from the Circuit Court of Peoria County, No. 12-CF-767; the
Hon. Stephen A. Kouri, and the Hon. Katherine S. Gorman,
Michael J. Pelletier, Peter A. Carusona, and Bryon S. Kohut,
of State Appellate Defender's Office, of Ottawa, for
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
JUSTICE O'BRIEN delivered the judgment of the court, with
opinion. Justice Lytton concurred in the judgment and
opinion. Justice McDade dissented, with opinion.
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
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
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
5 Defendant filed a motion to reconsider, which was denied.
He waived his right to a jury trial and proceeded to a bench
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
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,
"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 ...