*1 ILLINOIS, Plaintiff-Appellee, THE PEOPLE THE OF KELLY OF STATE ROSS, Defendant-Appellant. (3rd Division)
First District No. 1 — 06—0792 Opinion Rehearing filed October denied November 2009 . *2 concurring. COLEMAN,J., specially *3 Eisner, Defender, (Emily Assistant Burnette, Chicago of Public A. Edwin counsel), appellant. Defender, for of
Public (James Fitzgerald, Alan Attorney, Chicago E. Alvarez, of State’s Anita M. counsel), Attorneys, for Montague, State’s Assistant Spellberg, and Noah J. People. the the opinion MURPHY delivered JUSTICE
PRESIDING court: Ross, convicted defendant, Kelly was trial,
After a bench ap- On imprisonment. life to and sentenced assault criminal sexual (1) indictment was to the amendment that he contends peal, (2) assault 17-year-old sexual of a evidence improper, untimely and “in (3) that he was testimony inadmissible, his mother-in-law’s was prejudicial, and was irrelevant “car fare” and needed his head” over message that defendant (4) phone a cell lacking was foundation number of (5) for a improper trouble,” his sentence “in reasons.
I. BACKGROUND A. the Indictment Amendment to two-count indict- jury that returned a grand The record reveals 8, 2004, January that against alleged ment defendant. Count I on penetration an act on “knowingly committed of sexual anus, [G.W], Kelly by [G.W’s] penis to contact between Ross’ wit: or threat Count II that defendant alleged use of force of force.” [G.W], “knowingly penetration an act on to wit: committed of sexual mouth, by the Kelly penis [G.W’s] contact between Ross’ use of force force.” or threat of victim, C.C., trial,
On at December after the testified State made an oral motion to amend the indictment substitute the sought name The C.C. for G.W.1as the victim. State further to amend allege penis-to-anus count I to contact penis-to-vagina instead grand jury contact in order to conform intentions of the “with stated, transcript you did which learn the defendant committed penetration an act placed of sexual or conduct with the victim when he penis vagina Third, by sought [C.C.’s] force.” the State to amend mouth-to-vagina contact, count II from penis-to-mouth contact jury. which would also conform intention grand with the The they trial court noted that done it “maybe should have before. *** Well, got the they people up they names of the mixed when why somebody returned the indictment. I know don’t didn’t look at this stuff It’s embarrassing say before. rather least.” The trial court noted to defense grand jury [the] counsel that State “said transcript actually supports they’re trying what You to do. must have read the grand jury transcript.” Defense not dispute counsel did the amendment conformed grand jury. with the intentions of the The “sloppy” found the State’s but actions allowed amendment objections over I required believe I am “because law.”
B. The State’s Case 7, 2004, C.C. that on January spent night testified she at her boyfriend’s, Ross’s, brothers, William house. William’s two Thomas
1The argued State’s motion to admit other-crimes evidence that defendant sexually July ultimately present any assaulted G.W The State did *4 trial, evidence at trial to that time as crime. At the 04 CR the case G.W., involving pending. matter, was also the trial in the instant Since defendant was convicted of assault and sentenced a criminal sexual of G.W. Ross, imprisonment. Class X to life offender See No. 1 —06—3654 (2008) denied, (unpublished Supreme 23), appeal order under Court Rule Ill. 2d 688 there, three of William’s children. defendant, staying as were and were bedroom. upstairs his slept C.C. with William was January to bed on she that when she went C.C. testified up on shirt, and underwear. When she woke wearing pajama pants, a felt wearing only a shirt. She lying on her stomach January she was top on the of her weight” bunch of elbow “and a whole someone’s if it was a man or woman. back, point could not tell at that but she person opened held her down. The get up, person but the She tried penis. penis While his vagina her with his legs penetrated her and “wrestling, moving, trying unsuccessfully vagina, her she was inside get up off the bed.” held her down. vagina of her but still penis man took his out The more doorway and became her head toward the able to turn C.C. was she was with Wil- open; that the door was when to discover frightened liam, always the door was closed. face, kissed her onto her back and flipped man then her over
The vagina. She was still way his down to her neck, and worked and breast kissed, licked, played He saying, “Stop, no.” get up trying vagina for 10 to back into her put penis then he his vagina, her with light. bed, and turned on the done,” got off the “got He 20 minutes. that discovered glasses, on her she put When C.C. if it and asked not to tell William told C.C.
defendant. Defendant left the He then place another to live. if he found would be better room. for someone room, yelled cried and where she remained in the
C.C. home and later, arrived minutes William Ten or fifteen help her. her floor and asked up her off the picked floor. He her on the found her me.” took “Kelly raped William responded, happened. She what an ambulance. and called downstairs that her reported that C.C. records indicated hospital
While that she told her, testified rape tried to she brother boyfriend’s Defendant’s DNA actually raped her. brother boyfriend’s that her staff vagina. in C.C.’s was found was not sure whether cross-examination, testified that she C.C.
On that hospital staff told the vagina. She also her penetrated vagina her penetration had been there unsure whether she was a man means “when penetration redirect, clarified C.C. anus. On Therefore, when vagina. placed inside penis and when come” penis, his vagina with C.C.’s penetrated if defendant hospital asked “did ejaculated he referred to whether thought question she hospital that she told re-cross, testified On she it in.” he force he not sure whether but she was penis vagina her he entered inside. ejaculated *5 slept
William Ross testified that defendant on his couch in Janu- ary times, at slept occasionally; during they C.C. his house those 9, kept January 2004, just a.m., his bedroom door closed. On before 8 preparing he was to take his son school when he saw defendant sit- ting room, on the living drinking looking floor of the a beer and at a picture Defendant, sad, of himself and his appeared wife. who said that he a good school, lost woman. When left to take William his son to sleeping brother, C.C.was upstairs bedroom and oldest William’s Thomas, sleeping was in the dropped basement. William his son off stopped store, and at the grocery closed, but it he was so returned home. He gone was 30 to 35 minutes. home,
When William returned longer defendant was no in the liv- ing room, room. he computer When went to the he heard whimpering sounds coming upstairs, from so he upstairs went and found C.C. floor, balled on up crying. shirt, only wearing She was with no bottoms. William asked her wrong, five or six times what and was she eventually said defendant’s name. William helped put pair her on a pajama pants, downstairs, his carried her and called 911. He was un- able to converse with her because she “crying, fidgety, just was kind of not all there.” Latham,
Renee cousin, defendant’s January 10, testified that on 2004, police came to her house and asked to listen to a message that defendant had left on her phone. cell She called her voice mail played and the message police. for the She had spoken last defendant on a phone house on New Year’s Eve. Buggs,
Iola mother-in-law, defendant’s testified that defendant came to her January 8, 2004, house on shortly after 8:30 a.m. Defendant head, told her he was in over respond but she did not because she get did not want to involved. Later he asked whether she had car no, fare. When she said he left. again She did not see him after that.
On January 2004, Chicago police Turner, detective Glenn who assigned case, was C.C.’s went to the house where defendant’s wife There, mother-in-law lived. picture Turner found the defendant was holding earlier. He also went to Latham’s on house January 8 and 10. The there, second time he was Latham told him that defendant had message left a on her cell phone. message, In the defendant stated that he heard he help. trouble and he needed
Defendant was arrested on November after he was found hiding in the closet of an apartment.
Defendant charged was also with and convicted of criminal sexual assault case objection, number 87 CR 14082. Over State transcript 1, 1988, admitted a of testimony given July on 22, 1987, living at September S.H. testified that on she was case. boyfriend children. Around 5 King 6154 South Drive with her defendant, boyfriend’s boyfriend, sister’s knocked p.m., who was S.H.’s something and told her he had for her apartment on her door boyfriend not home and then boyfriend. responded She that her him to use her bathroom. permitted bathroom, saying that the toilet would called S.H. to the got fix flush, to the bathroom to the toilet. She so she went around, flush, grabbed her and when she turned
toilet to floor, hit her causing her down onto the her to the neck and threw pocket took a cutter out of his carpet head on the bathtub. Defendant cut- sharp carpet disrobe. He demonstrated how and forced her to scratching X her forehead and her neck by putting ter was on *6 mouth, vagina, licked her and penis He then his into her put shoulder. by stop defendant to tell- vagina. persuaded in her S.H. put penis his children, was care of one of her who him that she needed to take ing crying banging and on the door. by putting her children to his car forced S.H. and threatening to kill him. two-year-old’s throat and
carpet cutter to the her children car, drove S.H. and other men in the defendant With two and route, the two men dropped En off to his house. go to her mother’s girlfriend, his whom he instructed encountered house, arrived at defendant’s they call. When house and wait his put He and forced S.H. to disrobe. he took them to his bedroom anus, but she put it her vagina attempted into her and penis her going keep her he was medical condition. He told feigned her home. her two blocks from up driving but ended there for week Defendant’s Case C. indicated that C.C. as- Hospital Bernard
Medical records from St. stated, “My of 0 to 10. She also pain her at 6 on a scale sessed emergency department me.” The rape tried to boyfriend’s brother respect options four gave filled out hospital that the staff record was rectal, oral, or uncertain. “Uncertain” penetration: vaginal, orifice,” the body occurred “inside ejaculation whether circled. As for was touched, unsure. “Unsure” no, and yes, were options four organ” specified of female sex “penetration A chart as to checked. touched, no, and yes, and foreign object, finger, and options penis, but it “yes,” mark under an initial check there is By “penis,” unsure. checked instead. and “unsure” was scribbled out Redfield, Samuel Detectives Dion stipulated that parties The from C.C. November a statement Brown, Joyce Jones took legs, her but she open her back and climb on felt someone that she and did not resist. boyfriend her thought it was Finding D. Trial Court’s acknowledged The trial court that the evidence from St. Bernard Hospital concededly “is testimony. conflict” with C.C.’s The court noted, however, telling hospital personnel C.C. denied that she any penetration. Furthermore, uncertain of the results of the rape kit reflected a positive Accordingly, DNA match for defendant. the court found defendant guilty of both counts of criminal sexual as- sault and sentenced to a term of natural life imprisonment pursuant 13(b)(3) (720 to section of the Criminal Code of 1961 ILCS 12— 5/12— 13(b)(3) (West 2006)). appeal This followed.
II. ANALYSIS A. Amendment to the Indictment Section 111—3 Code of Criminal provides Procedure of 1963 charge that a shall be in writing allege the commission of an of- by: fense
“(1) Stating offense; the name of the (2) Citing statutory provision alleged violated; to have been (3) Setting forth the nature and elements charged; of the offense (4) Stating the county date and definitively of the offense as done; can be
(5) Stating the accused, name of the if known.” 725 ILCS (West 2006). 5/111—3
An indictment signed must be by the foreman of grand jury. (West 2006). ILCS 5/111—3
Once an indictment
has been returned
grand jury,
it
may not be broadened through
except by
grand
amendment
jury
*7
People Benitez,
itself.
v.
245,
169 Ill. 2d
(1996);
Nathan,
254
People v.
(1996).
608,
(“No
282
App.
Ill.
3d
610
1970,
I,
See Ill.
§7
Const.
art.
person shall be held to answer for a criminal offense unless on indict
***”).
ment
grand jury
of a
The reason for this rule is to ensure that
rights
citizens’
are not at
mercy
Benitez,
the
or
prosecutor.
control of a
However,
668 changes that distinguished are from substantive
Formal defects Flores, Ill. charged. 250 the nature and elements of the offense alter (1999), 863, Milton, App. Ill. 3d 866 People In v. 309 App. 3d at 401. and therefore is substantive this court held that “an amendment (2) (1) it cannot be materially charge, if it alters the improper A trial intended the alteration.” grand jury determined whether charging instrument an amendment to court’s decision to allow v. People abused its discretion. unless the court will not be disturbed (1999). Alston, 211 App. 302 Ill. 3d C.C., to from from G.W that the amendments contact, penis-to- and from penis-to-vagina penis-to-anus contact substantive, untimely were mouth-to-vagina contact mouth contact charged. responds The State nature of the offenses alterations to the did not alter miswriting a simply corrected that the amendments to the mental or add an alternative charge, scope, broaden the state. giving in the citation of statute held that an error
This court has subject to amend defect that is charge is a mere technical rise to (1991); People v. Hirsch, App. 221 Ill. 3d 777 People v. ment. See House, App. 202 Ill. 3d (1991); v. Hewitt, App. People 212 Ill. 3d 496 (1990). (1993), Brooks, the indict App. 246 Ill. 3d 777 v. penetra act of sexual committed an alleged that the defendant ment day The before victim, years age. under 16 of who was tion on the indict to amend started, permitted the State trial the trial court and from “under conduct” to “sexual penetration” ment from “sexual appeal, On this years age.” of age” to “under 17 years by the the forms used because the amendment was formal found that updated defendant were charging responsible official sexual abuse statute. aggravated criminal an amendment reflect Brooks, at 786. App. 246 Ill. 3d of a when victim revise the indictment permissible to
It is also
(1973);
Jones,
2d
People v.
has been misidentified.
crime
noted that
222, 225
Jones
3d
People Cooper,
that characterized
the formalism
away
a trend
from
there has been
“The liberaliza
Jones,
Courts
Flores,
charged.
of the offense
elements
the nature and
People Zajac,
example,
at 401. For
*8
under
the defendant had
the State amended
section number
which
501(a)(1)
charged
been
from section
of the Vehicle Code to section
11—
501(a)(2).
501(a)(1)
person
Section
stated that a
shall
11—
11—
drive or be in
alcohol level
physical
any
“[t]he
control of
vehicle while
11—
person’s
of such
501(a)(2)
blood or breath
0.10 or more” and section
in
physical
stated that a
shall not drive or be
control
influence
244 Ill.
any
Zajac,
vehicle while
of alcohol.”
“[u]nder
501(a)(1),
App.
95V2,
3d at
Ill.
ch.
citing
pars.
Rev. Stat.
11—
(a)(2).
(a)(2)
This court found that the
substitution of subsection
(a)(1)
substantive,
formal,
subsection
amounted to a
rather than
change
“the amendment
changed
because
nature of the evidence
necessary
Zajac,
to obtain a conviction.”
244 Ill.
at 44. The
App. 3d
clearly
two subsections “are
statutory
require
distinct
offenses which
the State to prove different elements in order to obtain a conviction.”
Zajac, 244 App.
Furthermore,
Ill.
3d at 44.
proceeded
because the trial
immediately
amendment,
after the
prepared
defendant was not
testimony
address the
on
witnesses
issues raised
the amendment.
jac,
Za
In People Patterson, (1994), App. 267 Ill. 3d 933 the indictment originally charged the possession defendant with of more than 15 grams but less than grams deliver, of cocaine with intent to but the State amended the indictment to read more than 400 grams but grams cocaine, less than 900 original charge which was the presented grand to the jury. On appeal, this court ruled that the trial permitted erred when it the amendment “in drug because case, the quantity of a possessed controlled substance aby defendant is an essential Patterson, element of the charge.” 267 Ill. at App. 3d 939. The case was remanded with instructions to enter judgment on the lesser offense originally charged. Patterson, App. 3d at 939.
Similarly, Betts, 3d 200 originally charged delivery dexedrine, with Schedule II substance, controlled narcotic, which ais in violation of 401(b) (Ill. section of the Controlled Act Substances Rev. Stat. 1401). 56½, ch. par. trial, statutory Before citation the indict 401(b) ment changed 401(c), from section and the word “not” was inserted so that charged delivery defendant was aof II, “substance in Schedule which is not a (Emphasis narcotic.” omit ted.) Betts, Ill. App. However, 3d at 201. dexedrine was not a substance, Schedule II controlled delivery of dexedrine was not a 401(c). violation of section Because both the term “narcotic” and the statutory provision used, referring to narcotics were the court “conclude[d] that it grand jury’s charge was the intention to an of 1401(b).” involving fense Betts, a narcotic under par. 3d at addition, charged original the offense indictment was alleged felony. a Class 3 felony, Class while the amended indictment Betts, The court concluded that the amendment 3d at 202. and reversed the defendant’s convic to the indictment was substantive *9 Arbo, Betts, App. also v. 213 Ill. App. People tion. 78 Ill. 3d at 204. See (1990) 238, 828, (1991); 3d 247-48 People Payne, App. 3d v. 194 Ill. (an burglary in the information from residential with amendment burglary intent to commit a intent to commit theft to residential offense); Troutt, v. 51 Ill. felony changed People the mental state of the (1977). 656, App. 3d in case were that the amendments the instant the the nature and elements of offense
substantive alterations to
on its own as the
charged
type
penetration
because “each
stands
is, accordingly,
of criminal sexual assault as
gravamen of the offense
”
‘surplusage.’
not
if
an act
A
criminal
assault
he “commits
person commits
sexual
of force or threat of force.” 720 ILCS
penetration by
of sexual
the use
(West 2006).
13(a)(1)
is defined as follows:
penetration”
“Sexual
5/12 —
contact,
organ or anus of
“any
slight, between the sex
however
of another
by
object,
organ,
the sex
mouth or anus
person
one
intrusion,
slight,
any part
body
of the
any
person, or
however
***
includ-
organ
person,
anus of another
into the sex
one
***
of emission of
ing
penetration.
anal
Evidence
but not limited to
prove
penetration.” 720 ILCS
required
is not
sexual
semen
(West2006).
12(f)
5/12—
(1993),
the
Carter,
rejected
this court
App.
244 Ill.
3d 792
People
In
v.
constituting penetra
conduct
argument
specific
that the
“Illinois case law
of criminal sexual assault.
tion was an element
of the
is not an element
type
penetration
the
of sexual
provides that
merely surplusage.”
indictment
offense, and
inclusion
the
its
statutory language used
Carter,
“If the
App.
244 Ill.
3d 803-04.
conduct,
unnecessary for the indictment
it is
specific
describes
The
carried out.
the conduct was
by
the exact means
which
specify
occurred
penetration
of sexual
only prove
type
that a
State need
v.
Carter,
People
244 Ill.
3d 804.
doubt.”
beyond
reasonable
“[ejach
(1990),
count in the
noted that
Foley,
***
specific
the
penetration,
charged defendant with sexual
indictment
statutes,
unnecessary for
and it was
in the relevant
prohibited
conduct
penetra
the sexual
by
exact means which
specify
the
the indictment
Boand,
App. 3d
v.
People
See also
was carried out.”
tion
the
the manner
which
Indeed,
changing
amendments
formal,
People
are
not substantive.
the offense
committed
case, the indictment
Coleman,
Defendant cites several in support argument cases of his that “on *10 sex charges, type penetration the grava stands on its own as the men of the Hardeman, offense of criminal sexual In People assault.” v. App. (1990), 203 Ill. 3d the court noted that because the charged defendant was “committing] with an penetra act sexual ***, tion intercourse,” to wit: sexual his conviction for aggravated criminal sexual assault “must be based on evidence that there was contact, slight, however penis between the defendant’s and the victim’s vagina.” In People Valko, (1990), App. 201 Ill. 3d 462 the court aggravated reversed a count of penile criminal sexual assault based on penetration when the only Finally, People evidence established oral sex. Garrett, App. 281 Ill. the court reversed the defendant’s conviction for criminal sexual assault based on anal penetration because the evidence was inconclusive as to whether the anus, defendant intruded into slightly. the victim’s even These cases distinguishable are they analyze sufficiency because the of the evidence sufficiency rather than the propriety indictment or the of an Furthermore, amendment. in charges the Valko and Garrett were based on separate acts, testimony several regarding type so one penetration, already charge, satisfy which satisfied one could not State’s burden on charge. another
The amendment was not made until after the victim testified. See Payne, 247-48; Arbo, 194 Ill. App. App. 3d at 213 Ill. 3d at 832. However, it is clear that defendant was “otherwise aware” of Flores, amended charges. App. 3d at 401. The State’s motion 5, 2005, evidence, August filed well to admit other-crimes which was trial, charged sexually that defendant with assault before stated was case, 38351,” performed he oral ing C.C. “in the elected 04 CR after It noted that penetrated vagina penis. sex on her and her with his sought in to admit vagina. defendant’s semen was found C.C.’s It incident, years that before this defendant forced G.W to evidence four oral, anal, her a knife. In perform vaginal sex and threatened crimes, addition, in asserting differences between “may ‘propensity’ that he have a response argued although written by the victim on rape copulation commit anal and to force oral defendant, in there consensual defendant asserts that this case defendant on the victim.” He vaginal performed by sex and oral sex “ *** in a actually that the ‘other crimes evidence’ occurred continued vaginal evidence of entirely anticipated [sic] different manner than (Emphasis in this [sic] and oral sex defendant on victim case.” addition, January 2004—did original.) In the date of the offense— Therefore, original indictment to the amendment. change from defendant was “otherwise aware” of the record indicates that Flores, at 401. While defendant charges. amended the victim’s conforming that the the indictment to State was minutes, even testimony, grand jury position, not to the the State’s trial, sexually by penetrating that defendant assaulted C.C. before vagina. her
Furthermore, Flores, that an amendment this court found that the defendant specify indictment to the controlled substance did not cause the defendant as cocaine instead of heroin possessed stipulation agreed where he “surprise prejudice” hint of he made no cocaine and the substance he sold to the officer was that it allow when the court ruled would request reopen proofs Here, defendant Flores, 3d at 401. the amendment. vagina, even DNA was found C.C.’s stipulated at trial contact, allege penis-to-vagina indictment did not though original the trial court did not ask for a continuance when and defense counsel Coleman, Ill. 2d at See amend the indictment. allowed the State to 570; Alston, 3d at 211. *11 contends argument, defendant supplemental
In a motion to file one during space the of charges different he tried “on two was the Both against jeopardy.” double guarantee in of his trial violation person shall provide that no United States Constitutions Illinois and V; Const., amend. U.S. in for the same offense. put jeopardy be twice protects clause I, jeopardy §10. “The double 1970, art. Ill. Const. (1) of for the same prosecution a second three distinct abuses: against (2) offense for the same prosecution a second acquittal; after fense (3) for the same offense.” conviction; multiple punishments after disagree with Placek, 2d We v. 376-77 People during the charges “on different that he tried two defendant was convicted, acquitted, been space one trial.” Defendant had not of prosecuted any the offense at time before he was punished charged Rather, with criminal charged in defendant was the instant case. again amended to al assault, properly indictment sexual the was lege criminal sexual assault. filing that the supplemental
Defendant further contends trial of the right speedy him his in violation amendments denied (U.S. Const., the United Constitution sixth amendment States (Ill. VI), I, 8, of Illinois Constitution Const. amend. article section §8), of Procedure I, art. 103—5 of the Code Criminal and section (West Act) (725 2006)). Accord (Speedy of Trial ILCS 5/103—5 defendant, ing charge by prosecution since “submitted gone had offense[,] of trial a new none of time that the middle original charge charge would have been since submission able to defendant.” Milton, (1999), held that People v. 3d we formal, here, “speedy
where an amendment is it is indictment Williams, are Ill. provisions implicated.” People trial case, on, distinguishable. relies In that which defendant initially charged rape and deviate sexual as the defendants were with later, trial, sault. and a month before the information Several months additionally three counts charge was amended to the defendants of three one count of aggravated kidnapping, kidnapping, counts of battery. restraint, aggravated Each unlawful and two counts charge charges, except of all for one guilty found for the On the court affirmed convictions kidnapping. appeal, other originally charged but convictions because offenses reversed limits brought outside the they charges were “new and additional” Here, Williams, additional” Trial unlike “new and Speedy Act. Rather, ac charges were not filed. the indictment was amended 111—5. cordance with section that the actions trial court’s assessment State’s
agreeWe with the However, we that the amend- “embarrassing.” find “sloppy” were and, accordingly, affirm his conviction. ments were formal Crimes
B. Evidence Other 17-year-old assault evidence of the sexual law, other-crimes against Under the common S.H. was inadmissible. if to demonstrate the defendant’s only evidence is inadmissible offered Donoho, charged to commit the crime. propensity *12 674 (2003).
159, 169
prior
Evidence of
crimes generally is
only
admissible
if it is offered
specific
for a
relevant purpose, such as consciousness of
guilt, modus operandi, design, motive, absence of mistake, or
knowledge. People Banks,
(1994).
v.
161
119,
Ill. 2d
137
(725
Section 115—7.3 of the Code of Criminal Procedure
ILCS
(West 2006)) provides an exception
5/115 —7.3
against
the rule
other-crimes evidence for
cases which the defendant is accused of
criminal sexual assault.
section,
Under this
evidence of another
(if
criminal sexual assault “may be admissible
that evidence is
evidence)
otherwise admissible under
the rules of
may
be
(725
considered for its bearing
any
on
matter to which it is relevant”
7.3(b) (West
ILCS
2006)), including a
propensity
“defendant’s
5/115—
to commit
Donoho,
sex offenses.”
The trial court’s decision to admit deny other-crimes evidence to show the propensity defendant’s to commit sex offenses will not be disturbed absent an Donoho, abuse of discretion. 204 Ill. 2d at A182. “ trial court abuses its discretion when ‘ruling its arbitrary, fanciful, unreasonable, or where person no reasonable would take the view ” adopted by the trial Wheeler, court.’ 92, 226 Ill. 2d 133 (2007), (2001). quoting People Caffey, 52, 205 Ill. 2d 89
First, defendant argues that the transcript served no relevant purpose other than “overpersuade” the trier of key fact. The balancing probative value of other-crimes prove evidence to propensity against prejudicial its effect is to avoid admitting evidence jury entices a to find defendant guilty “only because it feels he is bad deserving punishment.” (Emphasis in original.) People v. (2003). Childress, 540, App. 3d at “Looking the other side scale, of the ‘unfair prejudice’ ‘speaks to the capacity of some conced edly relevant evidence to lure the factfinder declaring guilt into on a ” different ground from proof specific to the charged.’ offense People v. Boyd, App. 84, (2006), 3d quoting States, Old v. United Chief 172, 180, 574, 519 U.S. 136 L. Ed. 2d 117 S. Ct. evidence, Other-crimes relevant, when must not become a focal point of the Boyd, App. trial. at3d
The trial court found that the other-crimes evidence was admis
motive,
sible to
consent,
show
lack of
propensity.
In People v.
Johnson,
389 Ill. App.
appeal
3d 618
pending No.
this
court found that the defendant’s “no-force” defense at trial “increased
it saw
evidence, noting that
other-crimes
value”
probative
“
meet the
not be used
could
evidence
‘propensity
why
reason
no
”
Johnson, 115—7.3.
section
under
consent defense’
Further
at 93.
Ill.
623-24, quoting Boyd,
at
Ill.
more,
assaults
uncharged sexual
found three
the trial court
although
limited
State
propensity,
the defendant’s
relevant to establish
were
Johnson, 389
assault.
one sexual
at trial to
evidence
the other-crimes
as
the sexual
here,
court found
the trial
Similarly,
3d at 624.
admissible, but the
relevant and
to be
against S.H. and G.W.
saults
against S.H.
to the assault
only presented evidence
State
*13
S.H. was
against
the assault
that
further contends
Defendant
the as
years before
17
because it occurred
“extraordinarily remote”
incarceration
that defendant’s
responds
The
against C.C.
State
sault
11
to
gap
the time
mitigates
to S.H.
years for the assault
for almost 6
the time
Childress,
noted that when
In
this court
years.
excluded,
conviction was
previous
his
custody
spent
defendant
Childress,
Ill.
338
one-year period.
offenses occurred within
two
conclusion
the trial court’s
dispute
at
Defendant does not
App. 3d
553.
be
on S.H. should
for the assault
years
that the 6
he was incarcerated
years
of 11
is excessive.
excluded; instead,
lapse
that even a
he
prior
when
bright-line
rule about
adopt
“decline[d]
Donoho
to
115—7.3.
under section
too old to be admitted
per
convictions are
se
value.”
Instead,
evaluating
probative
its
it is a factor to consider when
Donoho,
appellate
noted that
We find noted that The trial court against of the assault C.C. facts area of general same against sexual assaults S.H. and C.C. were C.C.’s victims—he was Furthermore, knew both city. defendant us- boyfriend and, boyfriend’s sister’s boyfriend’s brother and S.H.’s — victims, the women attacked access to ing relationship gain African were house. The victims out of the boyfriends when their were penetrated He the time of the assaults. years old at American and both vaginas victims’ with his mouth penis, and his and both assaults occurred, at part, least in where defendant lived. The trial court noted that “these are incidents, not isolated they but actually have some bearing to each other.”
Defendant contends that there are “striking dissimilarities” assaults, between the two for example, injuries, “no weapons, no no kidnapping, and no outcries in the current case.” Defendant had a single-site brief encounter with a sleeping woman in case, the instant awake, while S.H. was resisting, and taken knifepoint at to another location for an attack that longer was of a duration. Although defendant contends that the similarities between the cases “do not materially surpass what is inherent many or common to sex offenses against female acquaintances generally,” supreme our court has held “[wjhere such evidence is not being offered under the modus operandi exception, general ‘mere similarity areas of will suffice’ to support admissibility.” Donoho, quoting 2d at People v. (1991). Illgen, 145 Ill. 2d The existence of some factual differ ences between the offenses does not admissibility defeat because no two independent Donoho, are 186; crimes identical. 204 Ill. 2d at (2008). Taylor, As this court Taylor, concluded in though “Even defendant correctly observes these factual discrepancies, we find that exaggerates he their significance in light of the stated compelling Taylor, similarities.” 383 Ill. App. 3d at People Barbour, cites 3d 993 Barbour, the *14 charged rape and sexual assault and offered consent as a presented defense. The State evidence of two uncharged earlier rapes they to show that share a modus operandi. Barbour, 106 App. Ill. 3d at 1000. On appeal, the court found that the “ State failed to ‘strong persuasive make the showing of similar ” ity’ required testimony to admit under operandi excep the modus Barbour, App. 1000, tion. 106 Ill. quoting Tate, 3d at v. People 87 Ill. (1981). 134, 2d 141 The court further held that even if sufficient similarity existed, the evidence relevancy grounds was inadmissible on identity because the issue, of the offender was not at since he admit ted Barbour, to intercourse with all three App. women. 106 Ill. 3d at 1000. Defendant also relies on v. People Stanbridge, 348 Ill. 3d 351 (2004), in support argument. of his In the Stanbridge, Fourth District concluded that the fact that a prior years conviction was 10 before the defendant’s trial “weighs against admissibility.” Stanbridge, 348 Ill. App. 3d at 357. It cited requirement also the that a court consider must similarity that, the the light between two offenses and concluded “[i]n
677 cautious remain courts should that admonition supreme the court’s we conclude propensity, to show evidence admitting other-crimes about 3d at 348 Ill. Stanbridge, inadmissible.” that the evidence the other- where distinguishable are and Barbour Stanbridge consent, and motive, lack of admitted to show evidence was crimes mistake, identity. absence operandi, of modus propensity instead analysis and seem lack addition, court’s conclusions Stanbridge holding that a 10- court’s Stanbridge Despite Donoho. misapply specifi admissibility, supreme against year weighs interval admissible. years 12 15 before was an incident cally ruled that Stanbridge as to the factual holding in Donoho, 2d at 184. The questionable, equally offenses is between two similarities as meaningful in a “engag[e] trial courts to cautioned simply Donoho impact prejudicial value versus probative sessment of the Stanbridge court’s “use of Donoho, Ill. 2d at 186. The evidence.” turns the statute on its admonition to trial courts supreme court’s (2008). Walston, 616-17 v. People head.” did not abuse its discretion Therefore, hold that the trial court we against assault S.H. admitting of defendant’s sexual evidence Challenges Evidentiary C. Other testimony that he was that mother-in-law’s argues irrelevant “in head” and needed “car fare” was over his He charged. to the crime because it was not connected prejudicial of the cell lacking for admission further foundation was phone message that defendant was “in trouble.” post- in his arguments include either of these
Defendant did not Furthermore, object to his mother-in- trial at trial he did not motion. testimony regarding testimony, law’s and he moved to strike irrelevant, not that it on the it was phone message cell basis mo objection post-trial and a written lacked foundation. “Both a trial have alleged errors that could required the issue are raising tion Enoch, v. original.) People during (Emphasis been the trial.” raised Therefore, procedurally these issues are forfeited. “ excep limited ‘narrow and error serves as a plain The doctrine of ” Szabo, default. general procedural tion’ to the rule of Pastorino, 178, 188 Ill. 2d quoting People Ill. 2d 615(a). bypasses doctrine (1982); plain-error “[T]he 2d R. reviewing court to review and allows a principles normal forfeiture *15 (1) close, regardless the evidence is error when either unpreserved (2) serious, regardless is error, the error the seriousness of 678
the closeness of the
People Herron,
evidence.”
v.
167,
215 Ill. 2d
186-87
(2005). Under the
prong,
first
“the defendant
prove ‘prejudicial
must
is,
error.’ That
the defendant must show both that there
plain
er
ror and that the evidence
closely
was so
balanced that the error alone
severely
tip
threatened to
justice against
scales of
Herron,
him.”
error when no Harris, error occurred at all. People 1, v. 225 Ill. 2d 31 (2007).
Evidence is admissible if it is relevant to an
in dispute
issue
and
prejudicial
its
effect
outweigh
does not
probative
its
value. People v.
(2000).
Patterson,
93,
192 Ill. 2d
114-15
Evidence is relevant when it
“any tendency
has
to make the existence
any
fact that
is of
consequence to the determination of the action
probable
more
than it
would be without
People
368,
the evidence.”
Harvey,
v.
211 Ill. 2d
392
(2004). The determination of whether evidence is relevant and admis
sible is a matter within the discretion of the trial
People
court.
v.
(2006).
Singleton,
App.
182,
367 Ill.
3d
189
Regarding evidentiary rul
“
ings,
only
this court
finds an abuse of discretion where
‘the trial
ruling
arbitrary, fanciful, unreasonable,
court’s
or where no reason
”
able
would take the view adopted by the trial court.’
v.
People
Wheeler,
92,
(2007),
226 Ill. 2d
quoting Caffey,
Defendant, citing People Groleau, v. App. (1987), 3d 742 People Robinson, v. (1989), 3d that his testimony mother-in-law’s that he “in said he was over his head” and “wholly asked for bus fare unspecified” and unconnected to the charge. the contrary, To these statements were admissible to show defendant’s guilt contemplation consciousness of of flight. People (2004). Evans, v. 209 Ill. 2d See also People Jefferson, 260 Grathler, the court found the flight police, from the varying statements to the police, apologies to the victim guilt. Similarly, here, demonstrated his consciousness of made an unsolicited immediately statement to his mother-in-law after head,” the sexual assault that he was “in over his and later he asked her for fare. bus *16 lacking for admission was argues that a foundation
Defendant also
Telephone
“in trouble.”
message that he was
phone
an undated
if a
at trial are admissible
relevant to the issues
conversations that are
52,
94
Caffey,
People
is laid.
proper foundation
between a witness
telephone conversation
“Testimony as to a
by the wit
of a claim
inadmissible in the absence
person
another
is
identify
person’s
can
person
the other
or
that he or she knows
ness
Goodman,
Ill.
In
347
Ill. 2d at 94-95.
Caffey,
***.”
voice
a
testimony regarding
(2004),
argued
the defendant
App. 3d 278
This
adequate
foundation.
with her lacked
telephone conversation
by telephone
a
caller as to his
held that
mere assertion
“[a]
showing of
taken as a sufficient
identity, being hearsay,
her
cannot be
Goodman,
289, citing
identity.”
App.
3d at
person’s
the other
“However,
if a witness is unable to
Caffey,
Defendant, Smith, citing People v. of a for admission requirements contends that the foundation time, date, recognition, include “voice telephone conversation testify did not Here, it that Latham place problematic of the call.” although it was left before message; as to defendant left the when left after the 10, 2004, it was January there was no evidence However, defendant assault, January sexual which occurred founda testimony, not the only objected to the relevance of Latham’s mention of the date tion, of her made no his cross-examination did not raise this motion message, posttrial defendant left the videotape with a sound addition, involved the use of issue. Smith recording conversation, of a phone not a call or message, voice and the Smith court mentions none of the by defendant, factors listed except speakers.” Smith, “identification of the 321 Ill. App. 3d at 675.
We find that defendant arguments forfeited his as to the relevance of his mother-in-law’s testimony and the foundation for the voice message left on phone. Latham’s cell notwithstanding, Waiver we conclude that the trial court did not abuse its discretion.
D. Sentence Finally, that his sentence improper because he received insufficient notice of an enhanced sentence and the manda- tory life imprisonment statute process violates due and the Illinois proportionate Constitution’s penalties clause.
1. Notice Criminal sexual assault 1 felony. is a Class 720 ILCS 5/12— 13(b)(1) (West 2006). A convicted of criminal sexual assault *17 previously who has been convicted of criminal sexual assault commits felony a “Class X person for which the shall be sentenced to a term of imprisonment years of not less than years.” and not more than 60 13(b)(2) (West 2006). 720 ILCS A person convicted of criminal 5/12 — sexual assault previously who has been aggravated convicted of criminal sexual assault shall be sentenced to a term of natural life 13(b)(3) (West 2006). imprisonment. 720 ILCS person “When a 5/12 — *** conviction, any prior has such charging indictment that prior shall state such give conviction so as to notice of the State’s intention to treat the X charge felony.” as a Class 720 ILCS 5/12— 13(b)(5) (West 2006). 3(c) Similarly, section of the Code of 111— Criminal Procedure provides “[w]hen that the State an seeks enhanced conviction, sentence prior because of a charge shall also state the intention to seek an enhanced sentence and shall state such prior 3(c) give conviction so as to notice to the defendant.” 725 ILCS 5/111— (West 2006). An “enhanced sentence” means a sentence that increased by prior conviction from one classification to another higher offense; level classification of it does not include an increase applied the sentence within the same level classification of offense. 3(c) (West 2006). 725 ILCS 5/111— alleged seeking
The indictment
the State would be
3(a)(5)(c)
pursuant
“extended sentence
to
ILCS
and 720
5/111 —
13(b)(5)in
Kelly
previously
ILCS
Ross has
been convicted
5/12 —
criminal
aggravated
At
sentencing hearing,
sexual assault.”
13(b)(3)
sought
State
the term of natural life
to
pursuant
section 12—
previously
aggravated
on the basis that defendant was
convicted of
gave
that the indictment
criminal sexual assault.
a natural
life
seeking
that the
be
him insufficient notice
State would
sentence.
(1994),
Jameson,
the defendants were
charged with and convicted
Class
Jameson,
at
The
sentenced
Class X offenders.
162 Ill. 2d
284-85.
as
charging
in the
argued
notify
defendants
that the State failed to
them
sentence,
they
X
claimed
instrument of its intent to seek a Class
which
3(c).
court held that
required
under section
The
111—
3(c)
“legislature enacted
to ensure that a defendant
section 111—
notice,
trial,
charged.
received
before
with which he is
offense
***
legislature
require
There is no evidence that the
intended to
***
give
pretrial
possible
State
notice of the
sentence
might
Jameson,
that he
162 Ill. 2d at
(Emphasis
original.)
receive.”
corresponding
290. The court continued that a
due
defendant “has no
process right
pretrial
to receive
notice
he
receive
sentence will
Jameson,
fact,
upon conviction.”
In People Beasley, 3d 200 the trial court 13(b) enhanced the defendant’s sentence under section based on a 12— prior aggravated conviction for criminal Beasley, sexual assault. However, 3d at give failed State notice of its inten tion charge offender, him as a X required by Class sections 111—3 Beasley, 12—13. appeal, 3d at 211. On the court (b)(2) (b)(3) “[c]learly, noted that subparts of current section (not sentence) 12—13 elevate the just the of criminal sexual offense assault from being felony a Class 1 X being felony.” Class (Emphasis in original.) Beasley, 307 Ill. at App. 3d 211. The court distinguished Jameson because in that “it case *18 enhanced, sentence that (Emphasis was not his conviction.” in original.) Beasley, at 3d 211. Because the State failed to give the defendant notice pursuant to sections 12—13 of the Criminal Code and 111—3 of the Code of Criminal Procedure that it intended to elevate the charging class of the defendant’s offense within the instrument, “defendant having must be treated as committed a Class offense, 1 rather than a Class X at Beasley, offense.” 307 Here, convicted, in Beasley, as the offense of which was merely sentence, not 12— pursuant was enhanced to section 13, since felony the Class 1 of criminal to sexual assault was elevated felony a Class X prior aggravated based on his conviction for criminal 682 However,
sexual charging Beasley, assault. unlike the instruments in the indictment in the alleged instant case that the State would be 3(a)(5)(c) seeking an pursuant “extended sentence to 725 ILCS 5/111 — 13(b)(5) and 720 ILCS in that Kelly previously Ross has been 5/12 — aggravated convicted of criminal sexual assault.”2 While the indict- (b)(3), ment did not cite specifically to subsection which relates to a term imprisonment prior ag- of natural life based on a conviction for gravated assault, (b)(5), criminal it sexual did cite to subsection which requires give charge the State to notice of its “intention to treat the 13(b)(5) (West 2006). Therefore, felony.” as a Class X 720 ILCS 5/12 — charge defendant had notice that the intended him a State to felony previously ag- Class X on the basis that he was convicted of gravated Beasley criminal sexual nor Jameson assault. Neither any required. establishes that further notice is Accordingly, gave we conclude that the indictment defendant suf- charge ficient notice of the State’s intention to him with a Class X felony prior aggravated based on his conviction for criminal sexual as- “himself reject argument sault. also that he thought We term,’ challenge something that the to an ‘extended means which trial, entirely”; during else counsel volunteered that “this defense is an automatic life case.”
2. Due Process argues mandatory Defendant next that the life sentence sec 13(b)(3), term, applied people ineligible tion for an extended 12— “irrational, process reasonably due because it was as not violates designed remedy targeted by legislature.” the evil constitutional, and, thus, the presumed party
Statutes are to be invalidity. challenging proving the statute bears the burden of its (1981). Pointe, duty v. La Ill. 2d “A court has a constitutionality in a manner that its if it upholds construe statute done, reasonably any can be doubt must be resolved in favor of (2003). Sanchez, validity.” People the statute’s give A is to ef primary construing court’s consideration in statute only language legislature’s by examining fect to the intent statute, the reason for the law and the evil used but also Pointe, generally remedied. La Ill. 2d at 499. “We intended to be legislature legislature sentencing defer to the in the arena because gauge the seriousness of various institutionally equipped better Sharpe, accordingly.” People and to offenses fashion sentences setting criminal legislature’s Ill. 2d “The discretion instead of of the word “extended” 2The State the use typographical error. “enhanced” was
683
broad,
penalties
generally
legislative
is
and courts
decline to overrule
clearly
in
in
challenged penalty
determinations
this area unless the
authority.”
excess of the
on
general constitutional
limitations
this
Sharpe,
constitutionality,
216
In examining
Ill. 2d at 487.
a statute’s
Jackson,
employs
People
this court
a de novo standard of review.
v.
358
(2005).
927,
Our supreme
repeatedly recognized
legislature
court “has
that the
power
prescribe penalties
offenses,
has the
to
for defined
and that
power necessarily
authority
prescribe mandatory
includes the
to
sentences,
if
judiciary’s
even
such sentences restrict the
discretion
imposing
Huddleston,
107,
sentences.”
Ill. 2d
However,
“pass
clause,
to
muster under the due process
penalty
a
must be reasonably designed
remedy
to
the particular evil that
legislature
targeting.”
Sharpe,
The United
Supreme
States
Court has described the risk of
posed by
recidivism
sex
“frightening
high.”
offenders as
McKune
Lile,
47, 57,
536 U.S.
153 L. Ed. 2d
122 S. Ct.
(2002). In Huddleston,
the court noted that
legislature
“our
has
responded again
again
to the propensity
repeat
of sex offenders to
their crimes and to
increases
the incidence of sexual assault and
Huddleston,
abuse cases.”
because under section of the Unified Code of Correc- 5— tions, person convicted of may criminal sexual assault receive enhanced sentence of up years’ imprisonment to 30 if prior convic- tion, within greater the same or felony, years, class of is within 10 (West 2006). excluding custody. time in 5—3.2, 730 ILCS 5—8—2 5/5— legislature contends has determined that a crime by person repeats who a similar 10-year offense within a period is of particular danger recurrence, apply so to life mandatory sentence to a who is “too law-abiding qualify for a lesser extended term” statutory defendant, subverts the According scheme. legislature rationally “did not intend punish culpable a less severely.” more
Defendant assumes that section if apply previ- 5—5—3.2 would ous aggravated conviction for sexual assault had been less than 10 years ago that, therefore, subject he be a maximum would discretionary years’ sentence of imprisonment. contrary, To the sec- 13(b) plainly tion applies in cases where the defendant is convicted 12— previous of a criminal sexual assault after a conviction for criminal aggravated sexual assault or criminal sexual assault. 720 ILCS 5/12— 13(b) (West 2006). trumps general statute the more section This “A person of criminal sexual assault. who is 5—5—3.2 cases *** having after convicted of the offense of criminal sexual assault aggravated criminal sexual previously been convicted of the offense *** imprison- to a term of natural life assault shall be sentenced *20 (West 2006). added.) 13(b)(3) (Emphasis ment.” 720 ILCS 5/12 — legislative support argu- debates Defendant also contends legislature of the to allow a natural life sentence ment that “the intent culpable.” for the most He cites to be a matter of discretion reserved following debate: correct, Am I that this bill mandates a “SENATOR BERMAN: imprisonment life for sexual assault? idea, originally but in No. That was
SENATORRADOGNO:
longer
than are cur
changed
committee it was
to offer
sentences
discretion,
judicial
but
rently
it still does allow some
available. So
Assem.,
longer
90th Ill. Gen.
Senate
option
is for
sentences.”
(statements
20, 1997,
of Senators Berman
Proceedings, May
at 10
Radogno).
“disapproval
disagree
exchange
defendant that this
shows
We
Walton,
In
mandatory life sentence.
Kunkel
rejection”
of the
language
(1997), the court held that “because
179 Ill. 2d
occasion to
unambiguous,
we have no
plain
of the statute is
13(b)(3) unambiguously
history.” Section
legislative
consider its
12—
hav
criminal sexual assault after
person
that a
convicted of
provides
aggravated
criminal sexual assault
ing previously been convicted
(720 ILCS
imprisonment
natural life
shall be sentenced to a term of
13(b)(3) (West 2006)),
legisla
there is no need to review its
so
5/12 —
(the
Lombardi,
ing position. convic- previous whether the specify assault” but did not for “sexual criminal sexual as- aggravated or criminal sexual assault tion was for her Radogno qualify also did not that Senator significant sault. It is for criminal conviction applied previous it to a response to whether apparent It is criminal sexual assault. aggravated or sexual assault as- of criminal sexual referring to a case Radogno was that Senator assault, sault after a previous conviction for criminal sexual which calls for 60-year imprisonment. a 30- to term of ILCS 5/12— 13(b)(2) (West 2006). This is further interpretation supported Sena Radogno’s 19, 1997, tor statement on March Bill Senate 7 “would the judge impose thirty allow a sentence sixty years for the assault, second criminal sexual up and that’s from the current six years. If one of the aggravated two offenses is a combination of predatory offenses, sexual then the subject offender is to natural life in prison.” Assem., 90th Ill. Proceedings, 19, 1997, Gen. Senate March (statements at 57 Radogno). of Senator Assem., See also 90th Ill. Gen. (statements Proceedings, May House at 17-18 Representa Turner) (“If tive the perpetrator prior aggravated has a criminal sexual prior predatory assault or a criminal sexual assault the will be sentenced to natural in prison”). life 13(b)(3)
We find that section reasonably designed to 12— remedy high rate of recidivism of sex offenders and that it therefore does not violate due process applied people ineligible for an extended term.
3. Proportionate Penalties The proportionate penalties clause of the Illinois Constitution provides that penalties “[a] 11 shall be determined both according to *21 the seriousness of the objective offense and with the restoring the offender to useful citizenship.” I, §11. Ill. Const. art. The Illinois Supreme Court has identified three analyses courts use to assess (1) proportionality claims: penalty cruel, whether the degrading, or wholly so disproportionate to the offense committed as to shock the (2) moral sense of community; the offense, whether the described compared when offense, to a similar a penalty, carries more severe although the proscribed conduct a creates less serious threat to the (3) public health safety; and offense, whether the described when compared to an having elements, offense identical carries a different People sentence. v. Sharpe, 216 Ill. 2d
Defendant, applying test, the first mandatory that the life sentence violates proportionate the penalty clause it because is so disproportionate to the offense as to shock the moral sense of the com- munity. He contends that mandatory he was sentenced to a term of life, natural though even his second offense had no aggravating circumstances, bodily such as injury weapon or the use of a or force. Huddleston,
In supreme the found 12— that section 14.1(b)(1.2) (720 (West 14.1(b)(1.2) ILCS 2002)), which 5/12 — mandated a life sentence when a predatory was convicted of criminal sexual assault of a child against committed two or more people, did not violate the clause. In proportionate penalties so concluding, jurisdictions, the court the reviewed statutes of other including required four other that a mandatory states sentence of life imprisonment against Huddleston, certain sexual offenses children. longer Ill. 2d at 140. Such enactments call for sentences of imprisonment, that opportunity “so the offender’s to reoffend is Huddleston, 212 during period foreclosed incarceration.” Ill. at The court also analyzed seriousness of Huddleston, 212 Ill. potential. conduct and his rehabilitative 2d at 142-44. defendant,
According dramatically Illinois law differs from other states’ He approaches sentencing for a second sex offense. contends that the 50 sex committed proscribe states that offenses on adult, Illinois, only Georgia life Washington, require mandatory offense, for a in the 13 other parole without second sexual states life, that imprisonment discretionary allow for natural sentence is parole legislature light is allowable. In of courts’ deference to 487) penalties (Sharpe, 216 Ill. 2d at and the setting criminal attempt propensity repeat statute’s to address the of sex offenders (Huddleston, 137-38), their 212 Ill. 2d at section fits crimes 12—13 general statutory within the trend described defendant. Further more, claims mandating a natural life sentence is while without a second disproportionate years when he “lived seventeen S.H., offense,” ignores rape of sexual he that in addition to the 1987 important, More guilty rape he found of the 1999 of G.W. also was assault, weapon committing a both in defendant used while they front children the door. of S.H.’s and while screamed outside Sanchez, In this court ad 12—14 challenge to section of the proportionate penalties dressed (West (720 14(a)(2) 2000)), aggravated ILCS Criminal Code 5/12 — Sanchez, abuse the defendant was convicted criminal sexual statute. and, previous he had a aggravated criminal sexual assault because assault, mandatory natural conviction for criminal sexual received argued mandatory life appeal, life On the defendant sentence. it penalties clause because was so proportionate sentence violated the moral sense to the offense committed to shock disproportionate he based on community. He contended that was convicted bruis to a ing victim, temporary bodily simple harm that amounted *22 bruising, not have been he not the he would battery; had caused assault, the could have imposed criminal sexual court convicted of 13(b)(2)(West 720 ILCS years’ imprisonment. a term 30 to 60 2000). of 5/12 — finding that “the rejected argument, court the defendant’s This in way the crime disproportionate is defendant’s sentence not Sanchez, community.” shocks the moral sense of the noted, mandatory provision 3d at 85. “The life sentence This court severely engage treat those who in legislature’s reflects the decision to recognizes repetitive of because it the harm conduct sexual assault Sanchez, caused to 3d at 85. victims.” Miller, Defendant relies on Ill. 2d 328 which for a imprisonment 15-year-old held that a of natural life sentence Miller, penalties defendant the the proportionate violated clause. charged murder first-degree defendant was with two counts of based agreed on The accountability. defendant to be lookout while two other people supreme the victims. court found that the life shot Our converging sentence result of the automatic was the “three statutes”: (705 provision transfer of the Court Act of Juvenile ILCS 405/ 4(6)(a) (West 1996)), which the to be tried required defendant as 5— an adult statute, criminal court; accountability
in
the
which barred
the court
considering
degree
from
participation
offender’s
of
in
crime;
multiple-murder
statute,
and the
sentencing
which barred
the court from considering
age
or his degree
offender
participation
Miller,
in the crime.
As this court noted in Sanchez, wholly “[t]his case distinguish Sanchez, able from Miller.” 3d at 85. Defendant in the case, Miller, instant unlike the repeat is a sex offender. statute; His conduct not “grossly by it fit squarely distorted” within prohibited conduct the criminal sexual assault statute. theory accountability, was not convicted on a and he is a juvenile. reject
Accordingly, argument we that his sentence was disproportionate goal nature of the offense and to the of restor- ing offenders to useful citizenship.
III. CONCLUSION After the indictment, trial allowed the amendments to the it said, say “It’s rather embarrassing to least.” The court went on to *23 up actions “sloppy.” call the State’s actions We would sum the State’s unprofessional. in one word: reasons,
For the we affirm conviction and foregoing sentence.
Affirmed. J.,
STEELE, concurs. COLEMAN,specially concurring: JUSTICE and majority’s opinion affirming I concur with the conviction the that the to the were under finding permissible amendments indictment emphasize by majority, I to the separately point the law. write noted court, that respect the trial the State’s actions with as well amending “embarrassing.” the were and “sloppy” indictment
Although I that of the conduct agree with assessment State’s case, Here, simply I go would further. the indictment did not this instead, overlooked; it single inadvertently that was contain error merely that the the date of the crime and used appears changed State charges Presumably, filed in case. the the same that were another it ac- charging did not instrument ensure that State review it indict- curately sought for which particular reflected case pend- only the name of the refer another case ment. Not did victim defendant, but the criminal sexual conduct ing against particular this Although allows amendments alleged was also incorrect. the law for here, unacceptable casually done it is to so the indictment such as was particular in an This instance of “cut-and-paste” charges indictment. went further comment because inaccuracies carelessness deserves victim testified at trial. undiscovered until the Clearly against this defendant there was substantial evidence multiple multiple against of criminal conduct involving acts sexual I victims, vigorously successfully prosecuted. and which the State may distinct be chal- the details of each case recognize keeping like where there are several in cases this one lenging, particularly multiple appear victims that involving multiple counts with cases However, it is defendant. against and are filed same similar accuracy charging precision in each cases that the need such impart- in order to avoid important all the more instrument becomes trier-of-fact, and the any grand jury, to the ing confusion defendant. have both “embarrassing” to
Thus, merely “sloppy” it is incorrectly on alleged stated name of the conduct victim indictment, cavalier attitude suggests it a kind of but Illinois. of the State of unbecoming representatives