People v. Baldwin ( 2014 )

Illinois Official Reports
Appellate Court
People v. Baldwin, 2014 IL App (1st) 121725Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption WILLIE BALDWIN, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-12-1725
Filed August 15, 2014
Held Defendant’s convictions for aggravated criminal sexual assault and
(Note: This syllabus aggravated criminal sexual abuse were upheld where defendant
constitutes no part of the waived review of the ruling on the admission of the diagnosis of the
opinion of the court but victim’s personality disorder by failing to present an offer of proof as
has been prepared by the to the basis for the diagnosis, any error was harmless in view of the
Reporter of Decisions overwhelming evidence of defendant’s guilt and the extensive cross-
for the convenience of examination the trial court allowed as to the victim’s mental health,
the reader.) and the trial court did not err in accepting the testimony of the State’s
DNA expert over that of the defense expert.
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-1301; the
Review Hon. Timothy J. Joyce, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier and Jonathan Yeasting, both of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Mary L. Boland, and Samuel C. Ray, Assistant State’s Attorneys, of
counsel), for the People.
Panel PRESIDING JUSTICE ROCHFORD delivered the judgment of the
court, with opinion.
Justices Lampkin and Reyes concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Willie Baldwin, was convicted of two counts of
aggravated criminal sexual assault and one count of aggravated criminal sexual abuse. The
trial court sentenced defendant to two consecutive 15-year terms of imprisonment for the
aggravated criminal sexual assault convictions and one consecutive 3-year term of
imprisonment for the aggravated criminal sexual abuse conviction. On appeal, defendant
contends: (1) the trial court erred in excluding evidence of the complainant’s diagnosis of
antisocial personality disorder; (2) his trial counsel committed ineffective assistance; and (3)
the trial court erred in admitting evidence of an unrelated sexual assault against a third person
on a propensity theory. We affirm.
¶2 Defendant was charged with one count of armed habitual criminal, four counts of
aggravated kidnapping, one count of armed robbery, six counts of aggravated criminal sexual
assault, and four counts of aggravated criminal sexual abuse against the victim, E.W. Prior to
trial, the State filed a motion in limine to admit certain other-crimes evidence, specifically, of
defendant’s aggravated criminal sexual assault of a second victim, D.D., approximately six
months prior to E.W.’s assault. The motion was made pursuant to section 115-7.3 of the
Code of Criminal Procedure of 1963 (Criminal Code) (725 ILCS 5/115-7.3 (West 2010)),
which applies, in relevant part, to a defendant who is accused of aggravated criminal sexual
assault. Section 115-7.3(b) provides that evidence of defendant’s commission of another
aggravated 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 2010). Section 115-7.3(c) further
provides:
“In weighing the probative value of the evidence against undue prejudice to the
defendant, the court may consider:
(1) the proximity in time to the charged or predicate offense;
(2) the degree of factual similarity to the charged or predicate offense; or
(3) other relevant facts and circumstances.” 725 ILCS 5/115-7.3(c) (West
2010).
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¶3 The trial court here weighed the factors mentioned in section 115-7.3(c) and granted the
State’s motion, ruling that the evidence of defendant’s aggravated criminal sexual assault
against D.D. was admissible in E.W.’s case to show his propensity to commit sex offenses.
(We will discuss the basis of the trial court’s ruling in more detail later in this opinion.) The
trial court granted the State’s motion despite the fact that when D.D.’s case went to trial, the
jury there acquitted defendant of aggravated criminal sexual assault alleging forced oral
penetration and was unable to reach a verdict on a second count alleging forced vaginal
penetration.
¶4 On the day of defendant’s bench trial in the E.W. case, defendant made an oral motion in
limine to admit evidence that in 2011, the University of Utah Assessment and Referral
Services (hereinafter, Assessment and Referral Services) had diagnosed E.W. with antisocial
personality disorder following her arrest for several offenses in Utah. Defendant explained
that he had not made the motion earlier because he had only recently received the report from
Assessment and Referral Services containing E.W.’s diagnosis. Defendant sought a
preliminary ruling from the trial court that E.W.’s diagnosis of antisocial personality disorder
was relevant and admissible with regard to her truthfulness. Defendant also sought guidance
from the trial court regarding the best way to introduce E.W.’s diagnosis into evidence in the
event it found the diagnosis relevant and admissible. Defendant stated:
“If you should find her antisocial diagnosis relevant, we would either need [E.W.]
to endorse that she has information that she had been diagnosed with that or a
stipulation from the State as to that diagnosis. Absent those things I don’t think the
court can consider them in which case we would have to hire an expert.
Of course, since we received this information late, we have not had the ability to
contact or procure an expert and we’re ready for trial. And so we probably cannot
answer ready for trial unless we can sort of lay some ground work for how that
evidence would come in. The expert would either be the clinician herself, would have
to be flown in from Utah or, like I said, if there was a stipulation as to the diagnosis
itself and if your Honor were to take judicial notice of the definition of antisocial
personality disorder, that would be satisfactory to us.”
¶5 The record on appeal contains neither any written motion in limine seeking the
preliminary finding of admissibility with regard to E.W.’s diagnosis, nor the report from
Assessment and Referral Services containing the diagnosis and the reasons therefore.
¶6 The trial court ruled that evidence of E.W.’s diagnosis was inadmissible under section
115-7.1 of the Criminal Code (725 ILCS 5/115-7.1 (West 2010)), which prohibits a court
from requiring a witness who is the victim of an alleged sex offense to undergo a psychiatric
or psychological examination. However, the trial court also ruled that defendant could
cross-examine E.W. regarding her specific conduct leading to the diagnosis of antisocial
personality disorder.
¶7 I. Trial
¶8 A. E.W.’s Testimony Regarding the Sexual Assault
¶9 At trial, E.W. testified she was 24 years old at the time of trial in 2011 and had been
living in Salt Lake City, Utah, since the end of 2006. On February 3, 2003, E.W. was 15
years old and living with her grandmother at 53rd and Hermitage Avenue in Chicago. At
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about 9 p.m. that evening, E.W. was waiting at the bus stop at 53rd Street and Ashland
Avenue. When the bus did not come, E.W. began walking south on Ashland Avenue toward
the next bus stop. As she was walking, she heard defendant, who was sitting in a car facing
north on Ashland Avenue, “holler” at her to come over to his car. E.W. refused because she
did not know defendant. Defendant drove off north on Ashland Avenue and E.W. continued
walking south on Ashland Avenue.
¶ 10 E.W. testified that she again saw defendant as he drove up a side street behind her, turned
on Ashland Avenue, and pulled up alongside her with his passenger window down.
Defendant leaned over the passenger seat and pulled out a gun with his left hand and pointed
it at E.W. Defendant demanded that E.W. get in the car and he threatened to shoot her if she
ran away.
¶ 11 E.W. testified she complied and entered his car. Defendant placed the gun in the driver’s
side door panel and drove south on Ashland Avenue. As he was driving, defendant asked
E.W. whether she had any money in her pocket. E.W. said no. Defendant responded that he
would search E.W., and that if she had any money, he would kill her. E.W. then gave
defendant her money, approximately $60 or $70. Defendant offered her a “primo” cigarette
and beer; she refused.
¶ 12 E.W. testified defendant drove into an alley and forced her to perform oral sex on him
while he remained in the driver’s seat. Defendant then ordered E.W. to climb over into the
back seat, where he forced her to engage in sexual intercourse (penis to vagina) with him.
During the course of this, defendant touched her breast with his mouth.
¶ 13 E.W. testified that after defendant finished having sex with her, they returned to the front
seat of the car and defendant drove out of the alley. Defendant told E.W. that he had been
watching her for the last two months and that now he was going to drive her to the west side
of Chicago and kill her. E.W. did not attempt to get away at that point because, in addition to
the gun, defendant also “had a knife and one of them arrow-bow crosses up there in that car.”
¶ 14 E.W. testified that at 68th Street and Damen Avenue, defendant came to a stop to avoid
hitting two people who were crossing the street. Taking advantage of the opportunity, E.W.
jumped out of the car and ran to a gas station near 67th Street and Ashland Avenue and used
a pay phone to call the police.
¶ 15 Officer Maria Hernandez testified she was dispatched to 68th Street and Damen Avenue
at around 9 p.m. on February 3, 2003, where she saw E.W., who was very upset, distraught,
and crying. E.W. stated she had been sexually assaulted. Officer Hernandez asked E.W. some
“brief questions” and then put her in the squad car and drove her to the University of Chicago
Hospital.
¶ 16 B. Testimony Regarding the Investigation
¶ 17 E.W. testified that at the hospital, doctors examined her and a criminal sexual assault kit
was administered to her. The parties stipulated that nurse Harwood would testify that the
criminal sexual assault kit included the taking of oral, vaginal, and rectal cultures.
¶ 18 Officer Hernandez spoke with E.W. at the hospital and made a police report based on that
conversation. E.W. testified she provided a description of defendant as a dark-skinned man
with brown eyes and a beard, wearing a khaki jogging suit, a leather jacket, black gloves, and
driving a white car. Officer Hernandez testified that during the conversation, E.W. never
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mentioned that defendant had touched her breasts, nor did she state that defendant had told
her he had been watching her for two months and that he was going to take her to the west
side of Chicago to kill her. Instead, E.W. stated that defendant had dropped her off on the
south side of Chicago near 68th Street and Damen Avenue, after which she walked to 67th
Street and Ashland Avenue. E.W. testified that Officer Hernandez was mistaken in her
recollection of their conversation and that defendant had not voluntarily dropped her off after
the sexual assault but, rather, she had escaped from his car.
¶ 19 Nicholas Richert, who was formerly a forensic scientist for the Illinois State Police,
testified that in 2006, defendant’s DNA registered as a hit in the Combined DNA Index
System (CODIS) for the sexual assault of the other-crimes victim, D.D. On December 8,
2006, defendant was arrested at 63rd Street and Ashland Avenue. E.W. testified that on
December 10, 2006, she went to the police station and picked defendant out of a lineup as the
man who had sexually assaulted her.
¶ 20 C. The Forensic Evidence
¶ 21 The parties stipulated that if called to testify, Charles Widerstrom, an evidence technician
with the Chicago police department, would testify that on February 4, 2003, he went to the
emergency room of the University of Chicago Wyler’s Hospital and recovered E.W.’s sealed
criminal sexual assault kit. Maria Fiorelli, a forensic scientist with the Illinois State Police,
would testify she examined E.W.’s criminal sexual assault kit, which included vaginal, oral
and rectal swabs. Ms. Fiorelli discovered semen on the vaginal and rectal swabs.
¶ 22 The parties stipulated that if called to testify, Melissa Thompson, a DNA analyst
employed by Orchid Cellmark, would testify she performed a Polymerase Chain
Reaction/Short Tandem Repeat DNA analysis on the samples retrieved from E.W. and
obtained a DNA profile suitable for comparison from the blood standard collected from E.W.
Ms. Thompson used differential extraction DNA analysis on E.W.’s vaginal swabs that
yielded a nonsperm fraction and a sperm fraction of DNA. In the nonsperm fraction, Ms.
Thompson identified a female DNA profile that matched E.W.’s DNA. From the sperm
fraction, Ms. Thompson deduced a single male DNA profile which was summarized in a
report and sent to the Illinois State Police.
¶ 23 The parties stipulated that if called to testify, Chicago police evidence technician
Abelardo Rodriguez would testify that on December 10, 2006, he collected a buccal swab
standard from defendant and delivered it to the Chicago police department forensic services
division. The buccal swab was then sent to the Illinois State Police crime lab for DNA
analysis.
¶ 24 The parties stipulated that if called to testify, forensic scientist Nicholas Richert would
testify that in 2007 he received defendant’s buccal swab standard and the DNA data
generated by Orchid Cellmark for the vaginal swabs collected from E.W. Mr. Richert
conducted DNA analysis on defendant’s buccal swab standard and obtained a DNA profile
suitable for comparison purposes. Mr. Richert compared the deduced male DNA profile from
E.W.’s vaginal swabs with defendant’s DNA profile, and concluded within a reasonable
degree of scientific certainty that the male DNA profile from E.W.’s vaginal swabs matches
defendant’s DNA profile. Defendant’s profile is only expected to occur in approximately “1
in 170 quadrillion black, 1 in 1 quintillion white, or 1 in 1.4 quintillion Hispanic unrelated
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individuals.”
¶ 25 D. E.W.’s Criminal Background and Mental Health Evaluation
¶ 26 In Utah, E.W. pleaded guilty to attempted criminal mischief, a Class A misdemeanor, in
2008 and was sentenced to 24 months’ probation. E.W. subsequently violated her probation
when she tested positive for methamphetamines, THC, and cocaine and was sentenced to 200
days in jail.
¶ 27 In March 2011, E.W. also pleaded guilty to attempted possession with intent to distribute
a controlled substance, a Class A misdemeanor, and was sentenced to 24 months’ probation.
In May 2011, E.W. pleaded guilty to retail theft, a Class B misdemeanor, and received a fine
and 12 months’ probation. E.W. received consideration at sentencing by the Utah courts for
her subsequent testimony against the defendant here.
¶ 28 As part of her sentence for retail theft, E.W. was ordered to undergo a mental health
evaluation at Assessment and Referral Services. On September 29, 2011, E.W. received a
mental health evaluation by Lisa Croudy, an associate professional counselor at Assessment
and Referral Services. The parties stipulated that if called to testify, Ms. Croudy would
testify that during the evaluation, E.W. stated she first smoked marijuana once at age 15 and
again at age 16, after which she used marijuana every other day until it made her feel “weird”
and then she smoked marijuana once a month until she was 21 years old.
¶ 29 E.W. testified, contrary to the stipulated testimony of Ms. Croudy, that she only smoked
marijuana one time. She tried an ecstasy pill two times. E.W. testified she had not used
cocaine or methamphetamine by themselves, but that one of the ecstasy pills contained
cocaine and methamphetamine. E.W. admitted that when officers searched her home in Utah
in August 2010 and arrested her for possession with intent to deliver, she told an officer that
the crack cocaine recovered from her home was for her personal use.
¶ 30 The parties stipulated that if called to testify, Sharron Johnson would testify she is a
licensed clinical social worker at Valley Mental Health in Salt Lake City, Utah, and she
interviewed E.W. on October 17, 2011. In the interview, E.W. stated she believes in the
paranormal and she recounted an auditory hallucination of hearing her name called. In an
interview with Ms. Johnson on October 27, 2011, E.W. stated she has seen ghosts all her life.
¶ 31 E. Other-Crimes Evidence
¶ 32 At trial, the State introduced evidence of defendant’s prior sexual assault of D.D., as
propensity evidence. D.D., who was 37 years old at the time of trial here in 2011, testified
that on July 27, 2002, just before 10 p.m., she was walking at 16th Street and Pulaski Avenue
on her way to a party. A black male who she did not know approached her in his car and
pointed a gun at her. D.D. was afraid that she might get shot, so she entered his car. The man
put the gun to her side and began driving. D.D. acknowledged that she had previously
testified, at the trial on her case against defendant, that she did not remember if she had seen
a gun before entering the car.
¶ 33 D.D. testified they drove to the south side of Chicago and stopped near 49th Street and
Halsted Avenue. The man climbed on top of D.D. and forced her to engage in oral and
vaginal sex. D.D. could not remember if the man took any money from her, but she did
remember that he took her State identification.
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¶ 34 D.D. testified that after the man finished having sex with her, he let her go. She ran down
the street to a pay phone and called the police. The police arrived and took her to the hospital
where a sexual assault kit was completed.
¶ 35 The parties stipulated that on December 9, 2006, D.D. viewed a lineup at the police
department. Defendant was one of the persons in the lineup. D.D. did not identify anyone in
that lineup as her assailant.
¶ 36 Mr. Richert testified that in 2006 he was provided with a buccal standard from defendant.
Mr. Richert was able to generate a DNA profile from that standard suitable for comparison
purposes. Mr. Richert later compared defendant’s DNA profile to the DNA profiles identified
in D.D.’s vaginal swabs by Orchid Cellmark. Mr. Richert was able to identify a major male
DNA profile in D.D.’s vaginal swabs that matched the DNA profile of defendant. Mr.
Richert testified that “[t]he major male DNA profile identified in the vaginal swabs would be
expected to occur in approximately 1 in 170 quadrillion black, 1 in 1 quintillion whites or 1
in 1.4 quintillion Hispanic unrelated individuals.”
¶ 37 Defendant’s expert witness, Dr. Karl Reich, challenged Mr. Richert’s DNA analysis in
D.D.’s case and testified that the vaginal swabs used by Orchid Cellmark lacked enough
DNA evidence to deduce a single major DNA profile to compare against defendant’s DNA.
Dr. Reich conceded that defendant was not eliminated as a DNA match, but claimed the male
DNA profile that matched defendant’s DNA was only one possible profile that could have
been deduced for the vaginal swabs.
¶ 38 F. Defendant’s Case-in-Chief
¶ 39 Defendant testified that on February 3, 2003, he lived at 6401 South Oakley, one block
from 63rd Street and Ashland Avenue. At approximately 7 p.m. on that date, defendant
walked east on 63rd Street, in order to catch a bus at 63rd Street and Oakley Avenue to go to
a friend’s house. The bus never came, so defendant continued walking east on 63rd Street in
the direction of Damen Avenue. He saw E.W. standing on 63rd Street and Seeley Avenue,
attempting to flag down cars. Defendant stated that he knew the area around 63rd Street and
Seeley Avenue is regularly frequented by prostitutes soliciting sex.
¶ 40 Defendant testified he walked over to E.W., and she said, “What’s up with you, man?
You want to get down with me or what?” Defendant understood E.W. to be saying that she
was “selling her body.” Defendant asked E.W. how much she was charging and she replied
$10. Defendant asked where they were going to go to have sex, and E.W. told defendant to
follow her.
¶ 41 Defendant testified E.W. took him to an alley along 63rd Street between Seeley Avenue
and Damen Avenue and they went into an unlocked garage. Defendant handed E.W. a $10
bill and she put it in her pocket. They took off their clothes and laid down on a couch that
was inside the garage. The two then had sexual intercourse. Defendant did not use a condom.
They did not have oral sex.
¶ 42 Defendant testified that after having sex, they put their clothes back on and walked out of
the garage and into the alley. Defendant pulled about $290 from his pocket to get money for
the bus. When E.W. saw the amount of money in defendant’s hand, she said she should have
charged him more than $10. Defendant told her he had given her what she had asked for.
E.W. then responded that she would call the police unless defendant gave her an additional
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$30. Defendant told her to “[d]o what you feel like you’ve got to do” and he walked away
and caught the bus at Damen Avenue.
¶ 43 Following defendant’s testimony, the trial court admitted into evidence a certified copy
of defendant’s Class 4 felony conviction for domestic battery in 2005.
¶ 44 G. The Trial Court’s Findings
¶ 45 At the conclusion of the trial, the trial court found that E.W.’s testimony regarding
defendant’s sexual assault of her was compelling and credible and corroborated by her
prompt outcry to Officer Hernandez and the DNA evidence. The trial court also credited Mr.
Richert’s testimony over Dr. Reich’s testimony and found that the other-crimes evidence of
defendant’s sexual assault on D.D. established defendant’s propensity to commit sex crimes.
The trial court convicted defendant of two counts of aggravated criminal sexual assault (for
penis to vagina contact, and for penis to mouth contact) and one count of aggravated criminal
sexual abuse (for mouth to breast contact) and sentenced defendant to two consecutive
15-year terms of imprisonment for the aggravated criminal sexual assault convictions and
one consecutive 3-year term of imprisonment for the aggravated criminal sexual abuse
conviction. Defendant appeals.
¶ 46 II. The Appeal
¶ 47 First, defendant argues the trial court erred in denying his oral motion in limine seeking a
preliminary determination that the diagnosis by Assessment and Referral Services that E.W.
has antisocial personality disorder was relevant and admissible at trial to show her
untruthfulness. The Diagnostic and Statistical Manual of Mental Disorders, fourth edition,
text revision (DSM-IV-TR) defines antisocial personality disorder as “a pervasive pattern of
disregard for and violation of the rights of others occurring since age 15 years, as indicated
by three (or more) of the following”:
“1) failure to conform to social norms with respect to lawful behaviors as
indicated by repeatedly performing acts that are grounds for arrest
2) deceitfulness, as indicated by repeated lying, use of aliases, or conning others
for personal profit or pleasure
3) impulsivity or failure to plan ahead
4) irritability and aggressiveness, as indicated by repeated physical fights or
assaults
5) reckless disregard for safety of self or others
6) consistent irresponsibility, as indicated by repeated failure to sustain consistent
work behavior or honor financial obligations
7) lack of remorse, as indicated by being indifferent to or rationalizing having
hurt, mistreated, or stolen from another.” American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 706 (4th ed., text rev. 2000).
¶ 48 At the hearing on the in limine motion, defendant argued that E.W.’s diagnosis of
antisocial personality disorder called into question her truthfulness and therefore should be
admitted at trial. The trial court disagreed, finding that E.W.’s diagnosis was inadmissible
under section 115-7.1 of the Criminal Code, which states:
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“Except where explicitly authorized by this Code or by the Rules of the Supreme
Court of Illinois, no court may require or order a witness who is the victim of an
alleged sex offense to submit to or undergo either a psychiatric or psychological
examination.” 725 ILCS 5/115-7.1 (West 2010).
¶ 49 The trial court acknowledged that the examination resulting in E.W.’s diagnosis of
antisocial personality disorder had already taken place in Utah as a condition of her probation
and therefore did not technically fall within section 115-7.1, which prohibits the court from
requiring a witness who is the victim of a sex offense to undergo a future psychiatric or
psychological exam. However, the trial court stated that section 115-7.1 “evinces a
legislative intent that not only should people not be subjected to such during the discovery
process while the case is pending, but it is not a relevant area of inquiry for an alleged victim
of an alleged sexual assault because it’s not relevant.”
¶ 50 On appeal, defendant argues that the trial court misinterpreted the legislative intent
underlying section 115-7.1. Defendant cites to People v. Wheeler, 151 Ill. 2d 298 (1992), in
which our supreme court made the following findings regarding the legislative intent
underlying section 115-7.1:
“Section 115-7.1 was intended to eliminate the defense practice of intimidating
sex-offense victims through psychological examinations focusing on their
competency and credibility as witnesses. During debate on section 115-7.1, the
legislature noted the disparity of treatment accorded victims of sex-offense crimes as
compared to victims of non-sex crimes. [Citation.] The legislature also expressed
concern that defendants used court-ordered psychological examinations as a way to
embarrass and intimidate sex-offense victims. [Citation.] By eliminating the defense
tactic of requesting psychological examinations, section 115-7.1 places victims of sex
crimes in the same position as victims of other crimes.” Id. at 307-08.
¶ 51 Defendant here argues that “[t]his kind of intrusive questioning by defense experts [to
embarrass and intimidate sex offense victims] is plainly not what occurred when E.W. was
examined at the behest of Utah state officials as a condition of her probation” and diagnosed
with antisocial personality disorder. Accordingly, defendant argues that the trial court erred
in finding that E.W.’s diagnosis of antisocial personality disorder was barred under section
115-7.1. Defendant argues that E.W.’s diagnosis was relevant and admissible to show her
lack of truthfulness and to support defendant’s theory that E.W. was a prostitute who made a
false accusation of sexual assault because she was upset over the amount of money defendant
paid her for her sexual services.
¶ 52 In addressing defendant’s argument, we note that “[w]hile mental health history is
relevant as it relates to credibility, and is thus a permissible area of impeachment, before such
evidence may be introduced, its relevance must be established.” People v. Plummer, 318 Ill.
App. 3d 268, 279 (2000). “The burden is on the party seeking to introduce the evidence to
establish its relevance to the witness’s credibility.” Id. Thus, it was incumbent on defendant
to establish how E.W.’s diagnosis was relevant to her veracity. At the hearing on defendant’s
in limine motion, defendant’s only effort to establish the relevance of E.W.’s diagnosis to her
veracity was to present the trial court with the DSM-IV-TR definition of antisocial
personality disorder and to argue that a person with such a diagnosis “might be a liar.”
¶ 53 However, we note that the DSM-IV-TR lists seven factors that can lead to a diagnosis of
antisocial personality disorder, three of which need to be present for the diagnosis to occur.
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Only one of the seven possible factors that can lead to an antisocial personality disorder
diagnosis, “deceitfulness,” directly goes to E.W.’s truthfulness. Defendant failed to argue or
make an offer of proof that the “deceitfulness” factor was present in E.W.’s diagnosis; in
fact, defendant failed to make an offer of proof as to any of the specific factors that E.W. was
found to have suffered from. “It is well recognized that the key to saving for review an error
in the exclusion of evidence is an adequate offer of proof in the trial court. [Citations.] The
purpose of an offer of proof is to disclose to the trial judge and opposing counsel the nature
of the offered evidence and to enable a reviewing court to determine whether exclusion of the
evidence was proper.” (Emphasis added.) People v. Andrews, 146 Ill. 2d 413, 420-21 (1992).
In the absence of an offer of proof regarding the basis of E.W.’s diagnosis, and in the absence
in the appellate record of the report from Assessment and Referral Services containing the
basis of the diagnosis, we are unable to determine whether E.W.’s diagnosis of antisocial
personality disorder was premised on her deceitfulness such that it would have been relevant
and admissible to support defendant’s theory that E.W. was falsely accusing him of sexual
assault; accordingly, the issue of whether the trial court erred in finding that evidence of
E.W.’s diagnosis was inadmissible is waived. Id. at 421. As defendant waived review of the
trial court’s ruling that E.W.’s diagnosis of antisocial personality disorder was inadmissible,
we need not address the basis of said ruling, specifically, whether defendant’s examination
and diagnosis by Assessment and Referral Services falls within section 115-7.1.
¶ 54 Defendant contends no detailed offer of proof was made because the trial court told
defense counsel that it was unnecessary. We disagree. At the hearing on the in limine motion,
defense counsel told the trial court that he wanted guidance as to how he should prove up,
during trial, E.W.’s diagnosis of antisocial personality disorder. The trial court subsequently
ruled that the diagnosis was inadmissible under section 115-7.1. Defense counsel then stated
“Since you’ve now ruled that we will not be able to get into the diagnosis or the–how they
arrived at the diagnosis, the issue of whether I have to prove that up through an expert or a
stipulation or a learned treatise, I think then becomes moot.” The trial court responded, “I
think so too because even if you did it by any of those mechanisms, it would still be
irrelevant and still prohibited by the rationale underlying the existence of 115-7.1 in the first
instance.”
¶ 55 The foregoing colloquy between defense counsel and the trial court related to the type of
proof that would have been necessary at trial to prove up E.W.’s diagnosis of antisocial
personality disorder. The trial court stated that such a discussion of trial proof was moot
because the evidence of E.W.’s diagnosis was not admissible. Defense counsel made no
request that he be allowed to make a pretrial offer of proof regarding the factors underlying
the diagnosis to preserve the issue for appellate review, nor did the trial court foreclose such
an offer of proof.
¶ 56 Further, we note that any error in the exclusion of E.W.’s diagnosis of antisocial
personality disorder was harmless, where the trial court permitted defendant to extensively
cross-examine E.W. regarding her mental health and where the evidence against defendant
was overwhelming. See People v. Davis, 185 Ill. 2d 317, 338 (1998) (the extent of
cross-examination otherwise permitted and the overall strength of the prosecution’s case are
relevant factors in determining whether the exclusion of evidence was harmless).
¶ 57 Specifically, with regard to defendant’s cross-examination of E.W., the trial court here
stated during its ruling on defendant’s motion in limine that defendant could “certainly
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cross-examine [E.W.] about specific instances that she relates that lead some professional to
conclude certain opinions.” The trial court also ruled that “if she says [to the professional]
that she hears voices, well, that’s something that you may be able to bring out. If she says
*** something to the effect that she sees ghosts, that’s something you may well be able to
bring out.” Pursuant to the trial court’s ruling, defendant presented considerable evidence at
trial regarding E.W.’s mental health, including her auditory hallucination of hearing her
name called, her prior drug use, and her belief in the paranormal.
¶ 58 With respect to the strength of the prosecution’s case, we note that E.W. consistently
identified defendant as her attacker and the trial court specifically found her testimony to be
credible and “compelling.” As a reviewing court, we cannot substitute our judgment for that
of the trial court, which heard the witnesses and determined their credibility. In re V.Z., 287
Ill. App. 3d 552, 565 (1997). The trial court also noted that E.W.’s testimony was
corroborated by her “prompt outcry to Officer Hernandez very shortly after” the attack as
well as the DNA evidence. Expert testimony established the fact of sexual intercourse
between defendant and E.W.; the male DNA profile from E.W.’s vaginal swabs matched
defendant’s DNA profile, and such a profile was only expected to occur in 1 in 170
quadrillion black, 1 in 1 quintillion white, or 1 in 1.4 quintillion Hispanic unrelated
individuals. In addition, there was the other-crimes evidence of defendant’s aggravated
criminal sexual assault on D.D. which was admitted to show defendant’s propensity to
commit sex crimes.
¶ 59 Given all the evidence brought out at trial regarding E.W.’s mental health, and the
strength of the prosecution’s case, we cannot say defendant was prejudiced by the exclusion
of E.W.’s diagnosis of antisocial personality disorder. Any error in its exclusion was
harmless.
¶ 60 Next, defendant contends his counsel provided ineffective assistance. To determine
whether defendant was denied his right to effective assistance of counsel, we apply the
two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Defendant must
show, first, that “counsel’s representation fell below an objective standard of reasonableness”
(id. at 688), and second, that he was prejudiced such that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different” (id. at 694).
¶ 61 Defendant contends that after the other-crimes evidence of his aggravated criminal sexual
assault of D.D. was admitted under section 115-7.3, his counsel provided ineffective
assistance by failing to introduce rebuttal evidence that the jury in the D.D. case had
acquitted him of one of the two aggravated criminal sexual assault charges (alleging forced
oral penetration against D.D.) while failing to reach a verdict on the other charge (alleging
forced vaginal penetration). Defendant contends such rebuttal evidence should have been
introduced under section 115-7.3(b) (725 ILCS 5/115-7.3(b) (West 2010)) (allowing
defendant to present “evidence to rebut” other-crimes evidence).
¶ 62 In support of his claim of ineffective assistance, defendant cites People v. Ward, 2011 IL
108690. In Ward, the defendant there, Perry Ward, was convicted of the criminal sexual
assault of M.M. Id. ¶ 2. During his trial, the trial court admitted evidence that Ward had also
been involved in the criminal sexual assault of another woman, L.S. Id. ¶ 1. The evidence
was admitted under section 115-7.3 to show his propensity to commit sex crimes. Id. When
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Ward sought to have evidence admitted of his acquittal in L.S.’s case, though, the trial court
rejected his request. Id.
¶ 63 On appeal to the supreme court, Ward argued the trial court erred in refusing to admit
evidence that he had been acquitted of sexually assaulting L.S. Id. ¶ 21. The supreme court
conducted a balancing test to weigh the probative value of admitting the acquittal evidence
against the undue prejudice to Ward if the other-crimes evidence were admitted without the
admission of the acquittal evidence. Id. ¶¶ 35-46. With respect to the probative value of
admitting the acquittal evidence, the supreme court noted that “[w]ithout the benefit of even
the general knowledge that [Ward] was acquitted of assaulting L.S., the jury could easily
have been swayed after hearing only parts of the story. Here, the probative value of the
acquittal evidence is in its ability to provide the jury with a more complete context for L.S.’s
testimony. While the M.M. jury still had an independent duty to determine the credibility of
her testimony and evaluate its weight, the acquittal evidence would have provided another
part of the picture that was otherwise sorely absent.” Id. ¶ 40.
¶ 64 With respect to the undue prejudice to Ward if the other-crimes evidence were admitted
without the admission of the acquittal evidence, the supreme court noted:
“[T]he potential for prejudice is readily apparent from L.S.’s highly detailed
testimony about [Ward’s] alleged violent attack on her, followed by her statement
that she had previously testified in another case. ***
***
Given the graphic nature of the depiction of [Ward’s] alleged attack on L.S., the
jury naturally would have assumed the State had pressed charges against [Ward],
providing a *** likely context for L.S.’s prior testimony. Therefore, L.S.’s testimony
left the jury to speculate whether those charges against [Ward] were ongoing or had
already been resolved. The admission of evidence that [Ward] had been acquitted of
assaulting L.S. would have put to rest that speculation and provided a context for her
statements about having ‘already’ given testimony.” Id. ¶¶ 41-43.
¶ 65 The supreme court found that “[d]ue to the inherently high, and often overly persuasive,
probative value of such propensity evidence, the need to avoid unfair prejudice by providing
a full context for the other-crimes testimony is readily apparent. Given the real possibility the
jury would convict [Ward] based on his alleged prior bad acts alone, barring the acquittal
evidence further enhanced the already high danger of undue prejudice against him.” Id. ¶ 46.
The supreme court concluded that “barring the admission of the acquittal evidence was an
abuse of the trial court’s discretion. The ruling was unreasonable under the facts and
circumstances of this case.” Id. ¶ 48.
¶ 66 In the present case, defendant argues that, pursuant to Ward, defense counsel should have
introduced evidence of his acquittal in the D.D. case of one of the charges of aggravated
criminal sexual assault (forced oral penetration) and of the inability of the jury to reach a
verdict on the other charge (forced vaginal penetration).
¶ 67 The State counters that defense counsel committed no ineffective assistance in the present
case, as he made the trial court aware, during pretrial proceedings, that the D.D. case resulted
in an acquittal on the forced oral penetration count and a hung jury on the forced vaginal
penetration count. Defendant responds that the trial court could not properly consider, at trial
here, the result of D.D.’s case because said result was never introduced into evidence. See
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People v. Borrelli, 392 Ill. 481, 492 (1946) (holding that evidence proffered only at a pretrial
hearing may not be considered at trial as such evidence is “no part of the trial on the merits”).
Defendant contends his counsel was ineffective for failing to introduce the result of D.D.’s
case into evidence at his trial in the present case in order to rebut the other-crimes evidence
of his aggravated criminal sexual assault against D.D.
¶ 68 We agree with defendant that defense counsel’s failure to introduce the result of D.D.’s
case into evidence at his trial here foreclosed the trial court from considering said result in
rebuttal to the other-crimes evidence. However, we find no ineffective assistance in defense
counsel’s failure to offer the result of D.D.’s case into evidence in rebuttal to the
other-crimes evidence, as defendant was not prejudiced thereby because he would have been
convicted even if the rebuttal evidence had been introduced and entered into evidence.
Specifically, the record indicates that although the trial court found that the other-crimes
evidence of defendant’s aggravated criminal sexual assault on D.D. established defendant’s
propensity to commit sexual crimes, the court’s primary reason for convicting defendant
related to E.W.’s credible testimony at trial regarding defendant’s sexual assault of her,
coupled with her outcry after the assault and the corroborative DNA evidence. In reaching
this conclusion, we quote from the trial court’s findings following defendant’s trial:
“[E.W.] testified regarding how it was that she was assaulted, taken off the street
at gunpoint, put into this vehicle, transported to an alley, subjected to oral intercourse
by force, vaginal intercourse by force. The offender kissed her breasts. The testimony
was compelling.
She made a prompt outcry to Officer Hernandez very shortly after this alleged
incident. ***
[Defense counsel] did an excellent job endeavoring to impeach [E.W.’s]
testimony with her drug use [and with] [t]estimony concerning her criminal history.
*** But in light of the physical evidence, the circumstances of her outcry, her
identification of [defendant] almost four years later confirmed by the DNA evidence
from her vagina, even her beliefs regarding the paranormal don’t sway the court in
connection with her credibility. I suppose we could snicker at someone’s belief in
ghosts, but we could probably snicker at all sorts of other religious beliefs. The fact
that people have those beliefs, the fact that some might deem the beliefs in the
paranormal and beliefs in ghosts to be indicative of delusions, there’s no indication of
any delusional activity by her in connection with this because the person she claims
had sex with her we know did have sex with her, and we know that not from his own
testimony, but from the DNA evidence adduced in connection with the rape kit,
collection by the Chicago Police Department, and its analysis by the Illinois State
Police. And having listened to her testify, I believe her.” (Emphases added.)
¶ 69 We adduce from these comments that it was E.W.’s consistent testimony regarding
defendant’s sexual assault of her, in conjunction with her rapid outcry to Officer Hernandez
and the corroborative DNA evidence, which convinced the trial court of E.W.’s credibility.
The trial court’s discussion of E.W.’s credibility was separate from its discussion of the
other-crimes evidence of defendant’s aggravated criminal sexual assault against D.D.; when
making its credibility determination that it believed E.W.’s account that defendant had
sexually assaulted her, the trial court made no reference to the other-crimes evidence. This
indicates to us that the court would have convicted defendant based on E.W.’s testimony, the
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testimony of Officer Hernandez, and the DNA evidence, even in the absence of the
other-crimes evidence or even if the other-crimes evidence had been rebutted with evidence
of his acquittal/hung jury in the D.D. case. Accordingly, defendant was not prejudiced by his
defense counsel’s failure to introduce evidence rebutting the other-crimes evidence, and
therefore his claim of ineffective assistance fails.
¶ 70 Next, defendant contends the trial court erred in admitting the other-crimes evidence of
his aggravated criminal sexual assault against D.D., because “[t]o allow evidence of [a] prior
sexual offense for which an accused has been acquitted threatens notions of basic fairness,
and falls outside of the plain language of [s]ection 115-7.3.” Initially, we note defendant was
acquitted on only one charge of aggravated criminal sexual assault (based on forced oral
penetration) in the D.D. case; the jury was hung on the other charge of aggravated criminal
sexual assault (based on forced vaginal penetration) in the D.D. case. Thus, the issue is
whether, under section 115-7.3, defendant’s acquittal on the oral penetration count in the
D.D. case should have precluded the admission, here, of the other-crimes evidence on that
count.
¶ 71 When interpreting a statute, our main objective is to determine and give effect to the
legislative intent. In re Marriage of Cozzi-DiGiovanni, 2014 IL App (1st) 130109, ¶ 31. The
most reliable indicator of the legislature’s intent is the statutory language, which must be
given its plain and ordinary meaning. Id. Our standard of review for the construction and
application of a statute is de novo. Id.¶ 72 Section 115-7.3 states in pertinent part that where defendant is accused of the “offense”
of aggravated criminal sexual assault, evidence of his commission of another “offense” of
aggravated 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 (West 2010). The plain language of the statute
does not require that there have been a conviction on the other offense of aggravated criminal
sexual assault in order for evidence of said offense to be admitted, nor does it state that
evidence of the other offense may not be admitted where a trial on that offense resulted in an
acquittal.
¶ 73 We further note that the mere fact of acquittal does not necessarily mean that defendant
did not commit the alleged other offense; instead, it shows that the State was unable to prove
every element of its case beyond a reasonable doubt. See People v. Jackson, 149 Ill. 2d 540,
550-51 (1992). The fact that the State was unable to prove every element of the other offense
beyond a reasonable doubt when that case was brought to trial does not automatically
foreclose its subsequent admission as other-crimes evidence against the defendant in a
different case; our supreme court has held that the proof of other crimes committed by
defendant need not be beyond a reasonable doubt but rather must be “more than a mere
suspicion.” People v. Thingvold, 145 Ill. 2d 441, 456 (1991). “[T]he State is not precluded
from ‘relitigating an issue when it is presented in a subsequent action governed by a lower
standard of proof.’ ” Jackson, 149 Ill. 2d at 550 (quoting Dowling v. United States, 493 U.S.
342, 349 (1990)). In Jackson, our supreme court held that evidence of prior criminal conduct
can be considered at sentencing even if defendant is acquitted of that conduct, because the
burden of proof at sentencing is lower than proof beyond a reasonable doubt. Id. at 549-53.
Similarly, defendant’s earlier acquittal on the aggravated criminal sexual assault charge
(alleging oral penetration) in the D.D. case under the “beyond a reasonable doubt” standard
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of proof did not bar the subsequent admission, here, of the other-crimes evidence on that
charge, where the admission of the other-crimes evidence was governed by the lower “more
than a mere suspicion” standard of proof.
¶ 74 Next, defendant argues that even if section 115-7.3 did not automatically foreclose the
admission of the other-crimes evidence, the trial court still should have denied its admission
after weighing the relevant factors. Section 115-7.3 provides that the relevant factors the trial
court should consider when deciding whether to admit other-crimes evidence include: “(1)
the proximity in time [of the other offense] to the charged or predicate offense”; (2) “the
degree of factual similarity to the charged or predicate offense”; or (3) “other relevant facts
and circumstances.” 725 ILCS 5/115-7.3(c) (West 2010). We review the trial court’s
admission of the other-crimes evidence for an abuse of discretion. Ward, 2011 IL 108690,
¶ 21.
¶ 75 At the hearing on the State’s motion to admit the other-crimes evidence of defendant’s
aggravated criminal sexual assault against D.D., the trial court first noted that the assault
against D.D. was alleged to have occurred only about six months prior to the alleged assault
against E.W. The trial court found this was a relatively short gap in time that weighed in
favor of the admission of the other-crimes evidence, noting that other-crimes evidence had
been admitted in cases in which there had been far longer gaps between the crimes. See
People v. Donoho, 204 Ill. 2d 159, 186 (2003) (affirming the admission of other-crimes
evidence where there was a 12- to 15-year gap between crimes).
¶ 76 The trial court next found that the degree of factual similarity between the two offenses
weighed in favor of the admission of the other-crimes evidence. The trial court noted that
both offenses were predicated on defendant approaching a female in his automobile, at
similar times at night on the south side of Chicago, and forcing them into the car at gunpoint
and then robbing and sexually assaulting them. In addition, we note that both victims were
African-American, and that defendant penetrated both of them orally and vaginally. This case
is similar to People v. Williams, 2013 IL App (1st) 112583, in which the appellate court
affirmed the admission of other-crimes evidence, where the similarities in the two offenses
included: both victims were young African-Americans; they were both alone at night; the
assaults occurred in close geographic proximity to each other; they both involved vaginal
penetration; and the assailant held the victims down with his body weight. Id. ¶ 48. The
appellate court found that the facts were sufficiently similar to support admissibility of the
other crime under section 115-7.3. Id. The instant case is largely analogous to Williams in the
similarity between defendant’s assault on E.W. and his assault on D.D. As in Williams, the
facts of the two cases are sufficiently similar to support the admissibility of the other-crimes
evidence.
¶ 77 The trial court then considered the final factor, “other relevant facts and circumstances.”
725 ILCS 5/115-7.3(c) (West 2010). In weighing this factor, the trial court addressed
defendant’s argument that the introduction of evidence of defendant’s sexual assault of D.D.
would cause a mini-trial because of the amount of time that the parties would spend
presenting expert testimony regarding the DNA analysis of D.D.’s vaginal swabs. The trial
court recognized that the danger of such a mini-trial is that the State’s evidence of the other
crime against D.D. could “overshadow some relative paucity or almost lack of evidence
regarding the charged crime [such] that the jury would then find [defendant] guilty simply
because they believed he did the *** other crime rather than the charged crime.”
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¶ 78 However, after considering the expert testimony that would likely be introduced with
regard to defendant’s assault against D.D., namely the testimony of the State’s expert,
Mr. Richert, and defendant’s expert, Dr. Reich, the trial court concluded that it would not be
so overwhelming as to result in a mini-trial prejudicial to defendant, and so granted the
State’s motion to admit the other-crimes evidence.
¶ 79 Given that the trial court engaged in a meaningful analysis of all three statutory factors
that was in line with the established case law, we find no abuse of discretion in its admission
of the other-crimes evidence of defendant’s aggravated criminal sexual assault against D.D.
¶ 80 Defendant argues, though, that after the jury entered a partial acquittal in the D.D. case, it
was “unfair” and “harassing” for the State to present the nearly “identical” E.W. case against
him utilizing evidence from the D.D. case as other-crimes evidence, and that the harassing
nature of the State’s prosecution should have caused the trial court to bar the other-crimes
evidence. We disagree. Defendant was separately charged with committing two entirely
separate crimes: the sexual assault against D.D. in July 2002, and the unrelated sexual assault
against E.W. approximately six months later in February 2003. After the D.D. case was taken
to trial and a partial acquittal entered, the State properly brought the E.W. case to trial and
sought the admission of the other-crimes evidence as it was allowed to do under section
115-7.3. There was nothing unfair or harassing in the State’s prosecution of defendant for his
alleged sexual assaults of D.D. and E.W., nor was there anything unfair or harassing in the
State’s utilization of section 115-7.3 to seek the admission of other-crimes evidence. As
discussed earlier in this opinion, the trial court committed no abuse of discretion in admitting
the other-crimes evidence.
¶ 81 Defendant next argues that the trial court erred in crediting the testimony of the State’s
expert, Mr. Richert, over the testimony of the defense expert, Dr. Reich, with regard to the
DNA analysis of D.D.’s vaginal swabs and finding that the other-crimes evidence of
defendant’s sexual assault on D.D. established defendant’s propensity to commit sex crimes.
Defendant argues that the trial court should have made the opposite finding, i.e., that Dr.
Reich was more credible than Mr. Richert, and then excluded the other-crimes evidence. We
disagree. See People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009) (“in a bench trial, it is for
the trial judge, sitting as the trier of fact, to determine the credibility of witnesses, to weigh
evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the
evidence”).
¶ 82 For the foregoing reasons, we affirm the circuit court.
¶ 83 Affirmed.
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