Opinion
1-19-0333
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD REED, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 11 CR 877 Honorable Brian K. Flaherty, Judge, presiding.
JUSTICE ELLIS delivered the judgment of the court. Justices McBride and Burke concurred in the judgment.
ORDER
ELLIS, JUSTICE
¶ 1 Held: Defendant's convictions for aggravated criminal sexual assault of his former stepdaughter affirmed. Trial court did not abuse its discretion by admitting other-crimes evidence of defendant's criminal sexual assault of different stepdaughter.
¶ 2 Following a jury trial, defendant Edward Reed was found guilty of aggravated criminal sexual assault and sentenced to 64 years' imprisonment. On appeal, he contends the trial court abused its discretion by admitting other-crimes evidence of a separate sexual assault he committed in 2002 and to which he pled guilty in 2005. We affirm.
¶ 3 After charging defendant with 40 counts of sex crimes, the State proceeded to trial on 8 counts of aggravated criminal sexual assault by use or threat of force (720 ILCS 5/12-14(a) (3) (West 2000)) and 8 counts of aggravated criminal sexual assault during the commission of a robbery (730 ILCS 5/12-14 (a)(4) (West 2000)), and nol-prossed'the remaining counts. The charges arose out of defendant's and an unidentified co-offender's sexual assault of K.M. on July 26, 2000. As defendant only challenges the admission of other-crimes evidence, we recite the facts necessary to decide this appeal.
¶ 4 The State alleged here that defendant and an unidentified co-offender sexually assaulted the 16-year-old victim, K.M., who was defendant's former stepdaughter, on July 26, 2000. Defendant and his co-offender forced K.M. to a secluded outdoor area at gunpoint and penetrated her mouth and anus with their penises and attempted to penetrate her vagina. Defendant was identified as one of the offenders via DNA testing.
¶ 5 The State filed a pretrial motion to admit evidence of other crimes. The other-crimes evidence pertained to defendant's sexual assault of another stepdaughter, S.R., in 2002, to which he pled guilty in 2005. The State's motion alleged that, in 2002, defendant lived with his then-wife and her 12-year-old daughter, S.R. When defendant and S.R. were home alone together, defendant massaged S.R. 's back and buttocks, then got on top of her and put his hands inside her underwear. Defendant tried to insert his fingers into S.R.'s vagina and did insert his fingers into her anus. Defendant also tried to insert his penis into S.R.'s vagina and touched his penis to her vagina and anus. S.R. told her mother what occurred, and defendant was arrested the following day. In 2005, defendant pled guilty to criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2002)) and was sentenced to four years' imprisonment. As a result of this conviction, defendant's DNA was entered into a database, which led to his identification and charging in the case at bar.
¶ 6 The State argued defendant's sexual assault of S.R. should be admitted because it was similar and close in time to his sexual assault of K.M. The State maintained defendant's sexual assault of S.R. was necessary to corroborate the acts he committed against K.M., to show defendant's propensity to commit sexual violence, and to explain "why it took so long to identify, arrest, and charge the defendant." Defendant contended the two incidents were "starkly different" because his sexual assault of K.M. occurred in public and involved a co-offender and a weapon, whereas his sexual assault of S.R. did not.
¶ 7 The court granted the State's motion. The court stated it "d[id] the balancing test that is required to whether or not the prejudicial effect outweighs the probative value" and found factual similarities between the two assaults because, in each incident, defendant touched his penis to his stepdaughter's vagina and anus. The court admitted the other-crimes evidence "for the defendant's propensity to commit crime" and to "explain the circumstances of his identification and how he got this case that's on trial right now."
¶ 8 At trial, K.M. testified that her mother was previously married to defendant. Defendant, whom K.M. identified in court, lived with K.M. and her mother until their divorce. Two to three years after the divorce, when K.M. was 16 years old, she got off a bus in Harvey at approximately 11:00 p.m. on July 26, 2000, and began walking home along a residential street.
¶ 9 K.M. saw two men approaching her. One man ran behind her with a gun, which she felt in her back, and the other man ran up in front of her with a gun, which he pointed at her head. She "never saw" the man behind her but remembered he "had something on his face." One of the men said, "Shut the f*** up if you want to live" and demanded everything in her pockets. K.M. thought she was being robbed, so she gave the men cash and a check.
¶ 10 The men pulled K.M. into the yard of an abandoned house. They told K.M. to take her clothes off, which she did. One of the men used K.M.'s bra to cover her face; she could not see anything. The men ordered K.M. to get down on all fours and she complied. One of the men inserted his penis into K.M.'s mouth and the other inserted his penis into her anus, then the two men exchanged positions. The men placed K.M. on her back and one of them tried to insert his penis into her vagina but was unable to insert it fully. K.M. could feel the gun against her head.
¶ 11 K.M. heard one of the men say, "Let's cut her," and the other man said, "No," which made K.M. believe one of the men knew she was a virgin. She then felt one of the men's fingernails "poking and prodding" her vagina, trying to penetrate her. He also tried to penetrate her with a stick. The two men then left.
¶ 12 K.M. uncovered her eyes, put her clothes on, and ran home. She told her mother she had been raped and her mother called police, who arrived and spoke to K.M. She was transported to Ingalls Memorial Hospital, where a doctor and a nurse performed a sexual assault examination.
¶ 13 The following day, K.M. met Harvey detective Joseph Thomas to view arrest photos of suspects but did not recognize either of the offenders. In 2002, K.M. learned police were no longer investigating the case. In 2010, K.M. received a call from Thomas and met him at a courthouse to view photographs of suspects. She recognized a photograph of defendant and wondered why it had been included.
¶ 14 On cross-examination, K.M. testified that defendant visited the house where K.M. and her mother lived two to three times per week during the period between the divorce and the assault.
¶ 15 On the night of the assault, K.M. saw the two men approaching her on the street from approximately 20 feet away but did not recognize defendant as one of them. She did not recognize either of the men's voices as defendant's. K.M. did not tell anyone she thought defendant may have been one of the offenders.
¶ 16 June Reed testified K.M. was her daughter, and defendant, whom she identified in court, was her ex-husband. Reed and defendant separated" [a]round" 1997 and divorced in 1998 or 1999. On the night of July 26, 2000, Reed awoke when K.M. entered their house and screamed, "[T]hey just raped me." Reed called police, who came to the house, and an ambulance transported K.M. to Ingalls Memorial Hospital.
¶ 17 Dr. Walid Kandah testified that he provided treatment to K.M. at the emergency room of Ingalls Memorial Hospital on July 27, 2000. He swabbed K.M.'s vagina and rectum and placed these specimens in a sexual assault kit, which he gave to a nurse.
¶ 18 Harvey police officer Joseph Ellison testified that he collected the sexual assault kit and K.M.'s clothing from Ingalls Memorial Hospital on July 27, 2000, and inventoried them.
¶ 19 Harvey detective Joseph Thomas testified that he met K.M. at a police station on July 27, 2000. K.M. reviewed photographs in an attempt to identify the offenders but became sick to her stomach and had to leave. Thomas took the sexual assault kit and K.M.'s clothing from inventory and provided them to the Illinois State Police crime laboratory. Thomas closed the investigation in 2002 because he "had nothing at that point."
¶ 20 In 2010, Thomas reopened the investigation and learned defendant's DNA had been associated with DNA on the evidence Thomas had provided to the Illinois State Police. K.M. met Thomas and viewed two photo arrays, one of which included a photograph of defendant. K.M. said defendant was her former stepfather and asked why he was in the photo array.
¶ 21 Calumet City police arrested defendant and transported him to the Harvey police station. Thomas met defendant, whom he identified in court, at the police station, and defendant consented to a buccal swab. Thomas swabbed the inside of defendant's mouth and gave the swab to an investigator who took it to the crime lab.
¶ 22 On cross-examination, Thomas testified that K.M. did not identify defendant as one of the offenders in the 2010 photo array.
¶ 23 Illinois State Police forensic biologist Katherine Sullivan testified that she found semen on K.M.'s rectal swab and "in the crotch lining" of her underwear in 2000. The parties stipulated that Illinois State Police forensic scientist Joanna Olson found no associations with the male DNA profiles on the rectal swabs or K.M.'s underwear when she tested them in 2001. In 2010, Sullivan received a DNA sample from defendant and was asked to test it to confirm a DNA association with defendant discovered in a database. Defendant was "excluded as having contributed to the male DNA profile of the rectal swabs," but he "could have contributed to the DNA that was left in" K.M.'s underwear. Further testing confirmed the male DNA in K.M.'s underwear matched defendant.
¶ 24 The court instructed the jury that it would hear evidence that defendant was involved in "an offense or conduct other than that charged in the indictment." The court explained the evidence would pertain to "defendant's identity and propensity to commit sexual assault and may be considered by [the jury] only for those limited purposes." The court also instructed the jury it was for them "to determine whether defendant was involved in the offense or conduct, and if so, what weight should be given to this evidence on the issues of defendant's identity and propensity to commit sexual assault."
¶ 25 S.R. testified she was 12 years old in December 2002. At that time, she lived with her mother and her stepfather, defendant, whom she identified in court. On the night of December 3, 2002, she was alone with defendant in a bedroom; no other adults or children were home. S.R. was lying on the bed and defendant sat on top of her and massaged her back. S.R. told defendant to stop, but he placed his hands inside her pants and then inserted his fingers into her anus. S.R. again told defendant to stop and tried to force defendant off her but was unable to.
¶ 26 S.R. felt defendant's penis on her buttocks and back, then felt him trying to insert it into her anus as he held her down using his body weight. Defendant inserted his penis into S.R.'s vagina and anus while she continued to struggle against him and told him to stop. S.R. managed to get out from under defendant and locked herself in a bathroom. The following day, S.R. told her mother that defendant "touched" her. S.R.'s mother confronted defendant, and the police came to the house.
¶ 27 On cross-examination, S.R. testified that defendant did not display a gun or a stick during the 2002 incident.
¶ 28 Janine Robinson testified she lived with her ex-husband, defendant, whom she identified in court, and her daughter S.R. in July 2000. In the early morning hours of July 27, 2000, Robinson received a telephone call from June Reed, who sounded "[h]ysterical." She gave the phone to defendant, who spoke to Reed and then said K.M. had been raped. Defendant left, but Robinson did not know where he went.
¶ 29 On December 4, 2002, S.R. told Robinson defendant had "touched" her. Robinson confronted defendant and he said he gave S.R. a massage and "put his hands down her pants." Robinson called police, who came to the house.
¶ 30 Defendant testified and acknowledged pleading guilty to sexually assaulting S.R. He denied sexually assaulting K.M. In July of 2000, defendant occasionally saw Reed and had sex with her at her house. He was at home at approximately 11:15 p.m. on July 26, 2000, along with his wife, Jeanine Robinson. At about midnight, Reed called him and said K.M. had been raped. Defendant did not have any sexual contact with K.M. at any point and did not have any contact with her on July 26 or July 27, 2000.
¶ 31 On cross-examination, defendant testified he did not know the last time he had sex with Reed prior to K.M.'s sexual assault.
¶ 32 Dr. Karl Reich was qualified as an expert in DNA analysis. He opined defendant's DNA profile was present in a stain on K.M.'s underwear, but it was "not definitive" that semen was the source of that DNA profile. It was possible defendant's DNA was transmitted to K.M.'s underwear by "secondary transfer;" for example, by clothing touching in a laundry basket.
¶ 33 June Reed testified in rebuttal she did not have sex with defendant from "right before" their separation through July 26, 2000.
¶ 34 In closing, the State argued K.M. and S.R. were the "same race; the same gender" and were "both children" and defendant's stepchildren when defendant sexually assaulted them in 2000 and 2002. The State noted "they're both held down" and "in each case it is the anus first," and argued defendant was one of the men who assaulted K.M. because of DNA evidence and "what he did to [S.R.]." In response, defendant acknowledged his conviction for criminal sexual assault of S.R. but argued K.M. never identified him as one of the offenders and his DNA was transmitted to her underwear by secondary transfer.
¶ 35 The jury found defendant guilty on all counts.
¶ 36 Defendant filed a motion for new trial, which he amended to include an argument the trial court erroneously admitted his 2002 sexual assault of S.R. and related 2005 conviction because that incident was not similar to his assault of K.M. The court denied this motion.
¶ 37 The court merged the eight counts of aggravated criminal sexual assault during the commission of a robbery (720 ILCS 5/12-14(a) (4) (West 2000)) into the eight counts of aggravated criminal sexual assault by use or threat of force (720 ILCS 5/12-14 (a)(3) (West 2000)) and sentenced defendant to consecutive eight-year prison terms on each count for a total sentence of 64 years.
¶ 38 Defendant filed a motion to reconsider sentence, which was denied.
¶ 39 On appeal, defendant argues the trial court abused its discretion by admitting evidence of his 2002 sexual assault of S.R. and related 2005 conviction. Specifically, defendant contends (1) his assault of S.R. was too dissimilar from his assault of K.M. to warrant admission, (2) the court did not balance the probative value of the other-crimes evidence against the risk of unfair prejudice to defendant, and (3) other-crimes evidence is not relevant to prove "course of investigation." He requests that we reverse his convictions and remand for a new trial.
¶ 40 Evidence of other crimes is generally inadmissible to show a defendant has the propensity to commit the charged criminal conduct. People v. Donoho, 204 Ill.2d 159, 170 (2003). However, other-crimes evidence is generally admissible to prove "motive, intent, identity, absence of mistake, modus operandi, or any other relevant fact other than propensity." People v. Vannote, 2012 IL App (4th) 100798, ¶ 37. "Other-crimes evidence encompasses misconduct or criminal acts that occurred either before or after the alleged criminal conduct for which the defendant is standing trial." People v. Johnson, 2013 IL App (2d) 110535, ¶ 61.
¶ 41 Section 115-7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 2000)) expands the uses of other-crimes evidence when, as here, a defendant is charged with aggravated criminal sexual assault. 725 ILCS 5/115-7.3(a)(1) (West 2000); People v. Ward, 2011 IL 108690, ¶ 25. This section allows "courts to admit evidence of other crimes to show defendant's propensity to commit sex offenses" so long as its probative value is not substantially outweighed by the danger of unfair prejudice. Donoho, 204 Ill.2d at 176; 725 ILCS 5/115-7.3(b) (West 2000). "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 115-7.3(c) (West 2000).
¶ 42 We will only reverse a trial court's decision to admit other-crimes evidence if the trial court abused its discretion. Donoho, 204 Ill.2d at 182. A trial court abuses its discretion when its determination is arbitrary or fanciful, or if no reasonable person would adopt the court's view. Id.
¶ 43 Defendant first contends the trial court abused its discretion because the two sexual assaults were not similar enough to warrant admission under section 115-7.3.
¶ 44 To be admissible, other-crimes evidence must have" 'some threshold similarity to the crime charged.'" Donoho, 204 Ill.2d at 184 (quoting People v. Bartall, 98 Ill.2d 294, 310 (1983)). "[T]o show propensity, 'mere general areas of similarity will suffice to support admissibility.' People v. Lobdell, 2017 IL App (3d) 150074, ¶ 23 (quoting Donoho, 204 Ill.2d at 184). As factual similarities increase, so does the probative value of the other-crimes evidence. Donoho, 204 Ill.2d at 184.
¶ 45 The trial court did not abuse its discretion in finding defendant's sexual assault of S.R. in 2002 sufficiently similar to his sexual assault of K.M. in 2000. Both incidents involved defendant sexually assaulting teen or pre-teen girls who were at one point his stepdaughters. Both incidents occurred when the victims were alone and defenseless. In both incidents, defendant forced the victims down and penetrated their anuses. Thus, the trial court properly admitted this evidence under section 115-7.3.
¶ 46 Defendant argues that defendant's sexual assault of K.M. in 2000 and his sexual assault of S.R. in 2002 were "not remotely similar" because different numbers of offenders committed different sex acts on victims of different ages, and the assault of K.M. was more violent than the assault of S.R. But "[t]he existence of some differences between the prior offense and the current charge does not defeat admissibility because no two independent crimes are identical." Donoho, 204 Ill.2d at 185. In the context of sex crimes, other-crimes evidence can be sufficiently similar to warrant admission even if one crime involves intercourse and the other does not (People v. Cerda, 2014 IL App (1st) 120484, ¶¶ 189-90), if the victims are of multiple genders (Donoho, 204 Ill.2d at 184-86), and if one victim is related to the defendant but the other is not (People v. Smith, 2015 IL App (4th) 130205, ¶ 1). We cannot say defendant's assaults of K.M. and S.R. are so dissimilar that no reasonable judge would admit the assault of S.R. under section 115-7.3.
¶ 47 Defendant next claims "the trial court did not conduct an appropriate balancing test" because it did not evaluate "how admission of the evidence would unfairly prejudice [defendant]" and "made no remarks at all about the prejudicial effect such evidence would have on a jury."
¶ 48 As noted above, section 115-7.3(c) requires the trial court to weigh the probative value of the other-crimes evidence against the risk of undue prejudice to the defendant. 725 ILCS 5/115-7.3(c) (West 2000); Donoho, 204 Ill.2d at 182-83.
¶ 49 In ruling on the State's motion to admit other-crimes evidence, the trial court explicitly stated it "d[id] the balancing test that is required to whether or not the prejudicial effect outweighs the probative value." We can only interpret this as meaning the court conducted the balancing test section 115-7.3(c) requires, particularly given our presumption that the trial court followed the law. See People v. Groel, 2012 IL App (3d) 090595, ¶ 43. We have found a court's one-sentence statement that it conducted the balancing test sufficient to fulfill section 115-7.3 (c). See People v. Williams, 2013 IL App (1st) 112583, ¶ 38.
¶ 50 The record likewise confirms that the court evaluated all three of the section 115-7.3(c) factors: proximity in time, factual similarity, and other relevant facts and circumstances. See 725 ILCS 115-7.3(c) (West 2000). Thus, the court gave the matter the full attention the statute requires, and its admission of other-crimes evidence under that statute was not an abuse of discretion.
¶ 51 As we find the other-crimes evidence admissible on this ground, we need not consider whether the trial court properly admitted it on the alternative ground of "explain[ing] the State's course of investigation." Nor need we consider whether the evidence at trial was "closely balanced," a factor considered on plain-error review. See People v. Herron, 215 Ill.2d 167, 178 (2005). As we find no error in the first instance, plain-error review stops there. See People v. Glasper, 234 Ill.2d 173, 203 (2009). We thus affirm defendant's convictions.
¶ 52 Affirmed.