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People v. Johnson

Court of Appeals of Illinois, First District, Fourth Division

January 16, 2020

HENRY JOHNSON, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County No. 2012 CR 12138 Honorable Domenica Stephenson, Judge Presiding.

          James E. Chadd, Patricia Mysza, and Ann B. Mclennan, of State Appellate Defender's Office, of Chicago, for appellant.

          Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Mary L. Boland, Assistant State's Attorneys, of counsel), for the People.

          JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Lampkin and Reyes concurred in the judgment and opinion.


          BURKE, JUSTICE

         ¶ 1 Following a jury trial, defendant, Henry Johnson, was found guilty of armed robbery, aggravated kidnapping, and two counts of aggravated criminal sexual assault. The evidence presented at trial showed that defendant forced the victim, A.B., [1] into his van at knife point, where he sexually assaulted her. A.B. was able to escape the van and alert a security guard at a nearby senior citizen home. At trial, the State presented other-crimes evidence showing that defendant had been involved in a similar incident two weeks later and was eventually arrested. On appeal, defendant contends that he was denied a fair trial where the court improperly allowed excessive other-crimes evidence regarding the separate sexual assault incident that occurred weeks after the incident at bar. Defendant further contends that the court denied defendant his constitutional right to present a defense where it prevented him from questioning the victim and the State's DNA expert about two unidentified male DNA profiles, which did not match defendant, found on the victim's vaginal swab. Defendant also contends that the court erred in refusing to allow defendant to inquire into the specific nature of the victim's pending disorderly conduct charge. Defendant further contends that his 46-year sentence is excessive given the mitigating factors presented. Finally, defendant contends that he is entitled to two additional days of presentence custody credit. For the reasons stated, we affirm defendant's convictions and sentence and remand the cause to the circuit court so that defendant can file a motion pursuant to Illinois Supreme Court Rule 472(e) (eff. May 17, 2019).

         ¶ 2 I. BACKGROUND

         ¶ 3 A. Pretrial Motions

         ¶ 4 1. Other Crimes Evidence

          5 Prior to trial, the State filed a motion to allow evidence of other crimes. In its motion, the State outlined the facts of a sexual assault it contended that defendant committed about two weeks after the events in the case at bar. The State asserted that the circumstances in that case were factually substantially similar to the incident at bar and occurred only two weeks later. The State asserted that, in the other case, defendant forced a woman, J.G., into his van at knife point, where he attempted to rape her. J.G. was able to escape from the van and eventually contacted police after receiving assistance from a witness. The events led to defendant's arrest. The State sought to admit the evidence to prove defendant's propensity, identity, and motive and to refute any claim of consent. In response, defendant contended that the other-crimes evidence should not be admitted because the evidence was more prejudicial than probative.

         ¶ 6 The court ruled that the incident involving J.G. was relevant in the case at bar on the issue of consent. The court also found that there was "great similarity" between the two incidents with regard to the location, vehicle, and method. The court therefore found that the other-crimes evidence could be admitted to show "identification and identity." The court further found that the evidence could be admitted to show propensity "[a]s specified in the statute which deals with these types of sexual assault cases."

         ¶ 7 The State subsequently filed a supplemental motion to admit other-crimes evidence seeking to admit the evidence for the additional basis of establishing the circumstances of the arrest. The State contended that the circumstances of defendant's arrest in the incident with J.G. demonstrated how the police were led to the crime defendant committed with regard to A.B. The State sought to have a witness who identified defendant's van testify.

         ¶ 8 At a hearing on the State's motion, the court found that the other-crimes evidence was appropriate to show the circumstances of the arrest, but it expressed concern regarding how much of the evidence it would admit. The court noted that the more evidence it admitted, the more prejudicial the evidence became. The court determined that it would need to balance how much evidence it would admit against the possibility of unfair prejudice. The court stated that it would revisit that question before trial.

         ¶ 9 Defendant filed a motion to reconsider the court's ruling on the State's other-crimes motions, contending that the State could not prove that defendant committed a crime without the testimony of J.G., who the State did not have present as a witness. Defendant asserted that, therefore, evidence of the other crime could not be admitted. The court denied defendant's motion, but the court indicated that, prior to the presentation of the other-crimes evidence, it would give a limiting instruction to the jury instructing the jury that it should consider the other-crimes evidence only for identification and to explain the steps in the investigation.

         ¶ 10 2. Rape Shield Motion in Limine

         ¶ 11 Prior to trial, the State also filed a motion in limine pursuant to section 115-7 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7 (West 2012)), commonly known as the rape shield statute, seeking to prohibit defendant from eliciting evidence regarding A.B.'s prior sexual activity or reputation. Specifically, the State sought to bar evidence that the vaginal swab collected from A.B. showed two male DNA profiles, neither of which matched the DNA profile of defendant. Defendant opposed this motion, contending that the exclusion of the DNA evidence would hinder his defense. Defendant asserted that the DNA evidence would support his defense that A.B. "is possibly confusing the defendant with someone else whom she had sex with her [sic] at a time close in proximity to the encounter between her and the defendant." Defendant maintained that this evidence would thus support his contention that A.B. was mistaken in her identification of defendant. Defendant also contended that the prohibition of this evidence would violate defendant's constitutional right to present a defense. The court granted the State's motion in limine, finding that it would not inhibit defendant's ability to present a defense.

         ¶ 12 B. Trial Testimony

         ¶ 13 1. State's Case-in-Chief

         ¶ 14 At trial, A.B. testified that in May 2012 she was homeless living in a shelter for battered women. She would also occasionally stay with friends or relatives and had a cell phone provided by the shelter. In 2008, A.B. pled guilty to a misdemeanor charge of attempted possession of an illegal prescription. She also testified that she currently had a pending case for felony disorderly conduct but confirmed that the State had not made her any promises with regard to that case. On May 28, 2012, she spent the night at a friend's house while her children were at her aunt's house. She left the friend's house around 3 a.m. on May 29 because she had to get her children ready for school. On her way to her aunt's home, she stopped at the intersection of Kilpatrick Avenue and Madison Street to wait for a bus. While she was looking to see if the bus was coming, defendant approached her from behind with a butcher knife and instructed her to get into his van. A.B. did not see the knife but could feel something sharp being pressed into her side. Defendant told her to get into his van or he would kill her.

         ¶ 15 A.B. got into the front passenger seat of defendant's van, and defendant climbed over her into the driver's seat. Defendant told A.B. that he was going to rape her, rob her, and kill her. A.B. had a purse that contained her identification, cell phone, and pictures of her children. Defendant drove away with A.B. in the van and parked it on Kilpatrick Avenue and Van Buren Street. Defendant instructed A.B. to get into the backseat of the van. Defendant then climbed into the backseat with A.B. and told her to take off her shirt. When A.B. removed her shirt and bra, some money fell out. Defendant picked up the money, put it in his pocket, and then told her to put her shirt and bra back on.

         ¶ 16 Defendant then told A.B. to perform oral sex on him. A.B. complied, but defendant did not ejaculate. Defendant then told A.B. to lie down on her back and take off her pants so that he could have vaginal sex with her. A.B. again complied, but only took one leg out of her pants. Defendant had vaginal sex with A.B. for about a minute and then stopped, but defendant did not ejaculate. A.B. told defendant that she was pregnant and had kids, but he told her that it did not matter because she was not going to live. Defendant then told A.B. to turn around so that he could have anal sex with her.

         ¶ 17 A.B. testified that at that point she started to look for an "escape route" because she knew "it was almost over with." A.B. was able to open the lock on the rear driver's side door and then jumped out of the van onto her knees. A.B. left her cell phone, purse, and shoes in defendant's van. A.B. ran away from the van but was able to see part of the license plate number for the van: 38 N. A.B. also observed that defendant had an Edward Hines, Jr. VA Hospital (Hines VA) identification badge and thought he was an employee. A.B. ran to a nearby senior citizen home and started running around the building and knocking on the windows and doors looking for help. A security guard at the senior citizen home called the police for A.B. Then, A.B. called the friend she had stayed with the night before. A.B. first went to see her children, and then she went to the hospital later that evening. At the hospital, the staff performed tests on her and took evidence from her, including conducting a vaginal swab.

         ¶ 18 Twelve days later, on June 10, 2012, A.B. went to the police station to view a lineup. A.B. identified defendant in the lineup as the man who raped her. The State then published security camera footage from the senior citizen home to the jury. The footage depicted A.B. approaching the senior citizen home and seeking help by knocking on the doors and windows of the building. The video also showed A.B. speaking with the security guard at the building and the police.

         ¶ 19 On cross-examination, A.B. testified that, after the incident, she returned to her friend's house to retrieve some shoes because she had left her shoes in defendant's van. She then went to her aunt's house to see her children. At the hospital, the doctors swabbed her mouth and her vagina, and they also looked for DNA under her fingernails. The doctors did not treat her for any trauma but did give her medication in case she had an infection. On June 10, 2012, A.B. learned that the police were looking for her because they believed they had found the person who had sexually assaulted her. A.B. eventually spoke with a detective at the police station. A.B. denied approaching defendant's van before defendant accosted her, denied working as a prostitute, and denied entering the van willingly. A.B. also denied negotiating pricing for sexual acts with defendant, denied using crack cocaine, and denied directing defendant where to drive the van after she was inside it.

         ¶ 20 Robert Ward testified that he was a security guard at the Eloise McCoy senior citizen home on West Van Buren Street in Chicago, Illinois. Ward testified that during his shift on May 29, 2012, at around 5 a.m., a "young lady [came] running though the doors hollering." Ward testified that A.B. was "hysterical" and was crying. A.B. told Ward that she had been raped. Ward called the police and allowed A.B. to use his cell phone to make a phone call. Outside the building, A.B. showed Ward where the vehicle she escaped from had been parked, and Ward waited with A.B. until the police arrived. On cross-examination, Ward testified that he took a cigarette break from around 4:45 a.m. to 4:50 a.m., less than 10 minutes before A.B. approached the building. While he was outside smoking the cigarette, Ward did not hear any screaming and did not recall seeing a van.

         ¶ 21 Erik Ozolins testified that he was a nurse in the emergency room at Loretto Hospital. He testified that he examined A.B. in the emergency room on the night of the incident. He described her as "anxious, tearful, scared." A.B. told Ozolins that, at around 5 a.m. that morning, she was pulled into a van by a male wearing an employee badge for the Hines VA and raped at knife point. A.B. told Ozolins that the male raped her orally and vaginally and attempted to rape her anally. A.B. complained of scalp, back, and abdominal pain. A.B. indicated that she wanted to speak with a crisis worker at the hospital. Ozolins noted that A.B. was "very tearful, very upset." On cross-examination, Ozolins testified that A.B. told him she was raped for over 30 minutes and that she was forced to snort cocaine. She also told Ozolins that she was five months pregnant. Another nurse at Loretto Hospital testified that she collected a sexual assault evidence collection kit from A.B. that included oral, vaginal, and anal swabs and a collection from beneath A.B.'s fingernails.

         ¶ 22 Forensic science experts from the Illinois State Police testified that they tested the sexual assault evidence collection kit collected by the hospital staff on the night of the incident and compared the results with the DNA collected from defendant's buccal swab. The forensic scientists did not find defendant's DNA on A.B.'s vaginal swab but did find a DNA profile that was consistent with defendant's DNA profile in A.B.'s fingernail scrapings.

         ¶ 23 2. Other Crimes Evidence

          24 The State also introduced testimony from two witnesses in support of its pretrial other-crimes evidence motion. Prior to that testimony, the court instructed the jury that it should consider the testimony on the issues of defendant's identification and to explain the circumstances of defendant's arrest. The court instructed the jury that it was for them to determine whether defendant was involved in the conduct and, if so, "what weight should be given to this evidence on the issues of identification and to explain the circumstances of arrest."[2]

         ¶ 25 Jerry Atwater testified that at around midnight on June 10, 2012, he was on Kilpatrick Avenue and Madison Street on the west side of Chicago at a car show. The police arrived to break up the car show around 2 a.m., and Atwater began driving his vehicle south down Kilpatrick Avenue. Atwater turned left onto Van Buren Street, passing the Eloise McCoy senior citizen home. As he was waiting for the vehicle in front of him to move, Atwater heard very loud screaming and yelling. He then saw a "young lady" appear from the driver's side of a van that was sitting nearby. The woman was screaming, and Atwater observed that her skirt or dress had been pulled up. Atwater later learned the woman's name was J.G. Atwater told J.G. to get into the backseat of his truck. After J.G. got into his vehicle, Atwater called police. The van started to drive away, and Atwater followed it while he was on the phone with the 911 operator. While he was following the van, Atwater observed that it had a temporary license plate number of 382N698. Atwater followed the van for about 10 minutes until the 911 operator told him to stop following it. After Atwater stopped following the van, he observed a police vehicle and flagged it down. Atwater told the officers about the situation, and the officers also spoke to J.G. J.G. got into the police vehicle with the officers, and Atwater left the scene. Atwater could not identify the driver of the van but described the driver as a bald male. On cross-examination, Atwater testified that there is a lot of crime, a lot of drug sales, and prostitution in the area where he encountered J.G.

         ¶ 26 Chicago police officer Pablo Aguirre testified that at 2:30 a.m. on the morning of June 10, 2012, he was on patrol in the area of Chicago Avenue and Pulaski Road when he received an assignment to find J.G. Aguirre testified that he spoke with J.G. after being waved down by Atwater. J.G. gave Officer Aguirre a description of a black male and a vehicle. The vehicle was a green van with a temporary license plate 382N698. After about 40 minutes of searching the area, Officer Aguirre located the van in front of a residence on West Adams Street. Defendant was in the driver's seat of the van and matched the description given by J.G. Defendant was brought to the police station for processing. Among his possessions were two cell phones, $97 in cash, a wallet, and an Illinois driver's license belonging to A.B. Officer Aguirre learned that A.B. had reported a criminal sexual assault 12 days earlier. Evidence technicians recovered paint scrapers, a retractable box cutter, three putty knives, and A.B.'s cell phone from defendant's van.

         ¶ 27 3. Defendant's Testimony

         ¶ 28 Defendant testified that on May 28, 2012, he was employed as a janitor at the Loyola Medical Center (Loyola). Loyola issued him certain tools for his job, including putty knives, pliers, and "scrapers." He kept these tools in his van. He testified that he left work around 2:30 a.m. on the morning of May 29, 2012, and then he "did something stupid." He drove to a "particular area" where "the prostitutes be at [sic]." Defendant drove to the corner of Monroe Street and Kenton Avenue, where he was approached by A.B. A.B. walked up to the driver's side door of defendant's vehicle and asked him if he was dating, which defendant testified meant that she was asking him if he wanted to "buy some sex." Defendant told her that he was dating.

         ¶ 29 A.B. walked around to the passenger side of his van and voluntarily entered the vehicle. A.B. then told defendant the pricing for various sexual acts. Defendant drove away, and the two negotiated $30 for "straight sex," despite A.B. initially telling him that "straight sex" would cost $40. A.B. directed defendant where to drive, and he ended up on Van Buren Street. When defendant stopped the vehicle, A.B. pulled out a bag of crack cocaine. A.B. asked defendant if she could smoke the crack cocaine, but defendant asked her to wait until they finished "taking care of business." A.B. then put the crack cocaine and her identification in a small compartment on the van's dashboard. A.B. then climbed into the backseat of the van, and defendant locked the doors of the van.

         ¶ 30 A.B. told defendant she was ready, and defendant joined her in the backseat. Defendant started to remove his belt, but A.B. stuck out her hand and said "money first." Defendant handed her the money, and A.B. counted it, then stuck it in her bra. Defendant then asked A.B. for a condom, but A.B. told him she did not have one. Defendant got back into the driver's seat of the van and told A.B. that he was going to buy a condom at a nearby gas station. A.B. told defendant that there was no need for him to do that because she was "clean." Defendant told her that it would only take a minute, but A.B. told him she did not have time and needed to get back to her spot. Defendant told her to "forget it" and asked for his money back. A.B. told him that she would not give him his money ...

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