2018 IL App (3d) 160368
Ill. App. Ct.2019Background
- Defendant Corbin Brown-Engel was charged with aggravated criminal sexual abuse of a child; the information was later amended to attempted aggravated criminal sexual abuse.
- The State sought to admit the victim T.L.B.’s statements about multiple prior sexual touches by defendant; the trial court excluded one allegation (penis-in-mouth) but admitted testimony about four prior touching incidents.
- At a bench trial, the victim testified about repeated prior touching (hands under/over underwear, fondling) and an attempted lift of her dress on the date charged; defendant denied sexual touching.
- The court found defendant guilty of attempted aggravated criminal sexual abuse and sentenced him to 20 months’ probation.
- On appeal defendant argued (1) admission of the prior-bad-acts evidence was improper under 725 ILCS 5/115-7.3 and counsel was ineffective for failing to object, and (2) admission amounted to plain error.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility under 725 ILCS 5/115-7.3 (propensity) | Section 115-7.3 permits other-sexual-act evidence to show propensity for enumerated sexual offenses; the charged conduct is akin to indecent liberties so evidence is admissible under the statute | The charged offense (attempted aggravated criminal sexual abuse) is not one of the enumerated offenses, so evidence is not admissible under §115-7.3 | Evidence was NOT admissible under §115-7.3 because the amended charge is not an enumerated offense |
| Admission as Rule 404(b) evidence (intent, absence of mistake) and counsel effectiveness/plain error | Admission was proper to show intent, lack of mistake, and context for the charged attempt; bench trial eliminates jury-prejudice concern | Admission amounted to improper propensity evidence; counsel ineffective for not objecting; or plain error | Court affirmed: evidence admissible under Rule 404(b) to prove intent/absence of mistake; no plain error; counsel not ineffective (no prejudice in bench trial) |
Key Cases Cited
- People v. Carter, 38 Ill. 2d 496 (discussing admissibility for purposes other than propensity)
- Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83 (reviewing court may affirm on any proper ground in record)
- People v. Wilson, 214 Ill. 2d 127 (other-crimes evidence admissible for non-propensity purposes)
- People v. Cruz, 162 Ill. 2d 314 (threshold similarity required for other-acts evidence)
- People v. Heard, 187 Ill. 2d 36 (trial court’s discretion on other-acts evidence reviewed for abuse)
- People v. Wade, 131 Ill. 2d 370 (plain-error analysis regarding admission of evidence)
- People v. Davis, 260 Ill. App. 3d 176 (bench trial presumption that judge considers only admissible evidence)
- People v. Tannahill, 152 Ill. App. 3d 882 (prior sexual acts admissible to give context to charged conduct)