PEOPLE v. EVERHART

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ass

"Finally, Mr. Everhart is going to get up here on the stand, and he's going to tell you what happened. He's going to tell you that on that night, there was no criminal sexual assault. He's going to tell you that there was sexual conduct between himself and the victim, but that that sex was consensual. He'll tell you about how he knows her. And he'll tell you about the occasions prior to this event where he had relations with the victim.

Finally, you'll hear him talk about, after he got arrested, the circumstances around that statement. You'll hear what he actually told the police officers. Not their version, but what he actually told them."

Despite these statements, defendant did not testify at trial. Defense counsel indicated that he had advised defendant not to testify, but asked the trial court to admonish defendant about his right to testify. The trial court asked defendant if it was his decision not to testify and if anyone forced this decision upon him. Defendant replied that it was his decision not to testify and that it was not forced on him. The trial court passed the case and admonished defendant a second time when it was recalled.

Defendant argues that his defense counsel was ineffective for failing to fulfill the promise made in opening statements that defendant would testify about what really happened. Defendant contends that this was deficient performance because it was unreasonable to break his promise to the jury that defendant would testify and defendant was prejudiced because defendant's failure to testify discredited him to the jury.

We need not reach the question of whether trial counsel's performance was deficient because we conclude that defendant failed to show prejudice such that the result of the proceeding would have been different. Here, the State's evidence was overwhelming. D.R. was attacked outside her home and sexually assaulted on the hood of her car. She testified that her attacker put a cold, hard object to her head and threatened to "blow [her] f---ing head off." The man placed his penis into her vagina. She immediately called the police. While she did not initially report a sexual assault in front of her son, she made an outcry when the police arrived at the scene. D.R. was examined and a sexual assault kit was collected at the hospital. Semen was found in both D.R.'s vaginal swabs and underwear. The DNA profile from the semen was matched to defendant.

After his arrest, defendant signed a Miranda waiver and told Detective Belcher and ASA Karas about the sexual assault. He admitted to following D.R. home after he saw her driving alone. He admitted to attacking her outside her apartment and forcing her to remove her pants and bend down over the hood of her car. Defendant admitted to placing his penis inside D.R.'s vagina against her will. He also admitted to taking D.R.'s purse and discarding items as he drove away. Multiple items from D.R.'s purse were recovered and admitted into evidence. Additionally, the State presented evidence of defendant's prior sexual assault of G.C.

Defendant has not shown how the outcome of the trial would have been different if he had testified or if his attorney had not promised that defendant would testify. If defendant had testified at trial, his testimony would be in conflict with D.R.'s testimony and defendant's own confession to Detective Belcher and ASA Karas. As the Schlager court noted, "the test is not whether defense counsel fulfilled all the promises he made during his opening remarks but, rather, whether defense counsel's errors were so serious that, absent those errors, the result of the proceeding would likely have been different." Schlager, 247 Ill. App. 3d at 932. In that case, the reviewing court declined to hold that the defense counsel's failure to fulfill his promise that the defendant and expert witnesses would testify amounts to per se prejudice. Schlager, 247 Ill. App. 3d at 932.

Defendant relies on the decisions in People v. Briones, 352 Ill. App. 3d 913 (2004), and People v. Chandler, 129 Ill. 2d 233 (1989). Both cases are distinguishable from the facts present in this case. In Briones, the reviewing court found the defense counsel's performance to be deficient after reneging on the promise that defendant would testify. The court also found defense counsel to be ineffective for allowing an improper jury instruction to be given. However, the reviewing court found the defendant to have been prejudiced based on the "aggregate errors of defense counsel," the evidence was not overwhelming, and the crux of the State's case involved the victims' identification of the defendant in low light. Briones, 352 Ill. App. 3d at 921. In Chandler, the defense counsel failed to subject the State's case to any meaningful adversarial testing. There, the defendant's attorney did not cross-examine several of the State's witnesses, failed to understand the law of accountability and felony murder when he admitted the defendant's guilt to burglary, and did not present the defendant's testimony after a promise in opening statements. Chandler, 129 Ill. 2d at 248-49. The supreme court noted that as a result of the defense counsel's ineffectiveness, the jury "was forced to convict defendant of the offenses charged." Chandler, 129 Ill. 2d at 250. In this case, the evidence of defendant's guilt was overwhelming.

Here, any error by the defense counsel was not serious enough to undermine the proceedings such that the result would be different. Since defendant cannot establish prejudice under the Strickland test, his claim of ineffective assistance must fail.

Defendant next raises two challenges against section 115-7.3 of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/115-7.3 (West 2006)). First, defendant argues that evidence of his prior aggravated criminal sexual assault conviction was improperly admitted because the prior sexual assault was too distant in time, substantial differences existed between the facts of both sexual assaults, and the prejudicial effect outweighed its probative value. Second, defendant asserts that section 115-7.3 violates his constitutional right to due process.

The Illinois Supreme Court has dictated that cases should be decided on nonconstitutional grounds whenever possible, and constitutional issues should be decided only as a last resort. In re E.H., 224 Ill. 2d 172, 178 (2006). Therefore, we first consider defendant's contention that the admission of the other crimes evidence was improper because the proximity in time was too great, the lack of factual similarities between the two offenses, and the prejudicial effect outweighed the probative value. The State maintains that the other crimes evidence was properly admitted because the present assault occurred less than six years after defendant was released from custody, the assaults were substantially similar to each other, and defendant raised a consent defense. "We will not reverse the trial court's decision to admit other-crimes evidence unless we find that the court abused its discretion." People v. Donoho, 204 Ill. 2d 159, 182 (2003).

Section 115-7.3 allows, in specified sex and sex-related offenses, for the admission of evidence of the defendant's commission of a similar offense and "may be considered for its bearing on any matter to which it is relevant." 725 ILCS 5/115-7.3 (West 2006). The supreme court has held that a trial court is permitted to admit other crimes evidence "to show defendant's propensity to commit sex offenses if the requirements of section 115-7.3 are met." Donoho, 204 Ill. 2d at 176. The statute further provides that the trial court, in weighing the probative value of the other crimes evidence against undue prejudice to the defendant, 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; and (3) other relevant facts or circumstances. 725 ILCS 5/115-7.3(c) (West 2006). "The key to balancing the probative value of other-crimes evidence to prove propensity against its prejudicial effect is to avoid admitting evidence that entices a jury to find defendant guilty " only because it feels he is a bad person deserving punishment.`" (Emphasis in original.) People v. Ross, 395 Ill. App. 3d 660, 674 (2009), quoting People v. Childress, 338 Ill. App. 3d 540, 548 (2003).

Prior to trial, the State filed a motion to admit other crimes evidence, specifically evidence regarding defendant's prior conviction for aggravated criminal sexual assault. Following a hearing, the trial court granted the State's motion and allowed the admission of the other crimes evidence. In its ruling, the trial court expressed the need to "use caution in considering the admissibility of other-crimes evidence to show propensity, and I need to engage in meaningful assessment of the probative value versus the prejudicial impact of the evidence." The court then engaged in a significant discussion of the factual similarities it found between the two crimes before granting the State's motion. At trial, the State presented the testimony of Tardy, the detective who investigated the case, and G.C., the victim in the aggravated criminal sexual assault. The sexual assault occurred in November 1994. Defendant pled guilty and was released from prison in September 1999.

Defendant asserts that the previous crime was too remote to the current offense and the two offenses are too different to be admissible under section 115-7.3. The supreme court in Donoho "decline[d] to adopt a bright-line rule about when prior convictions are per se too old to be admitted under section 115-7.3. Instead, it is a factor to consider when evaluating its probative value." Donoho, 204 Ill. 2d at 183-84. We note that the Donoho court held that a 12- to 15-year time gap between offenses, alone, was insufficient to render the admission of a prior offense an abuse of discretion. Donoho, 204 Ill. 2d at 184. Here, the prior offense occurred nearly 11 years before the current one, but if we discount the time defendant was in prison, the gap in time is less than six years. We do not believe the gap of six years renders the prior offense too remote as to be an abuse of discretion on this factor alone.

In regard to factual similarities, there must be some threshold similarity to be admissible under section 115-7.3. Donoho, 204 Ill. 2d at 184. "As factual similarities increase, so does the relevance or probative value." People v. Wilson, 214 Ill. 2d 127, 142 (2005). However, when the evidence is offered for some purpose other than modus operandi, "`mere general areas of similarity will suffice' to support admissibility." Donoho, 204 Ill. 2d at 184, quoting People v. Illgen, 145 Ill. 2d 353, 372-73 (1991).

We find that the facts of the 1995 sexual assault of G.C. are sufficiently similar to the facts present in the sexual assault of D.R. Both attacks occurred after midnight while the women were alone. G.C. was attacked in a parking lot as she unlocked her car while D.R. was attacked as she was unlocking the door to her apartment building. Both women were moved to a secluded location. We recognize that G.C. was driven to a remote location while D.R. was walked to her car, which faced a wooded area. Both women were told to remove their pants and underwear. Both women were told or positioned to face away from defendant, G.C. was over the back of the seat and D.R. was facing backwards on the hood of her car. Evidence was presented that both women were threatened with what they believed to be a gun. A replica lighter was recovered in the present case and the trial court noted on the record that "a toy silver plastic revolver" was recovered in the prior case. Defendant never displayed a gun to either woman, but threatened them with its presence to force them to comply. Defendant talked to both women during the attack, asking in one case if she "liked it" and in the other if it "felt good." Defendant tried to prevent either woman from seeing his face. Both women had their purses stolen after the sexual assault.

Defendant asserts that the similarities between the two cases are generic and common to many sex crimes. He also points to some differences. He notes that the victims' ages were 15 years apart. However, the age of each victim was close to defendant's age at the time of the attack. In 1994, G.C. was 20 or 21 and defendant was 17, while in 2005, defendant was 28 and D.R. was 36. Defendant also points out the difference in the length of the attacks. G.C. testified that her assault "seemed like forever. It may be half hour [ sic]," while D.R. stated that her assault lasted five to six minutes. We do not find this difference to be significant as neither victim knew exactly how long the sexual assault lasted. G.C.'s testimony that "it seemed like forever" indicated that she did not have a perception of how long it lasted.

Finally, defendant argues that the difference in the type of penetration is a "crucial difference." G.C. was digitally penetrated, but defendant inserted his penis in D.R.'s vagina. We recognize this difference, but as previously noted, both women were assaulted in the same position — bent over with penetration from behind. The difference in the type of penetration does not render the other factual similarities meaningless. "The 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, citing People v. Illgen, 145 Ill. 2d 353, 373 (1991).

We conclude that the other crimes evidence was sufficiently similar to be admissible and probative toward defendant's propensity to commit sex crimes. The trial court stated on the record that it considered the arguments and the relevant case law before it weighed the prejudicial impact of the evidence against its probative value. Accordingly, we find that the trial court did not abuse its discretion in admitting evidence of defendant's sexual assault of G.C.

Defendant further argues that he was prejudiced by the admission because his defense counsel "was removed because of this error." Defendant was represented by Robert Parchem. Parchem had previously worked as an assistant State's Attorney and had prosecuted defendant in his prior aggravated criminal sexual assault case. After the trial court granted the State's motion to allow other crimes evidence, Parchem voluntarily withdrew from defendant's case due to this conflict of interest. Defendant asserts that this was prejudicial and he was denied a fair trial. We disagree. We have already concluded that the trial court did not abuse its discretion in allowing the other crimes evidence, and Parchem's voluntary withdrawal due to a conflict of interest was proper. Defendant received new representation and was not deprived of his right to counsel.

We turn next to defendant's constitutional challenge of section 115-7.3. Specifically, defendant argues that section 115-7.3 violates his due process rights because it alters the court system into a general investigation of defendant's propensities.

A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating that it is unconstitutional. Donoho, 204 Ill. 2d at 177; see also People v. Walden, 199 Ill. 2d 392, 394 (2002). A court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it can be reasonably done. People v. Malchow, 193 Ill. 2d 413, 418 (2000). Whether a statute is constitutional is a question of law that we review de novo. Malchow, 193 Ill. 2d at 418.

In Donoho, the supreme court held that section 115-7.3 does not violate the equal protection clause of the federal and state constitutions. Donoho, 204 Ill. 2d at 178. The Donoho court noted that section 115-7.3 is based on Federal Rules of Evidence 413 and 414, which also allow the admission of evidence of sexual assault or child molestation crimes to show propensity. Donoho, 204 Ill. 2d at 177. The court considered two federal cases holding that Federal Rules of Evidence 413 and 414 passed the rational basis test as sexual offenders are not a suspect class. Donoho, 204 Ill. 2d at 177. The court concluded that, like Rules 413 and 414, section 115-7.3 passed the rational basis test.

"Under Mound and Castillo, we find that section 115-7.3 does not violate the federal equal protection clause. We agree that this provision passes the rational basis test because it also promotes effective prosecution of sex offenses and strengthens evidence in sexual abuse cases. Because we apply the same equal protection analysis under both the federal and state constitutions [citation], we also find that section 115-7.3 does not violate our state equal protection clause." Donoho, 204 Ill. 2d at 178, citing United States v. Mound, 149 F.3d 799, 801 (8th Cir. 1998), and United States v. Castillo, 140 F.3d 874, 883 (10th Cir. 1998).

While the defendant in Donoho did not challenge section 115-7.3 as a violation of due process, the supreme court still addressed this issue.

"Defendant concedes that no fundamental right is involved in this case. In addition, courts have held that admitting other-crimes evidence does not implicate the due process right to a fair trial where the evidence is relevant and its probative value is not outweighed by its prejudicial effect (see, e.g., [Castillo, 140 P.3d at 883] (analyzing Federal Rule of Evidence 414)); these two limitations are incorporated into section 115-7.3 ( 725 ILCS 5/115-7.3(b), (c) (West 2000))." Donoho, 204 Ill. 2d at 177.

Two appellate decisions have interpreted this statement as the Donoho court's implicit "belief that section 115-7.3 does not violate due process." People v. Beaty, 377 Ill. App. 3d 861, 883 (2007); see also People v. Dabbs, 396 Ill. App. 3d 622, 627 (2009), appeal allowed, 236 Ill. 2d 516 (2010). The Fifth District in Beaty, citing United States v. LeMay, 260 F3d 1018 (9th Cir. 2001), noted that Rules 413 and 414 did not violate due process. Beaty, 377 Ill. App. 3d at 884. The court concluded:

"Accordingly, for the same reasons that Rules 413 and 414 (Fed. Rs. Evid. 413, 414) are constitutional on their face, so, too, is section 115-7.3, and as long as the trial court properly balances the probative value of the evidence against its prejudicial effect, as did the trial court in the present case, the admission of the evidence does not violate due process." Beaty, 377 Ill. App. 3d at 884.

See also LeMay, 260 F.3d at 1027; Donoho, 204 Ill. 2d at 177.

In Dabbs, the Third District relied significantly on Beaty and reached the same conclusion. Dabbs, 396 Ill. App. 3d at 627-28. "Those rules do not violate due process as long as trial judges are required to weigh the probative value versus prejudicial effect of the evidence so that they retain the authority to exclude potentially devastating evidence." Dabbs, 396 Ill. App. 3d at 627; see LeMay, 260 F.3d at 1027; United States v. Enjady, 134 F.3d 1427, 1430-35 (10th Cir. 1998). We agree with the conclusion reached in Beaty and Dabbs. Section 115-7.3 does not violate due process as the trial court retains the discretion to weigh the probative value against the prejudicial effect and to refuse to allow prejudicial evidence. Accordingly, section 115-7.3 is constitutional.

Next, defendant contends that the trial court erred in admitting evidence that police recovered a pistol-shaped lighter because the lighter was found in a car that did not belong to defendant and was not identified as being used in the offense. The State responds that defendant has forfeited this issue as no objection was raised at trial nor was it presented in a posttrial motion. We agree.

To preserve an issue for review, defendant must object both at trial and in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Failure to do so operates as a forfeiture as to that issue on appeal. People v. Ward, 154 Ill. 2d 272, 293 (1992). Defendant only makes a single passing reference to the plain error rule in the reply brief, but does not discuss the rule nor how it applies in the instant case. This reference is not sufficient to raise the plain error rule on appeal and it is forfeited. See People v. Nieves, 192 Ill. 2d 487, 503 (2000) (finding that the failure to argue "that the evidence was closely balanced [or] explain [] why the error is so severe that it must be remedied to preserve the integrity of the judicial process" waived plain error on appeal); 210 Ill. 2d R. 341(h)(7). Since defendant failed to preserve this issue on appeal and does not sufficiently raise the plain error rule as a basis for our review, we find this issue to be forfeited.

Next, defendant asserts that his conviction for aggravated criminal sexual assault must be reduced to criminal sexual assault because the State failed to prove beyond a reasonable doubt that defendant acted in a manner which threatened or endangered a life as required under section 12-14(a)(3) of the Criminal Code of 1961 ( 720 ILCS 5/12-14(a)(3) (West 2004)). The State maintains that it presented sufficient evidence for a jury to find that defendant acted in such a manner as to threaten or endanger the life of D.R.

When this court considers a challenge to a criminal conviction based upon the sufficiency of the evidence, it is not our function to retry the defendant. People v. Hall, 194 Ill. 2d 305, 329-30 (2000). Rather, our inquiry is limited to "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.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); accord People v. Cox, 195 Ill. 2d 378, 387 (2001). It is the responsibility of the trier of fact to "fairly *** resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.

It follows that where the finding of guilt depends on eyewitness testimony, a reviewing court must decide whether, in light of the record, a fact finder could reasonably accept the testimony as true beyond a reasonable doubt. In conducting this inquiry, as noted, the reviewing court must not retry the defendant. People v. Cunningham, 212 Ill. 2d 274, 279-80 (2004). The reviewing court must carefully examine the record evidence while bearing in mind that it was the fact finder who saw and heard the witnesses. Cunningham, 212 Ill. 2d at 280. Testimony may be found insufficient under the Jackson standard, but only where the record evidence compels the conclusion that no reasonable person could accept it beyond a reasonable doubt. Cunningham, 212 Ill. 2d at 280. However, the fact a judge or jury did accept testimony does not guarantee it was reasonable to do so. Reasonable people may on occasion act unreasonably. Therefore, the fact finder's decision to accept testimony is entitled to great deference but is not conclusive and does not bind the reviewing court. Cunningham, 212 Ill. 2d at 280. Only where the evidence is so improbable or unsatisfactory as to create reasonable doubt of the defendant's guilt will a conviction be set aside. Hall, 194 Ill. 2d at 330.

To prove aggravated criminal sexual assault, the State must prove that defendant committed criminal sexual assault while "act[ing] in such a manner as to threaten or endanger the life of the victim or any other person." 720 ILCS 5/12-14(a)(3) (West 2004). Defendant contends the State's evidence was insufficient to prove the aggravating factor because it showed that the offender verbally threatened D.R., but did not commit any life-threatening acts during the sexual assault.

In support, defendant relies on People v. Singleton, 217 Ill. App. 3d 675 (1991), as support for his argument. In Singleton, the defendant sexually assaulted his minor daughter. The evidence at trial showed that the defendant had a pattern of domestic violence against his wife, the victim's stepmother; and his children such that the victim believed the defendant would harm her if she did not comply. However, the reviewing court found that "none of these acts occurred at the time of the defendant's sexual penetration of the [victim]" and the defendant's act of pushing the victim onto the bed was not viewed as a life-threatening act. Singleton, 217 Ill. App. 3d at 687. The court held that "it must be overt acts by the defendant, and not verbal threats, which endanger or threaten a victim's life, and that the life-threatening acts must occur during the commission of the offense." Singleton, 217 Ill. App. 3d at 687. As a result, the Singleton court concluded that the evidence failed to prove aggravated criminal sexual assault. Singleton, 217 Ill. App. 3d at 687.

We find Singleton to be distinguishable from the present case. Unlike the defendant in Singleton, defendant used the threat of a weapon to force D.R. to comply. Here, defendant attacked D.R. from behind as she was unlocking the door to her building. He pulled her down to the ground, put his arm over her mouth, and held a cold hard metal object to D.R.'s head. He made her feel it and she believed it was a gun. Defendant then told D.R. that if she screamed or fought, he would "blow [her] f---ing head off." He walked her to her car while the object D.R. believed was a gun was still pressed to her head. He bent her over the hood of her car, had her remove her pants and underwear, and then placed his penis in her vagina. After he was finished, defendant made D.R. stand in the woods and count to 20. He again said that if she stopped counting or moved, he would "blow [her] head off." This evidence showed that defendant acted in a manner to threaten D.R.'s life. Defendant committed an overt act to threaten D.R.'s life when he placed on object to D.R.'s head and threatened to "blow [her] brains out" if she did not comply. After viewing all of the evidence presented in the light most favorable to the State, we conclude that a rational trier of fact could have concluded that defendant acted in such a manner as to threaten or endanger D.R.'s life and find defendant guilty of aggravated criminal sexual assault.

Finally, defendant contends that the cumulative effect of the alleged trial errors deprived him of a fair trial. While individual trial errors may have the cumulative effect of denying a defendant that right, no such accumulated error occurs where none of the separate claims amounts to reversible error. People v. Dresher, 364 Ill. App. 3d 847, 863 (2006). Because we have rejected each of defendant's arguments, as set out above, his cumulative error argument necessarily fails as well.

Based on the foregoing reasons, we affirm defendant's conviction and sentence.

Affirmed.

R.E. GORDON, J., concurs.