People v. Smith

Illinois Official Reports

Appellate Court

People v. Smith, 2015 IL App (4th) 130205

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JOHN E. SMITH, Defendant-Appellant.

District & No. Fourth District
Docket No. 4-13-0205

Filed March 26, 2015

Decision Under Appeal from the Circuit Court of McLean County, No. 12-CF-229; the
Review Hon. Robert L. Freitag, Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and Daaron V. Kimmel, all
Appeal of State Appellate Defender’s Office, of Springfield, for appellant.

Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
David J. Robinson, and Allison Paige Brooks, all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
 Panel PRESIDING JUSTICE POPE delivered the judgment of the court,
with opinion.
Justices Harris and Steigmann concurred in the judgment and opinion.

OPINION

¶1 In August 2012, a jury convicted defendant, John E. Smith, of one count of predatory
criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2010)), three counts of
aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2010)), and one count of
sexual exploitation of a child (720 ILCS 5/11-9.1(a)(2) (West 2010)) based on incidents of
sexual abuse involving defendant and two unrelated children, which occurred in February or
March 2012. Pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963, the trial
court allowed the admission of evidence about defendant’s alleged sexual abuse of his
then-stepdaughter and her cousin, which occurred from approximately 1994 through 2000. 725
ILCS 5/115-7.3 (West 2010). Defendant appeals, arguing his conviction should be vacated and
the matter should be remanded for a new trial because the trial court abused its discretion by
admitting unduly prejudicial evidence of his alleged prior sexual abuse. We affirm.

¶2 I. BACKGROUND
¶3 In March 2012, a grand jury indicted defendant on one count of predatory criminal sexual
assault of a child, three counts of aggravated criminal sexual abuse, and one count of sexual
exploitation of a child. Prior to trial, the court held a hearing on the State’s motion to admit
evidence of prior uncharged allegations of sexual abuse by defendant that occurred from 1994
or 1995 through 2000. The State sought to introduce this evidence through the testimony of the
two prior victims for the purpose of showing propensity, intent, or absence of mistake. The
court allowed the State’s motion but ruled the victims of the prior sexual abuse were not to
testify as to conduct that went beyond the factual similarities to the charged conduct. At trial,
the State presented seven witnesses and defendant presented six witnesses, including
testimony in his own defense. We summarize only the facts and testimony necessary for the
purposes of this appeal.

¶4 A. Allegations Leading to Current Charges
¶5 At the time of the incidents giving rise to this case, defendant was in a romantic
relationship with Sarah Myers, a mother of five children. B.N. and S.N., the children of Myers’
friend Georgenea N., occasionally spent the weekend at Myers’ house. The Myers house has
three levels: a basement, a main floor, and an upstairs floor. Myers’ bedroom and the living
room are on the main floor. The basement has a laundry area and a play area with baby dolls, a
baby doll bed, and a play kitchen. All the alleged incidents occurred in the living room,
basement, and Myers’ bedroom on either the weekend of February 16 to February 19, 2012, or
the weekend of March 1 to March 4, 2012.
¶6 B.N., a nine-year-old girl, testified she was sitting on the couch in the living room on the
main level of the Myers home. Defendant came into the living room and picked up B.N.,

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 cradling her like a baby. Further, she testified defendant used his hand and rubbed her vagina
over her clothing. Defendant rubbed her vagina three times, all in the same incident. Defendant
did not immediately stop at B.N.’s request but eventually put her down.
¶7 B.N. further testified she saw defendant touch S.N. on one occasion. S.N. was sitting on the
couch in the Myers’ living room and B.N. was hiding in a hallway. B.N. stated she hid in the
hallway because she suspected defendant would touch S.N., just as he had touched her. The
State elicited no further testimony from B.N. regarding the incident with S.N.
¶8 S.N., a five-year-old girl, testified about two incidents involving defendant. One incident
occurred in Myers’ bedroom, where defendant was playing a video game. S.N. was watching
the video game, and both S.N. and defendant sat on the bed. She testified defendant touched
her vagina over her clothing.
¶9 The second incident involved defendant, S.N., and one of Myers’ children, C.M., a five- or
six-year-old girl. S.N. and C.M. were in the basement of the Myers home playing with baby
dolls. Defendant came down to the basement and pulled down both S.N.’s and C.M.’s pants
and underpants. S.N. testified defendant inserted one of his fingers into her vagina while she
was lying on the baby doll bed. When S.N. said, “ouch,” defendant said, “let’s stop” and
removed his finger from her vagina. Defendant said, “oh, that’s nice” while looking at S.N.’s
exposed lower body. S.N. further testified defendant’s pants were down, his penis was
exposed, and defendant told S.N. to look at his penis.
¶ 10 Approximately three or four days after the incidents with S.N. occurred, S.N. told her
mother defendant had touched her vagina. Georgenea reported the allegations to the
Bloomington police, and the next day B.N. and S.N. were interviewed by the associate director
of operations at the Child Advocacy Center. Videos of those interviews were played at trial and
largely corroborated the in-court testimony of the two girls.

¶ 11 B. Prior Uncharged Allegations of Abuse
¶ 12 Before the State presented Jennifer and Jill G. as witnesses, the trial court read a limiting
instruction to the jury, informing the jurors the evidence could only be considered for intent,
absence of mistake, or propensity. Jill was defendant’s stepdaughter from a previous
relationship, which lasted from 1991 to 2003. Jill’s mother, Julie G., would occasionally
babysit Jennifer, her niece. Jennifer, 21 years old at the time of trial, testified about an incident
that occurred when she was about four or five years old. She was at defendant and Julie’s house
and defendant brought her into Jill’s bedroom. Defendant pulled down Jennifer’s pants and
underpants and inserted his finger into her vagina. Defendant had his finger in her vagina for
approximately five minutes while Jennifer watched television. Jill entered the room and began
yelling. Jennifer remembered going to the Department of Children and Family Services
(DCFS), but she did not recall anything she said to the interviewers there.
¶ 13 Jill, 24 years old at the time of trial, testified defendant began coming into her bedroom at
night after she had fallen asleep when she was approximately five years old. Defendant would
awaken Jill by pulling her pants off and would insert his fingers into her vagina. Jill testified
this occurred approximately once a week and continued until she was 12 years old. Defendant
would also touch Jill’s vagina over her clothes when they were in a car together. Jill further
testified about an incident where defendant removed her bathing suit bottom. On that occasion,
defendant also exposed his penis to Jill. Jill also stated she observed defendant touch Jennifer’s

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 vagina on multiple occasions. In accordance with the trial court’s ruling admitting this
evidence, Jill did not testify about any incidents involving defendant’s oral contact with her
vagina. Jill also remembered talking to someone from DCFS or the police but could not recall
anything she said.

¶ 14 C. Conclusion of Trial
¶ 15 Following the State’s case in chief, defendant presented numerous witnesses and testified
on his own behalf. Defendant testified he never sexually abused B.N., S.N., Jennifer, or Jill.
Defendant stated on cross-examination he was not at Myers’ home at all on the weekend of
February 16 to February 19, 2012. Carla, Erica, and Sarah Myers testified they were all at the
Myers home on the weekend of March 1 to March 4, 2012. Defendant was at Myers’ home that
weekend but spent most of his time outside working on Myers’ car. He came in the house a
couple times to use the bathroom or get a drink. Defendant also presented testimony about an
argument between Myers and Georgenea on the weekend in question. According to defendant,
the argument centered around Georgenea dropping her children off for the entire weekend on a
regular basis without contributing anything to the Myers household. In rebuttal, Georgenea N.
denied arguing with Myers.
¶ 16 The jury returned guilty verdicts on all five counts. Defendant filed a motion for a new
trial, arguing, inter alia, the court erred in admitting unduly prejudicial evidence of
defendant’s prior sexual abuse of his then-stepdaughter and her cousin. The court denied
defendant’s motion for a new trial and sentenced defendant to 30 years’ imprisonment for
predatory criminal sexual assault (count I), 12 years’ imprisonment for each of the 3 counts of
aggravated criminal sexual abuse (counts II, IV, and V), and 6 years’ imprisonment for sexual
exploitation of a child (count III), with the sentences on counts II through V to run
consecutively to the sentence on count I.
¶ 17 This appeal followed.

¶ 18 II. ANALYSIS
¶ 19 On direct appeal, defendant argues the trial court abused its discretion in admitting
evidence of his other offenses pursuant to statute (725 ILCS 5/115-7.3 (West 2010)).
Specifically, defendant argues the court improperly placed too much weight on the factual
similarities between the charged conduct and the prior sexual abuse and did not place enough
weight on the lapse of time or the fact the other-crimes evidence consisted of mere allegations,
not convictions. Defendant argues the court abused its discretion in improperly balancing the
statutory factors and in finding the probative value of the other offenses was not substantially
outweighed by its prejudicial effect.
¶ 20 Evidence of other offenses is generally inadmissible to demonstrate a defendant has the
propensity to commit the charged criminal conduct. People v. Donoho, 204 Ill. 2d 159, 170,
788 N.E.2d 707, 714 (2003). Such evidence, while relevant, is excluded because it “has ‘too
much’ probative value.” Donoho, 204 Ill. 2d at 170, 788 N.E.2d at 714 (quoting People v.
Manning, 182 Ill. 2d 193, 213, 695 N.E.2d 423, 432 (1998)). This exclusion is designed to
ensure a defendant’s guilt or innocence is decided solely on the basis of the charged conduct,
rather than running the risk of a “jury convicting a defendant because he or she is a bad person
deserving punishment.” Donoho, 204 Ill. 2d at 170, 788 N.E.2d at 714.

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¶ 21 Evidence of other offenses may be admissible to demonstrate “motive, intent, identity,
absence of mistake, modus operandi, or any other relevant fact other than propensity.” People
v. Vannote, 2012 IL App (4th) 100798, ¶ 37, 970 N.E.2d 72. However, evidence of other
offenses to demonstrate propensity may be admissible under section 115-7.3 when a defendant
is charged with one of the enumerated sex offenses. People v. Ward, 2011 IL 108690, ¶ 25, 952
N.E.2d 601. “Where other-crimes evidence meets the initial statutory requirements, the
evidence is admissible if it is relevant and its probative value is not substantially outweighed
by its prejudicial effect.” Vannote, 2012 IL App (4th) 100798, ¶ 38, 970 N.E.2d 72. When
weighing the probative value of the other-crimes evidence against its prejudicial effect, the
statute allows courts to consider (1) the proximity in time to the charged offense, (2) the degree
of factual similarity to the charged offense, and (3) other relevant facts and circumstances. 725
ILCS 5/115-7.3(c) (West 2010).
¶ 22 A trial court must “engag[e] in a meaningful assessment of the probative value versus the
prejudicial impact of the evidence.” Donoho, 204 Ill. 2d at 186, 788 N.E.2d at 724. A court’s
decision to admit other-crimes evidence will not be reversed absent an abuse of discretion.
Donoho, 204 Ill. 2d at 182, 788 N.E.2d at 721. “ ‘An abuse of discretion will be found only
where the trial court’s ruling is arbitrary, fanciful, unreasonable, or where no reasonable
person would take the view adopted by the trial court.’ ” People v. Sutherland, 223 Ill. 2d 187,
272-73, 860 N.E.2d 178, 233 (2006) (quoting People v. Hall, 195 Ill. 2d 1, 20, 743 N.E.2d 126,
138 (2000)).
¶ 23 The other offenses must have a threshold similarity to the charged conduct to be
admissible. People v. Butler, 377 Ill. App. 3d 1050, 1066, 882 N.E.2d 636, 648 (2007).
“[W]here the evidence is not being offered to show a defendant’s modus operandi, general
similarity will be sufficient.” Vannote, 2012 IL App (4th) 100798, ¶ 41, 970 N.E.2d 72. The
probative value of prior-bad-acts evidence increases as the factual similarities increase.
Vannote, 2012 IL App (4th) 100798, ¶ 41, 970 N.E.2d 72.
¶ 24 Defendant argues the prior sexual abuse is dissimilar from the current charged conduct
because the prior abuse was continual and ongoing, it was significantly more intense, and
DCFS reports reflected defendant’s abuse of young boys as well as of Jennifer and Jill.
However, defendant introduced no evidence of these other, dissimilar acts at the in limine
hearing and the trial court specifically based its decision only on the evidence presented, i.e.,
the statements of Jill and Jennifer. No two crimes are identical, so the existence of some
differences does not necessarily defeat admissibility. Donoho, 204 Ill. 2d at 185, 788 N.E.2d at
723. The Donoho court summarized the differences between the prior sexual abuse and the
conduct at issue in that case as follows: “in 1983 defendant had no relationship to the children,
and here he was their stepfather; in 1983 there was a single incident, and here there were
several incidents over the course of three years; in 1983 the incident involved a boy and girl at
the same time, and here the conduct occurred with each child separately; and in 1983 he told
the children they were playing a game, and here he threatened to ground the children if they
told anyone.” Donoho, 204 Ill. 2d at 185, 788 N.E.2d at 723. These differences related to the
defendant’s access to the children. The court found “more compelling the similarity of the
nature of the abuse itself because it was a product of the defendant’s choice.” (Emphasis
added.) Donoho, 204 Ill. 2d at 186, 788 N.E.2d at 723.
¶ 25 As in Donoho, defendant was Jill’s stepfather and had significantly greater access to Jill
than he did to Jennifer, B.N., or S.N., so the fact the prior sexual abuse of Jill was continual and

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 ongoing is not a compelling difference from the isolated instances here. Defendant’s oral
contact with Jill’s vagina is not a compelling difference because it shows defendant’s
fascination with the vaginas of young girls, discussed below. The record does not contain any
evidence of defendant’s prior abuse of young boys–nor was such evidence presented to the
trial court–beyond a passing reference by defense counsel.
¶ 26 The trial court properly found the evidence of the prior sexual abuse was “remarkably
similar” to the evidence of defendant’s abuse of B.N. and S.N. The court admitted Jennifer’s
and Jill’s testimony that defendant would remove their pants and underpants, view their
vaginas, and insert his finger into their vaginas. Jill also testified defendant touched her clothed
vagina when they were in a car together and on one occasion defendant exposed his penis. B.N.
and S.N. both testified defendant touched their clothed vaginas. S.N. further testified defendant
pulled her pants down, viewed her vagina, inserted his finger into her vagina, and exposed his
penis.
¶ 27 The similarities show defendant’s fascination with viewing and touching the clothed or
unclothed vaginas of young girls. In all four instances, defendant only showed interest in
touching and viewing the girls. Moreover, defendant was only interested in fondling or looking
at the lower half of the girls’ bodies. Defendant exposed his penis to Jill and S.N., but did not
invite, or appear to show interest in, being touched by the girls. These idiosyncratic similarities
speak to the nature of the abuse, “a product of the defendant’s choice.” Donoho, 204 Ill. 2d at
186, 788 N.E.2d at 723.
¶ 28 The prior-sexual-abuse evidence is obviously relevant and probative to show propensity.
Donoho, 204 Ill. 2d at 170, 788 N.E.2d at 714. We agree with the trial court the prior sexual
abuse is remarkably similar to the charged conduct at issue here. Given these similarities, we
cannot say it was unreasonable, fanciful, or arbitrary for the court to place considerable weight
on this factor in determining whether the probative value of the evidence was substantially
outweighed by its prejudicial effect. Additionally, in limiting the prejudice to defendant, the
court excluded evidence of defendant’s oral contact with Jill’s vagina as not sufficiently
similar to his conduct in this case.
¶ 29 The other-offenses evidence the State sought to introduce involved Jennifer’s allegations
of abuse that occurred in 1994 or 1995. However, defendant’s sexual abuse of Jill continued
until the year 2000. Thus, we must determine whether a period of 12 to 18 years between the
prior offenses and the charged conduct is so unduly prejudicial that it substantially outweighs
the probative value of the other-crimes evidence. Vannote, 2012 IL App (4th) 100798, ¶ 38,
970 N.E.2d 72. The number of years separating the other offense and the charged act do not,
standing alone, control whether the prior bad act evidence ought to be admitted. Donoho, 204
Ill. 2d at 184, 788 N.E.2d at 722. The supreme court has “decline[d] to adopt a bright-line rule
about when prior convictions are per se too old to be admitted under section 115-7.3.” Donoho,
204 Ill. 2d at 183-84, 788 N.E.2d at 722. The issue of proximity must be evaluated on a
case-by-case basis when determining the probative value of prior-bad-act evidence. Donoho,
204 Ill. 2d at 183, 788 N.E.2d at 722. “The appellate court has affirmed admission of
other-crimes evidence over 20 years old under the exceptions because the court found it to be
sufficiently credible and probative.” Donoho, 204 Ill. 2d at 184, 788 N.E.2d at 722 (citing
People v. Davis, 260 Ill. App. 3d 176, 192, 631 N.E.2d 392, 404 (1994)).
¶ 30 Defendant relies on a case in which the Third District found a 25- to 42-year lapse,
standing alone, rendered the prior-bad-act evidence prejudicial, and that prejudice was further

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 compounded by factual differences, “especially since the prior offenses involve[d] uncharged
and unproven allegations of sexual abuse that [were] even more heinous than the charged
offense.” People v. Smith, 406 Ill. App. 3d 747, 754, 941 N.E.2d 419, 425-26 (2010). The
Smith court affirmed the trial court’s exercise of discretion to keep the stale evidence out.
While the passage of many years may lessen the probative value of other-offense evidence,
“standing alone it is insufficient to compel a finding that the trial court abused its discretion by
admitting evidence about it.” Donoho, 204 Ill. 2d at 184, 788 N.E.2d at 722. Just as there is no
bright-line rule for the age of prior convictions under section 115-7.3, there is no bright-line
rule for the age of uncharged prior offenses. Donoho, 204 Ill. 2d at 183-84, 788 N.E.2d at 722.
¶ 31 Defendant contends a distinction should be drawn in instances where the other-crimes
evidence consists of mere uncharged allegations as opposed to criminal convictions. This is so
because criminal convictions are the result of an adversarial trial where the State was required
to meet its burden of proving the defendant guilty beyond a reasonable doubt. Uncharged
allegations, on the other hand, do not have the benefit of the certainty of guilt that comes with
a conviction and present issues regarding the reliability and availability of evidence after many
years have passed. In support of this contention, defendant argues–beyond the prejudicial
effect of the passage of time–the intervening years rendered him incapable of defending
against those allegations or effectively impeaching Jennifer and Jill with prior inconsistent
statements documented in DCFS reports. Those DCFS reports are not in the record and
apparently were not presented to the trial court or the jury.
¶ 32 While we agree uncharged allegations may present problems, particularly when large gaps
of time intervene, we cannot say the trial court abused its discretion in this case. The court took
numerous steps to limit the prejudice to defendant. It barred testimony regarding allegations of
defendant’s oral contact with Jill. A limiting instruction was read to the jury both at the time
the witnesses testified and after closing argument. On cross-examination, defendant was able
to establish no charges were ever filed with respect to the prior sexual abuse. Further, the State
did not overemphasize the allegations of prior sexual abuse in its opening argument and read
the limiting instruction during closing argument.
¶ 33 It is clear the trial court engaged in a meaningful assessment of the probative value versus
the prejudicial impact of Jennifer’s and Jill’s testimony regarding defendant’s prior sexual
abuse. The court heard defendant’s argument regarding the prejudicial effect of the
other-crimes evidence and the difficulty in locating someone who worked for DCFS so many
years ago. The court considered proximity and recognized the lapse in time was substantial.
However, the court noted the lapse in time was not dispositive on the issue of admissibility.
The court discussed relevant case law and the substantial similarities between the prior sexual
abuse and the charged criminal conduct. The court found the probative value of the prior
sexual abuse was not outweighed by its prejudicial effect and admitted the evidence, subject to
an exception to limit prejudice to defendant by barring evidence of defendant’s oral contact
with Jill.
¶ 34 The trial court’s balancing of the statutory factors was not unreasonable, arbitrary, or
fanciful. Sutherland, 223 Ill. 2d at 272-73, 860 N.E.2d at 233. The court determined the
similarities were “controlling.” This does not mean the court found the similarities dispositive
or gave no weight to the proximity of the uncharged allegations; it simply means the court
found, based on the “remarkable” similarities, the probative value of the evidence was not
substantially outweighed by its prejudicial effect. “ ‘[R]easonable minds [can] differ’ about

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 whether such evidence is admissible without requiring reversal under the abuse of discretion
standard.” Donoho, 204 Ill. 2d at 186, 788 N.E.2d at 723 (quoting People v. Illgen, 145 Ill. 2d
353, 375-76, 583 N.E.2d 515, 524-25 (1991)). The trial court did not abuse its discretion in
admitting the allegations of prior sexual abuse to demonstrate propensity pursuant to section
115-7.3 of the Code of Criminal Procedure (725 ILCS 5/115-7.3 (West 2010)).

¶ 35 III. CONCLUSION
¶ 36 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
grant the State its $50 statutory assessment against defendant as costs of this appeal. 55 ILCS
5/4-2002 (West 2012).

¶ 37 Affirmed.

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