*1 ILLINOIS, Plаintiff-Appellant, THE PEOPLE THE STATE OF OF HOLMES, Defendant-Appellee. ANDRE (3rd Division) First District No. 1 — 06—1601 Opinion filed 2008. June *2 CUNNINGHAM, J., dissenting. (James Devine, Chicago Fitzgerald, Attorney, A.
Richard State’s of E. Boland, Mary Pipersburgh, Attorneys, L. and Jessica Assistant State’s counsel), People. for the (Eileen Burnette, Defender, Chicago Pahl, A. Edwin Public T. Assistant Defender, counsel), appellee.
Public for opinion JUSTICE THEIS delivered the of the court: appeals The State from denial of its motion to an reconsider excluding order convictions in a sexual (1) case.1 argues assault The State court that the trial erred as mat- ter of per law because it concluded that convictions were se inadmissible to propensity, show contravention of section 115—7.3 (the Code) (725 of the Code of Criminal Procedure of 1963 ILCS (Wеst (2) 2004)); and the trial court abused its discretion 5/115—7.3 refusing reasons, to admit the prior following convictions. For the we part part affirm in and and proceedings. reverse remand further Defendant was with nine charged ag- indictment counts (720 gravated (a)(2), criminal assault 14(a)(1), ILCS 5/12 — (a)(3) (West 2004)) (720 and three counts of criminal sexual assault 2004)) 13(a)(1)(West ILCS in connection with an attack that oc- 5/12 — on curred December 2002. The indicated if that defendant convicted, imprisoned it would to have him life seek for natural 8—1(a)(2) pursuant to section of the Unified Code of Corrections 5— (730 (West 8—1(a)(2) 2004)) ILCS and article 33B of the Code 5/5 — (720 (West 2004)). ILCS et seq. 5/33B—1 filings details of and parties’ The the assault were taken from ready disposi fully 1it should be noted that this case was briefed and time, May assigned tion on 2007. The case was to another division reassigned panel April where it remained until it was to this on 2008. high were former Defendant and J.B. transcripts hearings. at about 3:30 They arranged to meet each other school classmates. 28, 2002, in town for the while defendant was p.m. on December of defendant’s aunt that she drove to the home holidays. alleged J.B. conversation, During their J.B. the two sat in her car and talked. relationship not want to have a romantic told defendant that she did with him. “enraged.” He alleged, became point,
At that J.B. defendant her. He then began punch and choke grabbed her the neck and of the car. and move to the backseat ordered her to take off her clothes floor, knife, raped threatened her with a pushed He her onto attack, drove J.B. to his father’s house. Following her. and tell him that he wanted her to meet his father He told the knife and again married. Defendant brandished getting were later, him. disobeyed kill her if she Sometime threatened to let J.B. leave. station, left, immediately police reported
After she drove by defendant, and was taken to sexually she had been assaulted multiple determined that she suffered hospital. physician The beaten, abrasions, vaginal being consistent with contusions and tears, police arrested defendant consistent with sexual assault. her assailant. Ad- lineup identified him in a as day the next and J.B. *3 matched recovered after her assault ditionally, the DNA evidence defendant’s. a motion to admit prosecution, the State filed
In the сourse of had committed offenses that defendant evidence of other sexual assault, pursu- sexual showing his to commit purpose propensity motive, intent, or lack Code, or to ant to section 115—7.3 admissibility. Specifically, law rules of of consent under the common defendant’s evidence of two of sought to introduce victims’ in Louisiana and the for similar sexual assaults convictions testimony in those cases. victim, in 1994. He and the conviction occurred
Defendant’s first living together had been K.S., dating years for three and had been relationship ended the Eventually, K.S. mother’s home. defendant’s urging repeatedly, K.S. home. Defendant called out of the and moved her. not live without telling her he could with him and her to reconcile later, approached defendant days a few way on her to work As K.S. was He inside a shirt. gun wrapped her, he said was a wielding what car, her to and drove stomach, her into her pushed in the punched her his mother’s house. bedroom, mother K.S. were his defendant and
While that she was signal them. K.S. tried room to check on entered the distress, was that to but unable to communicate defendant’s mother knife, displayed before she left room. Defendant then a kitchen room, bed, raped K.S. onto the her. After K.S. left the pushed and and K.S. told injured crying. defendant’s mother saw that was happened, police. called the defendant’s mother what and K.S. police report injuries hospital. made a and was treated for her at the Although having sex argued K.S. consented to with him, battery he pled guilty charge to a reduced and was years’ sentenced to probation. five Defendant,
The then age second conviction occurred in 1996. A.S., dating age had been then when he for three months at- tempted sexually assault her. A.S. and cousin were her at defendant’s house. intending Defendant invited A.S. into the bedroom to become intimate her. They began kissing with but A.S. resisted when top defendant climbed on her began and initiate intercourse with back, her. He mouth, then forced her hands behind her covered and threatened to kill her if anything. she said As defendant started to pants, remove his A.S. bit and scratched defendant. kicked a She get minutes, dresser an effort to her cousin’s attention. After several her cousin to the came door and she to escape was able from defendant. police A.S. went reported attempted and rape and defendant later pled guilty attempted arrested. He rape, along forcible with several other charges, years’ unrelated and was sentenced to five imprisonment. argued
The State that the were convictions admissible under sec- (1) excluding tion 115—7.3 because the time that defendant was in prison, all three assaults a relatively span occurred within short (2) time; attempted similar; the details each assault or were assault (3) defense, other crimes relevant to rebut a consent likely which defendant would assert in this case. response, argued
In admitting his convictions unduly minimal, prejudicial any, would be and of if probative value. apart incidents occurred too far in time to bear relevance to and, moreover, present case the circumstances of each case varied widely. long-term Specifically, defendant K.S. were involved in relationship before the divorced. assault have since married and fact, they custody dispute, In were involved in a contentious child *4 testimony in suggested which defense counsel would influence her A.S., In only penetration, case. the case not was there no sexual but part plea outstanding that conviction was deal that resolved charges defendant, against unrelated to the assault on A.S. hearing motion, at the on
Additionally, defense counsel claimed previous outcry rape against thаt J.B. “had a a Cleveland false currently receiving whom she was player” from Browns NFL football allega- then addressed counsel’s The court support payments. child tion. minute, allega- It’s a false wait a minute. “THE COURT:Wait you Is that what said? who settled? rape against someone
tion Judge, just getting up I’m again, DEFENSE: haveWe records— speed on this case. discovery interesting because we have no That’s PROSECUTION: records, we don’t. yet, so have from the defense sup- civil settlement for child type of DEFENSE: There’s some State] [the I don’t know what player. NFL football port through this have, it matter.” has or doesn’t doesn’t motion to admit denied the State’s the trial court On June following rationale: provided the other crimes evidence [K.S.] the time of the attack allegеd “It that at handgun; it is also al- in of a possession threatened to be allega- all there and these are a knife leged that he did brandish punched [K.S.] have tions; supposed was the defendant us there’s no In the case before her into her own vehicle. pushed [the] or threatened and being brandished a knife suggestion of having been complains of witness in this matter complaining mother. In of the defendant’s was taken to the home [K.S.] choked. was taken to case[,] alleged complainant that that it’s our defendant’s father’s occurred [A.S.] in the case of which home. And [19]96, of that case conviction there is a resolution act consum- rape, there was no sex attempted] forcible charge of mated in that matter. years [19]94 of the ninе between passing I that the believe any evidence in here is such that brings us case and the case there is similar- and so ordered and no should be barred regard wit- complaining was the [A.S.] case where ity [19]96 between the today. Both matters will be us here brings the matter that ness and barred.” ad- later, filed a motion for three months
Approximately and dates of requesting the location discovery, specifically ditional in Il- assault, made J.B. assault, battery, or reports of or the victim. Ohio, elsewhere, she was a witness linois, or where discovery wherein J.B. disclosed supplemental answer State filed a has incident” only previous one that “there has been time At some any of those crimes. alleging police report made a time, D.C., her punched at the boyfriend 1989 and between police report She made the argument. an during in the face appeared she later arrested and Ohio. Heights, D.C. Cleveland ended her called. She matter, was never but the case on the court further. the criminal matter pursue not and did relationship with D.C. *5 the State However, early produced in what present shows that in 1995 the discovery [that] described as “new rape. pregnant The reported victim a crime of victim became [J.B.] currently from had victim collects child baby. and The support rape.” man Defendant intended to from the she accused evidence, the State to file a prompting cross-examine J.B. with that excluding motion other to reconsider the order defendant’s or, alternаtively, crimes of defendant’s “new to bar admission discovery.” argued admitting State defendant’s “new The discovery” it introduce evidence defendant’s permitting without to previous “outrageously prejudicial” would to the sexual offenses be substantially State impair its prosecution. hearing May 30,
At the on Attorney assistant State’s previous arguments prior reiterated her convictions were time, circumstance, close in in similar to rebut a admissible argued defense of Additionally, consent. that it be a distor- would tion of the to to jury may facts allow the believe that J.B. have defendant, consented to sex with while there was other evidence demonstrating pattern threatening that defendant had a women to engage in hand, nonconsensual sex. On other if thе convictions would not be admitted to propensity, they show be should admitted to intent, motive, show and lack of If the prior consent. convictions were all, not admitted then the court should bar the “new discovery” from being as admitted well. replied produced police
Defense counsel
report
that she
the 1995
earlier,
State
disclosing
impeach
several months
her intent to
argued
J.B. with
prior
it. She
that defendant’s
would
crimes
not be
and,
relevant to
credibility
thus,
rehabilitate J.B.’s
other
crimes
Furthermore,
evidence should not be admitted.
the convictions should
only
motive,
intent,
be used to
impeach
show
and lack of
to
consent
testifies,
testifies, subject
defendant after he
if he
to the standard set
forth in People v.
Montgomery, 47 Ill.
The State then crimes, not defendant’s othеr it could ing that without evidence of him, ruling the court’s under prosecuting appealed proceed 604(a). 604(a). 210 Ill. 2d Supreme Court Rule R. court erred as a matter argues
On trial appeal, because, on the to reconsider based denying of law in motion hearing, effectively the court ruled that statements made at the inadmissible to per convictions were se Moreover, that the court abused its propensity. the State maintains admissibility of the other crimes evidence determining discretion 7.3(c) propensity under the factors set forth section 115— its discretion Finally, argues that the court abused Code. *6 intent, motive, or lack failing the convictions to to admit of consent. jurisdiction ap court no over the responds
Defendant that this has appeal original suppression the failed to from the peal because State 10, Additionally, the days entry of its on June 2004. order within 30 suppression of the precluded seeking State was from reconsideration 50 Ill. 2d 277 holding People Taylor, order based on the v. (1971) (the rule). Thus, maintains that 878 Taylor N.E.2d order on the motion to reconsider was entered without the trial court’s legitimate from that order also lacks a jurisdiction any appeal in motion arguments Defendant first made these a jurisdictional basis. denied, the same appeal, which we and now reasserts to dismiss this argues that the trial arguments response in his brief. Defendant also suppressing his convictions. court did not abuse its discretion appealed The State under jurisdictional first address the issue. We 604(a)(1), appeal by the State of an permits interlocutory Rule which *** suppressing of which results in order “the substantive effect 604(a)(1). that the dispute Ill. 2d R. There is no evidence.” 210 excluding the other crimes effect of the court’s 2004 order substantive is evidence, motion to reconsider that order and denial of the 604(a)(1) dispute is appeal. of a Rule The proper subject matter timing appeal. of the over interlocu
Generally, ruling court’s on a motion in limine is or dur anytime the trial court before tory subject and is to review 1012, 1027, Hansen, App. Ill. 3d 765 N.E.2d ing People trial. limine, a However, ordinary unlike an motion in 604(a)(1) rule, provides appeal governed by Taylor is Rule 604(a)(1), ap must be under Rule it may appealed that if an order order days еntry of of that sought within 30 pealed or reconsideration Williams, 138 Ill. People v. ability loses the to seek review. or the State (1990) rule to (comparing Taylor 377, 389, case). Notwithstanding judicata the doctrines of res and law limitation, change materially court from the if the facts before the entered, not] new evidence of a nature [is time the order was and “the at the time fil diligence presented” with due could that have been motion, may ruling in ing light the earlier then the court correct its Williams, newly facts. presented those 2d at N.E.2d at 392. discovery,” indicating
The State that the that J.B. argues “new agreeing accept sup- a man of child falsely had accused before that new and material port payments baby rape, for the born of was a сhange in trial reconsider its rul- permitted the facts court to disagree. on the ing suppression order. We notes, hearing, As correctly the 2004 defense counsel open support allega- stated court there were documents to previous outcry tion that rape against J.B. “had false a Cleveland player” currently receiving Browns NFL whom football from she was support child payments, engaged and the court counsel’s assertion. Although undisputed yet it is that defendant had not tendered documentary in support claim, of that defense counsel merely proffer made the same type that the State’s At- torney arguing made in admissibility of the other crimes persuaded evidence. court was or was not defendant’s argu- ment based prоof, on the offer of it but was indeed presented.
Moreover, regardless of actually possessed whether police report time of hearing, on, at the from moment State was on potential credibility notice issue now claims fatal its case. The State had every opportunity verify that allega- tion when it interviewed following request J.B. *7 Nevertheless, supplemental discovery. if “new discovery” defendant’s damaging now, is to the case equally damag- State’s it would have been to ing 2004, case in the State’s State should have sought reconsideration at that time. The that police report physi- fact was produced cally years two after defendant disclosed its contents does it, not make in allegations arising the information contained or the it, purposes from “new” for the seeking of reconsideration under the Taylor rule. essence,
In simply argued State’s motion to reconsider a new theory legal 2004, which, from facts that were before the court in as acknowledged in its to response the motion dismiss and at argument, Williams, oral prohibited by Taylor rule. 138 Ill. 2d 388, 390, quoting People App. N.E.2d at 118 Ill. Shlensky, 3d 243, 246, (1983) 1103, the trial (adopting N.E.2d court’s observation prevail litigation, that when the State does not in
“ litigation, steps, prowl back into retrace its ‘cannot thereafter Judge in observations not referred pull separate out issues upon these selected is- rendering judgment made at the time of ”). produc- find that the Accordingly, indictment’ we sues build a new that J.B. made a support in of the accusation police report tion of the trigger event sufficient allegation of is not a new prior false later. suppression years order two ability court’s to reconsider the fact said, the record reveals that a new our review of With relevant to the court’s hearing the 2004 that was did arise after preface convictions. We analysis prior of to admit defendant’s whether of this case. unique progression a brief review of the analysis with discovery” sug light in of “new The moved for reconsideration State prior allegation rape, false of which gesting that J.B. made a discussed, evidence was As we have produced by defendant. offer of it in the form of an presented because defendant not new in 2004. arguing against оriginal motion proof while later, specific However, defendant filed a motion several months any previous reports as- discovery seeking disclosure additional in sault, assault, battery, rape, or made the victim which sexual in crimes that witness or victim such complaining was named as the After an interview specifically. in Illinois or Ohio may have occurred investigator, and J.B. on Attorney, State’s its between the assistant discovery answer to supplemental filed a October one incident only previous “there has been which J.B. stated that in criminal victim, police report, on a or she has been a listed where assault, assault, battery rape,” or case, offenses of for the Nevertheless, early involving incident D.C. allegation of showing J.B. made a police report
produced to the assistant Cleveland, Ohio, despite denial rape in Attorney. State’s analysis of whether development is material
This new failure to other crimes. victim’s admit evidence of defendant’s assault, filed even after defendant report of sexual disclose a motive and it, is relevant to her discovery to uncover supplemental defendant, in turn allegation against making bias in the current effect of prejudicial of whether the analysis affects the Thus, in the value. probative their outweighs prior convictions under Rule powers to our economy pursuant judicial interests of (134 366(a)(5) 366(a)(5)), propriety we shall address Ill. 2d R. crimes other excluding evidence of defendant’s 2004 order the court’s development. this new light and in undisputed facts light 540, 552, Childress, App. People v. See
515 sought admit two of defendant’s convictions The State to prove he had a battery attempted rape to sexual forcible key under 115—7.3. The propensity to commit sexual offenses section balancing other crimes evidence to probative value of admitting is to propensity against possible prejudicial its effect avoid it jury guilty “only because evidence that entices a find original.) person deserving punishment.” (Emphasis feels he is a bad 337, Childress, 548, People 338 3d 789 v. App. citing Ill. at N.E.2d at (2002). Lima, 84, 96, 64, Propensity 76 App. Ill. 3d N.E.2d 328 765 irrelevant; rejected contrary, evidence is not because it is on the overly point being prejudicial by deny tends persuasive to be to the ing рarticular charge defendant an opportunity to defend 548, Childress, which he is on Ill. 3d at N.E.2d App. trial. 338 789 337, 1034, Petit, 1029, v. 294 3d 691 quoting Thompson App. Ill. (1998). 860, N.E.2d 864
Notwithstanding prejudice” admitting the “clear other risk evidence, crimes are exceptions there certain well-established to the (1977). 325, Romero, 330, 288, rule. v. 66 Ill. People 2d 362 N.E.2d 290 In cases, exception judg assault derives from measured ment Assembly, permits of the General which other crimes evidence to be bearing relevant,” “considered for its on matter it is 7.3(b) (West including propensity. 2004); People 725 ILCS v. 4/115 — Donoho, 159, 177, 173-74, 707, 716-17, 204 Ill. 2d 788 N.E.2d 718 (2003).
Section 115—7.3 guidance weighing potential offers prejudice against inherently probative value the other crimes evidence. first factor to is the proximity consider in time 7.3(c)(1)(West prior crimes and the current offense. 725 ILCS 5/115 — 2004). is nо bright-line There test to determine when convictions relevant; rather, are too distant time to be should be evaluated case-by-case on Donoho, 183-84, Ill. basis. 204 2d at 788 N.E.2d at circumstances, 20-year-old 722. In may certain conviction admis Donoho, 183-84, 722, sible. 204 2d at 788 citing People Ill. N.E.2d at v. (1994). Davis, 176, Ill. App. 192, 392, 260 N.E.2d 404 631 “ Second, the other crimes evidence must exhibit some ‘threshold ” Donoho, similarity’ current offense be admissible. 184, 722, Bartall, 294, 2d at 788 quoting People N.E.2d at v. 98 Ill. 2d 2004). 7.3(c)(2)(West 59, (1983); 725 ILCS 5/115 — Although the proponent only the evidence need show some “ ” admissible, ‘general similarity’ areas of to be similar for it the more are, greater offenses value of the crimes probative other Donoho, Ill. 722-23, quoting evidence. 2d at 788 N.E.2d at People Illgen, 145 Ill. 2d N.E.2d relevant facts or any other Third, may consider the court (West 7.3(c)(3) analysis. 725 ILCS that affect the circumstances 2004). 5/115— *9 fac these three however, the court must consider Ultimately, as the operate 115—7.3 to way allows section tors in such a a to use evidence of intended, permit the State which is to legislature to proof propensity as of his assault crimes defendant’s other sexual Childress, App. 3d 338 Ill. charged. he is the crime for which commit 554, N.E.2d at 342. at 789 admissibility of convic the a court’s decision on
We review
Childress,
Ill.
338
an abuse of discretion.
prove propensity for
tions to
is,
reverse the court’s
That
we will
545,
The sexual However, defendant assault, in absolute terms. present before urges us to exclude until 2001. The State incarcerated from 1996 time, citing in calculating the remoteness in time of incarceration People also at 340. See Childress, App. 3d at 789 N.E.2d 617 N.E.2d App. Ill. Grengler, 247 length not exclude the Childress court did responds that the Defendant other conviction the defendant’s suppressing when of incarceration However, of whether regardless not do so here. and we should trial ago, as the years or nine years ago three conviction occurred time between a span of found, acceptable within an court it occurred 371-72, Ill. 2d at See present Illgen, a crime. prior conviction and an admitted elapsed time between (showing at 523 cases). Thus, the in charged the crime various prior conviction remote. concluding that it was too court erred in circuit a number factor, on K.S. bore second the assault As to the First, both by J.B. in this case. allegations made similarities to the advances rejected who known to defendant victims were women relationship with continuing a having or interest expressed him. He Second, both them. refused, allegedly raped them, he and when both Third, punched daylight. in broad assaults occurred Fourth, with the assault. proсeeding them before victims to immobilize Fifth, brought knife point.2 they were both assaulted of the facts misapprehension court’s the record the circuit 2Wenote for 2004 hear- present case. At the battery conviction comparing the sexual Sixth, in parents’ during victims to his homes or after the attack. both cases, having he claimed that the women to sex with him. consented Seventh, supported medical documentation claims women’s physical Despite assault and sexual trauma. the considerations raised defendant, enough there are more than similarities between these sufficiently to make and no probative, attacks conviction Therefore, person reasonable could conclude otherwise. the court аbused its discretion were dissimilar. concluding that attacks Finally, the new evidence of the victim’s failure disclose the prior report of rape is relevant circumstance that must considered. evaluating In its probative potential conviction’s value versus prejudicial effect, new sway diminishing any prejudice fact holds purpose performing meaningful defendant. The assessment probative prejudicial value and effect other crimes evidence is reduce the likelihood that the defendant will be convicted simply he person deserving because is a bad of punishment and to ensure he has opportunity an defend the crime for which he *10 currently being Childress, 548, App. tried. 338 Ill. 3d 789 at at N.E.2d Donoho, 337; 2d 204 Ill. at 788 N.E.2d That the at 724. victim making prior repоrt rape, denied a of after specifically being asked it, question about calls into in claiming her motive and bias that defendant her and potentially may testimony assaulted discredit entirely. This new fact raises question a critical of the accuser’s cred ibility that appropriately should most jury. resolved the is It highly probative and it prejudicial diminishes the effect of the 1994 battery. Therefore, conviction for sexual evidence of defendant’s 1994 conviction is for purposes showing admissible of propensity pursuant to section 115—7.3. need Accordingly, we not address whether the court erred as crimes a matter of law in se the other per rejecting the propensity purposes hearing. 2006 argument, suggested
At oral admitting defendant that his convictions as a reaction to his evidence that discredits the victim would be an improper “leveling playing par- field” between the However, appears balancing ties. precisely goal to be the of prejudice probative can suggestion value. There be no that other probative; indeed, crimes evidence not overwhelmingly it is so. Do- ing, [involving the J.B.] court stated that “in the no case before us there’s suggestion being complaining of a knife brandished or threatened and witness complained However, in indicated, matter having been choked.” the State has dispute, does a not that J.B. was threatened with Additionally, reported having punched knife. been during J.B. and choked the attack.
518 Thus, a if the risk that N.E.2d at 714.
noho, Ill. 2d at 788 past his actions has оnly upon based would jury convict diminished, may be admitted. then the evidence sufficiently been prosecu accuser lied to the Where, here, evidence that the as there is fact that is critical to a tion, question, are in her motive and bias case. As a guilt particular in this determination of defendant’s jury’s to him is diminished. consequence, potential prejudice introducing evidence of defendant’s argued that Defendant also credibility prosecution witness is of a other crimes to bolster 441, 459, 2d v. Ill. citing People Thingvold, impermissible, here. In However, inapplicable case is N.E.2d murder, for solicitation of was on trial where the defendant Thingvold, evidence of the victim’s introducing State from prevented the court credibility of the State’s bolstering sоlely purpose murder hired effect of witness, prejudicial to kill the victim. key the man value, any, if probative its where admitting outweighed that evidence (1) not the defendant admitted that it could therefore, and, it was not evidence murder physically committed the (2) committed; credibility crime that the defendant other case, as issue witness was not a material of the State’s mind, might motive, intent, operandi or modus state N.E.2d at 97. 145 Ill. 2d at Thingvold, be. differently in sexual as
However, crimes evidence is treated other a consent defendant has asserted cases. To the extent that the sault is evidence of defense, material issues: it evidence does address such refute his claim of a state of mind to the defendant’s intent and 84, 91-92, App. People Boyd, consensual sexual encounter. (2006) in which (citing several other cases 835-36 innocent intent to show lack of crimes evidence was admissible other case). course, Of in a sexual assault to a consent defense as a rebuttal effect. We have outweigh prejudicial must probative value still battery probative value already established that therefore, effect; the 1994 convic outweighs any prejudicial conviction *11 purposes common law for the traditional tion also admissible conviction has in bolster Any mind. effect the intent and state of secondary. credibility is ing the victim’s attempted rape, forcible for As to the 1996 conviction Although its admission. precludes effect of that conviction prejudicial few as 20 months on A.S. оccurred as may said that the assault incarceration, assault, excluding defendant’s present before First, there present one. are not similar details of that assault cousin, apartment in the present person, A.S.’s was a second into his Second, with defendant A.S. went was attacked. time she
519 intimacy, level until voluntarily engaged bedroom and in some Third, no defendant did not longer was comfortable resisted. defendant, Fourth, escaped A.S. from weapon. threaten A.S. with may Fifth, although whereas allowed leave. the assault J.B. was progressed penetra- had was escaped, have A.S. not there no actual enough general tion. The do not similarities to make the attacks share sufficiently probative. 1996 conviction a
Finally, part sentence this were the conviction and offense balance, admitting plea deal that included other unrelated crimes. On Therefore, prejudicial probative. this conviction would be more than attempted rape the 1996 conviction for excluded. properly forcible excluding Accordingly, part we affirm that of the court’s order attempted rape, defendant’s 1996 conviction for forcible but reverse the court’s decision to exclude evidence of the 1994 convic- battery. tion for proceedings We remand this matter for further consistent with opinion.
Affirmed in cause part part; reversed remanded. J.,
GREIMAN, concurs. CUNNINGHAM, JUSTICE dissenting: deny I grounds, would appeal jurisdictional State’s on therefore I respectfully dissent. reviewing court,
As a determine we have a whether duty we (2008). jurisdiсtion Smith, on appeal. People have v. majority correctly ordinarily jurisdic finds that we would have no appeal tion to consider the appeal State’s because State failed to original required 30-day suppression period. order within the (1971). 136, 139-40, v. People Taylor, Ill. 2d N.E.2d 880-81 newly There is an exception jurisdictional to this bar on based if presented facts, represent change those material and if facts a previously could not with diligence. People have been discovered due Williams, agree 138 Ill. 2d I N.E.2d majority exception applied with that this cannot be the defense victim previously rape revelation made had accusation (labeled defense) as “false” a Cleveland Browns football player, subsequently support payments who made child her. Those facts, accusations, or open were disclosed in court the defense dur ing hearing. pretrial agree initial What I cannot with is the majority’s invoking use of that same accusation as a basis exception, effectively merely subsequent discovery because in the produced denied that this had occurred and the defendant then *12 the report indicating outcry. that there had been a What police is still with an majority seems to overlook that we are concerned produc- incident which revealed earlier. I cannot see how the had been readily could police report by defense, tion of a the which have been State, change the represent obtained can be said to material due diligence by the facts or a which the State not have matter would is previously majority disclosed. The “new fact” which the claims record, upon thereby allowing revealed its review of the the State a is not not even apple, majority second bite the new at all. does diligence by report, the as to police address issue of due this at the of the for invoke the seeking which is crux State’s rationale jurisdictional exception. ruling asking
The State’s motion the trial court reconsider its that nearly years came The same prior on the crimes evidence two too late. judge original hearing evidence in the first trial evaluated judge solid hearing, clearly “new” evidence in the second so the had a for also this noteworthy foundation his use of discretion. It is payment sup rape outcry subsequent evidence of the and the of child accused, clearly by the port by prior which involves sexual conduct victim, be the rape would in all likelihood barred under shield statute 7(a) (West 2004). the time of 725 ILCS The statute trial. 5/115— assault, provides prosecutions criminal sexual evidence past sexual conduct of the evidence victim barred unless that relates conduct either to sexual with the defendant to bolster constitutionally required defendant’s claim of consent or would be excep supreme admitted. Our court has made clear that the latter be third apply prior activity tion does not to evidence of sexual with a impeach victim as to party when that evidence will be used to Santos, 395, 403-09, People truthfulness. Ill. (2004). Thus, argu machinations by all of the the State and its
163-66 naught. regarding “leveling of the field” would be for playing ment none of information The defendant in all likelihood find that this will is avail prior activity parties with third regarding victim’s Likewise, him in on a should putting able to defense. State use of the unrelated evidence required its case without the Accordingly, I find properly the trial court barred. would which this dismiss jurisdiction lack to hear case and therefore we should we appeal. this determination, I would not reach the substantive
Because just I But would admissibility of the crimes evidence. issue it is only reopen an seeking that the is not issue note mendacity of using alleged clearly reopening, barred from is also illogical introducing potentially excuse for primary witness as an its devastating evidence mockery of other crimes. It makes a of the abuse of discretion standard this court to hold that the trial court abused its discretion in barring one of the crimes. When analyzed, State’s actions are this becomes clear. The State failed in its attempt to introduce other crimes the defendant and the State chose appeal not to that ruling. Only when it became clear to the State that documentation defense had previously *13 revealed rape outcry by the against professional victim player football did the State then seek to bar that by renewing its motion to introduce evidence of other In argument crimes. before the trial court plan made its clear. The assistant Attorney State’s told the court that if the prior convictions were not into allowed evidence then the defendant’s discovery” “new should also be barred. Thus the State in sought effect to force the exclusion of evidence damaging to its case threatening to obtain the introduction of previously barred other crimes evidence. The trial court declined participate this scheme and this court should affirm the trial ruling, court’s is clearly consistent with established case law and holds the State ac- countable for following the law.
Accordingly,I would appeal dismiss this jurisdiction. for lack of THE PEOPLE ILLINOIS, OF THE STATE OF Plaintiff-Appellee, v. PHILLIPS,
HAROLD Defendant-Appellant. (3rd Division) First District No. 1 — 06—1940 Opinion filed Rehearing June July denied 2008. 2008.