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People v. Lobdell

Court of Appeals of Illinois, Third District

July 19, 2017

RICKY LEE LOBDELL, Defendant-Appellant.

         Appeal from the Circuit Court of Peoria County, No. 12-CF-767; the Hon. Stephen A. Kouri, and the Hon. Katherine S. Gorman, Judges, presiding.

          Michael J. Pelletier, Peter A. Carusona, and Bryon S. Kohut, of State Appellate Defender's Office, of Ottawa, for appellant.

          Jerry Brady, State's Attorney, of Peoria (Patrick Delfino, Lawrence M. Bauer, and Thomas D. Arado, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          Panel JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Justice Lytton concurred in the judgment and opinion. Justice McDade dissented, with opinion.


          O'BRIEN, JUSTICE

         ¶ 1 Defendant, Ricky Lee Lobdell, appeals his criminal sexual assault convictions, arguing that the circuit court erred by (1) admitting evidence of his prior conviction for rape, (2) admitting evidence of defendant's convictions for home invasion and residential burglary to show propensity, and (3) failing to address defendant's pro se posttrial allegations of ineffective assistance of counsel. We affirm and remand.

         ¶ 2 FACTS

         ¶ 3 Defendant was charged with three counts of criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2012)). Two of the counts carried a mandatory life sentence based on defendant's past conviction for rape.

         ¶ 4 The State filed a "Notice of Intent to Use Evidence of Defendant's Other Crimes" pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) in order to use defendant's past convictions for rape, home invasion, and residential burglary "as substantive proof of his propensity to commit the charged sexual offense." See 725 ILCS 5/115-7.3 (West 2012). A hearing was held, and the court took the matter under advisement. The court decided to allow the evidence, stating in a written order:

"The State seeks to introduce evidence of a prior crime which took place October 24, 1982, almost 30 years prior to the alleged sexual assault herein. In the earlier case, Peoria County case number 82-CF-4582, Defendant was convicted of a home invasion and brutal sexual assault of a 62-year-old woman. According to the Grand Jury testimony submitted by the State for the Court to consider, Defendant ripped off the victim's clothes, slapped and choked her, threatened to cut her with scissors, cut off her hair and threatened to 'cut you bald', and forced intercourse upon her. After he was finished having sex with her, he called his partner into the room and stated, 'It's your turn.' His partner proceeded to force anal sex upon the terrified, elderly 62-year-old victim. Defendant was convicted in that case and served roughly 25 years of a 50-year sentence.
In the instant case, Defendant is charged with criminal sexual assault. According to the Grand Jury testimony Defendant, while wearing his parole ankle monitor, is accused of brutally raping a 21-year-old in front of her newborn and 2-year-old child. Immediately prior to the sexual assault, the Defendant allegedly stated, 'I ain't got time for this shit, ' as his [ankle] monitor was set to alert if he wasn't back to his house within a short period of time. He shoved the victim to the mattress on the floor, held her down, pulled her clothes off, and sexually assaulted her. When she screamed, her 2-year-old child approached while crying. The Defendant allegedly shoved the child away with his foot, all while sexually assaulting the victim. After he completed his sexual act, he fled out the door.
In assessing whether the two alleged incidences are so similar as to constitute evidence of a propensity to commit criminal sexual assault, the Court is drawn to one overriding circumstance which is pervasive in both incidences. A gang criminal sexual assault of a 62-year-old elderly woman, including forced anal sex, and the criminal sexual assault of a 21-year-old while shoving away her crying 2-year-old child, contains the same overriding circumstance; namely, extreme brazenness on the part of the Defendant. 'Brazenness' is defined as 'behavior marked by audacity, bold defiance and lack of shame'. In this Court's view, the criminal sexual assault of a member of the opposite sex, regardless of age, under the brazen circumstances in which these two assaults occurred, is strong evidence of a propensity on the part of the Defendant to commit such assaults on members of the opposite sex.
Under 725 ILCS 5/115-7.3(c), in weighing the probative value of the evidence against undue prejudice, the Court may consider proximity in time of the two incidences, degree of factual similarity and 'other relevant facts and circumstances'. The Defendant argues the earlier offense should be excluded as factually dissimilar due to it occurring over 30 years ago, as well as other dissimilar circumstances such as time of day and age of the alleged victims. The Court is not persuaded by any of these distinctions. In particular, the time factor is minimized in that Defendant was in prison for most of that period. Stating the obvious, Defendant therefore had no opportunity to show propensity to commit sexual assault on the opposite sex. Moreover, the case law clearly indicates lengthy time periods in excess of 15 to 20 years are admissible under the statute. People v. Donoho, 204 Ill.2d 159 (2003). The other so-called dissimilar circumstances do not override the similar circumstances noted above.
By the very nature of the described subject acts, the prior conduct will be prejudicial. The legislature has seen fit to allow admission of such acts if it is not unduly prejudicial. This Court finds the earlier act is not. It will therefore be allowed into evidence provided the evidence presented is otherwise admissible."[1]

         ¶ 5 Defendant filed a motion to reconsider, which was denied. He waived his right to a jury trial and proceeded to a bench trial.

         ¶ 6 B.B. testified that on Saturday, July 14, 2012, she lived with her husband and children. She was four months pregnant. That day she walked two blocks from her apartment to the store with her children between 12 to 1 p.m. and saw defendant in his car. He drove up next to B.B. and asked if she wanted a ride. When she refused, he offered her a cigarette, which she also refused. He then drove away. When she arrived at the store, defendant was parked in the parking lot. He offered B.B. money, which she rejected. After leaving the store, B.B. went home and did not see defendant again that day.

         ¶ 7 The next day (Sunday, July 15, 2012), defendant knocked on B.B.'s door. She did not know how he knew where she lived, as she did not give him her address and did not see him follow her home the previous day. B.B. opened the door. She saw that defendant had a cell phone, and she asked if she could use it. B.B. did not have a phone and had tried to use a phone earlier in the day. Defendant let her use his phone, and she called her grandmother. One of her children started to cry, so she finished her phone call, returned the phone to defendant, and thanked him. She did not have any other conversation with defendant. She then shut the door and went upstairs to her apartment to take care of the baby. She did not lock the door.

         ¶ 8 While B.B. was upstairs, defendant came into her apartment. She had not invited him in. He grabbed B.B. around the waist and said, "I just got out of jail for murder." She was bent down and saw his ankle monitor. After he grabbed her, defendant said, "I don't have time for this shit." Defendant then pulled her into the bedroom, pushed her onto a mattress on the floor, and pinned her down. B.B. asked him to stop. B.B.'s two-year-old daughter came in and started pulling at B.B. and telling defendant to get off her. Defendant pushed the child away. The child continued to come back and tried to help B.B., but defendant kept pushing her. Defendant held both of B.B.'s arms above her head with one of his hands. With his other hand, defendant removed B.B.'s pants. His shorts were already removed. Defendant then penetrated her vagina with his penis. She told him to stop several times. She could wiggle away a little, but she stopped struggling because she did not want him to hurt her children. B.B. believed that defendant ejaculated inside of her. He did not wear a condom. B.B. stated that defendant did not hit her. When he was finished, he ran out the door while pulling his shorts up.

         ¶ 9 B.B. called 911 on her husband's phone. Her husband's phone did not have regular service, but was able to make emergency phone calls. B.B. spoke to the police and identified defendant in a photographic lineup.

         ¶ 10 Stephanie Clark testified that she was a sexual assault nurse examiner at OSF in the emergency room. B.B. came in on July 15, 2012, around 9 p.m. B.B. was fidgety, had difficulty making eye contact, and laughed nervously, but was talkative and appropriate. Clark performed both an internal and external examination of B.B. Externally, B.B. did not have any injuries or bruising. When performing the internal examination, Clark said: "I found a lot of white really sticky thick pearl-kind-of-like substance. I also found at her cervix there was some bruising-well, redness, which [was] an early stage of a bruise at eight o'clock and six o'clock." Clark then performed an Illinois State Police sexual assault evidence collection kit. In doing so, Clark stated:

"We do *** fingernail scrapings or swabbings. We do hair collection. We do DNA. We do a finger prick on the patient so we can do their sample DNA. We also collect all swabs from any area where she tells me she's been kissed or bitten or any-so I guess in her case, I did like her right neck. We do her mouth, some oral swabs. And we do the internal and external vaginal swabs."

         ¶ 11 The parties stipulated that a buccal swab was taken from defendant and DNA analysis was performed on the swab and the sperm found in B.B. The DNA ...

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