People v. Kelley, 2019 IL App (4th) 160598 (January). Episode 587 (Duration9:58)

Here’s a better way to look at how court’s are interpreting sexual propensity evidence.

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Gist

In this case, defendant was charged with a gruesome murder of a woman. The state admitted the testimony of a prior women who testified defendant also tried to kill her.

Defendant argued it was error to admit the testimony of a prior victim.

Facts

A 23 year old female victim was found murdered.

Her body was in a river and her bones were cut like she was attempted to be dismembered. Defendant admitted to killing her and the state admitted 3 other victims who he was violent with.

One of a the prior victims who survived her assault testified against the defendant. Both women took money from him after spending time with him, and he responded with extreme violence.

Defendant was convicted and got 60 years.

Other Crimes Evidence Domestic Violence

Subsections (a) and (b) of section 115-7 of the Code (725 ILCS 5/115-7.4(a), (b)) provide as follows:

“(a) In a criminal prosecution in which the defendant is accused of an offense of domestic violence as defined in paragraphs (1) and (3) of section 103 of the Illinois Domestic Violence Act of 1986, or first degree murder or second degree murder when the commission of the offense involves domestic violence, evidence of the defendant’s commission of another offense or offenses of domestic violence is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) 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.”

Other Crimes Evidence Sex Crimes

Subsection (c) of section 115-7.3 (725 ILCS 5/115-7.3(c)) was identical in its wording to subsection (b) of section 115-7.4 (725 ILCS 5/115-7.4(b)), the propensity statute in the present case.

Section 115-7.3(c) provided:

“(c) 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 5/115-7.3(c).

Thus, in an analysis under section 115-7.3(c), as in an analysis under the identically worded section 115-7.4(b) (725 ILCS 5/115-7.4(b)), the account of the propensity witness had to be compared to the account of the present alleged victim.

Undue Prejudice

“Undue prejudice” within the meaning of section 115-7.4(b) necessarily is prejudice other than that resulting from proof of the defendant’s propensity to commit domestic violence, because the very purpose of section 115-7.4 is to lift the common-law ban on that particular kind of propensity evidence. See People v. Dabbs, 239 Ill. 2d 277, 288 (2010); People v. Walston, 386 Ill. App. 3d 598, 619-20 (2008) (not only is other-crimes evidence offered to show propensity no longer per se unfairly prejudicial, it is actually proper).

Other-crimes evidence admitted pursuant to section 115-7.4 may be considered by the jury for any relevant matter, including the defendant’s propensity to commit the charged crime even though, at common law, such propensity evidence would have been inadmissible. Heller, 2017 IL App (4th) 140658, ¶ 65),  (Dabbs, 239 Ill. 2d at 288).

Issue

In defendant’s view, the degree of factual dissimilarities between the other crimes victim testimony and the charged offense rendered the evidence more prejudicial than probative.

According to defendant, two provisions of section 115-7.4 stood in the way of admitting her testimony:

(1) the events to which she testified had little “factual similarity to the charged *** offense” (725 ILCS 5/115­ 7.4(b)(2)) since the nature of defendant’s relationship with this victim was “entirely different” from the nature of his relationship with the other crimes victim, and
(2) there was no evidence that defendant committed an “offense *** of domestic violence” against the other victim (id. § 115-7.4(a)).

Legislative Intent

The legislature intended to make it permissible, in cases of alleged sexual offenses, for the State to adduce evidence that the defendant had a propensity to commit sexual offenses—but the admissibility of such propensity evidence depends on the fulfillment of the conditions set forth in section 115-7.3. Donoho, 204 Ill. 2d at 176.

One of those conditions is that the trial court “[weigh] the probative value of the evidence against undue prejudice to the defendant.” 725 ILCS 5/115-7.3(c). The qualifier “undue” is crucial because prosecuting the defendant necessarily entails adducing evidence prejudicial to the defendant.

Propensity Evidence

The prejudice is undue if the propensity evidence is calculated to persuade the jury to return a guilty verdict only because the defendant supposedly is a bad person who, in any event, deserves to be punished. People v. Smith, 406 Ill. App. 3d 747, 751 (2010).

If that were the use to which the so-called “propensity evidence” were put, it really would not even be propensity evidence.

It’s improper to obtain a guilty verdict not on the reasoning that the defendant’s badness predisposed him to commit the charged offense but, rather, on the quite different reasoning that because the defendant is bad, he deserves whatever punishment can be heaped upon him—regardless of whether he committed the charged offense.

To be admissible under section 115-7.3, the evidence has to be, genuinely, propensity evidence—and not only that, but a particular kind of propensity evidence.

There are, of course, different sexual offenses, and just because a defendant has, for example, a history of exposing himself, it would not necessarily follow that he has a propensity to commit sexual assault.

Thus, the trial court must consider “the degree of factual similarity to the charged or predicate offense” (id. § 115-7.3(c)(2)) to determine the extent to which the testimony offered as propensity evidence really tends to prove a propensity to commit the charged sexual offense.

Propensity To Commit Sex Crimes

The foregoing exposition of section 115-7.3—which is applicable, by analogy, to section 115-7.4—leads us to our point of disagreement with People v. Johnson, 406 Ill. App. 3d 805 (2010) (existence of significant dissimilarities between the two assaults lead reviewing court to say the trial court erred in admitting the other-crimes evidence).   

We do not see how the factual dissimilarities that the Second District identified in Johnson have any logical relevance to the question of whether the defendant in that case did or did not have a propensity to commit­ sexual assault.

If on one occasion he committed sexual assault with the assistance of someone else and on the next occasion he committed sexual assault unassisted, the previous occasion still would be evidence that he had a propensity to commit sexual assault. The same would be true if on the previous occasion the defendant used a car and on the next occasion he did not do so or if on the previous occasion he blew cocaine into the victim’s face and on the next occasion he did not do so.

Such factual differences are incidental and meaningless unless the identity of the perpetrator is at issue and the State pursues a theory of modus operandi, the proof of which always requires “a high degree of identity between the facts of the crime charged and [those of] the other offense.” People v. Cruz, 162 Ill. 2d 314, 349 (1994). But “[w]here such evidence is not being offered under the modus operandi exception, more general areas of similarity will suffice to support admissibility.” Donoho, 204 Ill. 2d at 184.

Similarity Of The Crimes

In short, the objective under section 115-7.4(b)(2) is not to identify factual differences just for the sake of identifying factual differences. The differences have to logically matter; they have to be relevant, in a commonsensical way, to the probative value of the previous offense as propensity evidence.

In the present case, we are unable to say the trial court abused its discretion—or, in other words, that the court made a decision that was unreasonable or clearly against logic—by deciding that defendant’s acts of violence against the other crimes victim tended to prove his propensity to commit the charged offense against this victim.

Both women were his girlfriends, he brutalized them both, and it especially raised his ire when they attempted to flee from him. He appeared to be on the verge of killing the other crimes victim when he dangled her by one leg over the side of a bridge.

Holding

Therefore, we find no abuse of discretion in the admission of the other crimes testimony as propensity evidence under section 115-7.4 of the Code.

It appears from her testimony that defendant was possessive and controlling toward his girlfriends and that he tended to become violent toward them when they did anything that challenged his assumed right of possession and control.

One might infer that he murdered this victim not only because she stole his wallet but also because she ran away from him and tried to free herself from his domination. Defendant’s violent rage at being defied and evaded by his girlfriends arguably is a significant point of similarity between the other crime victim’s testimony and the charged offense.

We affirm the trial court’s judgment.