Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Fretch

Court of Appeals of Illinois, Second District

March 16, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
IAN F. FRETCH, Defendant-Appellant.

         Appeal from the Circuit Court of Du Page County. No. 14-CM-2451 Honorable James D. Orel, Judge, Presiding.

          JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Zenoff concurred in the judgment and opinion.

          OPINION

          BIRKETT JUSTICE.

         ¶ 1 Following a bench trial, defendant, Ian F. Fretch, was convicted of several offenses, based on evidence that he knowingly exposed his penis and masturbated in the presence of G.G., a female minor. Defendant brings four main contentions on appeal: (1) the trial court erred in admitting other-acts evidence; (2) the evidence was insufficient to support defendant's convictions; (3) defendant's trial counsel was constitutionally ineffective in various respects; and (4) the trial court was not authorized to sentence defendant to a two-year period of probation to run consecutively to a 360-day term of imprisonment. We reject all four contentions and affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 A. Rulings on Other-Acts Evidence and the Parties' Stipulation to a Partly Closed Trial

         ¶ 4 On July 20, 2014, the State brought a three-count misdemeanor complaint against defendant, charging him with sexual exploitation of a child (720 ILCS 5/11-9.1(a)(2) (West 2014)), public indecency (720 ILCS 5/11-30(a)(2) (West 2014)), and disorderly conduct (720 ILCS 5/26-1(a)(1) (West 2014)). The common allegation in all three counts was that, on July 19, 2014, defendant knowingly exposed his penis to G.G. and masturbated. The disorderly-conduct count additionally alleged that defendant waved his hand at G.G. while masturbating. G.G. was 14 years old at the time of the charged offenses.

         ¶ 5 In advance of trial, the State filed a motion in limine to introduce other-acts evidence. In its motion, the State described two incidents that occurred prior to the date of the charged offenses. The State submitted with its motion the police reports that were generated in connection with the incidents.

         ¶ 6 First, the State alleged that, on May 18, 2010, defendant, who was then 29 years old, approached C.K., a female minor, at the Elmhurst Public Library. Defendant began a conversation with C.K., who was using a library computer. At his request, C.K. added defendant to her MySpace account. Defendant then sat at a nearby computer and began to send C.K. sexually suggestive remarks through MySpace. Defendant asked C.K.'s age and she replied that she was 14 years old. After learning this, defendant continued his overtures, stating that C.K. was "sexy" and asking if she would be his "sexy little girl." At that point, C.K. terminated her MySpace contact with defendant and informed the library staff of the incident. The staff in turn notified the police, who arrested defendant. During a custodial interview, defendant admitted that he might have made a sexually suggestive remark to C.K. after he learned her age. Defendant was charged with disorderly conduct. He pled guilty and was sentenced to 30 days in jail.

         ¶ 7 The second alleged incident occurred on July 17, 2014, two days before the charged offenses. G.G. (the victim of the charged offenses) was walking with her 13-year-old friend, S.M., from G.G.'s home to a CVS store on North Avenue in Elmhurst. As they walked, defendant drove past and blew kisses at them. Later, while G.G. and S.M. were in the backyard of G.G.'s home, they observed defendant standing outside a few houses away. Defendant blew kisses at G.G., thrust his hips at her in a "humping motion, " and then placed his finger on his lips, apparently signaling G.G. to be quiet.

         ¶ 8 The police report detailing the July 17 incident went on to describe G.G.'s complaint on which the State based the present charges. G.G. told police that, on July 19, 2014, she was walking on the sidewalk across the street from defendant's home, which was two houses away from hers, when she observed defendant standing in his doorway. His left hand was on his exposed penis as he waved G.G. over with his right hand.

         ¶ 9 The State argued in its motion that the May 2010 incident was relevant as showing modus operandi. The State also contended that the May 2010 incident would have the further purpose, shared by the July 17, 2014, incident, of showing intent or absence of mistake. Elaborating, the State noted that it would present evidence at trial that defendant told police that "it was just a coincidence [that] he was masturbating as G.G. walked by." The State contended that the other-acts evidence would rebut the claim of coincidence.

         ¶ 10 The court heard the motion in limine on the first day of trial. Defense counsel submitted that the May 2010 incident was too dissimilar to the charged offenses to show modus operandi. Counsel also suggested that it was premature for the court to decide whether the other-acts evidence had bearing on intent or absence of mistake, because the defense had not yet decided whether to make intent an issue in the case. Counsel explained:

"[W]e don't know quite frankly yet, based on the evidence that the State has submitted in its brief, whether or not the defendant is admitting to the conduct that's [sic] he's being accused of or if he flat out denies it."

         Accordingly, counsel asked the court to reserve ruling on whether the other-acts evidence was pertinent to intent or absence of mistake. Counsel also commented, however, that any of the other-acts evidence would "have an overly prejudicial effect as opposed to its probative value."

         ¶ 11 The State asked for an immediate ruling. The State anticipated that intent would be an issue at trial, with defendant arguing that he "never even saw [G.G.]" when he was masturbating. The trial court granted the motion, finding that all of the other-acts evidence was relevant to show intent. The court further determined that the prejudicial impact of the evidence would not substantially outweigh its probative value.

         ¶ 12 Defendant signed a jury waiver. The State then presented a stipulation from the parties that, during the testimony of G.G. and S.M., the courtroom would be closed to spectators except for the parents of the two minors. The court confirmed with defense counsel that the defense was so stipulating. The court restricted the courtroom as agreed during G.G.'s and S.M.'s testimony.

         ¶ 13 B. Other-Acts Evidence at Trial

         ¶ 14 C.K. testified that, at about 2 p.m. on May 18, 2010, she was at the Elmhurst Public Library. She was 14 years old at the time. She was accessing her MySpace account on a library computer when she noticed defendant staring at her from about six feet away. The staring made C.K. somewhat uncomfortable, and she looked away after making eye contact with defendant. Defendant approached and sat down next to C.K. He made a comment about a nearby library patron who was not wearing shoes. C.K. laughed at the remark. Defendant noticed that C.K. was on MySpace. He wrote his email address on a slip of paper and told C.K. to add him to her MySpace account. After C.K. did so, she began receiving messages from defendant. In his first message he wrote, "[Y]ou're sexy. You have sexy hips. I'm 22. How old are you?" C.K. wrote in response that she was 14. Defendant then commented that he felt that C.K. was older, perhaps 18 or 19. He asked if he could call C.K. "his sexy girl." C.K. said in reply, "I'm 14, and you're 22. That's disgusting." Defendant then wrote, "[Y]ou're sexy." At that point, C.K. felt frightened. She deleted defendant from her MySpace account, logged off the computer, and went to the front desk. The police were called, and defendant walked away. C.K. testified that no printout existed of her MySpace conversation with defendant.

         ¶ 15 Elmhurst police sergeant Michael Campise testified that, at about 7 p.m. on May 18, 2010, he interviewed defendant in the booking area of the police station. At the outset of the interview, defendant commented that he knew why Campise was there. Defendant then asked Campise if it was "wrong or unreasonable for a guy to check out a girl that's [sic] wearing tight pants that shows [sic] off her figure." Campise asked defendant his age. Defendant said that he was 29. Campise informed defendant that C.K. was only 14. Campise then asked defendant what occurred in the library. Defendant said that he sat down next to C.K. and "started some small talk" about some shoes that were under the table. C.K. invited defendant to join her MySpace account so that they could message each other. Defendant joined C.K.'s account and they began to exchange messages. Defendant admitted that some of the talk was "sexually suggestive." For instance, defendant commented to C.K. that she had "a sexy, curvy look to her." According to defendant, he and C.K. eventually broached the topic of age. She told him that she was 14, and he replied that they probably should not be talking. C.K. went to the front desk. At that point, defendant felt "terrible" about the conversation and wanted to apologize to C.K. He decided against it and left the library.

         ¶ 16 Campise testified that defendant initially denied making any sexual remark to C.K. after learning that she was 14. Later in the interview, however, defendant admitted that he "probably or might have" asked C.K. after learning her age if she "would be a sexy little girl."

         ¶ 17 S.M. was 14 years old at the time of trial (March 17, 2015). She testified that, between 1 p.m. and 2 p.m. on July 17, 2014, she arrived at her friend G.G.'s home on Columbia Avenue in Elmhurst. After a short while, the two became bored and decided to walk to the nearby CVS store to buy Silly String. The CVS was at the intersection of North Avenue and York Street. As they walked west on the south sidewalk along Columbia (an east-west road), a black Jeep with silver rims slowed down to keep pace with them. S.M. estimated that the Jeep was 10 feet from them. S.M. observed that the driver's window was halfway down. She did not get a clear look at the driver, but she saw that he was a male. There was no one else in the Jeep. S.M. saw the driver blow a kiss at her and G.G. and also wave at them. The gestures made S.M. uncomfortable and she turned her attention from the driver. After another minute and a half, the Jeep sped up past them. S.M. and G.G. took a diagonal shortcut to the CVS by passing through the parking lot of a Jersey Mike's. As they neared the CVS, S.M. saw what looked like the same Jeep at a stoplight on York. This time, S.M. did not see the driver. The Jeep continued on York and turned into an alley. S.M. became concerned for their safety and urged G.G. to call her brother for advice. They ultimately did not call him.

         ¶ 18 S.M. testified that she and G.G. remained in the CVS for an hour and 15 minutes. They stayed so long to make sure that the Jeep had left. During their stay, they purchased Silly String. When they set out back toward G.G.'s home, they took the same route, including the shortcut. As they walked east on the south sidewalk along Columbia, approaching an intersection two houses from G.G.'s home, they noticed the same Jeep driving slowly a short distance behind them. S.M. sensed that the Jeep was following them. She and G.G. panicked and ran screaming to G.G.'s house to get the attention of her parents. The Jeep did not follow them to the house but turned at the intersection and "sped off." S.M. did not see the driver at that time.

         ¶ 19 S.M. stated that, when they arrived at G.G.'s, her mother directed them to remain in the home as she went out to see if the Jeep had returned. Later, at about 4:30 p.m., S.M. and G.G. went to the backyard and had a "silly string fight." As they were cleaning up the string, S.M. observed the same Jeep arrive next door or two houses down. The Jeep parked on a concrete slab at the back of the house. S.M. saw the driver exit the Jeep. She could not see him clearly, because her line of sight was partially obscured by a boat that was parked in G.G.'s driveway. The driver faced S.M. and G.G. and made a "kissy face or like a kiss motion with his hand, " similar to the gesture he made previously. The driver then put his finger to his lips as if telling them to keep quiet. After lighting a cigarette, the driver thrust his hips in G.G.'s direction in a "humping motion." S.M. then looked away and stopped paying attention to the driver. She and G.G. finished cleaning up the Silly String, which took about five seconds, and then went inside the house. They continued to watch the Jeep from there. S.M. testified that she was not familiar with G.G.'s neighborhood and had not seen the Jeep before that day. S.M. identified defendant in court as the person she saw driving the Jeep.

         ¶ 20 G.G. testified that S.M. came to G.G.'s home at about 3 p.m. on July 17, 2014. They decided to walk to the CVS at North and York to buy Silly String. As the two walked along Columbia, G.G. saw a black Jeep with silver rims slowly following them. The driver's window was partly down and the driver, a male, blew a kiss in their direction. G.G. did not recognize the driver at that time. After the driver made his gesture, G.G. and S.M. crossed Columbia and took a shortcut through a parking lot to the intersection of North and York. The Jeep did not follow them into the parking lot but proceeded to a stop sign on Columbia. According to G.G., she decided on the shortcut not because of the driver's gesture, but because it was her normal route to walk to the CVS.

         ¶ 21 When G.G. and S.M. reached the CVS, G.G. saw the Jeep drive down a nearby alley. G.G. and S.M. spent two hours inside the CVS and purchased Silly String. They walked home using the same shortcut. When they were almost back home, G.G. saw the Jeep following them again. At the intersection of Columbia and Willow Road, which was near her house, the Jeep made a wide right turn onto Willow. The driver's window was partly down, and the driver pointed at G.G. and S.M. This time, G.G. got a "good look" at the driver. He looked "very familiar" but she could not place him. After the driver made his gesture, G.G. and S.M. ran to G.G.'s home and told her mom that there was a stalker.

         ¶ 22 G.G. testified that, about 20 to 30 minutes after they arrived home, she and S.M. went into the backyard and had a fight with the Silly String. While they were outside, they observed the same Jeep pull into the driveway of the residence two houses down, at the corner of Columbia and Willow. When the driver exited the Jeep, G.G. finally recognized him as her neighbor from that residence, whom she had seen around the neighborhood for years. As before, the driver blew a kiss at G.G. and S.M. He also put his finger to his lips, motioning them to be quiet. Moreover, G.G. could "almost remember [the driver] doing like a humping motion." After the driver made these gestures, G.G. and S.M. quickly cleaned up the Silly String and went inside. G.G. identified defendant in court as the driver of the Jeep and the neighbor she recalled seeing around the neighborhood. Defendant was typically smoking when she saw him. They had never interacted, nor had he waved to her, before July 17.

         ¶ 23 C. The Charged Incident

         ¶ 24 G.G. also testified to an incident that occurred two days later, on July 19, 2014. About 1 p.m. on that date, G.G. was walking on the sidewalk on Columbia near her home. She was on a FaceTime video call with S.M., who was on a camping trip. G.G.'s neighbor was having a garage sale and other people were walking on the sidewalk. G.G. paced as she talked. She began by walking east from her house (away from defendant's home). After she walked down about two homes, she crossed the street and walked back west, toward the intersection of Columbia and Willow. She passed her home on the opposite side of Columbia. When she was across from defendant's home, she saw him on the front porch, smoking. She then walked back east, crossed Columbia, and walked west to her home. She then repeated the route, walking east on Columbia. This time, when she was across Columbia from defendant's home, she saw defendant inside his home. She saw him through the screen door, which was screened at the top but solid on the bottom. G.G. was "pretty sure" that defendant was removing his clothes. They made eye contact. G.G. did not tell anyone, because she was still on the phone with S.M. Also, she had not "put *** it together *** what [defendant] was doing."

         ¶ 25 G.G. testified that, after seeing defendant undressing, she turned back east and walked the same route again. When she was across the street from defendant's home the third time, she heard someone say, "Hey." She turned and saw that it was defendant who was trying to get her attention. He was standing behind the screen door. The screened portion of the door was "below [defendant's] waist level" and G.G. could see that he was naked and masturbating. They made eye contact and defendant "waved for [her] to come in." He masturbated with his left hand and waved with his right. G.G. decided to take a photograph to prove what defendant was doing. Since the camera phone she was carrying was out of storage, she went back to her home and found an older camera phone with storage. G.G.'s mother was home but G.G. did not tell her what she saw. G.G. crossed the street and returned to her earlier vantage point. Defendant was still masturbating. G.G. did not want defendant to know that she was photographing him, so she pretended she was still on FaceTime when she took two or three photographs. When G.G. took the photos, defendant opened the screen door and thrust his penis through the doorway. He then shut the door and continued to masturbate. Frightened, G.G. ran home and told her mother that defendant was masturbating.

         ¶ 26 The State introduced two photographs, which G.G. identified as the photographs she took of defendant's home while he was masturbating. The first photograph shows the front of the home, but the screened portion of the door is dark and no one is visible behind the door. The second photograph is a close-up image of the front porch and the screen door. G.G. testified that she took this image by using the zoom function of the camera phone. Behind the screen door is the figure of a person, who defense counsel admitted in closing argument is defendant. The image is grainy; defendant is visible as a flesh-colored silhouette of a head and a torso. His individual features are not visible. We describe the photo in greater detail below. Infra ¶ 93. G.G. noted that the photographs were taken before defendant opened the door and thrust his penis through the doorway.

         ¶ 27 The State's next witness was Elmhurst police detective Steven Mandat. He testified that he spoke with defendant in the lock-up area of the police station on the afternoon of July 19, 2014. Defendant asked what was going on with the investigation. Mandat told him that the matter involved G.G. Defendant waived his Miranda rights and agreed to speak with Mandat, who then led defendant to an interview room. Mandat's video and audio recording of the interview was introduced into evidence and played for the trial court.

         ¶ 28 The recording is 90 minutes, more than half of which shows defendant by himself in the interview room. The remainder of the recording is defendant's interview with Mandat and another police officer. At the beginning of the interview, Mandat told defendant that the matter involved G.G. Defendant replied that G.G. was too young for him to be interested. Mandat asked defendant if he waved to G.G. two days ago while driving his Jeep. Defendant claimed that he did not recall seeing G.G. on that date but admitted that he might have previously waved to her in a "neighborly" way. Defendant denied that he is a pedophile or that he would ever try to lure G.G. into his Jeep. Defendant further denied that he exposed his penis to G.G. on July 19. Defendant admitted that he might have gone to his front door earlier that day while "topless." Defendant later admitted that he was actually fully nude when he went to the front door. He explained that he took a bath earlier that day after finishing a plumbing project and was naked as he walked through the house. He admitted that, while still naked, he went to the front door to check whether any mail was stuck in the slot of the screen door. This involved opening the screen door to check the front of the door. Defendant initially stated that, as he checked the mail, he touched his genital area because he was itchy. Defendant later admitted that he was naked and masturbating to pornography while inside the house. Still naked and continuing to masturbate, he opened the screen door to check for stuck mail. Defendant denied that he saw G.G. outside while he checked the mail slot. He acknowledged that, if G.G. were outside unbeknownst to him, she might have misinterpreted his actions as a wave with his hand. Defendant denied that he found G.G. attractive.

         ¶ 29 On cross-examination, Mandat acknowledged that one of the interrogation tactics he used in the interview was to state questions or observations that assumed facts that defendant had yet to accept. For instance, Mandat asked defendant at one point, "What about when you were masturbating by your front door?" In this way, Mandat was asking defendant to "[a]ccept certain details of what happened."

         ¶ 30 After the State rested its case, defendant testified in his own defense. Asked about the incident at the Elmhurst library in May 2010, defendant claimed that C.K.'s MySpace page reported her age as 18. Defendant claimed that he found out only after their interaction that C.K. was 14. Defendant also admitted, however, that C.K. "may have" told him during their MySpace exchange that she was 14. Defendant also "may have" found C.K. attractive.

         ¶ 31 Defendant further testified that, on July 17, 2014, he was residing with his parents and working full-time delivering appliances. He drove a Jeep when not at work. After finishing work at 3 p.m. on July 17, he ran errands in the Jeep. Defendant knew on July 17 that G.G. was his neighbor, but he did not recall seeing her or S.M. that day.

         ¶ 32 Defendant testified that, on July 19, he and a friend completed a plumbing project at his home. Defendant took his parents to the train station at 12:30 p.m. and his friend left at 2:30 p.m. Afterward, defendant was in the house alone. He took a bath, wrapped himself in a towel from the waist down, and phoned for a pizza delivery to his friend's home, where he planned to join him later. Still wearing just the towel, he went to the front of the house to close the inner door, which had been left open to let air through the screen door. He did not open the screen door. He did not see G.G. outside when he was at the door. Defendant denied that he was naked from the waist down or masturbating while at the door. Defendant claimed that G.G. was too young to be attractive to him. Defendant denied that he has a "thing" for 14-year-old girls or an interest in public masturbation.

         ¶ 33 Defendant was shown the two photographs taken by G.G. Defendant claimed that he could not tell from the close-up photograph of the door and the porch whether he was facing outside. According to defendant, he would have faced the inner door while preparing to close it.

         ¶ 34 As to the interview with Mandat, defendant denied that he said that he masturbated at his front door on July 19. He testified that his references to masturbation were in the nature of a hypothetical. Mandat was offering hypotheticals and defendant was "giving him hypotheticals back." Defendant was "flustered" and "very confused" by Mandat's rapid questions. Because of the "suggestive nature" of those questions, defendant "didn't think [he] was free."

         ¶ 35 In closing argument, defense counsel asserted, consistently with defendant's testimony, that at no time on the afternoon of July 19 was defendant nude or masturbating at his front door. Counsel acknowledged that the close-up photo of defendant's home showed him inside the screen door, but counsel denied that the photo corroborated G.G.'s account in any further respect. Counsel further argued that defendant's confession to Mandat was not truthful but rather was defendant's adoption of a false narrative suggested by Mandat.

         ¶ 36 D. The Trial Court's Ruling

         ¶ 37 The trial court found defendant guilty on all three counts. The court considered the case one of "credibility" and found G.G. and S.M. "extremely credible with great recall of the events[.]" The court accepted their accounts of July 17 as well as G.G.'s account of July 19. The court considered defendant's statement to Mandat that, on the afternoon of July 19, he was naked and masturbating when he opened his screen door to check for mail. The court rejected defendant's suggestion at trial that he was only addressing hypotheticals in the interview with Mandat. Thus, the court found that defendant was speaking truthfully when he admitted that he went to the front door while naked and masturbating. The court found that the May 2010 library incident involving C.K. and the July 17 incidents involving G.G. and S.M. were pertinent to the issue of intent, specifically, to whether defendant knowingly exposed his penis and masturbated in G.G.'s presence. The court further found that G.G.'s close-up photograph of the front door, albeit "not specifically clear, " showed a "total[ly] naked man" behind the screen door. As such, the photo corroborated G.G.'s account of the events on July 19 as well as defendant's admission to Mandat that he went to his front door while naked and masturbating.

         ¶ 38 On the sexual-exploitation and public-indecency counts, both class A misdemeanors (see 720 ILCS 5/11-9.1(a)(2), 11-30(a)(2) (West 2014)), the court sentenced defendant to 360 days in jail and two years of probation. The court imposed a 30-day concurrent jail term on the disorderly-conduct count. The court granted credit against both sentences for the 188 days defendant had spent in custody.

         ¶ 39 E. Posttrial Motions

         ¶ 40 Defendant, by new counsel, filed two posttrial motions. The first was a motion for judgment notwithstanding the verdict or for a new trial. The motion brought multiple allegations of error, including a claim of ineffective assistance of trial counsel. After hearing argument on the motion, the trial court denied it except for the claim that one of defendant's convictions violated the one-act, one-crime doctrine. See People v. Johnson, 368 Ill.App.3d 1146, 1163 (2006) ("The one-act, one-crime doctrine prohibits multiple convictions when (1) the convictions are carved from precisely the same physical act or (2) one of the offenses is a lesser-included offense of the other."). The court determined that the sexual-exploitation and public-indecency convictions were based on the same act. Consequently, the court vacated the public-indecency conviction. We discuss other aspects of the motion in our analysis below. Infra ¶¶ 116-41.

         ¶ 41 The second posttrial motion was a motion to reduce the sentence. Defendant construed the applicable sentencing provisions to mean that, for a Class A misdemeanor, any combination of imprisonment and probation must not in the aggregate exceed the maximum term of imprisonment allowable for such a misdemeanor, which is 364 days. See 730 ILCS 5/5-4.5-55(a) (West 2014) (for a Class A misdemeanor, "[t]he sentence of imprisonment shall be a determinate sentence of less than one year"); 730 ILCS 5/5-6-2(f) (West 2014) ("The court may impose a term of probation that is concurrent or consecutive to a term of imprisonment so long as the maximum term imposed does not exceed the maximum term provided under Article 4.5 of Chapter V [(730 ILCS 5/5-4.5-5 et seq. (West 2014))] or Article 8 of this Chapter [(730 ILCS 5/5-8-1 et seq. (West 2014))].". Defendant submitted that, since he had already served 360 days in jail (given good-time credit), a term of probation would exceed the statutory limit of 364 days. The trial court rejected defendant's interpretation of the sentencing statutes. The court retained the sentence of probation but reduced the term of imprisonment to 180 days to reflect time served.

         ¶ 42 Defendant filed this timely appeal.

         ¶ 43 II. ANALYSIS

         ¶ 44 Defendant raises several contentions on appeal. We address them as follows.

         ¶ 45 A. Other-Acts Evidence

         ¶ 46 Defendant challenges the admission of the State's other-acts evidence, which consist of: (1) defendant's interaction with C.K. in May 2010, in which he persisted with his sexually charged overture even after learning that she was 14 years old; and (2) defendant's conduct on July 17, 2014 (two days before the charged offenses), where he followed G.G. and S.M. in his Jeep and blew kisses and made a "humping" motion at them. Defendant argues that this evidence was inadmissible because it was relevant only to show that he had a propensity to target underage girls. Defendant is incorrect.

         ¶ 47 Rule 404(b) of Illinois Rules of Evidence (eff. Jan. 1, 2011) provides that, with certain exceptions not pertinent here, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith[.]" However, such evidence "may *** be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. Rule 404(b) codifies the common-law rule that "[e]vidence of a crime or other bad acts for which a defendant is not on trial is inadmissible if relevant merely to establish the defendant's propensity to commit crime." People v. McGee, 2015 IL App (1st) 122000, ¶ 25. "Evidence of other crimes [or bad acts] is objectionable not because it has little probative value, but rather because it has too much." People v. Manning, 182 Ill.2d 193, 213 (1998). The danger is that the fact finder will "convict the defendant only because it feels that defendant is a bad person who deserves punishment." Id. at 213-14. "[T]he law distrusts the inference that, because a person committed other crimes or bad conduct, he is more likely to have committed the crime charged." People v. Brown, 319 Ill.App.3d 89, 99 (2001). Thus, where the other-acts evidence "has no value beyond that inference, it is excluded." (Internal quotation marks omitted.) Manning, 182 Ill.2d at 214. Even other-acts evidence that is relevant for a proper purpose will be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. People v. Pikes, 2013 IL 115171, ¶ 11; see also Ill. R. Evid. 405 (eff. Jan. 1, 2011). The trial court's admission of other-acts evidence will be upheld on appeal unless the court abused its discretion. People v. Donoho, 204 Ill.2d 159, 182 (2003). A trial court abuses its discretion when no reasonable person would take the view adopted by the trial court. Lake Environmental, Inc. v. Arnold, 2015 IL 118110, ¶ 16.

         ¶ 48 The trial court here found that the other-acts evidence was pertinent to defendant's intent in the alleged act of exposing his penis to G.G. and masturbating in his front doorway. Count I of the complaint charged sexual exploitation of a child, which occurs when a person "in the presence or virtual presence, or both, of a child, and with knowledge that a child *** would view [his] acts, *** exposes [his] sex organs *** for the purpose of sexual arousal or gratification of such person or the child." 720 ILCS 5/11-9.1(a)(2) (West 2014). Count II, the conviction of which was later vacated pursuant to the one-act, one-crime rule, charged public indecency. That offense occurs when a person "performs *** in a public place *** [a] lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person." 720 ILCS 5/11-30(a)(2) (West 2014). Count III charged disorderly conduct, which occurs when a person "knowingly *** [d]oes any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace." 720 ILCS 5/26-1(a)(1) (West 2014). All three counts alleged that defendant was aware of G.G.'s presence across the street when he exposed his penis and masturbated. The trial court specifically found that the evidence of defendant's prior lewd conduct toward G.G. and other underage girls challenged defendant's statement to Mandat that he had no intent to expose himself to G.G. or anyone else when he was naked and masturbated at his front door on the afternoon of July 19.

         ¶ 49 We address first defendant's contention that, because he did not make intent an issue at trial, the trial court could not properly admit the other-acts evidence as to intent. Defendant observes that, in closing argument, defense counsel's position was not that defendant masturbated at his door without the requisite intent, but that he simply did not masturbate at his door. Thus, according to defendant, he presented no theory on intent at all. Defendant compares this case on the facts to People v. Illgen, 145 Ill.2d 353 (1991), where the admission of other-acts evidence was upheld, and to People v. Hansen, 313 Ill.App.3d 491 (2000), People v. Bobo, 278 Ill.App.3d 130 (1996), and People v. Gibbs, 226 Ill.App.3d 1068 (1992), where the admission of other-acts evidence was reversed. Defendant claims that this case is closer factually to Hansen, Bobo, and Gibbs than to Illgen.

         ¶ 50 We begin our discussion with a more recent supreme court case, People v. Wilson, 214 Ill.2d 127 (2005), where the court addressed whether other-acts evidence was properly admitted in the defendant's prosecution for aggravated criminal sexual abuse. The information alleged that the defendant, a school teacher, touched the breasts of two female students for sexual gratification. The trial court granted the State's motion to introduce the testimony of other students who claimed that the defendant touched them in a sexual way. The supreme court affirmed the admission of the other-acts evidence. The court began its discussion by noting a split in the case law over the grounds for admission of other-acts evidence as to intent:

"Aggravated criminal sexual abuse, as it was charged here, is a specific-intent crime-the State must show defendant intentionally or knowingly touched the victim on the breast for purposes of sexual gratification. In cases involving specific-intent crimes, some courts hold that intent is automatically at issue for purposes of deciding whether to admit other-crimes evidence, regardless of whether the defendant has made intent an issue in ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.