People v. Brown-Engel

PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.

Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois, Circuit No. 14-CF-303 Honorable Walter D. Braud, Judge, Presiding. PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices McDade and Schmidt concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Corbin A.M. Brown-Engel, appeals his conviction and sentence. Defendant contends that defense counsel provided ineffective assistance for failing to object to the admission of other bad acts evidence. Alternatively, defendant contends that the admission of such evidence amounted to plain error. We affirm.

¶ 2 FACTS

¶ 3 Initially, the State charged defendant with aggravated criminal sexual abuse (720 ILCS 5/11-1.60(b) (West 2014)). The charge alleged that defendant, who was 17 years of age or older, committed an act of sexual conduct with the victim, T.L.B., who was under 13 years of age, in that defendant knowingly touched the vagina of T.L.B. ¶ 4 The State then filed a motion in limine to admit evidence pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3 (West 2014)). The motion sought to introduce evidence T.L.B. disclosed during an interview at the children's advocacy center that defendant touched her vagina on prior occasions and that defendant put his penis in her mouth. The State moved to have this evidence admitted to show motive and propensity to commit the charged offense. Although the State tendered the prior bad act testimony as propensity evidence under section 115-7.3, the State made clear that it intended to use the evidence for other purposes. When presenting the motion, the State explained to the court,

"In this specific case we are looking for course of conduct evidence essentially, bad act evidence related to the specific victim in the charging document and the defendant. *** It creates information for the jury in this case to understand what prompted the disclosure, lack of mistake—there's so many factors that it would touch upon ***."

After holding a hearing, the circuit court denied the State's motion as to T.L.B.'s allegation that defendant put his penis in her mouth due to the lack of detail provided regarding the incident. The court, however, did permit the State to present the T.L.B.'s testimony regarding four prior instances of sexual misconduct: defendant licking T.L.B., putting his hands down her pants, putting his hand on her buttocks, and putting his hand "on" her pants. ¶ 5 Prior to the bench trial, the State moved to amend the information to charge defendant with attempted aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2014)). The amended charge alleged that defendant committed attempted aggravated criminal sexual abuse showing this purpose for the attempted touching. That's the relevance of the prior bad acts is to show the Defendant's knowledge when he's attempting to touch [T.L.B.'s] vagina." Ultimately, the circuit court found defendant guilty of attempted aggravated criminal sexual abuse. Subsequently, defendant filed a motion to reconsider. Following the arguments of the parties, the court denied defendant's motion. In denying the motion, the court commented,

"There was no question in my mind, and if I implied otherwise, I'm telling you now, but that on April 13th [defendant] put his hand on her thigh or her hip. No question but that that happened. But to make that a criminal abuse touch, it needed to have the earlier touches, where he actually put his hands on her vagina."

The circuit court sentenced defendant to 20 months' probation.

The State was later allowed to amend the information to specify that the criminal act occurred between February and April 2014. --------

¶ 16 ANALYSIS

¶ 17 On appeal, defendant contends that the circuit court committed plain error or, alternatively, counsel provided ineffective assistance by allowing T.L.B. to testify to prior sexual misconduct between her and defendant. Specifically, defendant contends that it was in error to allow the State to present this evidence to prove defendant's propensity to commit the charged crime under section 115-7.3 of the Code (725 ILCS 5/115-7.3 (West 2014)) because defendant was not charged with one of the enumerated offenses for which this section applies. Upon review, we find that the evidence in question was not admissible to establish propensity under section 115-7.3. However, we hold that the circuit court did not abuse its discretion in allowing the admission of this evidence because it was admissible to establish defendant's intent and absence of an innocent state pursuant to Illinois Rule of Evidence 404 (eff. Jan. 1, 2011). of aggravated criminal sexual abuse. A person commits aggravated criminal sexual abuse if "that person is 17 years of age or over and: (i) commits an act of sexual conduct with a victim who is under 13 years of age." 720 ILCS 5/11-1.60(c)(1)(i) (West 2014). An act of "sexual conduct" is defined as

"any knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus, or breast of the victim or the accused, or any part of the body of a child under 13 years of age *** for the purpose of sexual gratification or arousal of the victim or the accused." Id. § 11-0.1.

¶ 23 As charged in this case, attempted aggravated criminal sexual abuse is a specific intent crime. The State must show defendant intentionally or knowingly made a substantial step toward touching T.L.B.'s vagina for purposes of sexual gratification. Defendant's intent was at issue at trial because he acknowledges prior innocent contact with T.L.B. but maintained that he never attempted to touch T.L.B.'s vagina. T.L.B.'s testimony regarding defendant's prior sexual misconduct with her was highly relevant as the charged act was nearly identical to the prior acts. Therefore, T.L.B.'s testimony regarding the prior incidents with defendant was relevant to show that defendant's attempted touching was done for the purpose of his sexual arousal or gratification. ¶ 24 Additionally, the evidence of other bad acts provided context to the circumstances surrounding the charged offense. Prohibiting T.L.B.'s testimony regarding the prior bad acts would have made the charged incident appear isolated and unfairly strain the credibility of T.L.B.'s testimony concerning the charged offense. See, e.g., People v. Tannahill, 152 Ill. App. 3d 882, 887 (1987) (evidence of defendant's prior sexual offenses against complainant admissible to demonstrate the context of the charged conduct); People v. Perez, 2012 IL App 376 (1989). Nor can counsel be ineffective for failing to object to the admission of this evidence. See People v. Henderson, 2013 IL 114040, ¶ 11 (failure to establish deficient performance precludes a finding of ineffective assistance of counsel).

¶ 27 CONCLUSION

¶ 28 The judgment of the circuit court of Rock Island County is affirmed. ¶ 29 Affirmed.