dissenting:
Today’s decision marks a significant departure from our traditionally guarded view of other-crimes evidence, a view which requires that it be admitted only where it is relevant to some issue other than a person’s penchant for committing crimes. Here, evidence of uncharged misconduct was admitted under the guise that it proved something other than the defendant’s propensity for wrongdoing, when, in fact, it did not. People v. Bobo, 278 Ill. App. 3d 130, 662 N.E.2d 623 (1996), should control the outcome of this case.
In People v. Bobo, we confronted circumstances identical to those we deal with here. We awarded a new trial to a teacher charged with aggravated criminal sexual abuse, because evidence of uncharged fondling of students was admitted under a pretext of proving intent rather than criminal propensity. Bobo denied touching his accusers. Ergo, either he fondled young breasts and buttocks for lustful reasons or he did not. There was no evidence to raise a question about a nonsexual purpose in touching erogenous areas of the young schoolgirls’ bodies. Therefore, we held that the State was prohibited from presenting evidence of uncharged student touching to address the question of intent.
Now we refuse a plea that asks us to follow our precedent — a plea for equal treatment under the law. We not only turn our back to the defendant, but we shun our own decisionmaking as well. Moreover, we do so without any reason to support such a dramatic shift in position.
There was no justification, whatsoever, for the admission of testimony about sexual contact with Lisa V or Ashley A. Such testimony was admitted solely for the purpose of demonstrating the defendant’s penchant for fondling teenage girls. There was nothing distinctive or peculiar about the methods that he employed. The evidence simply shows the defendant to be a common, run-of-the-mill pervert, who mistakenly thought that rubbing genitals against young legs or placing a hand on a young breast would be either accepted or forgiven without complaint.
The majority talks about the use of other-crimes evidence to establish a modus operandi. Indeed, we are told that the superior quality of the modus operandi evidence admitted here allows us to distinguish our case from People v. Bobo and to maintain allegiance to that precedent. Here is the reasoning that led to that decision:
“[T]he State introduced evidence of other wrongful acts, allegedly committed by defendant against several other female students, to show intent and/or motive and/or knowledge. The State, however, did not establish how such evidence showed motive, intent, or knowledge. Defendant denied that the entire incident with L.G. ever occurred; he did not claim he accidentally touched her, nor did he give some other type of excuse. The evidence offered by the State *** served only to demonstrate defendant’s alleged propensity to sexually assault or harass female students.” Bobo, 278 Ill. App. 3d at 132-33, 662 N.E.2d at 625.
The use of other-crimes evidence to establish a distinctive and peculiar modus operandi was not even under consideration in People v. Bobo. The holding had nothing to do with it. How strange it seems to distinguish a case for reasons that do not pertain to it.
My colleagues say: “[M]odus operandi evidence can be relevant even where the defendant’s identity is not an issue. For example, modus operandi evidence is admissible to prove that a crime occurred at all. Kimbrough, 138 Ill. App. 3d at 487, 485 N.E.2d at 1298.” 343 Ill. App. 3d at 748. This passage demonstrates how far off base the majority has strayed in seeking to uphold these convictions. It is simply not true. No case stands for such a proposition.
Modus operandi is not evidence; it is not used to prove anything. It is a criminal’s unique methodology that the State is permitted to prove, with evidence of other crimes, when the question of who committed a crime is at issue.
People v. Kimbrough does not hold that “modus operandi evidence is admissible to prove that a crime occurred at all.” Here is the passage of that opinion that the majority thinks stands for such a proposition:
“[W]e believe that the crime charged and the subsequent [wrongful] act share peculiar and distinctive common features so as to earmark both acts as the handiwork of the same person. The two acts taken together demonstrate a ‘method of working.’ It follows that the subsequent act was admissible to prove modus operandi and that the crime charged was actually committed. Evidence of other crimes [not modus operandi evidence] may be relevant not only to the issue of who committed a crime[ ] but also to the issue of whether a crime was committed at all. [Citation.] This principle is applicable to a case like the present one, where defendant contends that as between himself and the victim, ‘the question was did they meet by mutual consent or only by threat of force.’ ” (Emphasis added.) Kimbrough, 138 Ill. App. 3d at 487, 485 N.E.2d at 1297-98.
The modus operandi exception to the general rule that prohibits the admission of other uncharged wrongdoing addresses those situations where multiple crimes are so unique that they could only have been committed by one person. The exception makes sense only in the context of cases where the offender’s identity is at issue. That is not what we have here.
The identity of who fondled the alleged victims was not at issue in this case. There was simply no question about who the victims claimed fondled them.
Justice Stamos, in another case that the majority misuses, put it well:
“Modus operandi *** refers to a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer. [Citation.] ***
*** While a showing of modus operandi does not require that the similarities be unique to the offenses being compared, there must be ‘some distinctive features that are not common to most offenses of that type.’ [Citation.]” (Emphasis added.) People v. Barbour, 106 Ill. App. 3d 993, 999-1000, 436 N.E.2d 667, 672 (1982).
The majority does not appear to understand this, particularly in light of its reliance on People v. Soler, a case that deals with the common-scheme-and-design exception to the general prohibition against other-crimes evidence, not the modus operandi exception. See People v. Soler, 228 Ill. App. 3d 183, 202-03, 592 N.E.2d 517, 530-31 (1992).
Here is an example of what the above passage means. Most gas station armed robberies involve the use of a pistol to relieve an attendant of all the money in the cash register. Evidence of a series of gas station robberies committed by a masked man who, while armed with a pistol, forces attendants to empty their cash registers would not qualify for admission in order to show modus operandi, even though every armed robbery was committed in identical fashion. There would be no distinctive features to the methodology uncommon to most gas station holdups. However, if this same armed robber repeatedly demanded all of the Fritos that the station had on hand, instead of its cash, the robberies would take on a distinctive feature to suggest that they were the work of the same individual. Authorities would know that they were dealing with the Frito Bandito, and upon his arrest, the prosecution would be armed with all the robberies to prove his identity in the crime charged.
The other-crimes evidence in this case did not even share common characteristics, much less distinctive features uncommon to most fondling cases. Lisa V. and Ashley A. testified to misconduct that was different from the alleged criminal conduct being prosecuted. Both charges alleged the fondling of breasts. Crystal H., a first-year student, testified that the defendant approached her from behind, put his hands on her waist, and moved them toward her chest until he touched her breasts. Carol Z., the other alleged victim, testified to a host of incidents that took place in the art room and in the hallways of the school. She told the jury that on occasion the defendant hugged her. On other occasions, he held her hand and touched her back. He approached her from behind and from the front. At times, he touched her breasts, and at times, he touched her buttocks. He even asked her about her sex life. Neither of the two victims testified that the defendant rubbed his genitals on her arm or leg.
Lisa V and Ashley A. both testified to purposeful contact between the defendant’s clothed penis and their arm and leg. In addition, the two schoolgirls testified about other kinds of inappropriate dalliance. The jury learned how the defendant was on hand to gape at Ashley A.’s provocative tattoo. It was also told how the defendant drew a picture of the devil on Lisa V’s daily planner and labeled it “Lisa is a horny devil.”
Jurors could not take kindly to an adult teacher who toyed around with his clothed penis and looked upon youngsters as horny devils. This unseemly flirtation and misuse of a housed penis was uncharged conduct that should never have been heard by jurors.
The only commonality between the charged conduct and the uncharged conduct was the touching of breasts, something that garden-variety child abusers do. This was not a case where proof of other uncharged misconduct could establish an uncommon modus operandi that set the defendant’s fondling of teenagers apart from fondling engaged in by other child abusers. The testimony should never have been admitted on that basis.
This decision completely changes how we approach the admission of other-crimes evidence. In People v. Bobo, we addressed the same crime of aggravated criminal sexual abuse. Bobo was alleged to have fondled young students in order to sexually arouse either the students or himself or both. He flatly denied touching anyone. Since Bobo never claimed an innocent reason for touching a student, we held that the State could not introduce the other uncharged misconduct to prove the specific-intent element of the aggravated-criminal-sexual-abuse charge. Our ruling was consistent with precedent.
Until today, we have constrained the use of other-crimes evidence to those situations where defendants pursue a defense that challenges the intent element of the State’s proof. We have never recognized the State’s right to use other-crimes evidence to establish the element of intent in the absence of affirmative action on the part of a defendant that attempts to negate a prurient purpose. A flat denial of any physical contact has rendered other-crimes evidence immaterial and inadmissible to establish the specific-intent element of the State’s proof on an aggravated-criminal-sexual-abuse charge.
In response to the defendant’s claim that he never touched a student’s breast, accidently or otherwise, the majority offers this stunning sentence:
“The defendant’s intent in touching the girls at all was at issue; therefore, the testimony of Ashley A. and Lisa V was very relevant to showing that he did have a sexual intent in his conduct.” (Emphasis in original.) 343 Ill. App. 3d at 749.
I think the majority is saying that since the defendant denied any inappropriate touching at all, the uncharged events became relevant to prove his sexual intent. If so, the majority is wrong.
When the defendant denied touching the girls at all, the testimony about other touching became relevant to whether he touched schoolgirls on their breasts, by showing his penchant for fondling. While it may have also been relevant to show why he touched breasts, it was totally unnecessary to prove a sexual purpose. Sexual intent was still a part of the charge that needed to be proven, but it became inherent in the denial. If the defendant did not touch schoolgirls on their private parts, he did not touch them and, therefore, did nothing that could be driven by a sexual intent. It seems somewhat inane to think it important to prove other uncharged touching to establish sexual intent, when a sexual motivation was an obvious, foregone conclusion if the jurors disbelieved the defendant. The defendant’s unwillingness to concede even the possibility that he may have accidently touched a schoolgirl on a sexually taboo area took the question of intent out of play.
The testimony of Ashley A. and Lisa V. helped resolve the question of whether the defendant touched the victims’ breasts. It made the charged allegations more likely because it showed that the defendant had a propensity for fondling teenage schoolgirls. Of course, this is precisely what the law forbids.
This case is a green light to admit other-crimes evidence in every case where some specific intent is an element of the offense charged. Any prosecutor worth salt will have the above sentence scribbled across his or her case file and present it as his or her license to introduce other-crimes evidence, even though a defendant denies the alleged acts without a challenge to the intent element of the offense. Prosecutors will say what the majority is unwilling to say, because it has no reason to say it — People v. Wilson overrules People v. Bobo.
Despite the elimination of any need for an affirmative defense challenge as a prelude to the admission of other-crimes evidence on the question of intent, the majority discusses the defendant’s purported effort to interject incidental touching as an innocent explanation for the accusations leveled against him. Again, the majority is wrong.
This defendant did not claim that he had accidentally touched anyone’s breast. He merely claimed to have put his hand on Crystal H.’s arm. He unconditionally denied touching her breasts and protested that it could not have occurred as she claimed. The defendant testified that he did not recall any physical contact with Carol Z.
The majority thinks that the defendant conceded a breast-touching when, on cross-examination, he used the phrase “incidental touching.” To the contrary, the defendant did not lay claim to an incidental touching of anyone. All that he testified to was his superior’s suggestion that he might have had some incidental contact with a student’s breasts. The prosecutor asked, “Mr. Groff stated that there might be [sic] some incidental contact?” The defendant answered, “Said[:] [‘][Y]ou may have touched somebody[’]s breasts[.] [D]id you?[’] is what he asked me[,] and I said that I hadn’t.” (Emphasis added.)
The majority is wrong in implying that the defendant tried to put an innocent spin on touching students. The defendant denied breast-touching and claimed that he had not succumbed to the suggestion that he may have innocently touched one. Thus, the testimony from Ashley A. and Lisa V was not needed to refute a claim that the touching of a breast was accidental and without sexual intent.
We can cast aside our prior decisions if we choose, but not without a good reason. Before we overrule ourselves, the consistency that the law deserves, and upon which people rely, calls for an explanation. People v. Bobo is virtually indistinguishable from this case. Since the majority’s effort to distinguish it examines a distinction without reason and since nothing is offered that would warrant overruling our precedent, I would allow this defendant the same relief granted to Mr. Bobo. I would grant the defendant a new trial where he is tried for charged misconduct, rather than having labeled a young schoolgirl a horny little devil.
For the reasons stated, I respectfully dissent.