People v. Ward ( 2022 )

NOTICE
2022 IL App (5th) 190422-UNOTICE
Decision filed 04/07/22. The
This order was filed under
text of this decision may be
NO. 5-19-0422 Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Monroe County.
)
v. ) No. 17-CF-136
)
GLENN PATRICK WARD, ) Honorable
) Dennis B. Doyle,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE CATES delivered the judgment of the court.
Justices Welch and Moore concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in admitting propensity evidence
of other sexual crimes committed by the defendant. The evidence presented
at the defendant’s trial was sufficient to sustain a conviction for all 15 counts
of predatory criminal sexual assault of a child.
¶2 The defendant, Glenn Patrick Ward, was convicted of 15 counts of predatory
criminal sexual assault of a child following a jury trial. The trial court sentenced the
defendant to an aggregate term of 150 years’ imprisonment. The defendant appeals his
convictions, arguing that the trial court erred in admitting propensity evidence pursuant to
section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3
(West 2016)) and that the State failed to produce sufficient evidence to convict the
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defendant on all 15 counts of predatory criminal sexual assault of a child. For the following
reasons, we affirm.
¶3 I. BACKGROUND
¶4 On October 11, 2017, the State charged the defendant by criminal information with
15 counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West
2016)). Each count alleged that the defendant, who was 17 years of age or older, committed
an act of sexual penetration by placing his fingers in the vagina of A.A., who was under 13
years of age at the time of the offenses. Each count further alleged that the crimes charged
occurred on or between January 1, 2012, and December 31, 2012. The defendant is A.A.’s
great-uncle. The incidents allegedly occurred in two locations, the defendant’s apartment
on Hamacher Street in Waterloo, Illinois, and in a shed behind A.A.’s house that had been
converted into a bedroom.
¶5 A. Pretrial Proceedings
¶6 Prior to trial, the State notified defense counsel via email that the State intended to
introduce the testimony of K.S., the niece of the defendant’s ex-wife. The State claimed
the testimony was admissible pursuant to section 115-7.3 of the Code (725 ILCS 5/115-7.3
(West 2016)). In 1998, K.S. had accused the defendant of digitally penetrating her on three
occasions. These incidents allegedly occurred in Poplar Bluff, Missouri. The State
provided the defendant with a summary of K.S.’s accusations.
¶7 Both the State and the defendant filed motions in limine regarding the admission of
K.S.’s testimony. Initially, the trial court denied the State’s motion and granted the
defendant’s motion. The trial court found that the timeliness of the State’s disclosure was
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not reasonable as the defendant’s trial was scheduled to begin the following week. The
State moved for a continuance to allow additional time for discovery concerning the
propensity evidence. The trial court granted this motion.
¶8 Further discovery was conducted, and the State filed a second motion in limine to
admit K.S.’s testimony. In response, the defendant filed a motion in limine arguing that
K.S.’s testimony was too removed from the present testimony to be of probative value. The
defendant further argued that the allegations were investigated and found to be without
merit and the defendant was never charged with an offense related to the accusations.
Finally, the defendant argued that the State had not provided all “reports, statements,
investigative notes, medical records and/or other documentation” regarding the allegations
made by K.S. The defendant further claimed that many of the records no longer existed
because the records were more than 20 years old and/or had been destroyed. The defendant
also alleged that the Missouri Department of Social Services Children’s Division
representatives who had investigated the case were deceased or could not be located.
¶9 The trial court held a hearing on the parties’ motions. At this hearing, K.S. testified
about three incidents where the defendant allegedly inserted his fingers into K.S.’s vagina.
The defendant cross-examined K.S. concerning the allegations. On cross-examination,
K.S. indicated that no charges were ever filed against the defendant. K.S. testified that in
addition to the police, K.S. had disclosed the incidents to several individuals, including
K.S.’s mother, K.S.’s grandmother, K.S.’s Aunt Carla (the defendant’s ex-wife), and a
pastor at her family’s church. K.S. indicated that she was unaware of the pastor’s
whereabouts. K.S. also met with Dr. Claudia Preuschoff, who performed a “safe” exam on
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K.S. She also indicated that she attended counseling with Dr. Jane Niskey and Sharon
Cross. K.S. testified that she had spoken privately with Dr. Preuschoff and Dr. Niskey, and
that they no longer had records regarding K.S.’s case or any recollection of what K.S. had
disclosed to them.
¶ 10 After hearing the arguments of the parties, the trial court granted the State’s motion
in limine and denied the defendant’s motion in limine. In granting the State’s motion, the
trial court remarked that K.S. “certainly seemed like she could be credible.” The trial court
found that the allegations made by K.S. were similar to the facts alleged by A.A. The trial
court noted that K.S. and A.A. were similar ages; they had a similar relationship with the
defendant; and K.S. and A.A. alleged a similar sex act. The trial court also noted that the
allegations occurred under similar circumstances, where the defendant was home alone
with both A.A. and K.S. The trial court acknowledged that the 14-year time period between
the allegations made by K.S. and A.A. was an “extreme long period of time.” The trial
court further acknowledged that an investigation into the K.S. allegations had been done
and that the defense was not able to interview certain witnesses and that records regarding
the case had been lost or destroyed. The trial court concluded that after weighing the
factors, the “extreme similarity” of the allegations made the probative value of the evidence
outweigh the prejudicial effect.
¶ 11 B. The Jury Trial
¶ 12 Officer Eric Zaber testified that he became involved in the case after receiving
information that A.A. had been sexually abused. Officer Zaber traveled to Waterloo Jr.
High School and met with A.A.’s parents as well as the school’s principal, assistant
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principal, and guidance counselor. Officer Zaber did not interview A.A. but did set up an
interview for A.A. at the Child Advocacy Center (CAC).
¶ 13 After the CAC interview, Officer Zaber interviewed the defendant at the home of
his mother, Bernice Ward, in Broseley, Missouri. The interview with the defendant was
recorded, and an excerpt of the interview was played for the jury. The interview excerpt
provided as follows.
¶ 14 Officer Zaber informed the defendant that he was not under arrest and read him his
Miranda 1 rights. Officer Zaber advised the defendant that he had spoken with A.A., who
informed Officer Zaber that the defendant lived with A.A.’s family and was “fond” of A.A.
Officer Zaber stated that he wanted to “talk to [the defendant] about that, and see if
anything had happened” that Officer Zaber “should know about.” The defendant replied,
“You talking about a sexual thing here?” Officer Zaber told the defendant that Officer
Zaber had gotten that impression from A.A., “but never intercourse or anything.”
¶ 15 The defendant confirmed that he had lived in an apartment with two roommates
before moving into the shed behind A.A.’s house in 2012. Officer Zaber asked the
defendant if he was ever alone with A.A. The defendant told Officer Zaber that A.A. used
to spend the night with the defendant and that he and A.A. watched movies together. The
defendant stated that he had animated movies such as “Ice Age.” He also had action and
“sci-fi” movies that he liked to watch, but no pornographic movies.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
5
¶ 16 When asked if the defendant had ever seen A.A. without clothes on, the defendant
stated that A.A. would sometimes change her clothes when getting ready for school. He
also stated that A.A. would stay the night at his apartment, and that he would run a bath for
A.A. The defendant stated that A.A.’s father asked the defendant to watch A.A. while she
took a bath because “sometimes she gets *** in trouble and, everything, she’ll fall asleep
or something.” The defendant further stated that he helped A.A. dry off after a bath and
helped her put on clothes. The defendant denied touching A.A. in an inappropriate or sexual
manner.
¶ 17 Following his interview with the defendant, Officer Zaber investigated other
allegations made against the defendant. Zaber testified that A.A.’s father provided Officer
Zaber with information that when the defendant lived with his sister, Barbara Weber, “there
may have been an incident where [the defendant] left the house quickly.” A.A.’s father had
suggested that the defendant molested one of Weber’s children. Officer Zaber spoke with
Weber who informed Officer Zaber that nothing had happened. Officer Zaber also
interviewed K.S. in Poplar Bluff and prepared a report of the interview.
¶ 18 On cross-examination, Officer Zaber testified that he went to A.A.’s residence but
was unable to observe the shed because A.A.’s father did not allow Officer Zaber to enter
the house. Officer Zaber also testified that he did not visit the Hamacher apartment. As to
A.A.’s allegations, Officer Zaber was not provided with specific times for the allegations.
¶ 19 A.A. testified that the defendant first touched her inappropriately in February 2012,
when A.A. was nine years old. During this time, A.A. often spent the night at the Hamacher
apartment. When A.A. spent the night, she slept in the defendant’s bed with the defendant.
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A.A. slept in the clothes she had worn that day, and the defendant slept in either boxers or
was naked.
¶ 20 A.A. testified that the first time she recalled something inappropriate happening was
in the defendant’s bedroom. The defendant asked A.A. to remove her clothes, and A.A.
laid on the bed. The defendant inserted his fingers into A.A.’s vagina, then put his tongue
in her vagina. The incident lasted approximately 10 minutes. Afterwards, the defendant
told A.A. not to tell anyone. A.A. testified that the defendant committed these acts “three
to seven times” but “probably closer to three.” A.A. specifically recalled that these acts
occurred on at least three occasions and that each incident occurred the same way. During
these incidents, the defendant either wore boxers or was naked. A.A. testified that the
defendant bathed her and dried her off, “sometimes before, sometimes after” the incidents
occurred. The defendant also helped A.A. with getting dressed. A.A. stated that when she
was at home during this time period, she took showers and did not require assistance with
bathing or getting dressed.
¶ 21 In the “middle of Spring or early Summer” of 2012, the defendant moved into the
shed behind A.A.’s house. In the shed, the defendant had a bed with a metal headboard and
footboard, a dresser with a TV, a desk with a computer, and a “pile of junk.” The shed had
no bathroom or upstairs. A.A. testified that while the defendant lived in the shed, she spent
the night with the defendant and slept in his bed. A.A. wore her clothes, and the defendant
slept either in boxers or was naked.
¶ 22 A.A. testified that the defendant continued to touch her inappropriately in the shed.
A.A. stated that the incidents were similar to the incidents at the Hamacher apartment.
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When A.A. visited the defendant in the shed, they had “a normal conversation like nothing
had ever happened” and often played computer games. The defendant also played the
movie, Ice Age, for A.A. While Ice Age was playing, the defendant asked A.A. to remove
her clothing, and A.A. laid on the bed. The defendant inserted his fingers and then tongue
into A.A.’s vagina. Afterwards, A.A. would get dressed, and the defendant would “tidy
up” the bed. A.A. then laid in the bed and either fell asleep or “stay[ed] up for a little bit.”
A.A. testified that on approximately three occasions, the defendant bound her arms and on
another two occasions, bound both her arms and legs. The defendant used either a rope or
belt to bind A.A. When the defendant bound only A.A.’s arms, he inserted his finger and
tongue into A.A.’s vagina. When the defendant bound A.A.’s arms and legs, he only
inserted his finger into her vagina. A.A. estimated that the incidents in the shed occurred
10 times, “might be more.” A.A. affirmed that on five occasions at least some part of her
body was bound. She estimated that on “five to eight” occasions, her limbs were not bound.
¶ 23 The sexual acts ended in October 2012. A.A. testified that between the incidents at
the Hamacher apartment and the shed, the defendant digitally penetrated her “[a]round 15”
times.
¶ 24 Initially, A.A. did not tell anyone about the sexual acts because she was “trying to
process what had happened” and “didn’t understand what had happened.” When A.A. was
in the sixth grade, she told a friend “what had happened” with the defendant but asked the
friend to not tell anyone. In the seventh grade, A.A. made the same disclosure to another
friend, but again, asked this friend to not tell anyone. Finally, in the eighth grade, A.A.
made a disclosure to a third friend. Although A.A. asked this friend not to tell anyone, the
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friend informed the school guidance counselor about what A.A. had disclosed. A.A. spoke
with the guidance counselor, and A.A.’s parents were notified. Finally, A.A. testified that
she did not know K.S.
¶ 25 On cross-examination, A.A. admitted that she had told the guidance counselor that
the defendant digitally penetrated her 20 to 30 times but told the CAC worker that it
occurred “maybe 15” times. A.A. testified that she recalled that the abuse happened
“around 15 times.” A.A. also admitted that she told the guidance counselor that the sexual
acts first occurred in the shed and then the defendant’s apartment. A.A. stated her memory
was “foggy” and that she was under emotional distress at the time. Following these
incidents, A.A. was not subjected to any medical or psychological tests. Furthermore, A.A.
never attended professional counseling but often talked to her guidance counselors.
¶ 26 Timothy Joellenbeck, the defendant’s former coworker and roommate, testified that
he lived with the defendant at the Hamacher apartment for approximately two years.
Joellenbeck’s wife also stayed at the apartment, and another individual lived in the
basement. Joellenbeck testified that between January 1, 2012, and the summer of 2012,
A.A. spent the night at the apartment with the defendant four to five times per month.
Joellenbeck further testified that he often worked overnight shifts and was away from the
apartment at night, but his wife would have been at the apartment. Joellenbeck stated that
he never witnessed “anything illicit” occur between the defendant and A.A., but also stated
that the defendant’s bedroom door was always closed whenever the defendant and A.A.
were in the defendant’s bedroom.
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¶ 27 Prior to K.S.’s testimony, the trial court, at the defendant’s request, read a limiting
instruction to the jury regarding propensity evidence. The trial court informed the jury that
K.S. would testify about conduct involving the defendant other than that charged in the
information. The trial court instructed the jury that the evidence was being received on the
issue of the defendant’s propensity to commit a crime and may be considered by the jury
only for that limited purpose. The trial court further instructed the jury that they were to
determine whether the defendant was involved in the conduct and what weight to give the
evidence on the issue of the defendant’s propensity to commit a crime.
¶ 28 K.S. testified that in 1998, she had several “uncomfortable” encounters with the
defendant. At the time, K.S. was nine years old. K.S. stated that these encounters happened
“three to four” times that she could recall, three times with specificity. K.S. further stated
that each of these encounters occurred approximately one week apart from one another
during the month of July.
¶ 29 K.S. testified that she lived in Poplar Bluff with her parents. The defendant was
married to K.S.’s Aunt Carla. K.S. and her parents lived in a basement apartment, and the
defendant and Carla lived in an upstairs apartment in the same building. In the summer of
1998, K.S.’s mother occasionally had difficulty finding a babysitter for K.S., and the
defendant offered to watch K.S. whenever a babysitter was unavailable. When the
defendant acted as the babysitter for K.S., the “situations took place.” K.S. described three
incidents where the defendant committed acts of sexual penetration against her.
¶ 30 In the first incident, the defendant asked K.S. if she knew what the female and male
sex organs looked like. The defendant drew pictures of people and their anatomy and of
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people performing sex acts on each other. Next, the defendant played a pornographic movie
for approximately 15 to 20 minutes. The defendant then instructed K.S. to go into the
bathroom and “wipe [her] private parts down.” After K.S. did this, the defendant told K.S.
to go into the bedroom and lie on the bed. The defendant entered the bedroom, wearing a
t-shirt and underwear. The defendant laid on the bed next to K.S. and instructed her to
remove her pants. After K.S. complied, the defendant inserted his fingers into K.S.’s
vagina. The incident lasted a “few” minutes until K.S. told the defendant that it hurt. The
defendant told K.S. to get dressed, and they went into the living room where the defendant
turned on the Disney movie “Flubber.” K.S. testified that the defendant told her that she
could not tell anyone what had happened. The defendant stated that everyone would be
mad at K.S. and the defendant if they knew what had happened and that Carla would
“leave” the defendant. The defendant also told K.S. that her mother had been sexually
abused by K.S.’s grandfather. No one believed K.S.’s mother when she disclosed the abuse.
The defendant told K.S. that no one would believe her either.
¶ 31 In the second incident, the defendant played another pornographic movie for K.S.
and again told K.S. to clean herself in the bathroom. The defendant then told K.S. to go
into the bedroom and lie on the bed. The defendant laid on the bed next to K.S., instructed
her to remove her “bottoms,” and inserted his fingers into her vagina. After the defendant
stopped, he told K.S. to go into the living room, and the defendant played Flubber for K.S.
The defendant had “pretty much the exact same conversation” with K.S. about not telling
anyone.
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¶ 32 On the day of the third incident, K.S. had argued with her mother because K.S. did
not want to go to the defendant’s apartment. K.S.’s mother “spanked” K.S. and told her
that she had to go to the defendant’s apartment that day. At the defendant’s apartment, the
defendant played a pornographic movie and instructed K.S. to clean herself in the
bathroom. This time, K.S. locked herself in the bathroom. The defendant knocked on the
door, asked K.S. if she was okay. He told K.S. to exit the bathroom. K.S. exited the
bathroom and “was being grumpy.” The defendant began playing with K.S.’s hair and tried
to joke with her. The defendant subsequently told K.S. to go into the bedroom. K.S.
complied and laid on the bed. The defendant instructed K.S. to remove her shorts, but she
refused. The defendant removed K.S.’s shorts and inserted his fingers into her vagina. After
the defendant stopped, he played the movie Flubber for K.S. Subsequently, they had the
same conversation about not telling anyone.
¶ 33 Shortly after the third incident, K.S. and her family moved to another part of town,
and the defendant and Carla moved to Broseley, Missouri. After K.S. and her family moved
into their new home, K.S. disclosed the defendant’s sexual acts to her mother. K.S.’s
mother contacted the Poplar Bluff Police Department, and K.S. made a statement at the
police station. K.S. later underwent a “safe” exam. K.S. testified that she did not know
A.A.
¶ 34 On cross-examination, K.S. indicated that she was aware the Poplar Bluff Police
Department investigated her accusations and that, to her knowledge, no charges were ever
filed against the defendant. K.S. affirmed that Officer Zaber had requested her to sign an
authorization form to obtain counseling records, but K.S. never returned the form.
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¶ 35 After the State rested its case, the defendant moved for a directed verdict. The trial
court denied the defendant’s motion, and the defendant presented his case.
¶ 36 The defendant recalled Officer Zaber as a witness. As part of his investigation,
Officer Zaber recorded a phone conversation between A.A. and the defendant on May 8,
2017. The conduct leading to the charges in this case was not discussed during the phone
call. The defendant introduced a copy of the recorded phone call, however, for the purpose
of showing A.A.’s demeanor during that time.
¶ 37 The defendant testified that when A.A. was nine years old, she often accompanied
the defendant wherever he went. The defendant further testified that A.A. spent the night
with him at his apartment and in the shed, but with her parents’ knowledge and permission.
The defendant indicated that A.A.’s younger brother also spent the night with the defendant
in the shed “a couple of times.” The defendant denied ever touching A.A. in an
inappropriate way and denied that he wore boxers. The defendant testified that he “could
not come up with any kind of explanation as to why [A.A.] would make an accusation like
this.”
¶ 38 As to K.S., the defendant denied ever babysitting K.S. and claimed that he only
spent a limited amount of time with her. The defendant testified that K.S. had access to his
apartment and would come over because she liked watching movies. The defendant further
testified that K.S.’s mother had asked the defendant to run K.S. a bath when K.S.’s mother
could not get home early enough. K.S.’s mother allegedly asked the defendant to do this
because K.S. would “make the water too hot and scalded herself.” The defendant testified
that during July 1998, he worked for the first two weeks until he was injured at work. The
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defendant was then confined to his home for approximately five weeks. The defendant
denied touching K.S. in an inappropriate way.
¶ 39 On cross-examination, the defendant testified that he did not believe it was
inappropriate to bathe A.A. The defendant stated that he would check on A.A. at her
father’s request and that he would help dry her with a towel because she did not “dry off
sufficiently” in the bathroom. The defendant further testified there was “nothing
inappropriate” about A.A. sharing a bed with him. As to K.S., the defendant believed that
K.S. made up the allegations against him because she had asked to live with the defendant
and Carla. The defendant claimed that K.S. was having problems with her parents and no
longer wanted to live with them. The defendant and Carla decided that they could not afford
to have K.S. live with them and that it was best for K.S. to stay with her parents. The
defendant testified that approximately two weeks later, K.S. made the accusations against
the defendant.
¶ 40 Finally, the defendant called his sisters, Beverly Menke and Barbara Weber, as well
as his mother, Bernice Ward, as witnesses. Menke testified that the family had a lot of
family gatherings and that A.A.’s family attended most of the gatherings. Menke had not
seen A.A. or her father since the allegations against the defendant had been made. Weber
testified that she had been contacted by Officer Zaber about a time when the defendant
lived with Weber in 1993. Weber further testified that Officer Zaber informed her that an
accusation had been made that there was “something inappropriate” that had occurred with
one of Weber’s daughters while the defendant lived with Weber. She stated that she had
questioned her daughters, who informed Weber “absolutely nothing had happened.”
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¶ 41 Bernice Ward testified that A.A. had visited Bernice’s house for three weeks in 2013
and two weeks in 2014. Bernice confirmed that the defendant was at her house during those
times. When A.A. visited, Bernice never observed the defendant inappropriately touch
A.A. Bernice testified that she kept in regular contact with Carla and had seen her as
recently as two weeks before the trial. Bernice further testified that Carla had never
mentioned K.S.’s allegations against the defendant.
¶ 42 After the close of evidence, the defendant moved for a directed verdict. The trial
court denied the defendant’s motion. After the parties made their closing arguments, the
trial court read the jury instructions applicable to the case, which included the limiting
instruction regarding propensity evidence. Following deliberations, the jury found the
defendant guilty on all 15 counts of predatory criminal sexual assault of a child.
¶ 43 The defendant filed a posttrial motion for judgment notwithstanding the verdict or
a new trial. The defendant argued that the State failed to prove the defendant guilty beyond
a reasonable doubt and failed to prove every material allegation in the information beyond
a reasonable doubt. The defendant also argued that the trial court erred in allowing K.S. to
testify. The trial court denied the defendant’s motion.
¶ 44 The defendant was sentenced to 10 years in the Illinois Department of Corrections
for each conviction to be served consecutively, for an aggregate term of 150 years, followed
by 3 years of mandatory supervised release. This appeal followed.
¶ 45 II. ANALYSIS
¶ 46 A. Admission of Propensity Evidence under Section 115-7.3
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¶ 47 The defendant contends that the trial court erred in admitting the testimony of K.S.
to show the defendant’s propensity to commit predatory criminal sexual assault. The
defendant argues that the trial court abused its discretion in admitting this evidence because
K.S.’s allegations were approximately 14 years old. The defendant further argued that by
the time of trial, “many of the details and witnesses pertinent to the investigation were
unavailable, making K.S.’s highly prejudicial testimony essentially unimpeachable.”
¶ 48 Generally, evidence of other crimes is inadmissible to demonstrate a defendant’s
propensity to commit the charged crime. People v. Donoho, 204 Ill. 2d 159, 170 (2003).
Section 115-7.3 of the Code provides an exception to this general rule. This statute was
enacted to enable courts to admit evidence of other crimes to show a defendant’s propensity
to commit sex offenses if the requirements of the statute are met. Donoho, 204 Ill. 2d at
176.
¶ 49 Section 115-7.3 applies to criminal cases where a defendant is charged with certain
enumerated sex offenses, including predatory criminal sexual assault of a child. 725 ILCS
5/115-7.3(a)(1) (West 2016). If a defendant is tried for one of the enumerated sex offenses,
the State may introduce evidence that the defendant also committed another specified sex
offense, for any relevant purpose. 725 ILCS 5/115-7.3(b) (West 2016). Before other-crimes
evidence may be admitted, however, the trial court must engage in a balancing test,
weighing the probative value of the evidence against undue prejudice to the defendant.
People v. Ward, 2011 IL 108690, ¶ 26. In making this determination, the court may
consider: “(1) the proximity in time to the charged or predicate offense; (2) the degree of
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factual similarity to the charged or predicate offense; or (3) other relevant facts and
circumstances.” 725 ILCS 5/115-7.3(c) (West 2016).
¶ 50 A reviewing court will not reverse the trial court’s decision to admit other-crimes
evidence absent an abuse of discretion. Donoho, 204 Ill. 2d at 182. An abuse of discretion
occurs where the trial court’s evaluation is arbitrary, fanciful, or unreasonable or where no
reasonable person would take the view adopted by the trial court. Donoho, 204 Ill. 2d at
182. Reasonable minds can differ about whether other-crimes evidence is admissible
without requiring reversal under the abuse of discretion standard. Donoho, 204 Ill. 2d at
186.
¶ 51 We begin with the factual similarities between the allegations made by A.A. and
K.S. To be admissible, other-crimes evidence must have some threshold similarity to the
crime charged. People v. Braddy, 2015 IL App (5th) 130354, ¶ 39. Some factual
differences do not defeat admissibility because no two crimes are identical. Braddy, 2015
IL App (5th) 130354, ¶ 39. Mere general areas of similarity are sufficient to support
admissibility. People v. Lobdell, 2017 IL App (3d) 150074, ¶ 23. As factual similarities
increase, so does the probative value of other-crimes evidence. People v. Smith, 2015 IL
App (4th) 130205, ¶ 23.
¶ 52 The factual similarities in this case are numerous. Both K.S. and A.A. were nine-
year-old girls. The defendant was K.S.’s uncle and A.A.’s great-uncle. The sexual assaults
occurred while the defendant was alone with the victims in a caretaking or supervisory
role. The sexual assaults were committed in the defendant’s bed. He initiated the sexual
assaults by having the victims lie on the bed and remove their clothing. In each sexual
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assault, the defendant inserted his fingers into the victims’ vaginas. After the sexual
assaults, the defendant asked the victims not to tell anyone about what had happened. In
addition to the factual similarities in this case, the trial court noted at the hearing on the
parties’ motions in limine that K.S. testified and appeared to be credible.
¶ 53 When considering proximity in time between the charged offense and the past
conduct, courts should evaluate this issue on a case-by-case basis. Donoho, 204 Ill. 2d at
183. No bright-line rule controls when a prior offense is too old to be admitted under
section 115-7.3. Braddy, 2015 IL App (5th) 130354, ¶ 32. Although the passage of time
may lessen the probative value of other-crimes evidence, that fact alone does not determine
the admissibility of the evidence. Braddy, 2015 IL App (5th) 130354, ¶ 32.
¶ 54 Here, the information alleged that the charged conduct against A.A. occurred during
the year 2012. K.S.’s allegations allegedly occurred in 1998, approximately 14 years
earlier. The defendant contends that this 14-year period undermines the probative value of
K.S.’s testimony. Other courts, however, have found similar periods of time did not defeat
admissibility. See, e.g., Donoho, 204 Ill. 2d at 186 (finding that although 12 to 15 years
had elapsed, there were substantial factual similarities regarding the nature of the abuse
sufficient to justify the admission of other-crimes evidence); Braddy, 2015 IL App (5th)
130354, ¶ 37 (finding that a 20-year time lapse was significant, but the testimony was
sufficiently credible and reliable to be probative); and Smith, 2015 IL App (4th) 130205,
¶¶ 29 (period of 12 to 18 years). While the 14-year time lapse in the present case is
significant, standing alone, it is insufficient to defeat the admissibility of K.S.’s testimony.
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¶ 55 The defendant argues that other relevant facts and circumstances warranted the
exclusion of K.S.’s testimony: (1) the fact that K.S.’s allegations were investigated by
police at the time and found to be unsubstantiated, and (2) the lack of relevant
documentation and witnesses available for trial. The defendant asserted that uncharged
allegations are less probative than conduct for which a defendant has been tried and
convicted and that the jury might have been tempted to convict the defendant because he
had “gotten away with it.” The defendant further asserted that records related to K.S.’s
allegations and the witnesses K.S. made disclosures to were no longer available.
¶ 56 We acknowledge that uncharged allegations may present problems, particularly
when a substantial period of time has elapsed between allegations. We cannot say,
however, that the trial court abused its discretion in this case. The record shows that the
trial court engaged in a meaningful assessment of the probative value of K.S.’s testimony
against the undue prejudice to the defendant. The trial court heard K.S.’s testimony at a
hearing and found that she appeared to be credible. The trial court considered the proximity
in time and observed that the records in this case involving K.S. had apparently been lost
or destroyed and that the defendant was apparently unable to interview witnesses that had
talked to K.S. about the allegations against the defendant. The trial court found, however,
that the probative value of K.S.’s testimony outweighed the prejudicial effect because of
the “extreme similarity” between the allegations made by A.A. and K.S.
¶ 57 The prejudicial impact of the evidence was also limited by a number of factors. The
defendant had an opportunity to cross-examine K.S. on the record prior to trial. At trial,
the defendant was able to establish that the allegations had been investigated and that no
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charges were filed against the defendant as a result of the investigation. Finally, the trial
court in this case gave a limiting instruction to the jury prior to K.S.’s testimony which
stated that the jury was to consider her testimony only for the limited purpose of the
defendant’s propensity to commit a crime. This instruction was given again prior to the
jury’s deliberations.
¶ 58 Considering the foregoing, we find that the trial court did not abuse its discretion in
admitting K.S.’s testimony pursuant to section 115-7.3 to demonstrate the defendant’s
propensity to commit predatory criminal sexual assault of a child.
¶ 59 B. Sufficiency of the Evidence
¶ 60 The defendant contends that the evidence was insufficient to support convictions
for all 15 counts of predatory criminal sexual assault alleged in the information because
the evidence was based on “estimates” made by the victim. We disagree.
¶ 61 A criminal conviction will not be reversed unless the evidence is so improbable or
unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v. Collins,
106 Ill. 2d 237, 261 (1985). When the defendant challenges the sufficiency of the evidence,
it is not the reviewing court’s function to retry the defendant. Collins, 106 Ill. 2d at 261.
Rather, “ ‘the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Collins, 106
Ill. 2d at 261 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It is trier of fact’s
responsibility to make determinations regarding the credibility of the witnesses and the
weight to be accorded to their testimony, to resolve conflicts or inconsistencies in the
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evidence, and to draw all reasonable inferences from the evidence. People v. Ortiz, 196 Ill.
2d 236, 259 (2001). A reviewing court will not substitute its judgment for that of the trier
of fact on these matters. Ortiz, 196 Ill. 2d at 259. A reviewing court, however, is not
absolutely bound by the trier of fact’s verdict, as the court’s ultimate duty is to
independently evaluate the reasonableness of the evidence. People v. Cunningham, 212 Ill.
2d 274, 280 (2004).
¶ 62 The testimony of a single witness is sufficient to convict even when contradicted by
the defendant if the testimony is positive and the witness is credible. People v. Anderson,
325 Ill. App. 3d 624, 634 (2001). The State is not required to corroborate a victim’s
testimony with physical or scientific evidence to convict a defendant. People v. Willer, 281
Ill. App. 3d 939, 948-49 (1996). Moreover, as the appellate court has observed, other
jurisdictions have found that a child victim need not specify the exact number of times the
sexual acts occurred, so long as there were “ ‘some reliable indicia that the number of
charged acts actually occurred.’ ” People v. Letcher, 386 Ill. App. 3d 327, 334-35 (2008)
(quoting Rose v. State, 123 Nev. 194, 203 (2007)).
¶ 63 To sustain a conviction for predatory criminal sexual assault of a child, the State
must prove that the defendant was 17 years of age or older, that the defendant committed
an act of sexual penetration, and that the victim was under the age of 13. 720 ILCS 5/11-
1.40(a)(1) (West 2016). “Sexual penetration” is defined as:
“any contact, however slight, between the sex organ or anus of one person
and an object or the sex organ, mouth, or anus of another person, or any
intrusion, however slight, of any part of the body of one person or of any
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animal or object into the sex organ or anus of another person, including, but
not limited to, cunnilingus, fellatio, or anal penetration. Evidence of emission
of semen is not required to prove sexual penetration.” 720 ILCS 5/11-0.1
(West 2016).
¶ 64 The type of sexual penetration is not an element of the offense, and its inclusion in
the charging document is merely surplusage. People v. Foley, 206 Ill. App. 3d 709, 718
(1990). If the statutory language used describes specific conduct, the charging instrument
need not specify the exact means by which the conduct was carried out. Foley, 206 Ill. App.
3d at 718. “The State need only prove that a type of sexual penetration occurred beyond a
reasonable doubt.” (Emphasis in original.) Foley, 206 Ill. App. 3d at 718.
¶ 65 Here, A.A. testified that the defendant committed numerous acts of sexual
penetration against her during the year of 2012, when she was nine years old. A.A. provided
a time frame for when the sexual acts occurred, testifying that they began in February 2012
and ended in October 2012. A.A. testified that while staying at the defendant’s apartment,
he had A.A. remove her clothes and lie on the bed. She stated the defendant inserted his
fingers and tongue into her vagina. A.A. stated that these acts occurred on three to seven
occasions but “probably closer to three.” A.A. further testified that when the defendant
lived in the shed behind A.A.’s house, he inserted his fingers and tongue into her vagina.
A.A. recalled that on three occasions, the defendant bound her arms. A.A. also recalled that
on two other occasions, the defendant bound both her arms and legs. A.A. testified that
when the defendant bound both her arms and legs, he only inserted his fingers into her
vagina. A.A. further testified that the defendant committed the sexual acts five times when
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she was bound in some fashion and another five to eight times when she was not bound.
A.A. further estimated that the sexual acts in the shed occurred 10 times, “might be more.”
When asked to provide a total number of times the defendant inserted his fingers into
A.A.’s vagina, A.A. testified “[a]round 15.” Thus, the evidence was sufficient to support
all 15 convictions for predatory criminal sexual assault of a child.
¶ 66 For the foregoing reasons, the defendant’s convictions are affirmed.
¶ 67 Affirmed.
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