dissenting:
I agree with the majority that other-crimes evidence is not admissible if it is relevant only to establish the defendant’s propensity to commit crimes and that it remains admissible only to show identity, motive, modus operandi, or absence of mistake. People v. Robinson, 167 Ill. 2d 53, 62-63 (1995). Here, however, I believe the majority errs by holding that the testimony of Lisa V and Ashley A. was admissible to show intent and absence of mistake. 214 Ill. 2d at 136. In my view, neither exception is applicable, and therefore, I respectfully dissent.
Defendant was specifically charged with touching the victims’ breasts for sexual gratification. Defendant did not argue that he touched the victims’ breasts inadvertently or by mistake, or that he had no sexual purpose in touching them. Indeed, even the majority acknowledges that defendant denied touching the victims’ breasts at all. 214 Ill. 2d at 137.
Instead, the majority contends defendant’s denial ignores the inferences that could be drawn from the witnesses’ testimony and the arguments of defense counsel. 214 Ill. 2d at 137-38. The majority asserts the evidence established that defendant “liked to touch students” and reasons the jury could have inferred that he was either lying or mistaken about touching the victims’ breasts. 214 Ill. 2d at 138. The majority also suggests defense counsel’s awareness of this possibility prompted counsel’s argument that if defendant had touched students it was merely incidental contact. This argument, according to the majority, constituted an attempt to use ambiguity “to bar other-crimes evidence, while at the same time leaving room to argue lack of intent to the jury.” 214 Ill. 2d at 138. I disagree and believe the majority’s conclusions represent unjustified extensions of the actual evidence in this case.
For example, in his statement to police, defendant stated that it was not uncommon for him to put his hand on a shoulder while talking to someone and that he sometimes puts his hand on a waist or back because he is a “touchy feely type person.” 214 Ill. 2d at 133. He did not say, and the evidence did not show, that he just “liked to touch students,” as the majority suggestively summarizes the testimony. See 214 Ill. 2d at 138. In his testimony concerning the complainants in this case, defendant stated only that he might have put his hand on Crystal H.’s arm. He did not indicate he may have also touched her breast and then later attempt to justify his conduct by saying the act was inadvertent.
As justification for admitting the other-crimes evidence, the majority also cites defendant’s testimony “that one of the victims ‘misinterpreted’ his actions in touching her breasts” because “[t]he jury could have believed that defendant was either mistaken or lying about his touching of female students in a sexual manner.” 214 Ill. 2d at 138. The majority implies that the “victim” who may have misinterpreted defendant’s actions was one of the complainants, but that is not the case. As noted in the fact section (214 Ill. 2d at 133-34), the purported “victim” was Lisa V, who was not one of the complainants in this matter and who provided some of the other-crime testimony at the heart of this appeal. Using defendant’s cross-examination responses concerning the substance of other-crimes testimony to justify the initial admission of that other-crimes testimony defies logic.
In addition, the mere possibility suggested by the majority that the jury might determine defendant is mistaken or lying about his actions fails to justify the admission of the other-crimes evidence. See 214 Ill. 2d at 138. The jury is always required to make credibility determinations. That truism alone cannot justify the admission of the other-crimes evidence in this case.
Indeed, defendant’s testimony actually belies any attempt to justify an incidental touching of either Crystal H. or Carol Z. Defendant testified that the seating arrangements in the in-school suspension room precluded the type of contact claimed by Crystal H. 214 Ill. 2d at 133. Defendant’s assertion that the alleged contact was not physically possible cannot support a reasonable inference that the contact may have occurred but was merely accidental.
Similarly, in the case of Carol Z., defendant did not acknowledge ever having any physical contact with her. 214 Ill. 2d at 133. Again, his testimony provides no rational basis for a jury to infer that defendant may have accidentally touched her breast, as charged in the information. Defendant’s testimony did not justify the majority’s conclusion that the jury could have inferred that he accidentally touched the complainants’ breasts.
In a closely related point, the majority also notes defense counsel’s argument that any physical contact with the victims was merely incidental. The majority contends that defendant thus raised the issues of motive and intent and intended to use ambiguity unfairly to defendant’s advantage. In reaching this conclusion, however, the majority ignores the precise nature of the charged conduct, namely, the touching of two minors’ breasts, as well as the context of the argument. When viewed in the context of the actual evidence presented by the defense, counsel’s argument simply summarizes defendant’s testimony that he may have touched Crystal H.’s arm and attempts to counter the undue prejudice created by the admission of the other-crimes evidence after the trial court’s denial of defendant’s motion in limine. At no time did defendant lead the jury to believe he may have also touched either Crystal H. or Carol Z. on the breast — but only incidentally. There was no ambiguity on that point. Accordingly, defense counsel’s argument could not have been seeking an unfair advantage from any ambiguity concerning defendant’s intent in touching the victims’ breasts, contrary to the majority’s reasoning. Counsel’s argument necessarily attempted to offset the adverse inferences created by the improper admission of the other-crimes evidence. There is no basis for concluding the argument was imposed for an improper purpose.
Next, the majority rejected defendant’s reliance on People v. Bobo, 278 Ill. App. 3d 130 (1996), and People v. Woltz, 228 Ill. App. 3d 670 (1992), claiming that the charged conduct in those cases was more overt than the “subtle” actions in this case. 214 Ill. 2d at 138-39. The primary analyses in those decisions, however, actually focused on the defendants’ denial of the charged acts and the similarity of the other-crimes evidence to the facts in the case.
In Bobo, the other-crimes evidence was offered at the defendant’s aggravated criminal sexual abuse trial “to show intent and/or motive and/or knowledge.” Bobo, 278 Ill. App. 3d at 132-33. The court reasoned that because the defendant denied the charged contact and did not attempt to excuse it as accidental, the other-crimes evidence “served only to demonstrate defendant’s alleged propensity to sexually assault or harass female students.” Bobo, 278 Ill. App. 3d at 133. In reversing the defendant’s conviction due to the “highly prejudicial” nature of the erroneously admitted other-crimes evidence, the court noted that while two incidents with other students “reveal[ed] several similarities,” “[m]uch of the evidence lacked any similarity to the incident at bar, other than that it involved the alleged fondling of a female student at the hands of defendant.” Bobo, 278 Ill. App. 3d at 133. The same may be said in this case, where the charged and uncharged conduct are similar only in the broadest of terms.
In Woltz, the trial court admitted other-crimes evidence, in relevant part, to show absence of mistake. Woltz, 228 Ill. App. 3d at 671. The appellate court rejected that ground, reasoning that the defendant denied the charged conduct. Since the defendant did not claim the acts may have occurred accidentally, there was no need to refute that claim by the use of other-crimes evidence. Woltz, 228 Ill. App. 3d at 674. In the instant case, defendant also denies the alleged contact, again making it unnecessary to admit other-crimes evidence on the basis of lack of intent or absence of mistake. In addition, the Woltz court did not rely on the obvious nature of the charged acts in its decision. The majority’s insistence that the overt nature of the charged acts was determinative in this case is misplaced. See 214 Ill. 2d at 138-39.
My disagreement with the majority also extends to its heavy reliance on People v. Deenadayalu, 331 Ill. App. 3d 442 (2002), and People v. Novak, 163 Ill. 2d 93 (1994). 214 Ill. 2d at 139. As even the majority acknowledges in a parenthetical note, Deenadayalu specifically distinguished cases holding that evidence of other crimes is not relevant “on the basis that those cases involved child victims.” 214 Ill. 2d at 137. See also Deenadayalu, 331 Ill. App. 3d at 449. Since Deenadayalu explicitly distinguished cases such as the instant one involving child victims, the majority’s reliance on the rationale in that case is seriously, if not fatally, flawed.
The majority’s reliance on Novak is also ill-advised. In Novak, the defendant did not appeal the admission of the other-crimes testimony. Rather, he argued that the jury instruction limiting the use of the other-crimes evidence to the issue of modus operandi and intent was inapplicable because he had provided “an innocent construction of his acts.” Novak, 163 Ill. 2d at 116. Notably, he did not wholly disavow the acts. Here, defendant did not attempt to impose “an innocent construction” on his acts. Instead, defendant denied that he had touched the complainants’ breasts at all. That distinction alone is sufficient to erode confidence in the majority’s position. Thus, rather than providing “strong support” that other-crimes evidence was admissible under the circumstances in this case as the majority claims (214 Ill. 2d at at 140), Novak and Deenadayalu significantly undermine the majority’s position.
Furthermore, Deenadayalu is also damaging to the majority opinion in yet another way. In addition to its express recognition that its holding does not apply to cases such as the instant one where the victims are children, Deenadayalu relied on cases that admitted other-crimes evidence based on far more numerous and specific similarities than are present here. See Deenadayalu, 331 Ill. App. 3d at 448. The Deenadayalu court discusses People v. Luczak, 306 Ill. App. 3d 319, 325 (1999), where the appellate court remarked that the two crimes at issue “were remarkably similar.” In each instance, the female victims were walking when offered a ride by defendant, who “drove each victim to a secluded alley in the same area of Chicago,” attacked each woman in his car, threatened to throw her into the lake or river, called each victim a “tease” and other similar names, assaulted the victims in the same manner, talked to each about his connection to the Latin Kings, and, after the attack, drove the victim to her original destination. Luczak, 306 Ill. App. 3d at 325.
Deenadayalu also relies on People v. Harris, 297 Ill. App. 3d 1073 (1998), noting “the similarities between the two crimes — the victims were abducted in the same area, driven to a similar location, assaulted, and returned to locations near to where they lived and from where they had been taken.” Deenadayalu, 331 Ill. App. 3d at 448. Finally, Deenadayalu discusses People v. Johnson, 239 Ill. App. 3d 1064 (1992), acknowledging “numerous similarities between the other conduct and the charged offense, including that both victims were abducted in the same manner and both victims were beaten, choked, and bitten.” Deenadayalu, 331 Ill. App. 3d at 448.
In contrast, here the only similarities the majority cites between the charged and uncharged conduct are: (1) the general setting, namely a full calendar year at a public high school; (2) approaching the victims from behind; and (3) the “subtlety” defendant allegedly employed in the assaults. 214 Ill. 2d at 141. The majority relies most heavily on the third factor. 214 Ill. 2d at 137-38, 141. That claimed similarity is particularly suspect because it would be highly likely that any potential perpetrator of sexual abuse in a busy public high school who wished not to be immediately apprehended would indeed be surreptitious in his conduct. That factor adds little weight in the analysis.
Likewise, it is not particularly notable that the alleged abuse took place in the same general location and time frame. While the incidents occurred during school hours, on school grounds, they encompassed a one-year time frame and a variety of settings on the school grounds, including an in-school suspension room with another student present, an art room both with and without the presence of an ongoing class, a study hall with other students present, and a room being used for a makeup test. Thus, the specific circumstances and locations varied widely within the broad perimeters of the school. Again, little weight can justifiably be given to this purported “similarity.”
As for the allegation that defendant consistently approached the victims from behind, that was not the case with complainant Carol Z., who testified that she was approached from both the back and the front. 214 Ill. 2d at 131. While the direction of approach was similar in some incidents, that factor alone is far from being determinative given the tremendous prejudicial effect the other-crimes evidence likely had on the jury. See People v. Rogers, 324 Ill. 224, 229-30 (1926) (recognizing the underlying basis for the common law rule against the admission of other-crimes evidence as the concern that average jurors will give that evidence too much weight and convict a defendant on the basis of prior or cumulative conduct instead of the facts proven in support of the charged offense).
Moreover, the differences between the charged and uncharged acts are far more distinctive and numerous than the claimed similarities. Both Lisa Y. and Ashley A. testified to a large number of incidents involving no factual similarity to the charged conduct besides being in the same school during school hours. As stated previously, in all but one incident reported by Lisa and Ashley the uncharged misconduct took place during study hall. Notably, none of the charged incidents occurred in study hall. More importantly, the type of abuse alleged varied dramatically in the charged and uncharged acts. The information filed against defendant limited the charged acts to touching breasts, but the uncharged incidents ranged from that to rubbing genitals on various parts of the victims’ bodies to suggestive winking followed by the making of lascivious drawings and text. Surely that range of conduct does not comport with the degree of similarity required in Deenadayalu, relied on the majority, or by Luczak, Johnson, and Harris, all cited with approval in Deenadayalu.
Admittedly, less similarity is required in cases not involving the question of modus operandi. 214 Ill. 2d at 142. Nonetheless, the distinct lack of much factual similarity at all between the charged and uncharged acts is the most troubling aspect of the majority opinion. I am deeply concerned that under the precedent set in this case, the traditionally limited exceptions will be construed so broadly as to all but swallow up our long-standing prohibition against the use of other-crimes evidence. See People v. Rogers, 324 Ill. 224, 229-30 (1926). The majority’s perfunctory conclusion that any undue prejudice to defendant is outweighed by the probative value of the other-crimes evidence (214 Ill. 2d at 141) does little to assuage my concerns. For these reasons, I must respectfully dissent.
JUSTICE FREEMAN joins in this dissent.