FIFTH DIVISION
June 20, 2008
No. 1-07-0060
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 05 CR 401
)
MICHAEL TAYLOR, ) Honorable
) Marcus R. Salone,
Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of
the court:
Defendant Michael Taylor was charged with multiple counts of
criminal sexual assault and aggravated criminal sexual abuse for
misconduct with a minor. In this interlocutory appeal, the State
asserts that the trial court erred in refusing to admit
defendant's prior 1998 sexual offense as substantive evidence to
show propensity pursuant to section 115-7.3 of the Code of
Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-7.3 (West
2004)). We reverse and remand for further proceedings.
In December 2004, defendant was charged by indictment with
performing various sex acts with a 13-year-old male, W.T., while
defendant held a position of trust, authority or supervision in
relation to W.T. Specifically, defendant is charged with
sexually assaulting and abusing W.T. while acting as W.T.'s
counselor and reverend. The charges alleged eight counts of
criminal sexual assault and seven counts of aggravated criminal
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sexual abuse, occurring from October 5, 2004, through November
15, 2004.
On June 23, 2006, defendant filed a motion to bar the use of
evidence of his prior conviction for sexual criminal assault to
impeach his credibility. In response, the State filed a "Motion
for Proof of Other Crimes," seeking to admit defendant's prior
1998 sexual offense as substantive evidence to show propensity
pursuant to section 115-7.3. According to the State's motion,
defendant's 1998 sexual offense stemmed from the commission of
illegal sex acts with a 17-year-old male victim between December
15, 1998, and December 23, 1998. Defendant, while acting as the
chairman of the school board at the victim's high school, offered
to assist the victim with admission into college. Thereafter,
defendant committed multiple sex acts with the victim, including:
(1) rubbing the victim's penis with his hand; (2) performing oral
sex on the victim; (3) licking the victim's anus; and (4) having
the victim rub defendant's penis with the victim's hand. The
State also alleged that defendant assaulted the victim at
defendant's and the victim's residence, and that defendant gave
money to the victim on several occasions.
Furthermore, the State alleged that in the current charges,
defendant was working at a shelter when he approached W.T. and
his mother and encouraged W.T.'s mother to live with relatives
who did not have room for W.T. Defendant subsequently offered to
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have W.T. live with him. Thereafter, between October 6, 2004,
and November 11, 2004, defendant, while in his residence,
performed oral sex on W.T., licked W.T.'s anus, inserted his
finger into W.T.'s anus, and inserted the handle of a hairbrush
into W.T.'s anus.
In addition, the State alleged that defendant was a minister
at New Covenant Baptist Church at the time of both offenses and
that neither W.T. nor the other victim was related to defendant,
but both shared defendant's last name.
Following a hearing, the trial court denied the State's
motion to admit evidence of defendant's prior conviction for
criminal sexual assault. The trial court expressly stated:
"There is, in my opinion, significant
time difference between the previously
adjudicated matter and the matter before this
Court.
There is also a significant difference
in the age of the two [victims], significant
not only in terms of years, but also in
arguably the maturity of the respective
victims or alleged victims.
The third prong, that being relevant
factors is of no moment, in my opinion. I'm
aware of the Supreme Court decision that the
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State relies upon, and it really baffles me
and it has running in long standing
prohibition of proof of other crimes to show
propensity.
And I wish the justices in that case
would sit here as I have and look out over
people in this courtroom when the State
begins to talk about the comparisons, the
case at bar versus the prior matter. Those
justices would have seen as I did citizens in
this courtroom shaking their head, frowning,
none of which I believe was in accordance
with the presumption of innocence."
On appeal, the State first asserts that the trial court
erred as a matter of law by finding the evidence of the 1998
offense per se inadmissible.
Under the common law, admission of other-crimes evidence is
generally prohibited to show propensity to commit the charged
crime. People v. McKibbins, 96 Ill. 2d 176, 182 (1983).
However, the parties both rightly agree that section 115-7.3
created an exception for propensity evidence in sex offense
cases. See People v. Donoho, 204 Ill. 2d 159, 176 (2003) ("the
legislature enacted section 115-7.3 to enable courts to admit
evidence of other crimes to show defendant's propensity to commit
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sex offenses").
Section 115-7.3 applies to criminal cases, such as this,
where the defendant is accused of criminal sexual assault and
aggravated criminal sexual abuse. 725 ILCS 115-7.3(a) (West
2004). Further, evidence of another offense of criminal sexual
assault "may be admissible (if that evidence is otherwise
admissible under the rules of evidence) and may be considered for
its bearing on any matter to which it is relevant." 725 ILCS
115-7.3(b) (West 2004). When weighing the probative value of the
prior offense against undue prejudice to the defendant, the court
may 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 2004).
The trial court's decision to admit or deny other-crimes
evidence to show the defendant's propensity to commit sex
offenses will not be disturbed absent an abuse of discretion.
Donoho, 204 Ill. 2d at 182. A trial court abuses is discretion
where its ruling is arbitrary, fanciful or where no reasonable
person would take the view adopted by the court. Donoho, 204
Ill. 2d at 182. However, "[t]o the extent that the trial court
determine[s] that evidence [is] inadmissible per se as to its
probative value for propensity, that decision is incorrect as a
matter of law." People v. Childress, 338 Ill. App. 540, 552 n.2
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(2003).
Here, we reject the State's contention that the trial court
erred as a matter of law by determining that evidence of
defendant's 1998 sexual offense was per se inadmissible. In
denying the State's motion to admit the evidence, the court
stated that it found Donoho "baffl[ing]" in relation to the long-
standing common law prohibition of proof of other crimes to show
propensity. Moreover, the court implied that the introduction of
the 1998 offense for propensity would have belied the presumption
of innocence. However, the court expressly mentioned the three
factors of section 115-7.3(c) and even discussed, albeit briefly,
two of those factors, i.e., proximity in time and degree of
factual similarity. Thus, we cannot conclude that the trial
court determined that the evidence concerning the 1998 offense
was inadmissible per se as to its probative value for propensity.
Next, the State asserts that the trial court abused its
discretion by failing to conduct a meaningful analysis of the
probative value of defendant's prior conviction pursuant to
section 115-7.3. Specifically, the State argues that the trial
court applied subsection (c) without first deciding whether
propensity evidence was allowed under the statute, thus making
its decision arbitrary and an abuse of discretion.
In this case, it is unclear whether the trial court
considered defendant's 1998 sexual offense in terms of its
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probative value for propensity before applying the factors in
subsection (c). See Childress, 338 Ill. App. 3d at 552.
Regardless, review of the record reveals that the two offenses
are eligible under subsection (a) and defendant's prior
conviction is otherwise admissible pursuant to subsection (b).
Thus, the ultimate issue is whether the trial court abused its
discretion when it determined that the prejudicial effect of
defendant's 1998 sexual offense outweighed its probative value
under subsection (c). On this issue, the State correctly
contends that the 1998 offense was more probative than
prejudicial according to subsection (c)'s balancing test.
First, the six-year gap in time between the 1998 offense and
the charged offense was not "significant," as stated by the trial
court. In Donoho, the supreme court stated that "[t]he 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, citing People v. Davis, 260 Ill. App. 3d 176, 192 (1994).
The Donoho court then held that a 12- to 15-year time gap between
offenses, by itself, was insufficient to render the admission of
a prior offense an abuse of discretion. Donoho, 204 Ill. 2d at
184. Accordingly, we conclude that the six-year gap here was not
substantial.
Second, even assuming the time lapse was significant, its
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negative impact on the probative value of defendant's 1998
offense is overcome by the degree of factual similarity between
the two offenses. As the factual similarities increase, so does
the probative value of other-crimes evidence. People v. Wilson,
214 Ill. 2d 127, 142 (2005). "To be admissible under the
statute, the other-crimes evidence should have some threshold
similarity to the charged crime." People v. Boand, 362 Ill. App.
3d 106, 122 (2005). However, because no two independent crimes
are identical, some factual disparity between a prior offense and
a current charge will not defeat admissibility. Donoho, 204 Ill.
2d at 185, citing People v. Illgen, 145 Ill. 2d 353, 373 (1991).
In the instant case, the facts of the 1998 offense are
sufficiently similar to the facts of the charged crime. In both
cases, defendant was in a position of trust, authority, or
supervision in relation to the victim when he committed the
offense. Moreover, in each case, defendant lured the victim by
offering to assist the victim with a pressing issue, i.e.,
admission into college and homelessness. Furthermore, both of
the victims were males and each shared defendant's surname.
Regarding the sex acts, in each case defendant performed oral sex
on the victims and licked their anuses. Other relevant facts and
circumstances include that defendant was a minister in both 1998
and 2004 and that defendant assaulted each victim at his
residence. Based on this record, we conclude that the probative
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value of defendant's 1998 sexual offense outweighed any undue
prejudice and, thus, should have been allowed to be admitted as
evidence of defendant's propensity to commit sex crimes.
In reaching this conclusion, we reject defendant's argument
that the factual similarities ended with the gender of the
victims. Defendant advances that the victims differed in age and
maturity level, noting that the 17-year-old victim could be
criminally charged as an adult, was one year shy of being able to
vote, and of legal age to join the armed forces, while the 13-
year-old victim was not yet in high school, has few legal rights
of his own, and must be in the care of a guardian. In addition,
defendant asserts that the sexual acts alleged differ greatly.
Defendant states that "[m]ost notably, the State alleges the use
of a hairbrush in the anus of the complaining witness. No such
apparatus of any kind was used in the first matter. Nor was
mutual masturbation." Even though defendant correctly observes
these factual discrepancies, we find that he exaggerates their
significance in light of the stated compelling similarities.
Accordingly, defendant's position is not persuasive.
In light of our decision that evidence of defendant's 1998
sexual offense is admissible to demonstrate his propensity to
commit a sexual offense, we need not reach the State's final
contention that the trial court abused its discretion where it
failed to consider whether the evidence was admissible under
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traditional common law principles.
For the foregoing reasons, we reverse the order of the trial
court refusing to allow into evidence defendant's 1998 conviction
for criminal sexual assault and remand for further proceedings.
Reversed and remanded.
GALLAGHER and TULLY, JJ., concur.
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__________________________________________________________________________________________________________________________
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each Case)
_________________________________________________________________________________________________________________________
Please use the following
form The People of the State of Illinois,
Plaintiff-Appellant,
v.
Michael Taylor,
Defendant-Appellee.
_____________________________________________________________________________________________
No. 1-07-0060
Docket No.
Appellate Court of Illinois
COURT First District, FIFTH Division
Opinion
Filed June 20, 2008
(Give month, day and year)
__________________________________________________________________________________________
PRESIDING JUSTICE JAMES FITZGERALD SMITH DELIVERED THE OPINION OF THE
COURT:
JUSTICES TULLY and GALLAGHER, JJ., concur.
Lower Court and Trial Judge(s) in form indicated in margin:
APPEAL from the
Circuit Court of Cook Appeal from the Circuit Court of Cook County.
County; the Hon________
Judge Presiding. The Hon. MARCUS R. SALONE, Judge presiding.
__________________________________________________________________________________________________________________________
Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word or
FOR APPELLANTS NONE if not represented.
John Doe, of Chicago
For APPELLEES, : APPELLANT: STATE'S ATTORNEY, COUNTY OF COOK, Chicago, IL Richard A. Devine, State's Attorney, James E.
Fitzgerald and Mary L. Boland, Assistant State's Attorneys.
_________________________________ __
Smith and Smith of
Chicago, APPELLEE: APRIL D. PREYAR, Chicago, IL April D. Preyar.
__________________________________________________________________________________________________
(Joseph Brown, of counsel)
Add attorneys for third-
party appellants and/or
appellees.
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