Opinion filed July 19, 2017 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2017

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-15-0074 v. ) Circuit No. 12-CF-767 ) RICKY LEE LOBDELL, ) Honorable ) Stephen A. Kouri and Katherine S. Defendant-Appellant. ) Gorman, ) Judges, Presiding. _____________________________________________________________________________

JUSTICE O’BRIEN delivered the judgment of the court, with opinion.

Justice Lytton concurred in the judgment and opinion.

Justice McDade dissented, with opinion.

_____________________________________________________________________________

OPINION

¶1 Defendant, Ricky Lee Lobdell, appeals his criminal sexual assault convictions, arguing

that the circuit court erred by (1) admitting evidence of his prior conviction for rape, (2)

admitting evidence of defendant’s convictions for home invasion and residential burglary to

show propensity, and (3) failing to address defendant’s pro se posttrial allegations of ineffective

assistance of counsel. We affirm and remand. ¶2 FACTS

¶3 Defendant was charged with three counts of criminal sexual assault (720 ILCS 5/11­

1.20(a)(1) (West 2012)). Two of the counts carried a mandatory life sentence based on

defendant’s past conviction for rape.

¶4 The State filed a “Notice of Intent to Use Evidence of Defendant’s Other Crimes”

pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) in order to use

defendant’s past convictions for rape, home invasion, and residential burglary “as substantive

proof of his propensity to commit the charged sexual offense.” See 725 ILCS 5/115-7.3 (West

2012). A hearing was held, and the court took the matter under advisement. The court decided to

allow the evidence, stating in a written order:

“The State seeks to introduce evidence of a prior crime which took place

October 24, 1982, almost 30 years prior to the alleged sexual assault herein. In the

earlier case, Peoria County case number 82-CF-4582, Defendant was convicted of

a home invasion and brutal sexual assault of a 62-year-old woman. According to

the Grand Jury testimony submitted by the State for the Court to consider,

Defendant ripped off the victim’s clothes, slapped and choked her, threatened to

cut her with scissors, cut off her hair and threatened to ‘cut you bald’, and forced

intercourse upon her. After he was finished having sex with her, he called his

partner into the room and stated, ‘It’s your turn.’ His partner proceeded to force

anal sex upon the terrified, elderly 62-year-old victim. Defendant was convicted

in that case and served roughly 25 years of a 50-year sentence.

In the instant case, Defendant is charged with criminal sexual assault.

According to the Grand Jury testimony Defendant, while wearing his parole ankle

2

monitor, is accused of brutally raping a 21-year-old in front of her newborn and 2­

year-old child. Immediately prior to the sexual assault, the Defendant allegedly

stated, ‘I ain’t got time for this shit,’ as his [ankle] monitor was set to alert if he

wasn’t back to his house within a short period of time. He shoved the victim to

the mattress on the floor, held her down, pulled her clothes off, and sexually

assaulted her. When she screamed, her 2-year-old child approached while crying.

The Defendant allegedly shoved the child away with his foot, all while sexually

assaulting the victim. After he completed his sexual act, he fled out the door.

In assessing whether the two alleged incidences are so similar as to

constitute evidence of a propensity to commit criminal sexual assault, the Court is

drawn to one overriding circumstance which is pervasive in both incidences. A

gang criminal sexual assault of a 62-year-old elderly woman, including forced

anal sex, and the criminal sexual assault of a 21-year-old while shoving away her

crying 2-year-old child, contains the same overriding circumstance; namely,

extreme brazenness on the part of the Defendant. ‘Brazenness’ is defined as

‘behavior marked by audacity, bold defiance and lack of shame’. In this Court’s

view, the criminal sexual assault of a member of the opposite sex, regardless of

age, under the brazen circumstances in which these two assaults occurred, is

strong evidence of a propensity on the part of the Defendant to commit such

assaults on members of the opposite sex.

Under 725 ILCS 5/115-7.3(c), in weighing the probative value of the

evidence against undue prejudice, the Court may consider proximity in time of the

two incidences, degree of factual similarity and ‘other relevant facts and

3

circumstances’. The Defendant argues the earlier offense should be excluded as

factually dissimilar due to it occurring over 30 years ago, as well as other

dissimilar circumstances such as time of day and age of the alleged victims. The

Court is not persuaded by any of these distinctions. In particular, the time factor is

minimized in that Defendant was in prison for most of that period. Stating the

obvious, Defendant therefore had no opportunity to show propensity to commit

sexual assault on the opposite sex. Moreover, the case law clearly indicates

lengthy time periods in excess of 15 to 20 years are admissible under the statute.

People v. Donoho,

(2003). The other so-called dissimilar

circumstances do not override the similar circumstances noted above.

By the very nature of the described subject acts, the prior conduct will be

prejudicial. The legislature has seen fit to allow admission of such acts if it is not

unduly prejudicial. This Court finds the earlier act is not. It will therefore be

allowed into evidence provided the evidence presented is otherwise admissible.” 1

¶5 Defendant filed a motion to reconsider, which was denied. He waived his right to a jury

trial and proceeded to a bench trial.

¶6 B.B. testified that on Saturday, July 14, 2012, she lived with her husband and children.

She was four months pregnant. That day she walked two blocks from her apartment to the store

with her children between 12 to 1 p.m. and saw defendant in his car. He drove up next to B.B.

and asked if she wanted a ride. When she refused, he offered her a cigarette, which she also

refused. He then drove away. When she arrived at the store, defendant was parked in the parking

1 We note that the grand jury transcripts and police reports from defendant’s earlier case are not in the record. Therefore, we rely on the facts as stated in the court’s recitation in this order and the brief description in the previous appellate case. See People v. Lobdell,

(1983). 4

lot. He offered B.B. money, which she rejected. After leaving the store, B.B. went home and did

not see defendant again that day.

¶7 The next day (Sunday, July 15, 2012), defendant knocked on B.B.’s door. She did not

know how he knew where she lived, as she did not give him her address and did not see him

follow her home the previous day. B.B. opened the door. She saw that defendant had a cell

phone, and she asked if she could use it. B.B. did not have a phone and had tried to use a phone

earlier in the day. Defendant let her use his phone, and she called her grandmother. One of her

children started to cry, so she finished her phone call, returned the phone to defendant, and

thanked him. She did not have any other conversation with defendant. She then shut the door and

went upstairs to her apartment to take care of the baby. She did not lock the door.

¶8 While B.B. was upstairs, defendant came into her apartment. She had not invited him in.

He grabbed B.B. around the waist and said, “I just got out of jail for murder.” She was bent

down and saw his ankle monitor. After he grabbed her, defendant said, “I don’t have time for this

shit.” Defendant then pulled her into the bedroom, pushed her onto a mattress on the floor, and

pinned her down. B.B. asked him to stop. B.B.’s two-year-old daughter came in and started

pulling at B.B. and telling defendant to get off her. Defendant pushed the child away. The child

continued to come back and tried to help B.B., but defendant kept pushing her. Defendant held

both of B.B.’s arms above her head with one of his hands. With his other hand, defendant

removed B.B.’s pants. His shorts were already removed. Defendant then penetrated her vagina

with his penis. She told him to stop several times. She could wiggle away a little, but she stopped

struggling because she did not want him to hurt her children. B.B. believed that defendant

ejaculated inside of her. He did not wear a condom. B.B. stated that defendant did not hit her.

When he was finished, he ran out the door while pulling his shorts up.

5

¶9 B.B. called 911 on her husband’s phone. Her husband’s phone did not have regular

service, but was able to make emergency phone calls. B.B. spoke to the police and identified

defendant in a photographic lineup.

¶ 10 Stephanie Clark testified that she was a sexual assault nurse examiner at OSF in the

emergency room. B.B. came in on July 15, 2012, around 9 p.m. B.B. was fidgety, had difficulty

making eye contact, and laughed nervously, but was talkative and appropriate. Clark performed

both an internal and external examination of B.B. Externally, B.B. did not have any injuries or

bruising. When performing the internal examination, Clark said: “I found a lot of white really

sticky thick pearl-kind-of-like substance. I also found at her cervix there was some bruising—

well, redness, which [was] an early stage of a bruise at eight o’clock and six o’clock.” Clark then

performed an Illinois State Police sexual assault evidence collection kit. In doing so, Clark

stated:

“We do *** fingernail scrapings or swabbings. We do hair collection. We do

DNA. We do a finger prick on the patient so we can do their sample DNA. We

also collect all swabs from any area where she tells me she’s been kissed or bitten

or any—so I guess in her case, I did like her right neck. We do her mouth, some

oral swabs. And we do the internal and external vaginal swabs.”

¶ 11 The parties stipulated that a buccal swab was taken from defendant and DNA analysis

was performed on the swab and the sperm found in B.B. The DNA matched defendant and did

not match B.B.’s husband.

¶ 12 Shawn Curry testified that he was a detective with the Peoria police department in the

violent crimes unit. He spoke with B.B. after the incident and had her view a photographic

6

lineup. She identified the photograph of defendant. Curry questioned defendant about his

whereabouts on the day of the incident and the preceding day. Defendant said on Saturday:

“he had a sex assault class he attended, and then he went home. And then initially

he said on Sunday he got up, went to church. After church—got out shortly after

noon—he went down Farmington Road to Sterling to his girlfriend’s house ***.

After being at her house he said he went back to his residence on Center Street,

and that’s where he stayed.”

Defendant repeatedly denied being in the area of B.B.’s home that weekend.

¶ 13 After Curry explained to defendant why he was being questioned, defendant “changed his

story,” stating that he was in the area on Sunday.

“He stated that he was driving around the area. He said he got flagged down by

[B.B.], and then at that point he got out *** started talking to her. She was on the

side of her house on her front porch. And then at that point he stated that they

went up inside her upstairs apartment where she then pulled down her pants and

asked for sex from behind. He reported to [Curry] that he didn’t want to have sex

from behind so he laid her down on a mattress and then proceeded to have sex

with her then.”

Prior to having sexual intercourse, defendant told Curry that B.B. stated, “you’re going to like

pregnant pussy.” Curry had not told defendant B.B. was pregnant. Defendant told Curry that he

wore a condom. Curry pressed defendant on his use of a condom, stating:

“If you wore [a] condom there would be no semen and that a rape kit had been

done. At that point [defendant] advised that the condom had broke during

intercourse. Then [Curry] asked him what he did with the condom and the

7

wrapper. ***. *** [Curry] explained to [defendant] that if he had actually worn a

condom there [would have been a] condom in the garbage. [There] was no

condom inside the apartment nor was there a wrapper to a condom.”

Defendant “changed his story again and said he had not worn a condom.” Defendant then said

that he was also in the area on Friday. He had been driving to work when B.B. flagged him down

to ask for a cigarette. Defendant said he gave her a cigarette, gave her $10 for her children, and

then drove away.

¶ 14 In finding defendant guilty, the court stated:

“[T]here is no question that [defendant] sexually penetrated [B.B.] Did he use

force or threat of force? [Defendant] let himself into her home where her three

children were present. He grabbed her and pulled her into the bedroom. At some

point she realized he was wearing an ankle bracelet having been released from

prison for murder. Put her down on the bed. Her children were there. He pushed

one of them away and pinned her on the bed.

The Court has considered [B.B.’s] uncertainty concerning details that do

not relate to whether [defendant] used force or threat of force, and finds that

[B.B.] is credible, particularly when coupled with the corroborating evidence as

testified by Officer Curry.

The Court finds that [defendant] did use force or threat of force, and the

fact that [B.B.’s] children were home and present made [B.B.] that much more

vulnerable to the threat or the use of force. And even if the Court does not

consider [defendant’s prior convictions], I—the Court finds that the State has met

its burden and finds [defendant] guilty on all three counts.”

8

¶ 15 Before the sentencing hearing, defendant wrote a letter to the court, stating, inter alia:

“[U]pon the officers arresting me they were in violation of Amendment 4 and 5 of

the United States Constitution; also the Illinois Constitution. The Arresting

officers did not have a warrant to step foot onto my father[’]s property nor did

they have consent, as well as no arrest warrant. My family and I were sitting in

my father[’]s fenced in back yard with a locked gate, when the officers came upto

the gate they ask us our names and when I told them my name the officers

reached over the gate unlocking it and step through onto my father[’]s property

and told me I was under arrest, I asked to see the warrants, they told me they had

no warrant, and placed my hands behind my back and hand cuffs on my wrist, and

took me to the Peoria county police depart., never reading me my rights. But

instead told me it was over an ankle monitor violation, why [my attorney] never

mentioned this during trial I do not know, that[’]s why I am mentioning it now

your honor.”

¶ 16 Defendant read the letter to the court at sentencing. Defendant was sentenced to natural

life imprisonment.

¶ 17 ANALYSIS

¶ 18 I. Prior Rape Conviction

¶ 19 Defendant first argues that the court erred by admitting evidence of his prior conviction

for rape. Specifically, defendant argues that the prejudicial effect of his rape conviction

substantially outweighed its probative value, and therefore, to allow the evidence was an abuse

of discretion. Because we find that the court appropriately weighed the proximity in time, factual

9

similarity, and relevant circumstances between the two offenses, we find that the court did not

abuse its discretion.

¶ 20 Evidence of a defendant’s past crimes is generally inadmissible to show the defendant’s

propensity to commit the charged crime. Donoho,

. Such a rule insulates against

the jury convicting a defendant because he or she is a bad person.

However, section 115­

7.3(a)(1) of the Code provides an exception to this rule when a defendant is accused of a sex

offense, including criminal sexual assault. 725 ILCS 5/115-7.3(a)(1) (West 2012). In such

instances, evidence of a defendant’s commission of a past sex offense, including rape, may be

used to show the defendant’s propensity if the prejudicial effect does not substantially outweigh

the probative value. Donoho,

. Section 115-7.3 states that, in making this

determination, the court should weigh: “(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) (West 2012). We will not reverse the

circuit court’s decision to admit other-crimes evidence unless we find that the court abused its

discretion. People v. Ward,

. We will only find an abuse of discretion if the

circuit court’s evaluation was “arbitrary, fanciful or unreasonable or where no reasonable man

would take the view adopted by the trial court.” (Internal quotation marks omitted.) Donoho,

.

¶ 21 First, when considering the proximity in time between the charged offense and the past

conviction, we consider the issue on a case-by-case basis.

. Courts have found other-

crimes evidence over 20 years old admissible because it was sufficiently credible and probative.

People v. Davis,

(1994); Donoho,

(12 to 15 years had

10

elapsed between the offenses); People v. Smith,

(12 to 18 years

had elapsed between the offenses).

¶ 22 Here, defendant’s prior rape conviction occurred almost 30 years before the criminal

sexual assault in this case. However, as the circuit court pointed out, defendant was in prison for

most of that time, during which he would have been unable “to show propensity to commit

sexual assault on the opposite sex.” In fact, defendant was only out of prison for less than one

year before he committed the offense in the instant case. While normally the passage of 30 years

since the prior offense would lessen the probative value (see Donoho,

), this is

mitigated, here, where defendant only had the opportunity to commit another such offense in 1

out of the preceding 30 years.

¶ 23 Second, the court must consider “the degree of factual similarity to the charged or

predicate offense.” 725 ILCS 5/115-7.3(c)(2) (West 2012). Other-crimes evidence must have

“ ‘some threshold similarity to the crime charged.’ ” Donoho,

(quoting People

v. Bartall,

(1983)). The greater the similarities between the charged offense

and the other-crimes evidence, the greater the probative value.

However, to show propensity,

“ ‘mere general areas of similarity will suffice’ to support admissibility.”

(quoting People v.

Illgen,

(1991)).

¶ 24 The similarities between the instant case and defendant’s prior rape conviction are

significant and include (1) uninvited entrance into the victims’ home, (2) the use of force, (3)

nonconsensual sex, and (4) adult women victims.

¶ 25 Defendant points out the differences between the two offenses, including the race and age

of the victims, the severity of the force used, the manner in which defendant removed the

victims’ clothing, the manner of entrance, the familiarity with the victim, the people present at

11

the time, and the concurrent crimes committed. Initially, we note that the differences set out by

defendant involve subtle factual distinctions in which defendant carried out the elements of

criminal sexual assault. The fact remains, however, that the instant case and defendant’s prior

rape conviction both involved the same fundamental blueprint. Moreover, “[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.” Id. at 185. We do not believe that these

differences are significant. Instead, we find the “differences are a product of defendant’s access”

and opportunity. See id. at 186. Further, though the differences could lessen the probative value,

they do not outweigh the general areas of similarity necessary for admission. See id. at 184.

¶ 26 Third, in weighing the probative value and prejudicial effect, the court may consider any

other facts and/or circumstances. Here, the court noted the “extreme brazenness” that defendant

exhibited in each of these crimes, defining brazenness as “behavior marked by audacity, bold

defiance and lack of shame.” The court pointed to the fact that the prior offense included “[a]

gang criminal sexual assault of a 62-year-old elderly woman, including forced anal sex” and the

current offense included “the criminal sexual assault of a 21-year-old while shoving away her

crying 2-year-old child.”

¶ 27 Considering the above, we cannot say that the circuit court’s decision to admit the rape

conviction was an abuse of discretion. Although 30 years had passed, defendant had only been

out of prison for less than 1 year before committing the offense. That, compounded with the

factual similarities marked with defendant’s brazenness, was sufficient to justify admission of

the evidence of the prior rape conviction. Further, we note that the court exercised caution in

considering the admissibility of the other-crimes evidence. See id. at 186. The court’s written

12

order reveals that it engaged “in a meaningful assessment of the probative value versus the

prejudicial impact of the evidence.” See id.

¶ 28 II. Prior Convictions for Home Invasion and Residential Burglary

¶ 29 Defendant next argues that the circuit court erred by admitting evidence of defendant’s

convictions for home invasion and residential burglary to show propensity. Because we find, as

the circuit court did, that there was enough evidence to convict defendant without considering

these past convictions, we need not consider defendant’s argument.

¶ 30 The parties did not dispute that B.B. and defendant had sexual intercourse. Therefore, the

only question was whether their sexual interaction was consensual or by defendant’s use of

force. B.B. testified that defendant knocked on her door, and she answered and asked to use his

cell phone. After using his cell phone, she returned it, closed the door, and went upstairs into her

apartment. She did not lock the door. She was tending to her crying child when defendant came

into her apartment and grabbed her around the waist. B.B. said that defendant pushed her onto

the mattress, pinned her down, held her arms above her head, and removed her pants. When

B.B.’s child came in, defendant pushed the child away. He then had sexual intercourse with B.B.

without her consent. Detective Curry further testified that he had questioned defendant, who

repeatedly told Curry he had not been anywhere near B.B.’s residence. It was only once Curry

told defendant why he was being questioned that defendant said he had sexual intercourse with

B.B., though he claimed it was consensual. Defendant further stated he had worn a condom.

Once Curry told defendant that his semen had been found, defendant said the condom had broke.

Defendant again changed his story to say that he had not worn a condom after Curry said no

condom or wrapper was found. The court expressly found B.B. credible, “particularly when

coupled with the corroborating evidence as testified by Officer Curry.” We defer to the

13

credibility findings of the circuit court. People v. Williams,

, ¶ 76.

“[T]he testimony of a single witness, if positive and credible, is sufficient to convict, even

though it is contradicted by the defendant.” People v. Siguenza-Brito,

(2009). The credible testimony of B.B. and Curry, coupled with defendant’s prior conviction for

rape (supra ¶ 27), was enough to convict defendant, even without the evidence of the prior home

invasion and residential burglary.

¶ 31 III. Posttrial Ineffective Assistance of Counsel Claim

¶ 32 Lastly, defendant argues that the case should be remanded so the circuit court can address

defendant’s pro se posttrial claim of ineffective assistance of counsel. Because we find that

defendant’s letter to the court expressed a clear claim of ineffective assistance of counsel under

People v. Ayres,

, we agree.

¶ 33 A defendant raising a pro se posttrial claim of ineffective assistance of counsel is entitled

to have those claims heard by the circuit court. People v. Krankel,

(1984). The

process for hearing those claims contains two steps: (1) the circuit court makes a preliminary

inquiry to examine the factual basis of the defendant’s claim and (2) if the allegations show

“possible neglect of the case,” new counsel is appointed to represent the defendant in a full

hearing on his pro se claims. People v. Moore,

(2003). In order to trigger a

preliminary inquiry, “ ‘[a] pro se defendant is not required to do any more than bring his or her

claim to the trial court’s attention’ [citations], and thus, a defendant is not required to file a

written motion [citation] but may raise the issue orally [citation] or through a letter or note to the

court [citation].” Ayres,

, ¶ 11 (quoting Moore,

). “In making the

inquiry, ‘some interchange between the trial court and trial counsel regarding the facts and

circumstances surrounding the allegedly ineffective representation is permissible and usually

14

necessary in assessing what further action, if any, is warranted on a defendant’s claim.’ ”

¶ 12

(quoting People v. Jolly,

). The circuit court may address the contentions

with counsel and the defendant and may “make its determination based on its knowledge of

defense counsel’s performance at trial and the insufficiency of the defendant’s allegations.”

¶ 34 The parties do not dispute that no preliminary inquiry was made here. Therefore, the

question on review is whether the circuit court erred in failing to conduct a preliminary inquiry to

examine defendant’s claim.

¶ 35 During the pendency of this appeal, after the parties submitted their briefs, the Illinois

Supreme Court decided Ayres, which is particularly applicable here. In Ayres, the State filed a

petition to revoke the defendant’s conditional discharge because the defendant left the state

without the court’s approval. Id. ¶ 3. The defendant admitted to the allegations. Id. After he was

sentenced, the “defendant mailed a pro se petition to withdraw guilty plea and vacate sentence,

alleging ‘ineffective assistance of counsel.’ ” Id. ¶ 6. The defendant’s attorney also filed a motion

to reconsider sentence. Id. The circuit court denied the motion to reconsider, but did not consider

or acknowledge the defendant’s petition. Id. The appellate court found that “the four words

‘ineffective assistance of counsel’ without explanation or any supporting facts were insufficient

to trigger the circuit court’s duty to inquire.” Id. ¶ 7.

¶ 36 On appeal, the supreme court noted the conflict among the appellate court districts “as to

what is sufficient to trigger a Krankel inquiry.” Id. ¶ 18. The court held that “when a defendant

brings a clear claim asserting ineffective assistance of counsel, either orally or in writing, this is

sufficient to trigger the trial court’s duty to conduct a Krankel inquiry.” Id. In doing so, the court

stated that a claim does not need to be supported by facts or specific examples as “the primary

purpose of the preliminary inquiry is to give the defendant an opportunity to flesh out his claim

15

of ineffective assistance so the court can determine whether appointment of new counsel is

necessary.” Id. ¶ 20. The court further noted that its holding serves judicial economy as the

preliminary inquiry would create a record for any claims raised on appeal and would not burden

the circuit court. Id. ¶ 21.

¶ 37 In Ayres, the defendant only included the words “ineffective assistance of counsel” in his

petition, and the supreme court held that was enough to require the circuit court to make a

preliminary inquiry into the defendant’s claim. Here, defendant raised an issue his counsel did

not raise at trial (violation of his fourth and fifth amendment rights) and voiced that he did not

understand his counsel’s failure to raise the issue stating, “why [my attorney] never mentioned

this during trial I do not know.” His statement clearly raised an ineffective assistance of counsel

issue that the circuit court should have addressed. Though defendant may not have used the

words “ineffective assistance of counsel,” requiring such would be elevating form over

substance. Defendant brought a clear claim asserting ineffective assistance of counsel, both in

writing and orally at sentencing, and the circuit court should have conducted a preliminary

Krankel inquiry.

¶ 38 In coming to this conclusion, we reject the State’s argument that defendant did not raise a

“colorable claim” that his fourth amendment rights were violated. As stated above, defendant’s

claim of ineffective assistance of counsel does not have to be legally sound in order to trigger a

preliminary hearing. Id. ¶ 11. The point of the preliminary inquiry is for the circuit court to give

defendant an opportunity to flesh out his claim. Id. ¶ 20. It is only after the preliminary inquiry

that the court determines whether or not defendant’s allegations show possible neglect in order to

require appointment of new counsel for a full Krankel hearing. Moore,

.

16

¶ 39 In sum, we uphold defendant’s convictions as the circuit court did not abuse its discretion

in admitting evidence of defendant’s past conviction for rape. The evidence was enough to

convict defendant, even absent considerations of the home invasion and residential burglary

convictions. “[W]e [further] hold the circuit court erred in failing to conduct any inquiry into the

factual basis of defendant’s allegations. Thus, we remand this cause to the circuit court for a

preliminary Krankel inquiry.” Ayres,

, ¶ 26.

¶ 40 CONCLUSION

¶ 41 The judgment of the circuit court of Peoria County is affirmed and remanded.

¶ 42 Affirmed and remanded.

¶ 43 JUSTICE McDADE, dissenting.

¶ 44 The majority affirms defendant’s conviction, finding, inter alia, that the court did not err

by admitting evidence of defendant’s prior conviction for rape. I find it difficult to understand or

agree with the majority’s finding that the two rapes of which defendant has now been convicted

were sufficiently factually similar to warrant admission of the first to show propensity to commit

the second. Because there is no way to determine the extent to which the prior rape conviction

drove the ultimate verdict in this case, I feel compelled to dissent from the majority decision. I

have two concerns: (1) the so called similar factors found by the majority could be found in any

rape and (2) the specific facts of the rapes, here, are not at all similar. Furthermore, I believe the

erroneous admission of the prior rape conviction cannot be harmless as the court during a bench

trial may be susceptible to the emotional impact provided by such a conviction. Moreover, our

supreme court mandates a cautious consideration before admitting evidence of prior convictions

of rape. I do not believe that such consideration was present here.

17

¶ 45 First, the factors on which the majority determines similarity would be present in

virtually any rape. Indeed, they might constitute the definition of a large percentage of rapes.

Allowance of prior bad acts to show propensity in sex offense prosecutions is the exception to

the general rule excluding such evidence for that purpose. See supra ¶ 20. Using the criteria the

majority has set out in ¶ 24 would, in my opinion, result in the exception swallowing the rule.

The second and third factors (use of force and nonconsensual—either by direct refusal or legal

incapacity to consent—sex) are present in most rapes; the first and fourth (uninvited entrance

into the victims’ home and adult women victims) are present in a great many. It would seem that

the statutorily required “reasonable” and “factual” similarities (supra ¶ 23) should rest in the

specifics of the two crimes, not in their generic character.

¶ 46 This gives rise to my second concern, which is that when we consider the specific facts of

each crime pertinent to this prosecution, there is almost no similarity. The first incident was a

gang rape. The victim was a 62 year old woman. She was alone in the residence. Items were

stolen from the premises. There is no suggestion there had been any interaction with the victim

prior to the rape. There was no suggestion the victim had previously known or had contact with

her attackers. She was penetrated both vaginally and anally. It appears her hair was cut off.

¶ 47 In significant contrast, the second rape was committed by a single actor. Although the

victim was an adult, she was a very young woman (21 years old), and she was pregnant. The

rape took place with her children in the house and one of them—a two-year-old—was actually in

the room, trying to intervene. The defendant had earlier initiated non-physical interaction with

the victim. He had approached her twice the preceding day, apparently attempting to “hit on”

her, and had appeared at her door the day of the rape. At that time, she had borrowed defendant’s

cell phone to make a call then turned away and shut the door. He entered without permission.

18

She was penetrated only vaginally. Her hair was not cut off. There is, quite simply, no point of

factual congruence between these two crimes except that both were rapes. Nothing about the first

crime makes it a meaningful indicator of a likelihood that defendant was the person who

committed the second.

¶ 48 The trial court found the compelling similarity to be “brazenness,” but that is a subjective

assessment, not a fact.

¶ 49 With regard to the 30 intervening years, I agree with the majority that the defendant’s

incarceration for 28 of those years is a significant factor. It is, however, not the only relevant

consideration. Part of the reason for viewing other crimes committed in a more distant past with

a jaundiced eye is a recognition that people can change over time. There is no real basis for

concluding that defendant could not have changed in a positive way during 30 years of

incarceration unless one pre-judged him guilty of the second rape. So I still think the passage of

that period of time is potentially significant.

¶ 50 The State was allowed—erroneously in my view—to present evidence of a totally

dissimilar prior conviction to bolster its evidence. There can be no doubt that evidence was

prejudicial, which is, of course, why the State wanted it admitted. If the evidence was wrongly

admitted, the prejudice was both unnecessary and unfair. I would find the defendant should have

a new trial.

¶ 51 There are two other points I would make. I acknowledge that this was a bench trial, not

one tried to a jury. Although we presume that judges know and follow the law, they are human

and we cannot also presume that they, as finders of fact, are less vulnerable to emotional

manipulation than jurors. We cannot, therefore, find what I believe to be an erroneous admission

of a prior conviction to be harmless.

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¶ 52 Finally, I, too, would quote the supreme court’s decision in Donoho:

“Here, we find that the trial court’s evaluation was not so

‘ “arbitrary, fanciful or unreasonable” ’ [citation] as to constitute

an abuse of discretion. Although 12 to 15 years elapsed, there were

substantial factual similarities about the nature of the abuse

sufficient to justify admission of the other-crimes evidence. In

addition, we note that the trial court reduced the potential

prejudicial effect of the evidence by refusing to allow the State to

quote the 1983 statement or to publish the detailed two-page

document to the jury. Therefore, we find that the appellate court

erred by holding that because such evidence was admitted,

defendant’s convictions must be vacated and the matter remanded

for a new trial. Nonetheless, we urge trial judges to be cautious in

considering the admissibility of other-crimes evidence to show

propensity by engaging in a meaningful assessment of the

probative value versus the prejudicial impact of the evidence.”

(Emphasis added.) Donoho,

.

¶ 53 I see no evidence of that cautious consideration in this case, and I can find insufficient

factual similarity between the two sexual assaults to elevate the probative value of the earlier

crime over its clear and substantial prejudicial impact. I would, therefore, find prejudicial error

and find the defendant should have a new trial.

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