People v. Ross

THIRD DIVISION
October 28, 2009

No. 1-06-0792

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 04 CR 28351
)
KELLY ROSS, )
) Honorable Michael P. Toomin,
Defendant-Appellant. ) Judge Presiding

PRESIDING JUSTICE MURPHY delivered the opinion of the court:

After a bench trial, defendant, Kelly Ross, was convicted of criminal sexual assault and

sentenced to life imprisonment. On appeal, he contends that (1) an amendment to the indictment

was untimely and improper, (2) evidence of a 17-year-old sexual assault was inadmissible, (3) his

mother-in-law’s testimony that he was “in over his head” and needed “car fare” was irrelevant and

prejudicial, (4) foundation was lacking for a cell phone message that defendant was “in trouble,”

and (5) his sentence was improper for a number of reasons.

I. BACKGROUND

A. Amendment to the Indictment

The record reveals that the grand jury returned a two-count indictment against defendant.

Count I alleged that on January 8, 2004, defendant “knowingly committed an act of sexual

penetration on [G.W.], to wit: contact between Kelly Ross’ penis and [G.W.’s] anus, by the use
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of force or threat of force.” Count II alleged that defendant “knowingly committed an act of

sexual penetration on [G.W.], to wit: contact between Kelly Ross’ penis and [G.W.’s] mouth, by

the use of force or threat of force.”

On December 20, 2005, after the victim, C.C., testified at trial, the State made an oral

motion to amend the indictment to substitute the name C.C. for G.W. 1 as the victim. The State

further sought to amend count I to allege penis-to-vagina contact instead of penis-to-anus contact

in order to conform “with intentions of the grand jury transcript which stated, did you learn that

the defendant committed an act of sexual penetration or conduct with the victim when he placed

his penis in [C.C.’s] vagina by force.” Third, the State sought to amend count II from penis-to-

mouth contact to mouth-to-vagina contact, which would also conform with the intention of the

grand jury.

The trial court noted that “maybe they should have done it before. *** Well, they got the

names of the people mixed up when they returned the indictment. I don’t know why somebody

didn’t look at this stuff before. It’s rather embarrassing to say the least.” The trial court noted to

defense counsel that the State “said [the] grand jury transcript actually supports what they’re

trying to do. You must have read the grand jury transcript.” Defense counsel did not dispute that

the amendment conformed with the intentions of the grand jury. The court found the State’s

1
The State’s motion to admit other-crimes evidence argued that defendant sexually
assaulted G.W. in July 1999. The State ultimately did not present any evidence at trial as to that
crime. At the time of trial, 04 CR 28352, the case involving G.W., was also pending. Since the
trial in the instant matter, defendant was convicted of criminal sexual assault of G.W. and
sentenced as a Class X offender to life imprisonment. See People v. Ross, No. 1-06-3654 (2008)
(unpublished order under Supreme Court Rule 23), appeal denied, 229 Ill. 2d 688 (2008).

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actions “sloppy” but allowed the amendment over defendant’s objections “because I believe I am

required to by the law.”

B. The State’s Case

C.C. testified that on January 7, 2004, she spent the night at her boyfriend’s, William

Ross’s, house. William’s two brothers, Thomas and defendant, were staying there, as were three

of William’s children. C.C. slept with William in his upstairs bedroom.

C.C. testified that when she went to bed on January 7, she was wearing a shirt, pajama

pants, and underwear. When she woke up on January 8, she was lying on her stomach wearing

only a shirt. She felt someone’s elbow “and a whole bunch of weight” on the top of her back, but

she could not tell at that point if it was a man or a woman. She tried to get up, but the person

held her down. The person opened her legs and penetrated her vagina with his penis. While his

penis was inside her vagina, she was unsuccessfully “wrestling, moving, trying to get up off the

bed.”

The man took his penis out of her vagina but still held her down. C.C. was able to turn

her head toward the doorway and became more frightened to discover that the door was open;

when she was with William, the door was always closed.

The man then flipped her over onto her back and kissed her face, neck, and breast and

worked his way down to her vagina. She was still trying to get up and saying, “Stop, no.” He

kissed, licked, and played with her vagina, then he put his penis back into her vagina for 10 to 20

minutes. He “got done,” got off the bed, and turned on the light. When C.C. put on her glasses,

she discovered that the person was defendant. Defendant told C.C. not to tell William and asked

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if it would be better if he found another place to live. He then left the room.

C.C. remained in the room, where she cried and yelled for someone to help her. Ten or

fifteen minutes later, William arrived home and found her on the floor. He picked her up off the

floor and asked her what happened. She responded, “Kelly raped me.” William took her

downstairs and called an ambulance.

While the hospital records indicated that C.C. reported that her boyfriend’s brother tried

to rape her, she testified that she told that staff that her boyfriend’s brother actually raped her.

Defendant’s DNA was found in C.C.’s vagina.

On cross-examination, C.C. testified that she was not sure whether defendant penetrated

her vagina. She also told the hospital staff that she was unsure whether there had been

penetration of her vagina or anus. On redirect, C.C. clarified that penetration means “when a man

come” and when a penis is placed inside a vagina. Therefore, when the hospital asked if

defendant penetrated C.C.’s vagina with his penis, she thought the question referred to whether he

ejaculated and “did he force it in.” On re-cross, she testified that she told the hospital that he

entered her vagina with his penis but she was not sure whether he ejaculated inside.

William Ross testified that defendant slept on his couch in January 2004. C.C. slept at his

house occasionally; during those times, they kept his bedroom door closed. On January 9, 2004,

just before 8 a.m., he was preparing to take his son to school when he saw defendant sitting on

the floor of the living room, drinking a beer and looking at a picture of himself and his wife.

Defendant, who appeared sad, said that he lost a good woman. When William left to take his son

to school, C.C. was sleeping in the upstairs bedroom and William’s oldest brother, Thomas, was

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sleeping in the basement. William dropped his son off and stopped at the grocery store, but it was

closed, so he returned home. He was gone 30 to 35 minutes.

When William returned home, defendant was no longer in the living room. When he went

to the computer room, he heard whimpering sounds coming from upstairs, so he went upstairs

and found C.C. balled up on the floor, crying. She was only wearing a shirt, with no bottoms.

William asked her five or six times what was wrong, and she eventually said defendant’s name.

William helped her put on a pair of his pajama pants, carried her downstairs, and called 911. He

was unable to converse with her because she was “crying, kind of fidgety, just not all there.”

Renee Latham, defendant’s cousin, testified that on January 10, 2004, the police came to

her house and asked to listen to a message that defendant had left on her cell phone. She called

her voice mail and played the message for the police. She had last spoken to defendant on a

house phone on New Year’s Eve.

Iola Buggs, defendant’s mother-in-law, testified that defendant came to her house on

January 8, 2004, shortly after 8:30 a.m. Defendant told her he was over his head, but she did not

respond because she did not want to get involved. Later he asked whether she had car fare.

When she said no, he left. She did not see him again after that.

On January 8, 2004, Chicago police detective Glenn Turner, who was assigned C.C.’s

case, went to the house where defendant’s wife and mother-in-law lived. There, Turner found the

picture that defendant was holding earlier. He also went to Latham’s house on January 8 and 10.

The second time he was there, Latham told him that defendant had left a message on her cell

phone. In the message, defendant stated that he heard he was in trouble and he needed help.

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Defendant was arrested on November 9, 2004, after he was found hiding in the closet of

an apartment.

Defendant was also charged with and convicted of criminal sexual assault in case number

87 CR 14082. Over defendant’s objection, the State admitted a transcript of testimony given on

July 1, 1988, for that case. S.H. testified that on September 22, 1987, she was living at 6154

South King Drive with her boyfriend and children. Around 5 p.m., defendant, who was S.H.’s

boyfriend’s sister’s boyfriend, knocked on her apartment door and told her he had something for

her boyfriend. She responded that her boyfriend was not home and then permitted him to use her

bathroom.

Defendant called S.H. to the bathroom, saying that the toilet would not flush, so she went

to the bathroom to fix the toilet. She got the toilet to flush, and when she turned around,

defendant grabbed her by the neck and threw her down onto the floor, causing her to hit her head

on the bathtub. Defendant took a carpet cutter out of his pocket and forced her to disrobe. He

demonstrated how sharp the carpet cutter was by putting an X on her forehead and scratching her

neck and shoulder. He then put his penis into her mouth, licked her vagina, and put his penis in

her vagina. S.H. persuaded defendant to stop by telling him that she needed to take care of one of

her children, who was crying and banging on the door.

Defendant forced S.H. and her children to his car by putting the carpet cutter to the two-

year-old’s throat and threatening to kill him. With two other men in the car, defendant drove S.H.

and her children to his house. En route, defendant dropped off the two men and encountered his

girlfriend, whom he instructed to go to her mother’s house and wait for his call. When they

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arrived at defendant’s house, he took them to his bedroom and forced S.H. to disrobe. He put his

penis into her vagina and attempted to put it in her anus, but she feigned a medical condition. He

told her he was going to keep her there for a week but ended up driving her two blocks from her

home.

C. Defendant’s Case

Medical records from St. Bernard Hospital indicated that C.C. assessed her pain at 6 on a

scale of 0 to 10. She also stated, “My boyfriend’s brother tried to rape me.” The emergency

department record that the hospital staff filled out gave four options with respect to penetration:

vaginal, rectal, oral, or uncertain. “Uncertain” was circled. As for whether ejaculation occurred

“inside body orifice,” the four options were yes, no, touched, and unsure. “Unsure” was checked.

A chart as to “penetration of female sex organ” specified the options of penis, finger, and foreign

object, and yes, no, touched, and unsure. By “penis,” there is an initial check mark under “yes,”

but it was scribbled out and “unsure” was checked instead.

The parties stipulated that Detectives Dion Redfield, Samuel Brown, and Joyce Jones took

a statement from C.C. in November 2004 that she felt someone climb on her back and open her

legs, but she thought it was her boyfriend and did not resist.

D. Trial Court’s Finding

The trial court acknowledged that the evidence from St. Bernard Hospital “is concededly

in conflict” with C.C.’s testimony. The court noted, however, that C.C. denied telling hospital

personnel that she was uncertain of any penetration. Furthermore, the results of the rape kit

reflected a positive DNA match for defendant. Accordingly, the court found defendant guilty of

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both counts of criminal sexual assault and sentenced to a term of natural life imprisonment

pursuant to section 12-13(b)(3) of the Criminal Code of 1961 (720 ILCS 5/12-13(b)(3) (West

2006)). This appeal followed.

II. ANALYSIS

A. Amendment to the Indictment

Section 111-3 of the Code of Criminal Procedure of 1963 provides that a charge shall be

in writing and allege the commission of an offense by:

“(1) Stating the name of the offense;

(2) Citing the statutory provision alleged to have been violated;

(3) Setting forth the nature and elements of the offense charged;

(4) Stating the date and county of the offense as definitively as can be done;

and

(5) Stating the name of the accused, if known.” 725 ILCS 5/111-3 (West

2006).

An indictment must be signed by the foreman of the grand jury. 725 ILCS 5/111-3 (West 2006).

Once an indictment has been returned by the grand jury, it may not be broadened through

amendment except by the grand jury itself. People v. Benitez, 169 Ill. 2d 245, 254 (1996); People

v. Nathan, 282 Ill. App. 3d 608, 610 (1996). See Ill. Const. 1970, art. I, §7 (“No person shall be

held to answer for a criminal offense unless on indictment of a grand jury ***.”). The reason for

this rule is to ensure that citizens’ rights are not at the mercy or control of a prosecutor. Benitez,

169 Ill. 2d at 254. However, an indictment may “be amended on motion by the State’s Attorney

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or defendant at any time because of formal defects,” including “[a]ny miswriting, misspelling, or

grammatical error,” the “presence of any unnecessary allegation,” or the use of “alternative or

disjunctive allegations as to the acts, means, intents or results charged.” 725 ILCS 5/111-5 (West

2006). Formal amendment is warranted especially where there is no resulting surprise or

prejudice to the defendant or where the record clearly shows that he was otherwise aware of the

charge against him. People v. Flores, 250 Ill. App. 3d 399, 401 (1993).

Formal defects are distinguished from substantive changes that alter the nature and

elements of the offense charged. Flores, 250 Ill. App. 3d at 401. In People v. Milton, 309 Ill.

App. 3d 863, 866 (1999), this court held that “an amendment is substantive and therefore

improper if (1) it materially alters the charge, and (2) it cannot be determined whether the grand

jury intended the alteration.” A trial court’s decision to allow an amendment to the charging

instrument will not be disturbed unless the court abused its discretion. People v. Alston, 302 Ill.

App. 3d 207, 211 (1999).

Defendant argues that the amendments from G.W. to C.C., from penis-to-anus contact to

penis-to-vagina contact, and from penis-to-mouth contact to mouth-to-vagina contact were

substantive, untimely alterations to the nature of the offenses charged. The State responds that

the amendments simply corrected a miswriting and did not alter the charge, broaden the scope, or

add an alternative to the mental state.

This court has held that an error in the citation of a statute giving rise to a charge is a mere

technical defect that is subject to amendment. See People v. Hirsch, 221 Ill. App. 3d 772, 777

(1991); People v. Hewitt, 212 Ill. App. 3d 496 (1991); People v. House, 202 Ill. App. 3d 893

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(1986). In People v. Brooks, 246 Ill. App. 3d 777 (1993), the indictment alleged that the

defendant committed an act of sexual penetration on the victim, who was under 16 years of age.

The day before the trial started, the trial court permitted the State to amend the indictment from

“sexual penetration” to “sexual conduct” and from “under 16 years of age” to “under 17 years of

age.” On appeal, this court found that the amendment was formal because the forms used by the

official responsible for charging the defendant were not updated to reflect an amendment in the

aggravated criminal sexual abuse statute. Brooks, 246 Ill. App. 3d at 786.

It is also permissible to revise the indictment when the victim of a crime has been

misidentified. People v. Jones, 53 Ill. 2d 460, 464 (1973); People v. Cooper, 97 Ill. App. 3d 222,

225 (1981). Jones noted that there has been a trend away from the formalism that characterized

criminal pleading in the past. Jones, 53 Ill. 2d at 464. “The liberalization of criminal pleading

also reflects a lessening of importance of the indictment’s secondary functions. The indictment as

a means of informing defendants of particulars concerning the case is now far overshadowed by

the array of discovery procedures available to the defense.” Jones, 53 Ill. 2d at 464.

Courts have found reversible error where the amendment alters the nature and elements of

the offense charged. Flores, 250 Ill. App. 3d at 401. For example, in People v. Zajac, 244 Ill.

App. 3d 42 (1991), the State amended the section number under which the defendant had been

charged from section 11-501(a)(1) of the Vehicle Code to section 11-501(a)(2). Section 11-

501(a)(1) stated that a person shall not drive or be in physical control of any vehicle while “[t]he

alcohol level of such person’s blood or breath is 0.10 or more” and section 11-501(a)(2) stated

that a person shall not drive or be in physical control of any vehicle while “[u]nder the influence of

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alcohol.” Zajac, 244 Ill. App. 3d at 43, citing Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(1),

(a)(2). This court found that the substitution of subsection (a)(2) for subsection (a)(1) amounted

to a substantive, rather than formal, change because “the amendment changed the nature of the

evidence necessary to obtain a conviction.” Zajac, 244 Ill. App. 3d at 44. The two subsections

“are clearly distinct statutory offenses which require the State to prove different elements in order

to obtain a conviction.” Zajac, 244 Ill. App. 3d at 44. Furthermore, because the trial proceeded

immediately after the amendment, the defendant was not prepared to address the testimony of

witnesses on issues raised by the amendment. Zajac, 244 Ill. App. 3d at 44.

In People v. Patterson, 267 Ill. App. 3d 933 (1994), the indictment originally charged the

defendant with possession of more than 15 grams but less than 100 grams of cocaine with intent

to deliver, but the State amended the indictment to read more than 400 grams but less than 900

grams of cocaine, which was the original charge presented to the grand jury. On appeal, this

court ruled that the trial court erred when it permitted the amendment because “in a drug case, the

quantity of a controlled substance possessed by a defendant is an essential element of the charge.”

Patterson, 267 Ill. App. 3d at 939. The case was remanded with instructions to enter judgment

on the lesser offense originally charged. Patterson, 267 Ill. App. 3d at 939.

Similarly, in People v. Betts, 78 Ill. App. 3d 200 (1979), the defendant was originally

charged with delivery of dexedrine, a Schedule II controlled substance, which is a narcotic, in

violation of section 401(b) of the Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par.

1401). Before trial, the statutory citation in the indictment was changed from section 401(b) to

401(c), and the word “not” was inserted so that the defendant was charged with delivery of a

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“substance in Schedule II, which is not a narcotic.” (Emphasis omitted.) Betts, 78 Ill. App. 3d at

201. However, dexedrine was not a Schedule II controlled substance, and delivery of dexedrine

was not a violation of section 401(c). Because both the term “narcotic” and the statutory

provision referring to narcotics were used, the court “conclude[d] that it was the grand jury’s

intention to charge an offense involving a narcotic under par. 1401(b).” Betts, 78 Ill. App. 3d at

202. In addition, the offense charged in the original indictment was a Class 2 felony, while the

amended indictment alleged a Class 3 felony. Betts, 78 Ill. App. 3d at 202. The court concluded

that the amendment to the indictment was substantive and reversed the defendant’s conviction.

Betts, 78 Ill. App. 3d at 204. See also People v. Arbo, 213 Ill. App. 3d 828, 832 (1991); People

v. Payne, 194 Ill. App. 3d 238, 247-48 (1990) (an amendment in the information from residential

burglary with intent to commit theft to residential burglary with intent to commit a felony changed

the mental state of the offense); People v. Troutt, 51 Ill. App. 3d 656, 661 (1977).

Defendant argues that the amendments in the instant case were substantive alterations to

the nature and elements of the offense charged because “each type of penetration stands on its

own as the gravamen of the offense of criminal sexual assault as is, accordingly, not ‘surplusage.’”

A person commits criminal sexual assault if he “commits an act of sexual penetration by

the use of force or threat of force.” 720 ILCS 5/12-13(a)(1) (West 2006). “Sexual penetration”

is defined as follows:

“any contact, however slight, between the sex organ or anus of one person

by an object, the sex organ, mouth or anus of another person, or any intrusion,

however slight, of any part of the body of one person *** into the sex organ or

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anus of another person, including but not limited to *** anal penetration.

Evidence of emission of semen is not required to prove sexual penetration.” 720

ILCS 5/12-12(f) (West 2006).

In People v. Carter, 244 Ill. App. 3d 792 (1993), this court rejected the defendant’s argument

that the specific conduct constituting penetration was an element of criminal sexual assault.

“Illinois case law provides that the type of sexual penetration is not an element of the offense, and

its inclusion in the indictment is merely surplusage.” Carter, 244 Ill. App. 3d 803-04. “If the

statutory language used describes specific conduct, it is unnecessary for the indictment to specify

the exact means by which the conduct was carried out. The State need only prove that a type of

sexual penetration occurred beyond a reasonable doubt.” Carter, 244 Ill. App. 3d 804. People v.

Foley, 206 Ill. App. 3d 709, 718 (1990), noted that “[e]ach count in the indictment *** charged

defendant with sexual penetration, the specific conduct prohibited in the relevant statutes, and it

was unnecessary for the indictment to specify the exact means by which the sexual penetration

was carried out.” See also People v. Boand, 362 Ill. App. 3d 106, 130 (2005).

Indeed, amendments changing the manner in which the defendant committed the offense

are formal, not substantive. In People v. Coleman, 49 Ill. 2d 565 (1971), a murder case, the

indictment originally alleged that the defendant stabbed the victim. During the State’s case, the

trial court allowed the State to amend the indictment by adding the alternative allegation that the

defendant asphyxiated the victim with a sheet or blanket. On appeal, the supreme court rejected

the defendant’s argument that the trial court erred by allowing the amendment, noting that the

“gist of the offense with which the defendant was charged in this case was the overt act of

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intentionally taking the life of his wife. Of this the defendant was adequately informed by the

indictment.” Coleman, 49 Ill. 2d at 570. The court held that “the allegation of the means used to

accomplish her death was not essential but was a formal part of the indictment which could be

amended ***. *** [I]t is only where the means used are integral parts of the offense that they

need be averred, as for example in the crime of assault with a deadly weapon.” Coleman, 49 Ill.

2d at 571. See also People v. Nathan, 282 Ill. App. 3d 608, 611 (1996) (the particular details of

the means that the defendant allegedly used do not constitute essential elements of the offense of

aggravated battery).

Defendant cites several cases in support of his argument that “on sex charges, the type of

penetration stands on its own as the gravamen of the offense of criminal sexual assault.” In

People v. Hardeman, 203 Ill. App. 3d 482, 486 (1990), the court noted that because the

defendant was charged with “committ[ing] an act of sexual penetration ***, to wit: sexual

intercourse,” his conviction for aggravated criminal sexual assault “must be based on evidence

that there was contact, however slight, between the defendant’s penis and the victim’s vagina.” In

People v. Valko, 201 Ill. App. 3d 462 (1990), the court reversed a count of aggravated criminal

sexual assault based on penile penetration when the evidence only established oral sex. Finally,

People v. Garrett, 281 Ill. App. 3d 535, 545 (1996), the court reversed the defendant’s conviction

for criminal sexual assault based on anal penetration because the evidence was inconclusive as to

whether the defendant intruded into the victim’s anus, even slightly. These cases are

distinguishable because they analyze the sufficiency of the evidence rather than the sufficiency of

an indictment or the propriety of an amendment. Furthermore, the charges in Valko and Garrett

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were based on several separate acts, so testimony regarding one type of penetration, which

already satisfied one charge, could not satisfy the State’s burden on another charge.

The amendment was not made until after the victim testified. See Payne, 194 Ill. App. 3d

at 247-48; Arbo, 213 Ill. App. 3d at 832. However, it is clear that defendant was “otherwise

aware” of the amended charges. Flores, 250 Ill. App. 3d at 401. The State’s motion to admit

other-crimes evidence, which was filed August 5, 2005, well before trial, stated that defendant

was charged with sexually assaulting C.C. “in the elected case, 04 CR 38351,” after he performed

oral sex on her and penetrated her vagina with his penis. It noted that defendant’s semen was

found in C.C.’s vagina. It sought to admit evidence that four years before this incident, defendant

forced G.W. to perform oral, anal, and vaginal sex and threatened her with a knife. In addition, in

asserting differences between the crimes, defendant’s written response argued that although he

“may have a ‘propensity’ to commit anal rape and to force oral copulation by the victim on

defendant, defendant asserts that in this case there was consensual vaginal sex and oral sex

performed by defendant on the victim.” He continued that the “ ‘other crimes evidence’ ***

actually occurred in a [sic] entirely different manner than the anticipated evidence of vaginal and

oral sex by defendant on victim [sic] in this case.” (Emphasis in original.) In addition, the date of

the offense--January 8, 2004--did not change from the original indictment to the amendment.

Therefore, the record indicates that defendant was “otherwise aware” of the amended charges.

Flores, 250 Ill. App. 3d at 401. While defendant argues that the State was conforming the

indictment to the victim’s testimony, not to the grand jury minutes, the State’s position, even

before trial, was that defendant sexually assaulted C.C. by penetrating her vagina.

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Furthermore, in Flores, this court found that an amendment to the indictment to specify

the controlled substance that the defendant possessed as cocaine instead of heroin did not cause

the defendant a hint of “surprise or prejudice” where he agreed to a stipulation that the substance

he sold to the officer was cocaine and he made no request to reopen the proofs when the court

ruled that it would allow the amendment. Flores, 250 Ill. App. 3d at 401. Here, defendant

stipulated at trial that his DNA was found in C.C.’s vagina, even though the original indictment

did not allege penis-to-vagina contact, and defense counsel did not ask for a continuance when the

trial court allowed the State to amend the indictment. See Coleman, 49 Ill. 2d at 570; Alston, 302

Ill. App. 3d at 211.

In a motion to file supplemental argument, defendant contends that he was tried “on two

different charges during the space of one trial in violation of his guarantee against double

jeopardy.” Both the Illinois and United States Constitutions provide that no person shall be twice

put in jeopardy for the same offense. U.S. Const., amend. V; Ill. Const. 1970, art. I, §10. “The

double jeopardy clause protects against three distinct abuses: (1) a second prosecution for the

same offense after acquittal; (2) a second prosecution for the same offense after conviction; and

(3) multiple punishments for the same offense.” People v. Placek, 184 Ill. 2d 370, 376-77 (1998).

We disagree with defendant that he was tried “on two different charges during the space of one

trial.” Defendant had not been acquitted, convicted, or punished for the charged offense at any

time before he was prosecuted in the instant case. Rather, defendant was charged with criminal

sexual assault, and the indictment was properly amended to again allege criminal sexual assault.

Defendant further contends in his supplemental filing that the amendments denied him his

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right to a speedy trial in violation of the sixth amendment to the United States Constitution (U.S.

Const., amend. VI), article I, section 8, of the Illinois Constitution (Ill. Const. 1970, art. I, §8),

and section 103-5 of the Code of Criminal Procedure of 1963 (Speedy Trial Act) (725 ILCS

5/103-5 (West 2006)). According to defendant, since the charge “submitted by the prosecution in

the middle of trial was a new offense[,] none of the time that had gone by since the submission of

the original charge would have been chargeable to defendant.”

In People v. Milton, 309 Ill. App. 3d 863, 866 (1999), we held that where an amendment

to the indictment is formal, as it is here, “speedy trial provisions are not implicated.” People v.

Williams, 94 Ill. App. 3d 241 (1981), which defendant relies on, is distinguishable. In that case,

the defendants were initially charged with rape and deviate sexual assault. Several months later,

and a month before trial, the information was amended to charge the defendants additionally with

three counts of aggravated kidnapping, three counts of kidnapping, one count of unlawful

restraint, and two counts of aggravated battery. Each defendant was found guilty of all charges,

except for one charge of kidnapping. On appeal, the court affirmed the convictions for the

originally charged offenses but reversed the other convictions because they were “new and

additional” charges brought outside the limits of the Speedy Trial Act. Here, unlike Williams,

“new and additional” charges were not filed. Rather, the indictment was amended in accordance

with section 111-5.

We agree with the trial court’s assessment that the State’s actions were “sloppy” and

“embarrassing.” However, we find that the amendments were formal and, accordingly, affirm his

conviction.

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B. Evidence of Other Crimes

Defendant argues that evidence of the 17-year-old sexual assault against S.H. was

inadmissible. Under the common law, other-crimes evidence is inadmissible if offered only to

demonstrate the defendant’s propensity to commit the charged crime. People v. Donoho, 204 Ill.

2d 159, 169 (2003). Evidence of prior crimes generally is admissible only if it is offered for a

specific relevant purpose, such as consciousness of guilt, modus operandi, design, motive,

absence of mistake, or knowledge. People v. Banks, 161 Ill. 2d 119, 137 (1994).

Section 115-7.3 of the Code of Criminal Procedure (725 ILCS 5/115-7.3 (West 2006))

provides an exception to the rule against other-crimes evidence for cases in which the defendant is

accused of criminal sexual assault. Under this section, evidence of another 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 5/115-7.3(b) (West

2006)), including a “defendant’s propensity to commit sex offenses.” Donoho, 204 Ill. 2d at 176.

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 2006).

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 its discretion when its “ ‘ruling is arbitrary, fanciful,

unreasonable, or where no reasonable person would take the view adopted by the trial court.’ ”

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People v. Wheeler, 226 Ill. 2d 92, 133 (2007), quoting People v. Caffey, 205 Ill. 2d 52, 89

(2001).

First, defendant argues that the transcript served no relevant purpose other than to

“overpersuade” the trier of fact. The key to balancing the probative value of other crimes

evidence to prove propensity against its prejudicial effect is to avoid admitting evidence that

entices a jury to find defendant guilty “only because it feels he is a bad person deserving

punishment.” (Emphasis in original.) People v. Childress, 338 Ill. App. 3d 540, 548 (2003).

“Looking at the other side of the scale, ‘unfair prejudice’ ‘speaks to the capacity of some

concededly relevant evidence to lure the factfinder into declaring guilt on a different ground from

proof specific to the offense charged.’ ” People v. Boyd, 366 Ill. App. 3d 84, 94 (2006), quoting

Old Chief v. United States, 519 U.S. 172, 180, 136 L. Ed. 2d 574, 588, 117 S. Ct. 644, 650

(1997). Other-crimes evidence, when relevant, must not become a focal point of the trial. Boyd,

366 Ill. App. 3d at 94.

The trial court found that the other-crimes evidence was admissible to show motive, lack

of consent, and propensity. In People v. Johnson, 389 Ill. App. 3d 618 (2009), appeal pending

No. 108514, this court found that the defendant’s “no-force” defense at trial “increased the

probative value” of the other-crimes evidence, noting that it saw no reason why “ ‘propensity

evidence could not be used to meet the defendant’s consent defense’ ” under section 115-7.3.

Johnson, 389 Ill. App. 3d at 623-24, quoting Boyd, 366 Ill. App. 3d at 93. Furthermore, although

the trial court found three uncharged sexual assaults were relevant to establish the defendant’s

propensity, the State limited the other-crimes evidence at trial to one sexual assault. Johnson,

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389 Ill. App. 3d at 624. Similarly, here, the trial court found the sexual assaults against S.H. and

G.W. to be relevant and admissible, but the State only presented evidence as to the assault against

S.H.

Defendant further contends that the assault against S.H. was “extraordinarily remote”

because it occurred 17 years before the assault against C.C. The State responds that defendant’s

incarceration for almost 6 years for the assault to S.H. mitigates the time gap to 11 years. In

Childress, this court noted that when the time that the defendant spent in custody for his previous

conviction was excluded, the two offenses occurred within a one-year period. Childress, 338 Ill.

App. 3d at 553. Defendant does not dispute the trial court’s conclusion that the 6 years he was

incarcerated for the assault on S.H. should be excluded; instead, he argues that even a lapse of 11

years is excessive.

Donoho “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. Instead, it is a factor to consider when evaluating its

probative value.” Donoho, 204 Ill. 2d at 183-84. The court noted that the appellate court has

affirmed admission of other-crimes evidence more than 20 years old because it was found 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.

Furthermore, to be admissible under section 115-7.3(c), the other-crimes evidence should

have some threshold similarity to the charged crime. People v. Boand, 362 Ill. App. 3d 106, 122

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(2005). “As factual similarities increase, so does the relevance or probative value.” People v.

Wilson, 214 Ill. 2d 127, 142 (2005).

We find that the facts of the 1987 assault are sufficiently similar to the facts of the assault

against C.C. The trial court noted that the sexual assaults against S.H. and C.C. were in the same

general area of the city. Furthermore, defendant knew both victims--he was C.C.’s boyfriend’s

brother and S.H.’s boyfriend’s sister’s boyfriend--and, using his relationship to gain access to the

victims, attacked the women when their boyfriends were out of the house. The victims were

African American and 25 years old at the time of the assaults. He penetrated both victims’

vaginas with his mouth and his penis, and both assaults occurred, at least in part, where defendant

lived. The trial court noted that “these are not isolated incidents, but they actually have some

bearing to each other.”

Defendant contends that there are “striking dissimilarities” between the two assaults, for

example, “no injuries, no weapons, no kidnapping, and no outcries in the current case.”

Defendant had a single-site brief encounter with a sleeping woman in the instant case, while S.H.

was awake, resisting, and taken at knifepoint to another location for an attack that was of a longer

duration. Although defendant contends that the similarities between the cases “do not materially

surpass what is inherent or common to many sex offenses against female acquaintances

generally,” our supreme court has held that “[w]here such evidence is not being offered under the

modus operandi exception, ‘mere general areas of similarity will suffice’ to support admissibility.”

Donoho, 204 Ill. 2d at 184, quoting People v. Illgen, 145 Ill. 2d 353, 373 (1991). The existence

of some factual differences between the offenses does not defeat admissibility because no two

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independent crimes are identical. Donoho, 204 Ill. 2d at 186; People v. Taylor, 383 Ill. App. 3d

591, 595 (2008). As this court concluded in Taylor, “Even though defendant correctly observes

these factual discrepancies, we find that he exaggerates their significance in light of the stated

compelling similarities.” Taylor, 383 Ill. App. 3d at 596.

Defendant cites People v. Barbour, 106 Ill. App. 3d 993 (1982). In Barbour, the

defendant was charged with rape and sexual assault and offered consent as a defense. The State

presented evidence of two earlier uncharged rapes to show that they share a modus operandi.

Barbour, 106 Ill. App. 3d at 1000. On appeal, the court found that the State failed to make the “

‘strong and persuasive showing of similarity’ ” required to admit testimony under the modus

operandi exception. Barbour, 106 Ill. App. 3d at 1000, quoting People v. Tate, 87 Ill. 2d 134,

141 (1981). The court further held that even if sufficient similarity existed, the evidence was

inadmissible on relevancy grounds because the identity of the offender was not at issue, since he

admitted to intercourse with all three women. Barbour, 106 Ill. App. 3d at 1000.

Defendant also relies on People v. Stanbridge, 348 Ill. App. 3d 351 (2004), in support of

his argument. In Stanbridge, the Fourth District concluded that the fact that a prior conviction

was 10 years before the defendant’s trial “weighs against admissibility.” Stanbridge, 348 Ill. App.

3d at 357. It also cited the requirement that a court must consider the similarity between the two

offenses and concluded that, “[i]n light of the supreme court’s admonition that courts should

remain cautious about admitting other-crimes evidence to show propensity, we conclude that the

evidence was inadmissible.” Stanbridge, 348 Ill. App. 3d at 357.

Stanbridge and Barbour are distinguishable where the other-crimes evidence was admitted

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to show motive, lack of consent, and propensity instead of modus operandi, absence of mistake,

or identity. In addition, the Stanbridge court’s conclusions lack analysis and seem to misapply

Donoho. Despite the Stanbridge court’s holding that a 10-year interval weighs against

admissibility, the supreme court specifically ruled that an incident 12 to 15 years before was

admissible. Donoho, 204 Ill. 2d at 184. The holding in Stanbridge as to the factual similarities

between the two offenses is equally questionable, as Donoho simply cautioned trial courts to

“engag[e] in a meaningful assessment of the probative value versus the prejudicial impact of the

evidence.” Donoho, 204 Ill. 2d at 186. The Stanbridge court’s “use of the supreme court’s

admonition to trial courts turns the statute on its head.” People v. Walston, 386 Ill. App. 3d 598,

616-617 (2008).

Therefore, we hold that the trial court did not abuse its discretion in admitting evidence of

defendant’s sexual assault against S.H.

C. Other Evidentiary Challenges

Defendant argues that his mother-in-law’s testimony that he was “in over his head” and

needed “car fare” was irrelevant and prejudicial because it was not connected to the crime

charged. He further argues that foundation was lacking for admission of the cell phone message

that defendant was “in trouble.”

Defendant did not include either of these arguments in his posttrial motion. Furthermore,

at trial he did not object to his mother-in-law’s testimony, and he moved to strike the testimony

regarding the cell phone message on the basis that it was irrelevant, not that it lacked foundation.

“Both a trial objection and a written post-trial motion raising the issue are required for alleged

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errors that could have been raised during the trial.” People v. Enoch, 122 Ill. 2d 176, 186 (1988).

Therefore, these issues are procedurally forfeited.

The doctrine of plain error serves as a “ ‘narrow and limited exception’ ” to the general

rule of procedural default. People v. Szabo, 113 Ill. 2d 83, 94 (1986), quoting People v.

Pastorino, 91 Ill. 2d 178, 188 (1982); 134 Ill. 2d R. 615(a). “[T]he plain-error doctrine bypasses

normal forfeiture principles and allows a reviewing court to review an unpreserved error when

either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is

serious, regardless of the closeness of the evidence.” People v. Herron, 215 Ill. 2d 167, 186-87

(2005). Under the first prong, “the defendant must prove ‘prejudicial error.’ That is, the

defendant must show both that there was a plain error and that the evidence was so closely

balanced that the error alone severely threatened to tip the scales of justice against him.” Herron,

215 Ill. 2d at 187. Under the second prong, “the defendant must prove there was plain error and

that the error was so serious that it affected the fairness of the defendant’s trial and challenged the

integrity of the judicial process.” Herron, 215 Ill. 2d at 187. “In both instances, the burden of

persuasion remains with the defendant.” Herron, 215 Ill. 2d at 187.

Defendant does not argue in his briefs that this court should apply the plain-error doctrine.

Even if he did, however, there can be no plain error when no error occurred at all. People v.

Harris, 225 Ill. 2d 1, 31 (2007).

Evidence is admissible if it is relevant to an issue in dispute and its prejudicial effect does

not outweigh its probative value. People v. Patterson, 192 Ill. 2d 93, 114-15 (2000). Evidence is

relevant when it has “any tendency to make the existence of any fact that is of consequence to the

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determination of the action more probable than it would be without the evidence.” People v.

Harvey, 211 Ill. 2d 368, 392 (2004). The determination of whether evidence is relevant and

admissible is a matter within the discretion of the trial court. People v. Singleton, 367 Ill. App. 3d

182, 189 (2006). Regarding evidentiary rulings, this court only finds an abuse of discretion 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. Wheeler, 226 Ill. 2d 92, 133 (2007),

quoting Caffey, 205 Ill. 2d at 89.

Defendant, citing People v. Groleau, 156 Ill. App. 3d 742 (1987), and People v.

Robinson, 189 Ill. App. 3d 323 (1989), argues that his mother-in-law’s testimony that he said he

was “in over his head” and asked for bus fare was “wholly unspecified” and unconnected to the

charge. To the contrary, these statements were admissible to show defendant’s consciousness of

guilt and contemplation of flight. People v. Evans, 209 Ill. 2d 194, 222 (2004). See also People

v. Jefferson, 260 Ill. App. 3d 895, 907 (1994). In People v. Grathler, 368 Ill. App. 3d 802, 808

(2006), the court found the defendant’s flight from the police, varying statements to the police,

and apologies to the victim demonstrated his consciousness of guilt. Similarly, here, defendant

made an unsolicited statement to his mother-in-law immediately after the sexual assault that he

was “in over his head,” and later he asked her for bus fare.

Defendant also argues that a foundation was lacking for admission of an undated phone

message that he was “in trouble.” Telephone conversations that are relevant to the issues at trial

are admissible if a proper foundation is laid. People v. Caffey, 205 Ill. 2d 52, 94 (2001).

“Testimony as to a telephone conversation between a witness and another person is inadmissible

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in the absence of a claim by the witness that he or she knows the other person or can identify the

person’s voice ***.” Caffey, 205 Ill. 2d 94-95. In People v. Goodman, 347 Ill. App. 3d 278

(2004), the defendant argued that testimony regarding a telephone conversation with her lacked

an adequate foundation. This court held that “[a] mere assertion by a telephone caller as to his or

her identity, being hearsay, cannot be taken as a sufficient showing of the other person’s identity.”

Goodman, 347 Ill. App. 3d at 289, citing Caffey, 205 Ill. 2d at 94. “However, even if a witness is

unable to identify a caller’s voice, the caller’s identity can be established through other

circumstantial evidence.” Goodman, 347 Ill. App. 3d at 289, citing Caffey, 205 Ill. 2d at 94-95.

This court found that there was sufficient circumstantial evidence to establish that an FBI agent

talked to the defendant on the phone: he obtained the defendant’s phone number from another

witness, who identified the defendant and testified that he spoke to her on the phone several

times. Furthermore, the woman that he spoke to on the phone identified herself as the defendant.

Although the agent did not confirm through the telephone company that the number was listed to

the defendant, “we believe that these factors affect only the weight, not the admissibility, of the

evidence.” Goodman, 347 Ill. App. 3d at 289.

Renee Latham knew defendant, since she is defendant’s first cousin. She specifically

testified that she had previously spoken to him on a house phone, but not a cell phone, and that

she recognized defendant’s voice on the message he left on her cell phone. She last spoke to him

on a house phone on New Year’s Eve, but he did not have to identify himself because she knew

his voice.

Defendant, citing People v. Smith, 321 Ill. App. 3d 669, 675 (2001), contends that the

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foundation requirements for admission of a telephone conversation include “voice recognition,

date, time, and place of the call.” Here, it is problematic that Latham did not testify as to when

defendant left the message; although it was left before January 10, 2004, there was no evidence

that it was left after the sexual assault, which occurred January 8, 2004. However, defendant only

objected to the relevance of Latham’s testimony, not the foundation, his cross-examination of her

made no mention of the date defendant left the message, and his posttrial motion did not raise this

issue. In addition, Smith involved the use of a videotape with a sound recording of a

conversation, not a phone call or voice message, and the Smith court mentions none of the factors

listed by defendant, except for “identification of the speakers.” Smith, 321 Ill. App. 3d at 675.

We find that defendant forfeited his arguments as to the relevance of his mother-in-law’s

testimony and the foundation for the voice message left on Latham’s cell phone. Waiver

notwithstanding, we conclude that the trial court did not abuse its discretion.

D. Sentence

Finally, defendant argues that his sentence was improper because he received insufficient

notice of an enhanced sentence and the mandatory life imprisonment statute violates due process

and the Illinois constitution’s proportionate penalties clause.

1. Notice

Criminal sexual assault is a Class 1 felony. 720 ILCS 5/12-13(b)(1) (West 2006). A

person convicted of criminal sexual assault who has previously been convicted of criminal sexual

assault commits a “Class X felony for which the person shall be sentenced to a term of

imprisonment of not less than 30 years and not more than 60 years.” 720 ILCS 5/12-13(b)(2)

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(West 2006). A person convicted of criminal sexual assault who has previously been convicted of

aggravated criminal sexual assault shall be sentenced to a term of natural life imprisonment. 720

ILCS 5/12-13(b)(3) (West 2006). “When a person has any such prior conviction, the ***

indictment charging that person shall state such prior conviction so as to give notice of the State’s

intention to treat the charge as a Class X felony.” 720 ILCS 5/12-13(b)(5) (West 2006).

Similarly, section 111-3(c) of the Code of Criminal Procedure provides that “[w]hen the State

seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention

to seek an enhanced sentence and shall state such prior conviction so as to give notice to the

defendant.” 725 ILCS 5/111-3(c) (West 2006). An “enhanced sentence” means a sentence that is

increased by a prior conviction from one classification to another higher level classification of

offense; it does not include an increase in the sentence applied within the same level of

classification of offense. 725 ILCS 5/111-3(c) (West 2006).

The indictment alleged that the State would be seeking an “extended sentence pursuant to

725 ILCS 5/111-3(a)(5)(c) and 720 ILCS 5/12-13(b)(5) in that Kelly Ross has previously been

convicted of aggravated criminal sexual assault.” At the sentencing hearing, the State sought the

term of natural life pursuant to section 12-13(b)(3) on the basis that defendant was previously

convicted of aggravated criminal sexual assault. Defendant argues that the indictment gave him

insufficient notice that the State would be seeking a natural life sentence.

In People v. Jameson, 162 Ill. 2d 282 (1994), the defendants were charged with and

convicted of Class 1 and 2 felonies but were sentenced as Class X offenders. Jameson, 162 Ill. 2d

at 284-85. The defendants argued that the State failed to notify them in the charging instrument

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of its intent to seek a Class X sentence, which they claimed was required under section 111-3(c).

The court held that the “legislature enacted section 111-3(c) to ensure that a defendant received

notice, before trial, of the offense with which he is charged. *** There is no evidence that the

legislature intended to require the State to give a defendant pretrial notice of the possible sentence

*** that he might receive.” (Emphasis in original.) Jameson, 162 Ill. 2d at 290. The court

continued that a defendant “has no corresponding due process right to receive pretrial notice of

the sentence he will receive upon conviction.” Jameson, 162 Ill. 2d at 291. “In fact, the

definition of the term ‘enhanced sentence’ clarifies that the notice requirement in section 111-3(c)

does not apply in circumstances where the sentence is increased because of a prior conviction, but

the classification of the offense remains the same.” Jameson, 162 Ill. 2d at 290.

In People v. Beasley, 307 Ill. App. 3d 200 (1999), the trial court enhanced the defendant’s

sentence under section 12-13(b) based on a prior conviction for aggravated criminal sexual

assault. Beasley, 307 Ill. App. 3d at 210. However, the State failed to give notice of its intention

to charge him as a Class X offender, as required by sections 111-3 and 12-13. Beasley, 307 Ill.

App. 3d at 211. On appeal, the court noted that “[c]learly, subparts (b)(2) and (b)(3) of current

section 12-13 elevate the offense (not just the sentence) of criminal sexual assault from being a

Class 1 felony to being a Class X felony.” (Emphasis in original.) Beasley, 307 Ill. App. 3d at

211. The court distinguished Jameson because in that case “it was the defendant’s sentence that

was enhanced, not his conviction.” (Emphasis in original.) Beasley, 307 Ill. App. 3d at 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 class of the

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defendant’s offense within the charging instrument, “defendant must be treated as having

committed a Class 1 offense, rather than a Class X offense.” Beasley, 307 Ill. App. 3d at 212.

Here, as in Beasley, the offense of which defendant was convicted, and not merely his

sentence, was enhanced pursuant to section 12-13, since the Class 1 felony of criminal sexual

assault was elevated to a Class X felony based on his prior conviction for aggravated criminal

sexual assault. However, unlike the charging instruments in Beasley, the indictment in the instant

case alleged that the State would be seeking an “extended sentence pursuant to 725 ILCS 5/111-

3(a)(5)(c) and 720 ILCS 5/12-13(b)(5) in that Kelly Ross has previously been convicted of

aggravated criminal sexual assault.”2 While the indictment did not cite specifically to subsection

(b)(3), which relates to a term of natural life imprisonment based on a prior conviction for

aggravated criminal sexual assault, it did cite to subsection (b)(5), which requires the State to give

notice of its “intention to treat the charge as a Class X felony.” 720 ILCS 5/12-13(b)(5) (West

2006). Therefore, defendant had notice that the State intended to charge him with a Class X

felony on the basis that he was previously convicted of aggravated criminal sexual assault.

Neither Beasley nor Jameson establishes that any further notice is required.

Accordingly, we conclude that the indictment gave defendant sufficient notice of the

State’s intention to charge him with a Class X felony based on his prior conviction for aggravated

criminal sexual assault. We also reject defendant’s argument that he “himself thought that the

challenge was to an ‘extended term,’ which means something else entirely”; during the trial,

2
The State argues that the use of the word “extended” instead of “enhanced” was a
typographical error.

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defense counsel volunteered that “this is an automatic life case.”

2. Due Process

Defendant next argues that the mandatory life sentence in section 12-13(b)(3), as applied

to people ineligible for an extended term, violates due process because it was “irrational, as not

reasonably designed to remedy the evil that was targeted by the legislature.”

Statutes are presumed to be constitutional, and, thus, the party challenging the statute

bears the burden of proving its invalidity. People v. La Pointe, 88 Ill. 2d 482, 499 (1981). “A

court has a duty to construe a statute in a manner that upholds its constitutionality if it can

reasonably be done, and any doubt must be resolved in favor of the statute’s validity.” People v.

Sanchez, 344 Ill. App. 3d 74, 80 (2003). A court’s primary consideration in construing a statute

is to give effect to the legislature’s intent by examining not only the language used in the statute,

but also the reason for the law and the evil intended to be remedied. La Pointe, 88 Ill. 2d at 499.

“We generally defer to the legislature in the sentencing arena because the legislature is

institutionally better equipped to gauge the seriousness of various offenses and to fashion

sentences accordingly.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). “The legislature’s

discretion in setting criminal penalties is broad, and courts generally decline to overrule legislative

determinations in this area unless the challenged penalty is clearly in excess of the general

constitutional limitations on this authority.” Sharpe, 216 Ill. 2d at 487. In examining a statute’s

constitutionality, this court employs a de novo standard of review. People v. Jackson, 358 Ill.

App. 3d 927, 933 (2005).

Our supreme court “has repeatedly recognized that the legislature has the power to

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prescribe penalties for defined offenses, and that power necessarily includes the authority to

prescribe mandatory sentences, even if such sentences restrict the judiciary’s discretion in

imposing sentences.” People v. Huddleston, 212 Ill. 2d 107, 129 (2004). However, to “pass

muster under the due process clause, a penalty must be reasonably designed to remedy the

particular evil that the legislature was targeting.” Sharpe, 216 Ill. 2d at 531.

The United States Supreme Court has described the risk of recidivism posed by sex

offenders as “frightening and high.” McKune v. Lile, 536 U.S. 24, 34, 153 L. Ed. 2d 47, 57, 122

S. Ct. 2017, 2025 (2002). In Huddleston, the court noted that “our legislature has responded

again and again to the propensity of sex offenders to repeat their crimes and to increases in the

incidence of sexual assault and abuse cases.” Huddleston, 212 Ill. 2d at 137-38. It is clear that

section 12-13(b)(3) was designed to address recidivism among sex offenders by mandating life

imprisonment if the defendant is convicted of a criminal sexual assault after being previously

convicted of aggravated criminal sexual assault.

Defendant, however, argues that section 12-13(b)(3) is invalid because under section 5-5-

3.2(b)(1) of the Unified Code of Corrections, a person convicted of criminal sexual assault may

receive an enhanced sentence of up to 30 years’ imprisonment if the prior conviction, within the

same or greater class of felony, is within 10 years, excluding time in custody. 730 ILCS 5/5-5-

3.2, 5-8-2 (West 2006). Defendant contends that the legislature has determined that a crime by a

person who repeats a similar offense within a 10-year period is of particular danger of recurrence,

so to apply a mandatory life sentence to a person who is “too law-abiding to qualify for a lesser

extended term” subverts the statutory scheme. According to defendant, the legislature “did not

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rationally intend to punish a less culpable defendant more severely.”

Defendant assumes that section 5-5-3.2 would apply if his previous conviction for

aggravated sexual assault had been less than 10 years ago and that, therefore, he would be subject

to a maximum discretionary sentence of 30 years’ imprisonment. To the contrary, section 12-

13(b) plainly applies in cases where the defendant is convicted of a criminal sexual assault after a

previous conviction for criminal sexual assault or aggravated criminal sexual assault. 720 ILCS

5/12-13(b) (West 2006). This statute trumps the more general section 5-5-3.2 in cases of criminal

sexual assault. “A person who is convicted of the offense of criminal sexual assault *** after

having previously been convicted of the offense of aggravated criminal sexual assault *** shall be

sentenced to a term of natural life imprisonment.” (Emphasis added.) 720 ILCS 5/12-13(b)(3)

(West 2006).

Defendant also contends that legislative debates support his argument that “the intent of

the legislature to allow a natural life sentence to be a matter of discretion reserved for the most

culpable.” He cites the following debate:

“SENATOR BERMAN: Am I correct, that this bill mandates a life

imprisonment for sexual assault?

***

SENATOR RADOGNO: No. That was originally the idea, but in

committee it was changed to offer longer sentences than are currently available. So

it still does allow some judicial discretion, but the option is for longer sentences.”

90th Ill. Gen. Assem., Senate Proceedings, May 20, 1997, at 10 (statements of

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Senators Berman and Radogno).

We disagree with defendant that this exchange shows “disapproval and rejection” of the

mandatory life sentence. In Kunkel v. Walton, 179 Ill. 2d 519, 536 (1997), the court held that

“because the language of the statute is plain and unambiguous, we have no occasion to consider

its legislative history.” Section 12-13(b)(3) unambiguously provides that a person convicted of

criminal sexual assault after having previously been convicted of aggravated criminal sexual

assault shall be sentenced to a term of natural life imprisonment (720 ILCS 5/12-13(b)(3) (West

2006)), so there is no need to review its legislative history. See also People v. Lombardi, 184 Ill.

2d at 477 (the language of the statute is the best indication of the legislature’s intent). The

Kunkel court went on to warn that “while courts give some consideration by a sponsor of a bill,

such statements are not controlling.” Kunkel, 179 Ill. 2d at 536.

In addition, this exchange can easily be construed as not supporting defendant’s position.

Senator Berman asked about the sentence for “sexual assault” but did not specify whether the

previous conviction was for criminal sexual assault or aggravated criminal sexual assault. It is

significant that Senator Radogno also did not qualify her response to whether it applied to a

previous conviction for criminal sexual assault or aggravated criminal sexual assault. It is

apparent that Senator Radogno was referring to a case of criminal sexual assault after a previous

conviction for criminal sexual assault, which calls for a 30- to 60-year term of imprisonment. 720

ILCS 5/12-13(b)(2) (West 2006). This interpretation is further supported by Senator Radogno’s

statement on March 19, 1997, that Senate Bill 7 “would allow the judge to impose a sentence of

thirty to sixty years for the second criminal sexual assault, and that’s up from the current six

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years. If one of the two offenses is a combination of aggravated or predatory sexual offenses,

then the offender is subject to natural life in prison.” 90th Ill. Gen. Assem., Senate Proceedings,

March 19, 1997, at 57 (statements of Senator Radogno). See also 90th Ill. Gen. Assem., House

Proceedings, May 8, 1997, at 17-18 (statements of Representative Turner) (“If the perpetrator

has a prior aggravated criminal sexual assault or a prior predatory criminal sexual assault the

person will be sentenced to natural life in prison”).

We find that section 12-13(b)(3) was reasonably designed to remedy the high rate of

recidivism of sex offenders and that it therefore does not violate due process as applied to people

ineligible for an extended term.

3. Proportionate Penalties

The proportionate penalties clause of the Illinois constitution provides that “[a]ll penalties

shall be determined both according to the seriousness of the offense and with the objective of

restoring the offender to useful citizenship.” Ill. Const. 1970, art. 1, §11. The Illinois Supreme

Court has identified three analyses courts use to assess proportionality claims: (1) whether the

penalty is cruel, degrading, or so wholly disproportionate to the offense committed as to shock

the moral sense of the community; (2) whether the described offense, when compared to a similar

offense, carries a more severe penalty, although the proscribed conduct creates a less serious

threat to the public health and safety; or (3) whether the described offense, when compared to an

offense having identical elements, carries a different sentence. People v. Sharpe, 216 Ill. 2d 481,

487 (2005).

Defendant, applying the first test, argues that the mandatory life sentence violates the

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proportionate penalty clause because it is so disproportionate to the offense as to shock the moral

sense of the community. He contends that he was sentenced to a mandatory term of natural life,

even though his second offense had no aggravating circumstances, such as bodily injury or the use

of a weapon or force.

In Huddleston, the supreme court found that section 12-14.1(b)(1.2) (720 ILCS 5/12-

14.1(b)(1.2) (West 2002)), which mandated a life sentence when a person was convicted of

predatory criminal sexual assault of a child committed against two or more people, did not violate

the proportionate penalties clause. In so concluding, the court reviewed the statutes of other

jurisdictions, including four other states that required a sentence of mandatory life imprisonment

for certain sexual offenses against children. Huddleston, 212 Ill. 2d at 140. Such enactments call

for longer sentences of imprisonment, “so that the offender’s opportunity to reoffend is foreclosed

during the period of incarceration.” Huddleston, 212 Ill. 2d at 138. The court also analyzed the

seriousness of the defendant’s conduct and his rehabilitative potential. Huddleston, 212 Ill. 2d at

142-44.

According to defendant, Illinois law dramatically differs from other states’ approaches to

sentencing for a second sex offense. He contends that of the 50 states that proscribe sex offenses

committed on an adult, only Illinois, Washington, and Georgia require mandatory life without

parole for a second sexual offense, and in the 13 other states that allow imprisonment for natural

life, the sentence is discretionary and parole is allowable. In light of courts’ deference to the

legislature in setting criminal penalties (Sharpe, 216 Ill. 2d at 487) and the statute’s attempt to

address the propensity of sex offenders to repeat their crimes (Huddleston, 212 Ill. 2d at 137-38),

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section 12-13 fits within the general statutory trend described by defendant. Furthermore, while

defendant claims that mandating a natural life sentence is disproportionate when he “lived

seventeen years without a second sexual offense,” he ignores that in addition to the 1987 rape of

S.H., he also was found guilty of the 1999 rape of G.W. More important, defendant used a

weapon while committing the 1987 assault, both in front of S.H.’s children and while they

screamed outside the door.

In People v. Sanchez, 344 Ill. App. 3d 74 (2003), this court addressed a proportionate

penalties challenge to section 12-14 of the Criminal Code (720 ILCS 5/12-14(a)(2) (West 2000)),

the aggravated criminal sexual abuse statute. In Sanchez, the defendant was convicted of

aggravated criminal sexual assault and, because he had a previous conviction for criminal sexual

assault, received a mandatory natural life sentence. On appeal, the defendant argued that his

mandatory life sentence violated the proportionate penalties clause because it was so

disproportionate to the offense committed as to shock the moral sense of the community. He

contended that he was convicted based on bruising the victim, a temporary bodily harm that

amounted to a simple battery; had he not caused the bruising, he would not have been convicted

of criminal sexual assault, and the court could have imposed a term of 30 to 60 years’

imprisonment. 720 ILCS 5/12-13(b)(2) (West 2000). This court rejected the defendant’s

argument, finding that “the defendant’s sentence is not disproportionate to the crime in a way that

shocks the moral sense of the community.” Sanchez, 344 Ill. App. 3d at 85. This court noted,

“The mandatory life sentence provision reflects the legislature’s decision to treat severely those

who engage in repetitive conduct of sexual assault because it recognizes the harm caused to

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victims.” Sanchez, 344 Ill. App. 3d at 85.

Defendant relies on People v. Miller, 202 Ill. 2d 328 (2002), which held that a sentence of

natural life imprisonment for a 15-year-old defendant violated the proportionate penalties clause.

In Miller, the defendant was charged with two counts of first-degree murder based on

accountability. The defendant agreed to be a lookout while two other people shot the victims.

Our supreme court found that the life sentence was the result of “three converging statutes”: the

automatic transfer provision of the Juvenile Court Act of 1987 (705 ILCS 405/5-4(6)(a) (West

1996)), which required the defendant to be tried as an adult in criminal court; the accountability

statute, which barred the court from considering the offender’s degree of participation in the

crime; and the multiple-murder sentencing statute, which barred the court from considering the

age of the offender or his degree of participation in the crime. Miller, 202 Ill. 2d at 340. The

court held that a mandatory life sentence with no possibility of parole “grossly distorts the factual

realities of the case and does not accurately represent defendant’s personal culpability such that it

shocks the moral sense of the community.” Miller, 202 Ill. 2d at 341. “This moral sense is

particularly true, as in the case before us, where a 15-year-old with one minute to contemplate his

decision to participate in the incident and stood as a lookout during the shooting, but never

handled a gun, is subject to life imprisonment with no possibility of parole--the same sentence

applicable to the actual shooter.” Miller, 202 Ill. 2d at 341.

As this court noted in Sanchez, “[t]his case is wholly distinguishable from Miller.”

Sanchez, 344 Ill. App. 3d at 85. Defendant in the instant case, unlike the defendant in Miller, is a

repeat sex offender. His conduct was not “grossly distorted” by the statute; it fit squarely within

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the conduct prohibited by the criminal sexual assault statute. Defendant was not convicted on a

theory of accountability, and he is not a juvenile.

Accordingly, we reject defendant’s argument that his sentence was disproportionate to the

nature of the offense and to the goal of restoring offenders to useful citizenship.

III. CONCLUSION

After the trial court allowed the amendments to the indictment, it said, “It’s rather

embarrassing to say the least.” The court went on to call the State’s actions “sloppy.” We would

sum up the State’s actions in one word: unprofessional.

For the foregoing reasons, we affirm defendant’s conviction and sentence.

Affirmed.

Steele, J., concurs.

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JUSTICE COLEMAN, specially concurring:

I concur with the majority's opinion affirming the conviction and finding that the

amendments to the indictment were permissible under the law. I write separately to emphasize a

point noted by the majority, as well as by the trial court, that the State's actions with respect to

amending the indictment were "sloppy" and "embarrassing."

Although I agree with that assessment of the State's conduct in this case, I would go

further. Here, the indictment did not simply contain a single error that was inadvertently

overlooked; instead, it appears that the State merely changed the date of the crime and used the

same charges that were filed in another case. Presumably, the State did not review the charging

instrument to ensure that it accurately reflected the particular case for which it sought the

indictment. Not only did the name of the victim refer to another case pending against this

defendant, but the particular criminal sexual conduct alleged was also incorrect. Although the law

allows for amendments to the indictment such as was done here, it is unacceptable to so casually

"cut-and-paste" charges in an indictment. This particular instance of carelessness deserves further

comment because the inaccuracies went undiscovered until the victim testified at trial.

Clearly there was substantial evidence against this defendant involving multiple acts of

criminal sexual conduct against multiple victims, which the State vigorously and successfully

prosecuted. I recognize that keeping the details of each case distinct may be challenging,

particularly in cases like this one where there are several cases involving multiple counts with

multiple victims that appear similar and are filed against the same defendant. However, it is in

such cases that the need for precision and accuracy in each charging instrument becomes all the

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more important in order to avoid imparting any confusion to the grand jury, the trier-of-fact, and

the defendant.

Thus, it is not merely "sloppy" and "embarrassing" to have both the name of the victim and

the conduct alleged stated incorrectly on the indictment, but it suggests a kind of cavalier attitude

that is unbecoming of representatives of the People of the State of Illinois.

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Plea se Use
REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Following (Front Sheet to be Attached to Each Case)
Form:

THE PEOPLE OF THE STATE OF ILLINOIS,
Complete
TITLE
of Case Plaintiff-Appellee,
v.

KELLY ROSS,

Defendant-Appellant.

Docket No. Nos. 1-06-0792
Appellate Court of Illinois
COURT First District, THIRD Division
Opinion
October 28, 2009
Filed
(Give month, day and year)

PRESIDING JUSTICE MURPHY delivered the opinion of the court:
JUSTICES
Steele, J., concur [s]

Coleman, J. specially concur [s]

APPEAL from Lower Court and Trial Judge(s) in form indicated in the margin:
the Circuit Ct. of
Cook County, The Honorable Michael Toomin , Judge Presiding.
Criminal Div.

Indicate if attorney represents APPELLANTS or APPELLEES and include
attorneys of counsel. Indicate the word NONE if not represented.

Attorney for Defendant-Appellant: Edwin A. Burnette, Public Defender of Cook County
For
APPELLANTS, Emily Eisner, Assistant Public Defender
John Doe, of 69 W. Washington, 15th Floor
Chicago. Chicago, IL 60602
Phone: (312) 603-0600
For
APPELLEES,
Smith and Smith
of Chicago, Attorneys for Plaintiff-Appellee: Anita Alvarez, State’s Attorney, Cook County
Joseph Brown, James E. Fitzgerald, Alan J. Spellberg, Noah Montague, Asst. State’s
(of Counsel)
Attys., Of Counsel
Also add Room 309, Richard J. Daley Center
attorneys for Chicago, IL 60602
third-party Phone: (312) 603-5496
appellants or
appellees.

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