IL.
For Appellee: Hon. Matt Wilzbach, State's Attorney, Salem, IL; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Kelly M. Stacey, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Fifth District Office, Mt. Vernon, IL.
JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Presiding Justice Cates and Justice Goldenhersh concurred in the judgment and opinion.
[¶1] The defendant seeks a new trial on the basis that the trial court improperly granted the State's motion allowing evidence of uncharged sexual assaults allegedly committed by the defendant on his sister 20 years prior to the crimes alleged in this case. He alleges that the State's notice of its intent to introduce this evidence was inadequate because it did not comply with the relevant statute. Alternatively, he argues that the evidence unduly prejudiced him and should not have been allowed because it was too remote in time and too dissimilar from the charged offenses. We affirm.
[¶3] The State of Illinois charged the defendant, Kyle C. Braddy, with one count of the offense of criminal sexual assault in violation of section 11-1.20(a)(3) of the Criminal Code of 1961 (Code) (720 ILCS 5/11-1.20(a)(3) (West 2010)) and two counts of aggravated criminal sexual abuse in violation of section 11-1.60(d) of the Code (720 ILCS 5/11-1.60(d) (West 2010)). The incidents that led to these charges occurred in a two-month period during the summer of 2011. The defendant lived with Lori McElroy. Lori was the mother of V.M. V.M. was 14 years old in July and August 2011. The defendant's daughter is A.B. A.B. lived with the defendant, Lori, and V.M. A.B. was 13 years old during the same two-month period in 2011. The defendant was 31 years of age during the summer of 2011.
[¶4] Lori learned that the defendant inappropriately touched her daughter on September 27, 2011. V.M., who was a freshman at Salem High School, called her mother to pick her up from school and then told her mother that the defendant sexually touched her two times. The next day, A.B. learned about V.M.'s allegations. A.B. then told V.M. and Lori that the defendant sexually touched her also.
[¶5] V.M. testified at the defendant's trial. The first incident occurred when V.M. and the defendant went to hunt coyotes in late July or early August 2011 during evening hours. In response to V.M.'s complaint that her back hurt, the defendant offered to rub her back in a camper stored on the hunting property. V.M. testified that the defendant directed her to lie on her stomach on a bed and take off her shirt. The defendant unhooked her bra, but V.M. made him refasten it. The defendant rubbed her back. The defendant then asked V.M. to roll over so that he could rub her legs. V.M. testified that she was wearing jeans. Initially the defendant rubbed her legs through her jeans, but then removed V.M.'s jeans. The defendant continued to rub V.M.'s thighs and then placed his hand inside her underwear and rubbed her vagina for a couple of minutes. After this, the defendant placed his mouth on V.M.'s vagina for a couple more minutes. The defendant then ceased this activity. The defendant and V.M. then exited the camper, they sat on the steps to look for coyotes, and shortly later, they left and drove home.
[¶6] V.M. also testified about a second incident that occurred during daylight
hours a few days after the first incident. The defendant and V.M. planned to go coyote hunting again and drove to the hunting ground. V.M. wore shorts on this day. After arriving at the property and still inside the defendant's truck, the defendant began rubbing V.M.'s calves and then reached through the leg hole of V.M.'s shorts, pulling aside her underwear, and touched her vagina. While the defendant was touching her vagina, V.M. was listening to her iPod and drinking an alcoholic beverage provided by the defendant. V.M. testified that she then exited the truck in order to get away from the defendant. She returned to the truck, and they drove home.
[¶7] A.B. testified that in October 2011 she and the defendant were at home, while Lori and V.M. were gone. The defendant asked A.B. to rub his back?a common request. The defendant offered to rub A.B.'s back, and she accepted the offer. The defendant suggested that A.B. lie down on his bed on her stomach. The defendant rubbed her back under her shirt and then unhooked her bra. The defendant asked A.B. which knee she had previously injured, and then he offered to rub her knee. A.B. testified that she turned onto her back, and the defendant began rubbing her knee. While she was on her iPod, the defendant rubbed on the leg, telling A.B. that he was searching for a pulled ligament. The defendant then put his hand under her underpants and rubbed her vagina " at the top." A.B. testified that the defendant stopped touching her after a few minutes, telling her that he thought his friend was coming over to the house.
[¶8] Before the start of the second day of trial, the State advised the court of its intent to call the defendant's sister, Kara Braddy, pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 2010)).
" The State: Your Honor, in thinking about this last night, it occurred to me that it would probably be cleaner to go ahead and bring this up now to avoid a-what could be a lengthy sidebar and make the jury sit. One of the witnesses I intend to call is Kara Braddy. I think the Court's already heard testimony that Kara is the defendant's sister. Kara has indicated, in an intent to elicit testimony from her, that when she was a child, approximately eight, nine years old, the defendant would have been 11, 12 years old, that he engaged in similar sexual acts with her.
I'm offering this evidence under 725 ILCS 5/115-7.3 ***. This testimony would clearly qualify as criminal sexual abuse or criminal sexual assault. All it requires is that the witness be disclosed and the substance of any statements, if any, be disclosed.
I would point out that on April 30th of 2012, over a year ago, we filed our specific answer listing Kara as a witness, and copied the entire DCFS investigative file which includes a little over a page summary by Susan Coggin-Harris of a phone conversation she had with Kara Braddy after these allegations came out. *** Frankly, I've been anticipating a defense motion in limine regarding this, but haven't seen one, so I thought it relevant to-or appropriate to bring it up outside the presence of the jury now instead of just asking it on the stand and then side barring it.
What I believe she's going to testify to is that over a year's span, she estimates 20 to 30 incidents that started with fondling that eventually progressed to actual penetration, including anal penetration on one occasion she can recall. ***
It's factually similar in that it shows a propensity of this defendant to be opportunistic
with female members of his family. I believe it is admissible, but I thought we better address it before she actually gets on the stand and I start asking her about it.
The Court: Defense?
The Defense: Your Honor, I am taken by surprise.
The Court: How? He just said he disclosed it over a year ago. The Defense: Well, if it's ...