People v. Roberson ( 2010 )

NO. 4-07-0864 Filed 5/13/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
NED L. ROBERSON, ) No. 05CF1388
Defendant-Appellant. )
) Honorable
) Leo J. Zappa, Jr.,
) Judge Presiding.
_________________________________________________________________
JUSTICE APPLETON delivered the opinion of the court:
In June 2007, a jury convicted defendant, Ned L.
Roberson, of aggravated criminal sexual abuse (720 ILCS 5/12-
16(d) (West 2004)) and indecent solicitation of a child (720 ILCS
5/11-6(a) (West 2004)). In August 2007, the trial court sen-
tenced him to concurrent terms of 2 years’ probation with 180
days in jail on each conviction.
Defendant appealed, arguing (1) the trial court erred
in failing to question the jurors during voir dire about their
understanding of defendant’s right to not testify; (2) the court
erred in granting the State’s motion in limine barring evidence
the victim had made prior false accusations; (3) the court erred
in allowing the State to present propensity evidence of an
alleged prior sexual assault; (4) the State failed to prove
beyond a reasonable doubt defendant was five years older than the
victim; (5) the written judgment order should be corrected to
reflect the sentence pronounced by the court; and (6) defendant
should not be required to pay the State’s Attorney fee as costs
of appeal. In February 2009, this court affirmed as modified and
remanded with directions. People v. Roberson, No. 4-07-0864
(February 18, 2009) (unpublished order under Supreme Court Rule
23).
The Supreme Court of Illinois denied defendant’s
petition for leave to appeal but issued a supervisory order
(People v. Roberson, 233 Ill. 2d 588, 914 N.E.2d 488 (2009)
(nonprecedential supervisory order on denial of petition for
leave to appeal) (No. 108125)) directing this court to vacate our
order and to reconsider in light of People v. Glasper, 234 Ill.
2d 173, 917 N.E.2d 401 (2009). In accordance with the supreme
court’s directions, we vacated our prior judgment and reconsider
in light of Glasper to determine whether a different result is
warranted. We again affirm as modified and remand with direc-
tions.
I. BACKGROUND
According to H.G.’s testimony, on October 4, 2005,
defendant asked her to help him "move a chest from his house."
H.G. said she would check with her mother. H.G. was 16 years of
age and had known defendant since she was in the fifth grade.
Defendant had worked as a teacher’s aide at her schools. H.G.’s
mother said she wanted to speak with defendant first. H.G.
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called her mother from defendant’s cell phone. H.G. heard
defendant say he knew her grandma, cousins, and sister. H.G.’s
mother gave her permission, provided H.G. came home in half an
hour.
As H.G. walked up the stairs to defendant’s apartment,
defendant slapped her "butt." Once in defendant’s apartment, he
began asking H.G. to have sex. Although she said no, defendant
continued to ask. When H.G. walked to the door, defendant asked
for a hug. H.G. hugged defendant because she was attempting to
leave. H.G. testified, "I was trying to get out of there, and he
pulled me in closer and grabbed my butt again and asked me again
to have sex with him." When H.G. told defendant she wanted to
leave, defendant said he knew she had time and did not have to be
home yet.
H.G. started down the stairs, but defendant got in
front of her and told her to hug him like she meant it. Again,
H.G. hugged defendant because she was attempting to leave. H.G.
testified, "I hugged him, but I tried to keep my body away from
him, and he pulled me closer again." H.G. again told defendant
she wanted to leave.
Defendant followed H.G. to her car. H.G. started her
vehicle, but defendant reached inside. Defendant asked H.G. to
have sex with him several more times, saying his "dick was bigger
than her boyfriend’s." She testified defendant told her if she
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would not have sex with him she should at least "let him see."
When H.G. refused, defendant reached in the car and grabbed
H.G.’s crotch outside her pants.
According to H.G., defendant told her this was going to
be their "secret." H.G. testified defendant "made me promise
that I wouldn’t tell anybody." H.G. promised defendant she would
not say anything because she wanted to leave. H.G. drove away
and went straight home.
H.G.’s mother testified to her phone conversation with
defendant regarding defendant’s request that H.G. help him move.
H.G.’s mother also testified defendant assured her he knew her
family members and that H.G. would be home shortly.
H.G.’s testimony was also corroborated by her ability
to provide an accurate description of defendant’s apartment,
which defendant testified H.G. had never been inside.
Defendant testified he had known H.G. for six to eight
years and that they got "along okay." On October 4, 2005,
defendant was sitting in his vehicle at Shop N Save grocery store
when H.G. approached him. She asked defendant if he would ask
her mother if she could help him move. Defendant replied "I’ve
done moved it." H.G. called her mother and asked defendant to
speak with her. Defendant testified he spoke with H.G.’s mother
and told her "he was pretty much done with moving." Defendant
told H.G.’s mother H.G. was too small and he did not need her
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help.
According to defendant’s testimony, H.G. then asked
defendant if he could "get [her] some weed." When defendant told
her no, she "looked at [him] real funny and got in the car and
drove off." Defendant testified, "I guess she could have been
angry."
In June 2007, a jury convicted defendant of aggravated
criminal sexual abuse and indecent solicitation of a child. The
trial court sentenced defendant as stated. Defendant filed
motions to reconsider sentence, reconsider the denial of defen-
dant’s posttrial motions, and a motion in arrest of judgment, all
of which the court denied.
We affirmed as modified and remanded with directions
(People v. Roberson, No. 4-07-0864 (February 18, 2009) (unpub-
lished order under Supreme Court Rule 23)), and the supreme court
denied defendant’s petition for leave to appeal but directed this
court to vacate our judgment and to reconsider in light of
Glasper.
II. ANALYSIS
A. Rule 431(b)
As a threshold matter, we note our prior order in this
case relied on this court’s reasoning in People v. Stump, 385
Ill. App. 3d 515, 896 N.E.2d 904 (2008). However, following its
decision in Glasper, the supreme court issued a supervisory order
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therein (People v. Stump, 233 Ill. 2d 592, 914 N.E.2d 490 (2009)
(nonprecedential supervisory order on denial of petition for
leave to appeal) (No. 107508)) directing this court to vacate its
opinion and reconsider its decision in light of Glasper--despite
Glasper's application of prior Rule 431 and Stump's application
of the amended rule.
On appeal in the instant case, defendant initially
argues he is entitled to a new trial because the trial court
failed to comply with Rule 431(b). Specifically, defendant
contends the court erred by failing to allow the venire members
an opportunity to respond to or be questioned about their under-
standing of defendant’s right to not testify as required by Rule
431(b). See People v. Zehr, 103 Ill. 2d 472, 477-78, 469 N.E.2d
1062, 1064 (1984).
1. Forfeiture
In this case, defendant’s trial counsel did not object
at the time of the trial court’s error. In addition, defendant’s
posttrial motion did not allege the court failed to comply with
Rule 431(b). As a result, the issue has been forfeited. See
People v. Hestand, 362 Ill. App. 3d 272, 279, 838 N.E.2d 318, 324
(2005). Defendant, however, argues the court's failure to comply
with Rule 431(b) constitutes plain error affecting his substan-
tial right to a fair trial by an impartial jury.
2. Plain-Error or Harmless-Error Analysis
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A plain-error analysis applies where the defendant
fails to make a timely objection in the trial court, while a
harmless-error analysis applies where the defendant timely
objects to the error. People v. Johnson, 388 Ill. App. 3d 199,
203, 902 N.E.2d 1265, 1268 (2009). Because defendant failed to
preserve the trial court’s error, we analyze the error under the
plain-error doctrine.
3. Plain-Error Analysis
A reviewing court may disregard a defendant's forfei-
ture and review the issue under the plain-error doctrine to
determine whether reversal is required. People v. Lewis, 234
Ill. 2d 32, 42, 912 N.E.2d 1220, 1226 (2009). The plain-error
doctrine allows a reviewing court to consider forfeited error
when (1) the evidence is closely balanced or (2) the error is so
serious that it affected the fairness of the defendant's trial
and challenged the integrity of the judicial process, regardless
of the closeness of the evidence. People v. Walker, 232 Ill. 2d
113, 124, 902 N.E.2d 691, 697 (2009). Under either prong of the
plain-error analysis, however, the defendant has the burden of
persuasion. Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227.
We note that defendant does not argue that the evidence
was closely balanced. Instead, defendant contends that the error
was so serious that it deprived him of a fair trial. As a
result, we confine our review to the second prong of the plain-
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error analysis. See People v. Alexander, 396 Ill. App. 3d 563,
574, 919 N.E.2d 1016, 1026 (2009). However, before we can
determine whether defendant was deprived of a fair trial, we must
first determine whether any error occurred. People v.
Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2007).
4. Standard of Review
"The supreme court's rules are not aspirational;
rather, they have the force of law." People v. Young, 387 Ill.
App. 3d 1126, 1127, 903 N.E.2d 434, 435 (2009), citing Bright v.
Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 277-78 (1995). This
court reviews de novo a trial court’s compliance, or lack
thereof, with a supreme court rule. Young, 387 Ill. App. 3d at
1127, 903 N.E.2d at 435.
5. Rule 431(b)
In Zehr, the Supreme Court of Illinois held a trial
court erred during voir dire by refusing defense counsel's
request to ask questions about (1) the State's burden of proof,
(2) defendant's right to not testify, and (3) the presumption of
innocence. Zehr, 103 Ill. 2d at 477-78, 469 N.E.2d at 1064.
The supreme court amended Rule 431(b) to assure compli-
ance with its decision in Zehr. Adopted March 21, 2007, and
effective May 1, 2007, the rule now reads as follows:
"(b) The court shall ask each potential
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juror, individually or in a group, whether
that juror understands and accepts the fol-
lowing principles: (1) that the defendant is
presumed innocent of the charge(s) against
him or her; (2) that before a defendant can
be convicted the State must prove the defen-
dant guilty beyond a reasonable doubt; (3)
that the defendant is not required to offer
any evidence on his or her own behalf; and
(4) that the defendant's failure to testify
cannot be held against him or her; however,
no inquiry of a prospective juror shall be
made into the defendant's failure to testify
when the defendant objects.
The court's method of inquiry shall
provide each juror an opportunity to respond
to specific questions concerning the princi-
ples set out in this section." (Emphases
added.) Official Reports Advance Sheet No. 8
(April 11, 2007), R. 431(b), eff. May 1,
2007.
The committee comments provide as follows:
"The new language is intended to ensure
compliance with the requirements of People v.
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Zehr, 103 Ill. 2d 472[, 469 N.E.2d 1062]
(1984). It seeks to end the practice where
the judge makes a broad statement of the
applicable law followed by a general question
concerning the juror’s willingness to follow
the law." 177 Ill. 2d R. 431(b), Committee
Comments, at lxxix.
As of May 1, 2007, the plain language of Rule 431(b)
requires a trial court to sua sponte question each potential
juror as to whether he understands and accepts the Zehr princi-
ples in a manner that allows each juror an opportunity to re-
spond. Compliance with Rule 431(b) is mandatory. People v.
Owens, 394 Ill. App. 3d 147, 152, 914 N.E.2d 1280, 1284 (2009).
As the voir dire in this case occurred in June 2007, after the
amendment became effective, the court was required to comply with
the rule as amended May 1, 2007.
6. Admonitions and Instructions
In this case, the trial court instructed prospective
jurors on three of the four Zehr principles before selecting
panelists for questioning. At the beginning of voir dire, prior
to the jurors being sworn in, the court addressed the pool as
follows:
"Under the law, the [d]efendant is pre-
sumed to be innocent of the charges against
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him, and this presumption remains with him
throughout every stage of the trial and dur-
ing your deliberations on the verdict. This
presumption of innocence is not overcome
unless from all evidence in the case you are
convinced beyond a reasonable doubt that the
[d]efendant is guilty.
The State has the burden of proving the
guilt of the [d]efendant beyond a reasonable
doubt, and this burden remains on the State
throughout the trial. The [d]efendant is not
required to prove his innocence, nor is [de-
fendant] required to present any evidence on
his behalf. He may rely on the presumption
of innocence." (Emphases added.)
During voir dire, the trial court asked the first panel
of prospective jurors the following:
"[D]o all of you understand that a per-
son accused of a crime is presumed to be in-
nocent of the charges against him, and this
presumption of innocence stays with the
[d]efendant throughout the trial and is not
overcome unless from all the evidence you
believe the State has proved his guilt beyond
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a reasonable doubt? That means the State has
the burden of proving the [d]efendant’s guilt
beyond a reasonable doubt, the [d]efendant
does not have to prove his innocence, the
[d]efendant does not have to present any evi-
dence on his own behalf.
Does anyone *** have any disagreements
with those principles of law? If you do,
raise your hand." (Emphasis added.)
Four jurors were selected from the first panel. The second panel
of prospective jurors were questioned as follows:
"A person accused of a crime is presumed
to be innocent of the charges against him,
and that presumption of innocence stays with
him throughout the trial and is not overcome
unless from all the evidence you believe the
State proved his guilt beyond a reasonable
doubt, and that means that the State has the
burden of proving the [d]efendant’s guilt
beyond a reasonable doubt. The [d]efendant
does not have to prove his innocence. The
[d]efendant does not have to present any evi-
dence on his own behalf.
Does anyone *** have a disagreement with
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these principles of law? If you do, raise
your hand." (Emphasis added.)
Seven jurors were selected from the second panel. The court
addressed the next panel of prospective jurors as follows:
"Under the law, the [d]efendant is pre-
sumed innocent of the charges against him,
and that presumption remains with him
throughout every stage of this trial and dur-
ing your deliberations. This presumption of
innocence is not overcome unless from all the
evidence in the case[,] you are convinced
beyond a reasonable doubt that the
[d]efendant is guilty.
The State has the burden of proving the
guilt of the [d]efendant beyond a reasonable
doubt, and this burden remains on the State
throughout the trial. The [d]efendant is not
required to prove his innocence, nor is he
required to present any evidence on his own
behalf. He may rely on his presumption of
innocence." (Emphasis added.)
The court then addressed the final panel as follows:
"A person accused of a crime is presumed
to be innocent of the charge against him, and
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this presumption of innocence stays with him
throughout the trial and is not overcome un-
less from all the evidence you believe the
State proved his guilt beyond a reasonable
doubt, and that means that the State in this
case has the burden of proving the
[d]efendant’s guilt beyond a reasonable
doubt.
The [d]efendant does not have to prove
his innocence. He does not have to present
any evidence on his own behalf.
Anyone *** have any disagreement with
these principles of law; if so, raise your
hands." (Emphasis added.)
One juror and two alternates were selected from the final panel.
Prior to deliberations, the jury also received Illinois
Pattern Jury Instructions, Criminal, No. 2.03 (4th ed. 2000)
(hereinafter IPI Criminal 4th), regarding the presumption of
innocence, the State’s burden of proof, and that defendant was
not required to prove his innocence. However, the jury was not
given IPI Criminal 4th No. 2.04 regarding defendant’s decision
not to testify.
Thus, the record shows the trial court did not fully
comply with Rule 431(b) because it only questioned prospective
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jurors about three of the four Zehr principles. Specifically,
the court did not ask prospective jurors whether they understood
and accepted that defendant's decision not to testify cannot be
held against him. We hold that the court's failure to strictly
comply with the rule was error.
7. Does the Error Require Automatic Reversal
Having found error, we must now determine whether the
error was so serious that it affected the fairness of defendant's
trial.
In this case, none of the jurors selected were specifi-
cally asked about their understanding of defendant’s right not to
testify. However, defendant testified at trial. Because defen-
dant testified, the question of whether the jury was properly
admonished concerning his right not to testify is a nonissue.
See People v. Brooks, 175 Ill. App. 3d 136, 143 n.1, 529 N.E.2d
732, 737 n.1 (1988) (First District, "Defendant testified at
trial, so the question of his right not to testify is not an
issue in this case"). We note that even if a juror was inclined
to hold defendant's decision not to testify against him, any
potential bias in that regard was alleviated when defendant took
the stand and testified.
In applying Glasper to the facts of this case, we find
the trial court's error was not of such magnitude to warrant a
new trial. In Glasper, the supreme court addressed whether a
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trial court's failure to comply with prior Rule 431(b) requires a
reviewing court to presume prejudice and automatically reverse a
defendant's conviction. Glasper, 234 Ill. 2d at 189, 917 N.E.2d
at 411-12. While the court held the trial court erred by not
fully complying with Rule 431(b), it declined to find that a
violation of Rule 431(b) is per se reversible error. Glasper,
234 Ill. 2d at 194, 917 N.E.2d at 414. Instead, the court found
that automatic reversal was only required when an error was found
to be "'structural,' i.e., a systemic error [that] serves to
'erode the integrity of the judicial process and undermine the
fairness of the defendant's trial.'" Glasper, 234 Ill. 2d at
197-98, 917 N.E.2d at 416, quoting People v. Herron, 215 Ill. 2d
167, 186, 830 N.E.2d 467, 479 (2005).
The supreme court found that a trial court’s failure to
question a venire regarding a defendant’s failure to testify does
not involve a fundamental right or a constitutional protection.
Glasper, 234 Ill. 2d at 193, 917 N.E.2d at 413. Rather, the
court found the error in Glasper "involves a right made available
only by rule of [the Illinois Supreme Court]." Glasper, 234 Ill.
2d at 193, 917 N.E.2d at 413-14. The court also stated that
"[t]he violation of a [s]upreme [c]ourt [r]ule does not mandate
reversal in every case." Glasper, 234 Ill. 2d at 193, 917 N.E.2d
at 414. As a result, the error was not "structural" but instead
(given defense counsel’s request for admonition and apparent
- 16 -
objection) subject to a harmless-error analysis. Glasper, 234
Ill. 2d at 200, 917 N.E.2d at 418.
We recognize the supreme court did not consider whether
amended Rule 431 would have affected the outcome of Glasper. See
Glasper, 234 Ill. 2d at 200, 917 N.E.2d at 418 (emphasizing "that
this holding is limited to the version of Rule 431(b)(4) that was
in effect at the time of the instant trial, and would not neces-
sarily apply to subsequent versions of the rule"). However, we
find the distinction between the two versions of the rule is
without a difference as applied here and does not preclude appli-
cation of the Glasper analysis to this case. See People v.
Magallanes, 397 Ill. App. 3d 72, 92, 921 N.E.2d 388, 405 (2009)
(First District, finding no "quantitative or qualitative differ-
ence between the trial court failing to admonish jurors when
requested to do so, as in Glasper, and when the trial court fails
to admonish jurors under the amended rule"); see also People v.
Amerman, 396 Ill. App. 3d 586, 594-95, 919 N.E.2d 1068, 1075
(2009) (Third District, finding the Glasper analysis applied to a
plain-error analysis involving the amended version of the rule);
Alexander, 396 Ill. App. 3d at 575, 919 N.E.2d at 1026 (Third
District, finding Glasper’s rationale applicable to the second
prong of the plain-error analysis).
After considering the issue in light of Glasper, we
find the trial court did not fully comply with Rule 431(b) and
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that failure to comply constituted error. However, because
defendant testified, we cannot say the court’s failure to ques-
tion jurors about defendant’s right not to testify was so serious
that it affected the fairness of his trial. See Magallanes, 397
Ill. App. 3d at 99, 921 N.E.2d at 412. As a result, we conclude
the court’s error did not amount to plain error, i.e., the
court's error was harmless beyond a reasonable doubt.
B. State’s Motion In Limine
Defendant next argues the trial court erred in granting
the State’s motion in limine barring evidence the victim had made
prior false accusations of sexual assault against other teachers.
Specifically, defendant contends the evidence showed the victim
had a motive to lie and possessed an improper interest in or bias
against defendant because he was a teacher’s assistant. Defen-
dant maintains the evidence sought to be introduced would show
the victim’s bias against those in authority, like defendant.
1. Motion In Limine
During defense counsel’s opening statement, counsel
told the jury "you may hear evidence *** of accusations against
other teachers, persons, about this troubled youth." The State
then filed a motion in limine requesting defendant be barred from
presenting any evidence or cross-examining any witness concerning
alleged prior false allegations of sexual abuse made by the
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victim.
Defendant argued the evidence showed motive and bias to
testify falsely against defendant and also to show the victim was
a troubled youth. The State argued that even if the victim
previously made false allegations of sexual abuse against another
person, such evidence is not admissible for impeachment of the
victim unless defendant can show the allegations demonstrate
bias, interest, or prejudice concerning defendant.
The trial court ruled that unless defendant could
connect such evidence to a bias or interest against defendant,
the evidence would not be permitted.
2. Standard of Review
A trial court's evidentiary determinations regarding a
motion in limine will not be disturbed absent an abuse of discre-
tion. In re Leona W., 228 Ill. 2d 439, 460, 888 N.E.2d 72, 83
(2008). A party forfeits review of his challenge to the trial
court's granting of a motion in limine when he fails to make an
offer of proof. People v. Evans, 373 Ill. App. 3d 948, 966, 869
N.E.2d 920, 937 (2007) ("[f]ailing to make an adequate offer of
proof results in a [forfeiture] of the issue on appeal").
While a formal offer of proof is generally required, an
informal offer of proof consisting of counsel’s summary of what
the proposed evidence might prove may be sufficient if specific
and not based on speculation or conjecture. People v. Tabb, 374
- 19 -
Ill. App. 3d 680, 689, 870 N.E.2d 914, 923-24 (2007) (First
District).
3. Defendant’s Offer of Proof
Following the presentation of the State’s witnesses,
defense counsel represented that he had subpoenaed witnesses who
would have testified H.G.
"made false accusations to other teachers,
that she in fact caused, at least that’s what
it appears to me, one teacher to quit after a
false allegation, that she has e-mailed, did
e-mail another teacher a request for sex on
an e-mail, that she has been disruptive in
school, that she is not permitted to be in
the hallway[.] *** That would be the
witnesses I would present."
Defendant’s counsel then informed the trial court that
he called off those witnesses because he did not want to "waste
judicial time" bringing them in to testify and making an offer of
proof. Instead, he asked the court to accept his representation
of their testimony as to the offer of proof. The court responded
by stating the following: "Sure, to preserve your record. I’ve
already made my ruling, and I appreciate you putting that on the
record." However, the court did not reverse its previous ruling
that the evidence would not be permitted unless defense counsel
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could connect the evidence to a bias against this defendant.
Defendant preserved the issue by including it in his posttrial
motion.
4. No Error in Excluding Evidence
Here, the State argues defense counsel’s offer of proof
was not sufficiently specific. We agree. Cross-examination to
show bias, interest, or motive to testify falsely is a matter of
right. People v. Triplett, 108 Ill. 2d 463, 475, 485 N.E.2d 9,
15 (1985). However, to be admissible, "'the evidence used must
not be remote or uncertain.’" People v. Cookson, 215 Ill. 2d
194, 215, 830 N.E.2d 484, 496 (2005), quoting People v. Bull, 185
Ill. 2d 179, 206, 705 N.E.2d 824, 838 (1998).
Here, defense counsel’s offer of proof neither provided
the names of the potential witnesses nor explicitly stated what
their testimony would reveal. In addition, the offer of proof
did not indicate when or to whom the alleged prior false allega-
tions were made. Further, defense counsel’s offer of proof did
not demonstrate H.G. possessed any potential bias against or
motive to lie about abuse by this defendant. See Cookson, 215
Ill. 2d at 218, 830 N.E.2d at 498 (supreme court finding sexual-
abuse accusations were properly excluded absent a demonstration
of improper interest, bias, or motive to lie about the defen-
dant). Accordingly, defendant failed to properly connect the
allegations to a bias or interest against him.
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We find the trial court correctly concluded the evi-
dence does not establish H.G.’s bias against this defendant.
Further, the speculative nature of the evidence made it inadmis-
sible to show H.G.’s bias against defendant. See Bull, 185 Ill.
2d at 206-07, 705 N.E.2d at 838. Given the State’s argument at
the hearing on the motion in limine and the court’s ruling at
that time, the informal offer of proof summarizing the proposed
evidence was inadequate to demonstrate the error of which he now
complains on appeal. As a result, we find no abuse of the
court’s discretion in excluding evidence relating to H.G.’s
accusations against other teachers.
C. Propensity Evidence
Defendant next contends the trial court erred when it
allowed the State to present evidence of an alleged prior sexual
assault. Specifically, defendant argues the propensity evidence
was prejudicial as the incident was factually dissimilar and took
place almost 10 years earlier.
According to Springfield police officer Dan Szabados’
testimony, on November 18, 1997, he approached an improperly
parked car. Szabados saw defendant and C.M. in the "backseat of
the car putting their pants back on." Defendant stated he and
C.M. were just kissing. Szabados testified defendant believed
C.M. was 17 years of age. Szabados also testified he believed
defendant was 31 years of age. Defendant was taken to the police
- 22 -
station and interviewed. Defendant’s written and signed state-
ment was read to the jury and admitted into evidence over defen-
dant’s objection. The statement provided as follows:
"I met [C.M.] sometime over the summer
at Family Dollar on North Grand. I was driv-
ing by, and she flagged my down. She was
with a tall black kid that was her next-door
neighbor. I was with my friend, Anthony
Grant. We talked a little bit at Family Dol-
lar and then walked to the park. Nothing
happened that night.
I saw [C.M.] again about a week later.
We talked for about 15 minutes. We were by
the Family Dollar. [C.M.] had told me she
was 18 years old.
I met [C.M.] sometime before the fair.
I met her at Family Dollar. She got in my
car and [we] drove around a little bit. I
drove out by the airport. We ended up at the
Brown Bomber. We had talked about sex. I
put a condom on, and she said she didn’t like
having sex with a condom. I kept it on, and
when I started to penetrate, she said ’ouch’
a couple of times. The act took a couple of
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minutes, and then we stopped. *** I then
drove her home and dropped her off at Family
Dollar.
On two other occasions I drove [C.M.] to
an area north of Browning Road. We kissed
and hugged but didn’t do anything else. I
have only touched [C.M.’s] breasts twice,
once at the Brown Bomber and tonight. Both
times I was touching her outside her clothes.
During our friendship[,] I began to wonder if
she had told me the truth about her age.
While we were at the park tonight, I knew she
was probably not 18."
According to C.M.’s testimony, she was 14 years of age
when defendant had sexual intercourse with her. C.M. testified
defendant had sex with her at least three or four times in his
apartment. C.M. also testified defendant had sex with her after
the police caught them.
At common law, evidence of a defendant's other crimes
or bad acts is inadmissible to prove the defendant's propensity
to commit crime. People v. Reed, 361 Ill. App. 3d 995, 999, 838
N.E.2d 328, 331 (2005). However, under section 115-7.3(b) of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3(b)
(West 2004)), uncharged sex offenses are admissible to prove the
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defendant's propensity to commit the charged sex offense if three
conditions are met. Reed, 361 Ill. App. 3d at 999, 838 N.E.2d at
331-32, citing People v. Donoho, 204 Ill. 2d 159, 176, 788 N.E.2d
707, 718 (2003).
"First, the uncharged sex offense must be
'otherwise admissible under the rules of evi-
dence' [citation]--'otherwise' meaning but
for the common-law prohibition of propensity
evidence [citation]. 'Thus, evidence that is
normally inadmissible, such as hearsay evi-
dence, remains inadmissible.' [Citation.]
Second, the 'probative value of the evidence'
must outweigh its 'undue prejudice,' consid-
ering such factors as 'proximity in time' and
'the degree of factual similarity.' [Cita-
tion.] Third, the State must 'disclose the
evidence *** at a reasonable time in advance
of trial, or during trial if the court ex-
cuses pretrial notice on good cause shown.'
[Citation.]" Reed, 361 Ill. App. 3d at 999,
838 N.E.2d at 332.
Here, defendant was accused of aggravated criminal
sexual abuse and indecent solicitation of a child. Defendant's
prior actions constitute an uncharged sex offense to which sec-
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tion 115-7.3 pertains. See 725 ILCS 5/115-7.3(a)(1) (West 2004)
("[Section 115-7.3] applies to criminal cases in which *** defen-
dant is accused of *** aggravated criminal sexual abuse").
Therefore, evidence defendant previously committed aggravated
criminal sexual abuse may be admissible for its bearing on any
matter to which it is relevant. See 725 ILCS 5/115-7.3(b) (West
2004). Evidence is "relevant" if it has any tendency to make the
existence of a fact that is of consequence to the determination
of the action more or less probable than it would be without the
evidence. People v. Alsup, 373 Ill. App. 3d 745, 759, 869 N.E.2d
157, 170 (2007).
Despite defendant’s claim to the contrary, the previous
offense in this case had a threshold factual similarity to the
charged offense in that both incidents involved (1) girls between
14 and 16 years of age, (2) defendant wanting to have sexual
intercourse with the minor girls, (3) defendant fondling outside
the minors’ clothing, and (4) defendant assaulting the minors in
his apartment.
Defendant also contends the previous incident is too
remote as it took place almost 10 years before the charged inci-
dent. However, the supreme court has found no abuse of discre-
tion in admitting evidence of a sex offense that preceded the
charged offense by 12 to 15 years. Donoho, 204 Ill. 2d at 184,
788 N.E.2d at 722.
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In addition, on January 5, 2007, the State filed a
notice of intent to use evidence of other sex offenses pursuant
to section 115-7.3. The jury trial began on June 12, 2007.
Moreover, defendant does not claim to have received untimely
notice of the intent to introduce evidence concerning the alleged
previous offense.
Because the conditions set forth in section 115-7.3
have been met, evidence of defendant's uncharged act was admissi-
ble. As a result, we find no abuse of discretion in the trial
court’s decision to admit evidence of the prior, uncharged inci-
dent of aggravated criminal sexual abuse.
D. Sufficiency of the Evidence
Defendant next argues the State's evidence was insuffi-
cient to prove beyond a reasonable doubt he was five years older
than H.G. We disagree.
When considering a challenge to the sufficiency of the
evidence, 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." People v. Carpenter, 228
Ill. 2d 250, 265, 888 N.E.2d 105, 114 (2008). The appellate
court's function is not to retry the defendant. People v.
Slinkard, 362 Ill. App. 3d 855, 857, 841 N.E.2d 1, 3 (2005). A
conviction will stand unless "the evidence is so unreasonable,
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improbable, or unsatisfactory that it justifies a reasonable
doubt of defendant's guilt." People v. Wheeler, 226 Ill. 2d 92,
115, 871 N.E.2d 728, 740 (2007).
Due process requires that to sustain a conviction of a
criminal offense, the State must prove defendant guilty of every
element of an offense beyond a reasonable doubt. People v.
Cunningham, 212 Ill. 2d 274, 278, 818 N.E.2d 304, 307 (2004).
However, the State may properly rely on inferences in proving
those elements. People v. Woodrum, 223 Ill. 2d 286, 308, 860
N.E.2d 259, 274 (2006). Under section 12-16(d) of the Criminal
Code of 1961, a person "commits aggravated criminal sexual abuse
if [(1)] he or she commits an act of sexual penetration or sexual
conduct with [(2)] a victim who was at least 13 years of age but
under 17 years of age and [(3)] the accused was at least 5 years
older than the victim." 720 ILCS 5/12-16(d) (West 2004). In
this case, the victim was 16 years old. Thus, the State had to
prove beyond a reasonable doubt defendant was at least 21 years
old.
The State's evidence of defendant's age consisted of
defendant’s signed written statement from 1997 stating he was 31
years of age at the time the previous alleged abuse took place.
Moreover, defendant’s statement lists his date of birth as April
11, 1966, which would make defendant 39 years old as of the date
of the current offense. In addition, the State offered into
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evidence a transcript of defendant’s October 2005 interview with
police. According to that transcript, defendant’s birth date was
April 11, 1966. In addition, H.G. testified she had known defen-
dant since she was in the fifth grade when defendant was a
teacher at her school. Testimony also showed defendant had
worked at various schools in Springfield for 12 years. Defendant
admitted knowing H.G. since she was in the fifth grade. Accord-
ing to defendant’s testimony, he drove a car and went to a bar in
1997. Moreover, Szabados testified he determined defendant to be
31 years old in 1997.
In support of its argument, the State cites People v.
Dalton, 91 Ill. 2d 22, 434 N.E.2d 1127 (1982). There, the su-
preme court addressed the rule established by the cases of
Wistrand v. People, 213 Ill. 72, 79, 72 N.E. 748, 750 (1904), and
People v. Rogers, 415 Ill. 343, 348, 114 N.E.2d 398, 401 (1953),
that the State had to produce corroborating evidence of a defen-
dant's admission of age when age is a necessary element of the
corpus delicti of the offense. Dalton, 91 Ill. 2d at 27-30, 434
N.E.2d at 1130-31. The Dalton court held the defendant's state-
ment of his date of birth was admissible without corroboration
and overruled Wistrand and Rogers. Dalton, 91 Ill. 2d at 30, 434
N.E.2d at 1131. In its analysis, the supreme court noted that,
in the cases of Wistrand and Rogers, it would have been inclined
to hold the jury's observation of the defendants, who were con-
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siderably over the statutory age, was sufficient corroboration.
Dalton, 91 Ill. 2d at 29, 434 N.E.2d at 1130.
Here, the jury was also able to observe defendant as he
testified. As a result, we find the jury’s observation of defen-
dant would allow it to determine whether the aforementioned
information was sufficient to prove beyond a reasonable doubt
defendant was five years older than H.G.
Accordingly, we find the State's evidence was suffi-
cient to prove beyond a reasonable doubt the five-year-age-dif-
ference element.
E. Correction of Written Sentencing Order
To Conform to Pronounced Sentence
Defendant argues and the State concedes the trial
court’s written judgment order should be corrected to reflect
the court sentenced defendant to concurrent terms of two years’
probation. We agree.
When the oral pronouncement of the court and the writ-
ten order conflict, the oral pronouncement of the court controls.
People v. Smith, 242 Ill. App. 3d 399, 402, 609 N.E.2d 1004, 1006
(1993) (the oral pronouncement of the court is the judgment of
the court while the written order merely serves as evidence of
the court’s judgment).
Here, the trial court’s written order of the conditions
of probation states defendant’s sentence term is "4 years," from
August 17, 2007, to August 17, 2011. The docket entry also
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states defendant was sentenced to "4 years[’] probation." How-
ever, at sentencing, the court stated, "I’m going to sentence you
to two years[’] probation, six months in the Sangamon County
[j]ail." On the record before us, the written order is inconsis-
tent with the court’s oral pronouncement. As a result, the
court’s oral pronouncement is controlling. Accordingly, we find
the written judgment order must be corrected to reflect that the
court sentenced defendant to concurrent terms of two years’
probation.
F. State’s Attorney Fee for Appeal Costs
Defendant argues we should reject the State’s request
to assess costs to defendant for pursuing this appeal because the
statute does not allow recovery from a defendant who has pre-
vailed on appeal. We disagree.
It is well settled that "[t]he successful defense of
any part of a criminal judgment challenged on appeal entitles the
State to a per diem fee and costs for its efforts." People v.
Smith, 133 Ill. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985); see
also People v. Nicholls, 71 Ill. 2d 166, 178-79, 374 N.E.2d 194,
199 (1978). Accordingly, because the State successfully defended
a portion of the criminal judgment, including the day of oral
argument, we find the State is entitled to its $75 statutory
assessment. See People v. Williams, 235 Ill. 2d 286, 297, 920
N.E.2d 1060, 1066 (2009) ("because [the] defendant remained a
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convicted defendant following the appellate court’s resolution of
his appeal, the court properly allowed the State’s fee request").
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment as modified. We remand with directions for issuance of
a modified written judgment order reflecting defendant’s concur-
rent sentences of two years’ probation. As part of our judgment,
we grant the State its $75 statutory assessment against defendant
as costs of this appeal.
Affirmed as modified and remanded with directions.
MYERSCOUGH, P.J., and POPE, J., concur.
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