THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. JAMES O. RICHARDS, Defendant-Appellant.
No. 14716
Fourth District
September 29, 1978
472 Ill. App. 3d 472
Thomas J. Fahey, State‘s Attorney, of Danville (Robert C. Perry and Gary J. Anderson, both of State‘s Attorneys Appellate Service Commission, of counsel), for the People.
Following a jury trial, the defendant, James O. Richards, was convicted of indecent liberties with a child in violation of
On appeal, the defendant argues that the State‘s jury instruction which made reference to prior sexual acts of the defendant was improper and denied him a fair trial. We agree and reverse and remand for a new trial.
At trial, the complaining witness noted, during direct examination, that other instances of indecent liberties had occurred prior to the one charged in the instant case. After this tеstimony had been elicited, the defendant‘s counsel objected to the reference to these prior incidents. The trial judge overruled the objection noting that this testimony was subject to cross-examination.
At the instruction conference, the defendant‘s counsel objected to the State‘s Instruction No. 10 (Illinois Pattern Jury Instructions, Criminal, No. 3.14) concerning the prior sexual acts of the defendant with the complaining witness. After a brief discussion of the instruction, the trial court stated thаt it would be given over the defendant‘s objections. That instruction as given was:
“Evidence has been received that the defendant has been involved in crimes other than that charged in the information. This evidence has been received solely on the issue of the defendant‘s design. This evidence is to be considered by you оnly for the limited purpose for which it was received.”
During closing argument, the Assistant State‘s Attorney argued that the defendant did not deny that the alleged deviate sexuаl act was not the first time with the complaining witness. The defense counsel immediately objected and that objection was sustained.
The post-trial motion preserved the issue for review. The trial judge denied the motion for a new trial and noted that the prior conduct was not admitted as evidence of prior crimes, but rather it was admitted for the limited purpose of showing the relationship and familiarity of the parties as discussed in People v. Wendt (1968), 104 Ill. App. 2d 192, 244 N.E.2d 384.
As the trial court correctly noted, the admission of evidence of prior conduct between the parties is proper for the limited purpose explained in Wendt. The error in this case, however, liеs in the jury instruction that was given regarding this prior conduct. That instruction should have stated that the evidence of the prior conduct was limited to establish or indicatе the relationship and familiarity between the parties rather than to establish design. Moreover, the use of the term “crimes” in the instruction was most certainly error since the defendant had not been charged or convicted of any crime.
The function of jury instructions is to convey to the jury the correct principles of law applicable to the evidence submitted, so that the jury may, by the application of proper legal principles, arrive at a cоrrect conclusion according to the law and the evidence. (People v. Gambony (1948), 402 Ill. 74, 83 N.E.2d 321, cert. denied (1949), 337 U.S. 910, 93 L. Ed. 1722, 69 S. Ct. 1945.) Furthermore, it is reversible error to inject into the case, by way of instruction, issues which arе not properly before the jury. People v. McCauley (1972), 2 Ill. App. 3d 734, 277 N.E.2d 541.
In the instant case, the only issue before the jury regarding defendant‘s prior conduct was that concerning his relationship and fаmiliarity with the complaining witness and not the issue of the defendant‘s design. It is obvious that the evidence of prior conduct and the subject jury instruction are not in accord. As a result, the jury was instructed on a theory not supported by the evidence.
In addition to the defect in the jury instruction, the evidence presented at the triаl surrounding the alleged crime was conflicting. The complaining witness testified that he had made several statements prior to trial to his mother, his father, and to defense counsel in which he had stated that the defendant did not commit the crime, and that he had on other occasions told the State‘s Attorney that the defendant did commit
The complaining witness’ mother also admitted making two pretrial statements that were contrаdictory. In one statement she stated to defense counsel that she felt nothing had happened between the defendant and her son. In the other statemеnt to defense counsel she indicated that she just assumed something had happened.
On the basis of this record, it is apparent that the error in the jury instruction was not harmless since the other proof did not overwhelmingly establish defendant‘s guilt beyond a reasonable doubt. The reference to defendant‘s prior conduct as crimes as well as the failure to properly connect up that evidence with a correct jury instruction was undoubtedly prejudicial. Moreover, sinсe the evidence of defendant‘s guilt was close, it cannot be said that the jury‘s verdict would have been the same had the proper instruction been given. People v. Weathers (1974), 23 Ill. App. 3d 907, 320 N.E.2d 442, rev‘d on other grounds (1975), 62 Ill. 2d 114, 338 N.E.2d 880.
Aсcordingly, the defendant‘s conviction must be reversed and this cause remanded for a new trial.
Reversed and remanded for a new trial.
REARDON, J., concurs.
Mr. PRESIDING JUSTICE GREEN, dissenting:
I dissent.
The principal issue in this case is whether the trial court erred in using the word “design” in Illinois Pattern Instruction, Criminal, No. 3.14, to describe the limited purpose for which the evidence of the defendant‘s alleged prior sexual offenses with the victim might be considered. That word has been given the following definition when applied to evidence:
“Purpose or intention, combined with plan, or implying a plan in the mind. Burrill, Circ. Ev. 331; State v. Grant, 86 Iowa 216, 53 N.W. 120.” Black‘s Law Dictionary 533 (rev. 4th ed. 1968.)
Webster‘s New World Dictionary (2d college ed.) gives as a secondary definition of the word “design” when used as а noun: “purpose; intention; aim.”
Generally when a defendant is charged with a sexual offense, his prior sexual offenses committed against the same victim are admissible for the limited purposes of showing not only the familiarity and relationship between the parties (Wendt) but also the defendant‘s intent and guilty
Thе majority also finds error in the use of the word “crimes” in Illinois Pattern Instruction, Criminal, No. 3.14, when evidence is introduced of crimes for which the defendant has not been cоnvicted. Illinois Pattern Instructions Committee cites cases in support of the instruction in which evidence of crimes for which the defendant had not been conviсted was presented (see IPI Criminal No. 3.14, Committee Note). The most frequently quoted modern text on evidence speaks of evidence of other crimes by thе accused being admissible for limited purposes without reference to a requirement that a conviction must have been obtained except when thе evidence is used for impeachment. (McCormick, Evidence § 190, at 447 et seq. (2d ed. 1972).) For the instruction to refer to evidence that the defendant has been involvеd in crimes does not infer that he has been convicted of those crimes. I see no error in that portion of the instruction.
Although the evidence was confused and conflicting, I would affirm.