*1 (No. 97354. ILLINOIS, Appel- OF OF THE STATE
THE PEOPLE WILSON, E. Aрpellant. v. DAVID lee, January Opinion 2005. filed *2 Kirwan, Defender, Daniel M. Deputy Nancy and L. Vincent, Defender, Assistant of the Office of the State Defender, Appellate Vernon, appellant. of Mt. for Lisa Madigan, Attorney General, Springfield, of and Stan Brandmeyer, Attorney, Carlyle (Gary State’s of Fein- erman, General, Solicitor Jay Linda D. Woloshin and Hoffmann, General, Paul Assistant Attorneys Chicago, counsel), the People. for JUSTICE opinion THOMAS delivered the court: jury defendant,
A E. Wilson, convicted David two (720 of aggravated counts criminal sexual abuse ILCS 16(f) (West 2000)). appealed, Defendant arguing 5/12 — County circuit court of Clinton had in al- erred lowing the State introduce other-crimes evidence from two whose testimony witnesses about defendant’s conduct them similar toward was to the circumstances surrounding charged offenses, the two but defen- where аlleged dant denied sexual of the victims. convictions, appellate The court affirmed defendant’s al Ill. 3d 742. We dissenting. App. justice one with 177 Ill. 2d leave to petition appeal. for lowed defendant’s R. 315.
BACKGROUND offenses, defendant alleged At the time of Breese, His Illinois. High Central School employed during in- supervise students primary duties were to an football and to act as assistant suspensions school high at the alleged were students coach. The two victims defendant against I of the information filed school. Count for touched Carol Z.’s breasts knowingly II charged and count purpose gratification, of sexual for the knowingly Crystal that he touched H.’s breasts trial, defendant gratification. Prior to purpose sexual filed a motion in limine to exclude from testimony Lisa V. A., two other female school students Ashley high had had who come forwаrd to claim defendant sexu- ally ways abused them similar offenses. alleged Defendant that both students’ would and that had not uncharged involve conduct the State A.’s until Ashley identity disclosed three *3 days trial The trial prior scheduled date. court motion, and proceeded denied defendant’s the case trial. statement, defense
During opening defendant’s jury against counsel told the that defendant witnesses that about conduct of defendant occurred complain would art class. He further stated that mostly third-period a happen, did not he alleged to show that a teacher and several present would testify they that class that had students of who would any contact defendant physical observed between alleged and the Defense counsel then two victims. pre- there would be some evidence acknowledged touched people. sented that would show that defendant jury type He then “that’s of person told the [defendant] occasionally people’s is, that he will shake pats hands, he them on the back.” Defense counsel opening telling jury concluded his remarks “that any type if there was ever of contact whatsoever between my people going client and of these who are to make complaints against simply him here that it was incidental absolutely contact and it had no sexual nature whatso- ever.”
Crystal H. testified that 2001, in March when she 14-year-oldhigh was a freshman, school she received an suspension. suspension in-school The in-school room was separated by furnished with desks room dividers to form Crystal serving cubicles. was seated at one of desks these suspension approached a when defendant her from placed behind and his hands around her then waist. He up moved his hands from under her stomach to touch her breasts, breasts from underneath. heAs touched her whispered asking doing ear, into her her she what was only person time, there. At the there was one other the room—a student in another cubicle. She noted that occasions, had touched her on other but this only was time he touched her breasts.
Crystal further after testified that the incident in the suspension room, in-school defendant touched her on during least 10 other art On occasions class. occa- those up placed sions, defendant came from behind her his hands around her stomach with his crotch area close body. hug girls her She observed defendant other in the way same in the art room. later her She told several of including happened. friends, Z., Cаrol about what had Crystal passed 21, On March a note another describing student, what defendant had done to her. The sitting “I stated, note was teacher ISS comes up pervert.” behind andme tries to touch me. aWhat intercepted by The note teacher and taken to the *4 principal. day, Crystal principal That told the about police. gave conduct and a statement defendant’s Crystal anything about Lisa time, did not know At that V 15-year-old a that when she was
Carol Z. testified year, during sophomore defendant the 2000-01 school physical in the room and with her art made hallways contact ap- times he Some of these
some times. approached proached behind, from but other times he hugged occasions, her; he on from the front. On some others, back. he held her hand or touched her lower eyes lips her or brushеd he touched her Sometimes her hair out her face. She further testified buttocks, her and her defendant touched both breasts noting always touching “subtle,” her such that was way not that he a doing anything that others would be able see was hugging than her. also stated
more She that, occasion, her her on one defendant asked about sex life, which made her feel uncomfortable. Crystal’s note
Carol further testified that after was intercepted, principal happened Carol told the what had gave police. to her She had noticed statement to girls, did know if he defendant other but not However, had touched them on the a number of breasts. girls, including H., J. T., other Ranee Mica Natalie thing happened J., Rachel told her that the same had questioned, girls not however, them. those did want When any part to have of the case аnd would talk about it. not complaints Carol about did know about Lisa Y’s defendant. three contact
Lisa V testified to incidents of sexual place took in the semester of with defendant that fall 17-year-oldjunior. time, she was a The first when study hall, she was seated a desk when approached grabbed behind, sides, her her and then from put fingers his her that the sides of his under breasts so fingers index her The second time touched breasts. *5 study hall, also in and thing the defendant did the same her, did the first time. He then sat across from winked at her, and took her daily planner picture and a of a drew it, little and to horny devil wrote next “Lisa is a devil.” The third during incident occurred a makeup test for chemistry just class before Christmas break. Defendant acting was as a make proctor to sure that Lisa did not cheat on the During test, test. ap- twice her proached from bеhind and her rubbed shoulders and approached breasts. He then her side, from the left put his right back, hand on her and rubbed his crotch against her arm. She stated that “there an was obvious in bulge his pants” when he did holiday this. After the break and after consulting family with her problem, about she reported incident to a school counselor. Defendant later received a letter reprimand from the school authorities over the matter.
Ashley A. testified about two incidents that occurred defendant, with the the first sophomore when she awas in the of 2000 spring and second when she awas junior in November 2000. The first physical contact defendant made with her took in place the art room where she had to gone draw when no class inwas session sitting stool, there. She was at a drawing, when defendant came up her, from against behind brushed his hand her back, and then stood close her very and “rubbed his genital against leg.” area her The second incident took place study There, hall. she a group showed of friends a new tattoo she had on gotten her shoulder. She a wore a top shirt over tank had pulled the shirt back to expose the tattoo. Defendant approached group, she showed him the tattoo also. He came from behind it, her to look at against then rubbed his hand her breast. time, accidental, At the she thought it could have been retrospect, but she believed it intentional. After incident, last she tried avoid defendant as much as she could. sheriff s County the Clinton Mike Kreke of
Sergeant and took a April talked to defendant department is follows: him, which as from signed, written statement hand on some- put my for me to “It’s uncommon not I will sometimes talking them. body’s shoulder whilе There no sexual hand on the waist or back also. put my not inappropri- done is To me what I have connotation. he is told the officer that ate Defendant also conduct.” feely type person.” “touchy any He denied on his own behalf.
Defendant testified victims, touch- deny but did sexual contact with Crystal if ing asked he had contact with them. When room, defendant answered suspension H. in the in-school *6 on her maybe [his] that over and hand put he “walked to do.” He further anything arm asked her if she had and her the way that have in testified he could not touched sitting of chair she was she because the kind described A and chairs impossible. photograph made it of desks into used in the room was admitted suspension in-school had a The shows that chair photograph evidence. height back, the of was with the height solid which level not at- Thе chair did not have arms was the desk. tached to the desk. speak that he did to Carol acknowledged
Defendant explained Z. at her art class. He during third-period times open art area with numerous large, that the room was doing tables, move around while and students would work there. Carol any physical if he had contact with asked
When that room, I responded, Z. in the art defendant “None can recall.” Ash- if he contact with any physical asked had
When that I am of.” He ley A., replied, defendant “None aware He did touching denied her breasts. also stated the tattoo at all. the incident with remember physical if he contact with Lisa asked had When test, V on the day makeup answered, her defendant “None that I can recall.” Defendant claimed that because of the structure of the chairs and closeness of the rows chairs, it would impossible have been for him her to rub way in the breasts she described. When asked about “horny devil” note school planner, Lisa’s defendant said, “I cross-examination, don’t recall all.” On defendant was “ly- asked whether he V. thought Lisa was ing misinterpreting” when she said defendant touched her during study answered, hall. Defendant “Misinter- preting,” explained and then “if ever I anything did just put my [I] her arm around her shoulder.”
A number other witnesses testified on defendant’s behalf. Several students from art class testified that they did not observe defendant improperly anyone. touch A couple students testified reputation that Carol Z.’s for poor. truthfulness was Mica And H. Rachel J. testified that defendant had never inappropriately touched them during third-period class, art they and that had never told anyone that he had touched them that manner. Jared F. testified that he dated Z. during Carol year, 2000-01 school although they later had an un- friendly breakup. During that year, Carol told him that a pervert, explain did not but it further. Shortly fired, however, before defendant was she ex- Jared, plained to crying, while that defendant had been buttocks, her and coming up breasts behind *7 her and placing his hands on her lower stomach.
During argument, closing argued defense counsel that the victims were not the telling truth and that the supported evidence a finding that defendant never touched them. Similar to he had assertions made his statement, opening defense the jury, counsel told “[I]t’s possible touching by there was some incidental [defen- with these girls certainly nothing dant] but there is to show that he girl any touched either with sexual intent.”
135 sentenced on counts and convicted both Defendant was of probation. and 30 months jail days to 180 the other- affirmed, finding that court The appellate it relevant because was was admissible crimes evidence to show his modus operandi to show defendant’s recognized exceptions intent, are two which Ill. App. evidence. 343 against other-crimes prohibition that dissented, believing justice at One 3d 748. Bobo, 278 contrary People v. majority’s conclusion was (5th 1996), the court found App. Ill. 130 Dist. where 3d evidence prohibited presenting that from State of students because the fondling incidents uncharged accusers, his teacher denied at App. an See 343 Ill. 3d intent was therefore not issue. (Kuehn, J., dissenting). The dissent also believed 753-54 applicable was not operandi exception modus offenses were not so similar uncharged because the the handi offenses as to earmark them as at single App. of a Ill. 3d 755-56 person. work 343 (Kuehn, J., dissenting).
ANALYSIS argues of Lisa V and Defendant Ashley any recognized exception A. did not fit within against evidence so that it prohibition other-crimes trial. argues could be introduced at Defendant further touching, that because he denied his intent improper and the other-crimes evidence was was not issue points. with disagree therefore not admissible. We both This has of other repeatedly court held any purpose crimes admissible if it is for other relevant than to to commit propensity show defendant’s 36, Heard, (1999); People crimes. v. 187 Ill. 2d 58 People (1995); Cruz, Robinson, 53, 167 2d 62 v. 162 People v. Ill. McKibbins, 2d 314, (1994); Ill. 2d 348 v. People 448, (1983); McDonald, 62 2d 176, 182 v. Ill. People (1969). (1975); For Ill. 2d People Dewey, *8 136
instance, other-crimes evidence is admissible show operandi, modus intent, identity, motive of or absence Robinson, McKibbins, 62-63; mistake. Ill. 2d at 167 96 Ill. 2d may at 182. Other-crimes be permis evidence also show, sibly by incidents, used to similar acts or question act performed wаs not ac inadvertently, cidently, or involuntarily, guilty knowledge. without 1 J. (5th 1999). Strong, § McCormick on Evidence 190 ed. such Where other-crimes offered, evidence is it is admis it long sible so as bears similarity some threshold charged. Cruz, crime 2d at 348-49. The admis sibility of other-crimes within the rests sound discretion of court, the trial and its decision on the mat ter will not be disturbed absent clear of abuse discre Heard, tion. Ill. People Placek, 58; 2d at 184 Ill. 2d (1998). 370, 385 case, present
In the the other-crimes of Lisa and fit Ashley squarely the recognized excep- within tions, which allow such evidence to show defendant’s or intent question show that acts in were not performed inadvertently, accidently, or involuntarily, guilty knowledge. without Defendant was with aggravated two counts of pursuant criminal sexual abuse 16(f) (Code) to section of the Criminal of 1961 Code 12— (720 16(f) (West 2000)). ILCS That provides section 5/12 — aggravated “[t]the аccused commits criminal sexual abuse if he or act she commits an of sexual conduct with a victim age who was at least 13 of years but under years age when the act was committed and ac- cused years age position was 17 or over and held a trust, or authority supervision relation to the victim.” (West 16(f) 2000). 720 ILCS “Sexual conduct” 5/12 — 12(e) defined “any section Code as inten- 12— knowing touching fondling by tional or or the victim or accused, directly through clothing, either of the sex organs, anus or breast of victim or the accused *** gratification purpose or arousal of sexual for the (West 12(e) ILCS the accused.” 720 the victim or 5/12— 2000). Aggravated abuse, as it was criminal sexual specific-intent State must show here, crime—the ais *9 knowingly intentionally the victim or touched gratification. purposes In of sexual cases the for on involving breast speсific-intent hold that crimes, some courts deciding purposes automatically of at issue for intent is regardless evidence, of admit whether to other-crimes intent an in the has made issue whether the defendant App. Deenadayalu, e.g., People 3d See, case. v. (other-crimes (2002) is relevant in a 442, 448 prove prosecution specific-intent sexual assault mind, of intent lack of an innocent frame defendant’s distinguishing contrary on the basis other cases the victims); United States v. that cases child those involved 1989) (intent (7th 338, Monzon, F.2d 344 Cir. 869 always charged requires proof the crime at issue when proffered specificintent, but in this case the other-crimes nothing because showed that evidence was inadmissible intent); also Commonwealthv. it was relevant that see (1992) 596-97, 592, 689, Pa. A.2d 691 Seiders, 531 614 (holding part not an in the that intent was issue case intent not an elеment of the offense for because was charged). Other have taken which defendant was courts opposite approach. Lipka, e.g., See, the State Vt. (intent (2002) 377, 391-92, 39-40 was not A.2d though “genuinely even sexual assault issue” charge specific-intent crime; this at issue was a was jury testified to because no that believed the sexual acts they happened by ac could have that victim believed cidentally). intent is-
Defendant is mistaken that his simply that he had never actu- sue ally because he maintained argument Defendant’s
touched victims’ breasts. ignores can inferences that be drawn from the testimony of the witnesses and the made statements his during opening closing argument. counsel Defendant testified that he liked to touch students. There was evidence that presented “touchy feely he was type person,” placеd who often on his hands students. The victims’ indicated that defendant’s sexual touching was Defendant subtle. himself testified that one “misinterpreted” the victims in touching his actions her breasts. jury The could have believed that defendant lying was either mistaken or his about female students in a Apparently sexual manner. aware this possibility, defense counsel acknowledged that defendant person is the kind of touches if people, but even victims, there was contact merely with the it was Thus, incidental contact and not for sexual arousal. motive, defense counsel raised intent and possibility complained-of touching was inadvertent a way jury such acquit could defendant even *10 if it actually believed that he touched the victims’ breasts. may A ambiguity defendant not use by denying commis- comprises offense, thereby sion of the act that the seek- ing evidence, to at bar other-crimes while the same time room to the jury. United leaving argue to lack of intent (2d 1989). Colon, States v. 650, 880 F.2d 659 Cir. Under the here, circumstances find presented we that defen- genuine dant’s intent was a in the issue case.
The principal upon by cases relied defendant are eas ily distinguishable, as the actions of the defendants overt, those cases were much more and there no was question as to or happened accidentally whether acts People with the if In requisite they happened intent all. Bobo, v. (1996), 130 App. 3d the defendant took office, female student into his his hand to her moved breast, attempted protests, to kiss her her violent against changed mind, and then informed that her if she her she
139 that evidence other find Bobo held knew where to him. unnecessary to with students sexual misconduct accident, or absence of intent, knowledge, guilty show clearly shown these factors were mistake because Ill. 3d Bobo, App. 278 testimony concerning the act itself. Woltz, 3d App. Ill. Similarly, in v. People at 133. intent or no as to defendant’s (1992), there was doubt was an accident because defendant’s conduct whether the finger his into that the defendant inserted alleged it was words, jury In no reasonable vagina. the victim’s other charged happened ac could have events believed Moreover, unintentionally. crime cidentally or the defendant’s proof did not require Woltz 14(b)(1). 38, ch. par. intent. See Ill. Rev. Stat. 12 — Woltz, Bobo defendant’s actions here In contrast to and had resolve whether jury were much more subtle. The accidentally have or may inadvertently victim’s breasts, and therefore lacked touched the hold in this kind of arousal. purрose sexual We case, other of evidence of offenses similar intent and may fenses be admissible to show defendant’s incidental or ac to show that was not cidental.
Furthermore,
this
like
we note that
case is more
Novak,
(1994), and
v.
People
tive,
absence mistake.
Similarly, present attempted case an place innocent construction on he his acts: claimed he breasts, did not touch but a touchy-feely was person and his may actions have been “misinterpreted.” Novak and Deenadayalu strong are support for the conclusion that case present properly admitted.
Additionally, we note that less similarity between facts of the crimes and the other offenses is intent, required when evidence is admitted to show other than modus exception lack of accident or other operandi. In cases evidence of where other crimes is of fered, however, establish modus operandi, higher a degree similarity between the of the crimes facts Cruz, and the other is required. offenses Ill. at similarity 2d 349. This higher degree necessary operandi because modus pattern refers to of criminal behavior so separate recog distinctive crimes are Cruz, nized as the handiwork of the person. same Nevertheless, 2d at 349. acknowledged courts have prove even where evidence other crimes is offered to operandi, modus dissimilarity some between the crimes Cruz, People 349; always apparent. will be Ill. 2d (1984). Taylor, again, 101 Ill. 2d But the same *12 necessary similarity of evidence degree when is not of here, for the case offered, as is crimes can be the other operandi. purpose modus to show other than valid some general Instead, areas mere at 349. Cruz, 162 Ill. 2d similarity to be the evidence to allow be sufficient will 349-50; Cruz, 162 Ill. 2d cases. such admitted McKibbins, Ill. 2d at 185-86. similarity ample uncharged shared crimes
Here, the charged charged offenses, both All the crimes. during high uncharged, school, at the same occurred and one-year the same hours, in the course of school spring spring All period of 2001. 2000 to from approached that defendant students testified four female rubbing their breasts. Lisa’s them from behind before testimony placed side, hands on her his part fingers put on thе lower sides of his and then nearly the facts of the identical to her breast was Crystal, involving that defendant who testified offense to touch her breasts from her stomach moved his hands Ashley’s Furthermore, Lisa’s and both from underneath. testimony genital his crotch or defendant rubbed Crystal’s against similar to their bodies was area placed testimony his crotch area close that defendant body. Perhaps importantly, however, all of most her subtlety afford defendant that would incidents involved argue opportunity had “misinter- that the victims an any complaints preted” made. Under if were his actions circumstances, the other-crimes we find these similarity general to be admis- shared sufficient trial court did not abuse further find that the sible. We determining probative value that the its discretion prejudice outweighed to defen- undue the evidence dant. argument
Lastly, that Lisa’s we note State’s Ashley’s section 115— under was admissible (725 ILCS of 1963 the Code of Criminal Procedure 7.3 of (West 2002)), which January became effective 5/115 —7.3 provides part: 1998. Section 115—7.3 relevant applies “This Section to criminal cases in which: *** (1) aggravated the defendant is accused of *** criminal sexual abuse (b) If the defendant is of an set accused offense forth in *** (1) paragraph evidence of the defendant’s commission ***may of another offense be its bearing considered for on any matter to it which is relevant.
(c) weighing In the probative value of the evidence against defendant, undue prejudice may the court consider:
(1) proximity predicate in time to the *13 offense;
(2) degree the similarity factual to the or offense; or predicate
(3) other relevant facts and circumstances. (d) In a prosecution criminal case in which the intends Sectiоn, to offer evidence under this it must disclose the evidence, including a summary statements witnesses or any testimony, of the substance of at a reasonable time in trial, during pretrial advance trial if the court excuses (West good notice on 725 cause shown.” ILCS 5/115—7.3 2002). Donoho,
In People v.
159,
(2003),
204 Ill. 2d
176
we
found
this
recently
that
statute enables courts to admit
other crimes to
propensity
show defendant’s
if
to commit sex
the
requirements
offenses
statute
are met. We further noted that
to be admissible under
statute,
this
have
other-crimes evidence should
some
Donoho,
similarity
threshold
crime.
increase,
Ill. 2d at 184. As factual similarities
so does the
Donoho,
or probative
relevance
value.
We that the evidence was however, of our conclusion because analysis. law under our common otherwise admissible
CONCLUSION that the trial reasons, we conclude foregoing For the admitting the other- court did not abuse its discretion Accordingly, in this case. we affirm crimes evidence judgment appellate of the court.
Affirmed. KARMEIER took no the consider- part JUSTICE ation or decision of this case. KILBRIDE, dissenting:
JUSTICE I agree majority with the that other-crimes evidence if only is not admissible it is relevаnt establish it propensity defendant’s to commit crimes and identity, motive, modus only remains admissible to show Robinson, operandi, People or absence of mistake. (1995). Here, however, I Ill. 2d 62-63 believe majority by holding errs of Lisa V intent and *14 Ashley A. was admissible to show absence view, 214 In neither my excep of mistake. Ill. 2d at 136. therefore, I respectfully tion dissent. applicable, touching Defendant was with specifically Defendant did gratification. victims’ breasts for sexual not that he touched the victims’ breasts inadvert argue in ently by mistake, purpose or that he had no sexual Indeed, majority acknowledges them. even the touching at touching that defendant denied the victims’ breasts all. Ill. 2d at 137.
Instead,
majority
contends defendant’s denial
ignores the inferences that could be drawn from the wit
nesses’ testimony and
arguments
of defense counsel.
For example,
in his statement
police,
defendant
stated that it was not uncommon for him put
his hand
on a shoulder while talking to someone and that he
puts
sometimes
his hand on a waist or back beсause he is
a “touchy feely type person.”
As for admitting the other-crimes evidence, the majority also cites defendant’s testimony “that one of the victims ‘misinterpreted’ his actions touching her breasts” because jury “[t]he could have believed that defendant was either mistaken or lying about his of female students in a sexual man- *15 214 Ill. 2d at The the majority implies ner.” 138. ac may misinterpreted “victim” who have defendant’s complainants, tions was one of the but that is not the (214 133-34), noted in the fact Ill. 2d at сase. As section V, purported the “victim” was Lisa who was not one of complainants the in this matter and provided who some testimony of the other-crime at the heart of appeal. this Using responses defendant’s cross-examination concern ing testimony the substance of the justify other-crimes initial admission of that testimony other-crimes defies logic. addition,
In the mere possibility suggested by the the majority jury might determine defendant is lying mistaken or about justify his actions fails to the admission of the other-crimes evidence. See Ill. 2d at jury 138. The always required to make credibility determinations. That truism alone cannot justify the admission of the other-crimes evidence in this case.
Indeed, defendant’s testimony actually
belies
at
tempt
justify
an
Crystal
incidental
of either
H. or Carol Z. Defendant
seating
testified that
ar
rangements in the in-school suspеnsion
precluded
room
type
of contact
by Crystal
claimed
H.
Similarly,
Z.,
the case of Carol
defendant did not
acknowledge
having any
ever
physical contact with her.
In closely related point, majority also notes argument defense counsel’s that any physical contact with the merely victims was incidental. majority The contends that defendant thus raised the issues motive and intent and intended to use ambiguity unfairly to advantage. defendant’s In reaching conclusion, this *16 however, the majority ignores precise the nature of the charged conduct, namely, touching of two minors’ breasts, as well as the context of the argument. When viewed in the context of the actual presented evidence by defense, counsel’s argument simply summarizes defendant’s may that he have touched Crystal arm H.’s and attempts to counter the undue prejudice created the admission of the other-crimes after the trial court’s denial defendant’s motion in At no limine. time did lead jury to believe may have also touched either Crystal H. or Carol Z. on the only incidentally. breast — but There was no ambiguity on that point. Accordingly, defense counsel’s argument could not have been an seeking unfаir advan- tage from any ambiguity concerning defendant’s intent in breasts, victims’ contrary majori- ty’s reasoning. argument necessarily Counsel’s attempted to offset the adverse inferences created by the improper admission of the other-crimes evidence. There is no basis concluding for the argument imposed for an improper purpose.
Next,
the majority rejected defendant’s
reliance on
Bobo,
People
(1996),
v.
In the other-crimes evidence was offered at the aggravated “to criminal sexual abuse trial defendant’s knowledge.” Bobo, intent motive show and/or and/or App. that because Ill. 3d at 132-33. The court reasoned the defendant denied the tempt contact and did not at accidental, to excuse it as the other-crimes only evidence “served to demonstrate defendant’s al leged propensity sexually female assault harass App. reversing Bobo, students.” 278 Ill. 3d at In 133. “highly prejudicial” defendant’s conviction due to the erroneously nature of the admitted other-crimes evi dence, the court noted that while incidents with two “reveal[ed] “[m]uch similarities,” other students several any similarity of the evidence lacked to the incident at alleged fondling bar, other than that it involved the of a Bobo, female student at the hands defendant.” App. may case, 3d at 133. The same be said this where uncharged only conduct are similar the broadest of terms. Woltz,
In
the trial court admitted other-crimes
part,
evidence, in relevant
to show absence of mistake.
*17
App.
appellate
rejected
Woltz,228 Ill.
at3d 671. The
court
ground, reasoning
that
that the defendant denied the
charged conduct. Since the defendant did not claim the
may
accidentally,
acts
have occurred
there was no need
to refute that claim the use of other-crimes evidence.
App.
Woltz, 228 Ill.
3d at 674. In the
case,
instant
alleged
again making
defendant also
contact,
denies the
unnecessary
it
to admit other-crimes evidence on the
basis of lack of intent or absence of mistake. In addition,
rely
the Woltzcourt did not
on the obvious nature of majority’s
in
acts
its decision. The
insistence
that the overt nature оf the
acts was determina
misplaced.
tive in this case is
See
Ill. 2d at 138-39.
My disagreement
majority
with the
also extends to
heavy
People Deenadayalu,
App.
its
reliance on
v.
331 Ill.
(1994).
(2002),
People
3d 442
Novak,
The
on
majority’s reliance
Novak,
In
the defendant did not
appeal
admission of
Rather,
the other-crimes
testimony.
argued that
jury
limiting
instruction
the use of the other-crimes
evidence to the issue of modus
operandi
intent was
inapplicable
because he had
“an innocent
provided
Novak,
construction
of his acts.”
Deenadayalu
Harris,
also relies on
v.
People
App.
(1998),
3d 1073
noting “the similarities between
the two crimes —the victims were
abducted
the same
area, driven to a similar location, assaulted, and returned
near to
they
locations
where
lived and from where
they had been
Deenadayalu,
taken.”
App.
Ill.
3d at
448. Finally, Deenadayalu
Johnson,
People
discusses
239 Ill. App.
(1992),
3d 1064
acknowledging “numerous
similarities between the other conduct and the charged
offense, including that both victims were abducted in the
same manner and both
beaten, choked,
victims were
bitten.” Deenadayalu,
In
here the only
the majority
similarities
cites
between the
uncharged
conduct are:
(1)
general
setting,
a full
namely
year
calendar
at a
(2)
public
school;
high
approaching the victims from
(3)
behind; and
“subtlety”
allegedly
employed in the assaults.
Likewise, it is not particularly al- notable that *19 place general leged in location and took the same abuse during the incidents occurred school time frame. While they one-year grounds, encompassed hours, on school variety settings and a of on the school time frame including suspension grounds, room with an in-school present, an art room both with and another student ongoing study presence class, a hall the of an without being present, and a room used for a with other students sрecific makeup and loca- Thus, the circumstances test. widely perimeters of the tions varied within the broad weight justifiably given Again, little can be to this school. purported “similarity.” consistently allegation ap that defendant
As for the proached behind, the victims from that was not the case complainant ap Z., that she was with Carol who testified proached the 214 Ill. 2d at from both the back and front. approach in 131. the direction of was similar some While being incidents, that factor alone is far from determina given prejudicial the tremendous effect the other- tive jury. likely People Rog the crimes evidence had on See (1926) (recognizing ers, the 229-30 against underlying rule the for the common law basis concern that admission of other-crimes evidence as the weight average jurors give that evidence too much will prior the of or cumula and convict a defendant on basis support proven in the conduct of the facts tive instead offense). charged charged
Moreover, and the differences between uncharged and numerous acts are far more distinctive Ashley A. Both Lisa Y.and than the claimed similarities. involving large no number of incidents testified to a being charged similarity in conduct besides factual previ- during As stated school school hours. the same Ashley reported by ously, Lisa and in incident all but one study place during uncharged hall. took misconduct study Notably, charged in occurred none incidents varied type alleged hall. More of abuse importantly, The in acts. dramatically uncharged filed limited the against information breasts, incidents uncharged acts to but on various ranged rubbing genitals parts from that to suggestive winking by the victims’ bodies to followed making drawings Surely range of lascivious and text. similarity conduct comport degree does with the required Deenadayalu, majority, relied on the Luczak, Johnson, Harris, all cited with approval Deenadayalu.
Admittedly, similarity required less cases not *20 involving the of modus 214 Ill. 2d at question operandi. Nonetheless, 142. the distinct lack of much factual at all similarity uncharged between the acts troubling majority is most of the I am aspect opinion. deeply concerned that under the precedent set this case, traditionally limited exceptions will be construed broadly so as to all up long-standing but swallow our prohibition against the use of other-crimes evidence. See (1926). People Rogers, 229-30 The majority’s perfunctory conclusion that any undue prejudice to defendant outweighed by the probative (214 141) value of the other-crimes evidence Ill. 2d at assuage reasons, does little to my concerns. For these I respectfully must dissent. joins
JUSTICE FREEMAN this dissent.