People v. James

2020 IL App (1st) 180766-U

Opinion

2020 IL App (1st) 180766-U No. 1-18-0766 Order filed October 29, 2020 Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit ) Court of Cook County. Plaintiff-Appellee, ) ) v. ) No. 13 CR 05012 ) DWAYNE JAMES, ) Honorable ) Lauren Edidin, Defendant-Appellant. ) Judge, presiding.

JUSTICE LAMPKIN delivered the judgment of the court. Presiding Justice Gordon and Justice Hall concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s convictions. The record does not support his allegations of ineffective assistance of trial counsel. And the trial court did not abuse its discretion in admitting other crimes evidence. Regardless, because the trial court indicated that it did not consider the other crimes evidence in reaching its verdict at defendant’s bench trial, any error in its admission was harmless.

¶2 Following a bench trial, defendant Dwayne James was convicted of three counts of

aggravated criminal sexual assault and one count of aggravated domestic battery and was

sentenced to eleven years in prison. On appeal, defendant argues that the trial court erred in No. 1-18-0766

allowing the victim to testify about a prior, uncharged act of sexual assault he committed against

her. He also contends that his trial counsel was constitutionally ineffective. We reject defendant’s

contentions and affirm the trial court’s judgment. 1

¶3 I. BACKGROUND

¶4 Defendant was charged with six counts of aggravated criminal sexual assault (720 ILCS

5/11–1.30 (West 2012)) and one count of aggravated domestic battery (720 ILCS 5/12–3.3 (West

2012)). The charges arose from an incident between defendant and C.S. on or about February 2,

2013. Three aggravated criminal sexual assault counts alleged that defendant forcibly placed his

penis in C.S.’s mouth and three alleged that he forcibly placed his penis in C.S.’s vagina. Each

count further alleged one of three aggravating circumstances: that defendant caused C.S. bodily

harm, threatened or endangered C.S.’s life, or committed the offense while engaged in aggravated

domestic battery. See 720 ILCS 5/11–1.30(a)(2), (3), (4) (West 2012). The aggravated domestic

battery count alleged that defendant strangled C.S. and that he and C.S. were family or household

members because they share two children. See 720 ILCS 5/12–3.3(a-5) (West 2012).

¶5 Before trial, the State filed a motion to admit evidence that defendant committed a prior

sexual assault against C.S. a year before the charged offenses. The State argued that the evidence

was relevant to proving defendant’s motive, intent, absence of mistake, and propensity to commit

the charged offenses. Defense counsel objected to admission of the evidence. Counsel argued that

C.S.’s account of the event was unreliable because she did not contemporaneously report it to

police. Counsel also argued that admission of the evidence would be unduly prejudicial. The trial

court found the evidence relevant and concluded that its probative value was not outweighed by

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.

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the danger of unfair prejudice. But the court reserved a final ruling on the admissibility of the

evidence until assessing its reliability at a separate hearing. When defendant chose a bench trial,

the parties agreed that the court could make the evidentiary ruling at trial. The matter eventually

proceeded to trial before a new judge.

¶6 At trial, C.S., her friend, Amanda, and an investigating detective testified for the State.

Defendant testified on his own behalf. C.S. testified that defendant previously sexually assaulted

her in January or February 2012. On that occasion, defendant was at C.S.’s apartment delivering a

child support payment. He attempted to become affectionate with C.S., but she rebuffed his

advances. Defendant then became angry. He dragged C.S. onto a couch by her hair, ripped down

her pants, and forced his penis into her vagina. He told C.S. he would kill her and the children if

she told anyone what happened. C.S. did not report the assault because she feared defendant would

make good on his threat.

¶7 C.S. testified that defendant sexually assaulted her again about a year later. On February 1,

2013, defendant told C.S. he wanted to drop off Christmas presents for the children, who were

then ages seven and one. C.S. arranged for defendant to come to her apartment that evening.

Because she was afraid to be alone with defendant after the prior sexual assault, C.S. asked

Amanda to come over as well. Amanda came to C.S.’s apartment around 6 p.m. and stayed until

around 10 p.m. During that time, C.S. received several text messages from defendant saying he

was running late but that he would be there soon. C.S. eventually told defendant not to come

because Amanda had to leave and the children were going to sleep.

¶8 Later that evening, C.S. was awakened by several text messages and phone calls from

defendant. (The State introduced photographs of the text messages discussed in this order as

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exhibits at trial.) At 11:11 p.m., defendant texted: “I’m going to b[e] pulling up in 15 min[utes].”

At 11:47 p.m., he wrote: “I’m walking up to the door now[,] please answer.” At 11:55 p.m., he

wrote: “Open the door[,] I’m freezing.” And at 11:57 p.m., he sent a picture of the presents he

brought and wrote: “It’s cold.” C.S. testified that she did not respond to defendant’s text messages

or answer his phone calls because she was in bed and did not want to let him in the apartment.

However, when defendant also began to bang on C.S.’s bedroom window and sliding glass patio

door, she relented and let him in.

¶9 Defendant told C.S. that his ride had left and asked to wait inside for a while. C.S. let him

do so. But fearing for her safety, C.S. went back to her bedroom and locked the door, telling

defendant to text her when he left. When defendant was still there at 12:21 a.m., C.S. sent him a

text message, telling him he had to leave because someone was coming over in the morning. At

12:41 a.m., defendant responded via text: “I’m [a]bout to get ready to go[,] so [you] can lock the

door.” C.S. stayed in the bedroom because she wanted to be sure defendant was gone before she

came out. At 12:50 a.m., defendant sent another text: “[Alright], I’m leaving.” Again, C.S. stayed

in the bedroom. Finally, at 12:56 a.m., defendant texted: “Lock the door[,] I left.” Thinking

defendant was gone, C.S. came out of the bedroom.

¶ 10 When C.S. went to lock the door, she saw it was already locked. She turned around and

saw defendant still inside the apartment. She ran back to the bedroom and tried to close the door,

but defendant chased after her and pushed the door open. Defendant grabbed C.S. in a bear hug

and tried to kiss her. C.S. struggled but was unable to get away. Defendant pulled down C.S.’s

tank top and bra. When C.S. continued to resist, defendant slapped her face and put his hand over

her mouth with such force that it caused C.S.’s teeth to puncture the inside of her lip.

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¶ 11 Defendant pushed C.S. to the ground at the foot of the bed and forced his penis into her

mouth. Because C.S. was seated on the ground with the mattress behind her head, she could not

move her head backwards. But she was able to move her head to the side, which enabled her to

bite defendant’s left thigh. That caused defendant to jump back, and C.S. was able to stand up.

¶ 12 Undeterred, defendant charged at C.S. He put his hand around her neck and choked her.

He then forced C.S. onto the bed and straddled her. He pulled down C.S.’s pants and forced his

penis into her vagina. As C.S. continued to struggle and cry, defendant ripped out a clump of her

hair. While still in the act, defendant told C.S. he did not want her to be with anyone else and

would kill her and the children if she told anyone what he did.

¶ 13 When defendant finally stopped, C.S. ran to the bathroom and locked the door, waiting for

defendant to leave. She stayed in the apartment because she did not want to leave her children and

did not call the police because she feared what defendant would do. C.S. eventually came out of

the bathroom while defendant remained in the apartment. She went to the kitchen to get an ice

pack for her lip. When their youngest child began to cry, defendant went to the children’s room.

He carried the baby to C.S.’s bedroom. C.S. then took the baby from defendant, and she and

defendant sat on the bed as she held the baby. After defendant eventually left, C.S. was able to put

the baby back to sleep. She did not call the police at that time because she was still processing

what had happened.

¶ 14 Over the next several hours, defendant and C.S. exchanged additional text messages. At

2:16 a.m., defendant wrote: “I’m sorry[.] [I] truly am[.] [I don’t know] who I was. I love [you] so

much[.] I just d[o]n’t want [you] with anybody else.” At 4.33 a.m., defendant wrote: “I can’t

sleep[.] I just keep thinking about you[.] [S]o sorry[.] I love you.” C.S. responded at 7:17 a.m.,

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writing: “Well[,] I suggest [you] never call or text me again [and you] will never see me or [your]

kids again. [I]f [you] do try [and] contact me[,] [I] will file a police rep[o]rt. [You] have issues

[and you] need help.” At 8:24 a.m., defendant wrote: “I already told [you] what [I’m going to] do

if [you] do that.” At 8:25 a.m., C.S. responded: “[OK], more of a reason to make a police report

[and] get a restraining order.” At 8:26 a.m., defendant replied: “[I don’t care, you] gotta take off

of work to go to court for that[,] so go ahead[,] I ain’t worried.”

¶ 15 Around 8 a.m., Amanda returned to C.S.’s apartment to pick up her wallet, which she left

behind the night before. Amanda stayed for only a minute or two because she was late for work.

Amanda testified that C.S.’s lip was puffy, her hair was messy, and she looked like she had been

crying. When Amanda asked C.S. if she was okay, C.S. turned her head and said yes.

¶ 16 Around the same time, C.S. spoke with her sister by phone. She told her sister what had

happened and discussed whether she should call the police. C.S. initially did not want to call the

police because she was ashamed and embarrassed. She was also fearful that defendant would make

good on his threat to kill her and the children if she reported the assault. But after speaking with

her sister, C.S. decided to call the police.

¶ 17 Before doing so, C.S. took a shower and cleaned her apartment. She testified that she “felt

gross” and that her apartment was dirty and strewn with wrapping paper. She found a condom

wrapper on the floor of her bedroom, which she threw away. She did not know whether defendant

used a condom during the assault. Officers who searched C.S.’s apartment later that day found the

condom wrapper, but no condom.

¶ 18 After speaking with police, C.S. went to a hospital, where a nurse administered a “rape

kit.” The process included the collection of oral and vaginal swabs. The parties stipulated that

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semen was detected on the vaginal swabs and that the DNA profile of the semen matched

defendant’s DNA profile. The same day, police took several photographs of C.S.’s body, which

were introduced as exhibits at trial. The photographs show a cut on the inside of C.S.’s upper lip,

a scratch on her neck, and a bruise on her knee. C.S. testified that the bruise was caused by

defendant forcing her legs apart during the assault.

¶ 19 Defendant was arrested on February 6, 2013. During processing, police took several

photographs of defendant’s body, which were also introduced at trial. The photographs depict

scratches or scabs on defendant’s right hand, lower back, and buttocks and an abrasion on his left

thigh, where C.S. testified she bit him.

¶ 20 On cross-examination, C.S. testified that she continued to speak with and see defendant

after the 2012 assault. She testified that she did not speak with him often but that she did allow

him to come to her apartment to pick up their son for basketball practice. She acknowledged not

telling the police or anyone else about the 2012 assault until she later reported the 2013 assault.

As for the incident in 2013, C.S. denied having given defendant a condom to wear. She also denied

searching through defendant’s phone, finding information about other women that upset her, and

then tussling with defendant for the phone.

¶ 21 At the close of the State’s case, the trial court revisited the State’s motion to allow C.S.’s

testimony about defendant’s prior sexual assault. Defense counsel urged the court to exclude the

testimony. Counsel stressed that C.S. did not provide a specific date on which the prior assault

allegedly occurred and did not contemporaneously report it to police or anyone else. Counsel also

noted that C.S. spent time with defendant and allowed him to interact with their children even after

the alleged prior assault. Over defense counsel’s objection, the court admitted the evidence. The

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trial judge stated that she agreed with her predecessor’s findings that evidence of defendant’s prior

sexual assault against C.S. was relevant and that its probative value was not outweighed by the

danger of unfair prejudice. In addition, the judge found C.S.’s testimony about the prior sexual

assault to be reliable.

¶ 22 Defendant then took the stand. He testified that he went to C.S.’s apartment around 11 p.m.

to deliver Christmas gifts for the children. When he arrived, C.S. directed him to her bedroom so

as not to wake the children. After speaking for a few minutes, they began to kiss and eventually

had consensual sex. When they were done, defendant went to the bathroom. A short time later,

C.S. confronted defendant about something she had found on his phone. A heated argument and

tussle over the phone ensued. Defendant claimed that C.S. likely sustained her injuries during that

tussle. He testified that the text messages he sent C.S. saying he was sorry were intended as

apologies for the things C.S. found on his phone and the hurtful things he said during their

argument.

¶ 23 On cross-examination, defendant testified that he did not initially wear a condom but that

he eventually put one on. He denied that C.S. bit his thigh. He testified that the mark on his thigh

was likely caused by him scratching himself. And he testified that the marks on his lower back and

buttocks could have been caused while he was playing basketball or during his consensual sex

with C.S. Although defendant acknowledged on direct examination that he sent C.S. text messages

before arriving at her apartment and after leaving, on cross-examination he initially denied having

sent any messages before arriving at C.S.’s apartment. After looking at the State’s exhibits,

however, he conceded that he could have sent the messages but said he was unsure due to the

passage of time. He also explained that his message telling C.S. that she knew what he would do

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if she filed a police report was intended as a threat to post nude pictures of C.S. online, not to kill

her or their children.

¶ 24 After taking a short recess, the trial court announced its verdict. The court began by noting

that it had not considered the evidence of defendant’s prior sexual assault in reaching its verdict.

The court explained that C.S. testified “credibly and honestly” and that her testimony was

supported by “abundant corroboration,” including defendant’s text messages and the injuries

sustained by C.S. and defendant. Meanwhile, the court found that defendant was not credible and

that his testimony was “contradictory and implausible.” The court found defendant not guilty of

the three counts of aggravated criminal sexual assault based on penis-to-mouth contact, but guilty

of the three counts of aggravated criminal sexual assault based on penis-to-vagina contact and the

single count of aggravated domestic battery.

¶ 25 Following the verdict, defendant retained new counsel and filed a motion for a new trial.

He argued that the court erred in allowing C.S. to testify about the prior sexual assault as other

crimes evidence. He also argued that his trial counsel rendered ineffective assistance in numerous

respects.

¶ 26 First, defendant alleged that trial counsel failed to adequately prepare him for trial. He

alleged that counsel only met with him “in [the] hallway for approximately five minutes before

[the] trial began” and did not show him any of the State’s discovery materials prior to trial,

including the photographs of his text messages and his and C.S.’s injuries. He argued that he was

caught by surprise when the State questioned him about the text messages on cross-examination,

which led him to damage his credibility by testifying that he did not recall sending some of the

messages. He also argued that, by failing to show him the photograph depicting a mark on his thigh

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allegedly caused by C.S. biting him, counsel missed an opportunity to question C.S. about the

impossibility of her being able to bite him under the circumstances she described.

¶ 27 Second, defendant alleged that trial counsel failed to adequately impeach C.S.’s credibility

and challenge the State’s case. In particular, he alleged that counsel failed to present two

photographs taken after the alleged prior assault—one allegedly showing defendant and C.S. in

bed together and the other allegedly showing defendant and C.S. with their daughter—that would

have cast doubt on C.S.’s testimony that their 2012 encounter was nonconsensual and caused C.S.

to subsequently fear defendant. He also argued that counsel should have done the following: ask

C.S. whether she was intoxicated during their 2013 encounter; ask C.S. or her sister whether her

sister had a sexual relationship with defendant; ask C.S. whether she used a diaphragm for birth

control and whether she gave defendant a condom during their 2013 encounter after defendant told

her he did not feel her diaphragm; argue that C.S. could not have bit defendant’s thigh under the

circumstances she described; and call an unidentified witness who would have allegedly testified

that defendant did not appear sweaty, disheveled, or red-faced after leaving C.S.’s apartment.

Finally, defendant argued that trial counsel was ineffective for failing to ask him any “humanizing”

questions about his employment, education, and charity work.

¶ 28 Because defendant’s ineffective assistance claims relied on matters outside the record, the

trial court concluded that an evidentiary hearing was required. At the hearing, the State called

defendant’s trial counsel. Defendant did not testify, call witnesses, or present evidence at the

hearing, choosing instead to rest on the allegations in his motion, which he verified as true and

correct under 735 ILCS 5/1–109 (West 2016).

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¶ 29 Trial counsel testified that he began to represent defendant more than two years before trial.

In that period, defendant came to counsel’s office at least five or six times. They also met for

10 to 15 minutes at a time before or after court appearances. Defendant came to counsel’s office

for at least two meetings devoted to trial preparation. Each of those meetings lasted for at least an

hour. One of these meetings took place about a month before trial and one took place the week of

trial.

¶ 30 Counsel testified that the purpose of the final pre-trial meeting was to “finalize going

through discovery materials and prepar[e] for testimony.” At the meeting, counsel and defendant

went over the State’s evidence and discussed defendant’s potential testimony. Counsel confirmed

that he showed defendant the police reports, witness statements, grand jury transcripts, text

messages, and photographs the State had tendered in discovery.

¶ 31 As for the text messages, counsel recalled telling defendant “that a few of [the messages]

looked suspicious, that they looked like admissions, and [that] unless [they] had a viable strategy

to do away with them [they] were going to be in trouble.” Counsel testified that he also showed

defendant the photograph of the injury on his thigh and discussed how defendant might address

the photograph on the stand. Counsel recalled that defendant told him the injury was caused by

C.S. “liking rough sex.”

¶ 32 Counsel testified that he refrained from questioning C.S. about the alleged prior sexual

assault so as to not risk “highlight[ing]” that incident. He also testified that he repeatedly asked

defendant for potential witnesses or favorable evidence but that defendant never provided such

information. Counsel testified that defendant never produced any photographs of him and C.S.

after the alleged 2012 assault. Nor did defendant tell counsel that C.S. generally used a diaphragm

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for birth control or that he told her that he did not feel the diaphragm on the night of their 2013

encounter. Defendant likewise did not tell counsel that C.S. was intoxicated nor did he suggest

C.S.’s sister as a potential witness due to his having been involved in a sexual relationship with

her.

¶ 33 After argument, the trial court denied defendant’s motion. With respect to defendant’s

claim that the court erred in allowing C.S. to testify about the prior sexual assault, the court

reiterated that it did not consider that evidence in reaching its verdict because the other evidence

at trial overwhelmingly established defendant’s guilt. The trial court also rejected defendant’s

ineffective assistance claims. The court recounted trial counsel’s testimony about “how he

prepared [defendant] for court, how he had asked for additional evidence or witnesses, [and] that

he went over text messages and photographs with the defendant and prepared him for trial.” The

court noted that counsel’s testimony contradicted the allegations in defendant’s motion. And in

light of that testimony and the court’s observations of counsel at trial, the court concluded that

defendant had not established that counsel rendered ineffective assistance.

¶ 34 After hearing arguments in aggravation and mitigation, the trial court imposed defendant’s

sentence. Defendant then filed a timely notice of appeal.

¶ 35 II. ANALYSIS

¶ 36 A. Ineffective Assistance of Counsel

¶ 37 Defendant argues that he is entitled to a new trial due to ineffective assistance of trial

counsel. To prevail on this claim, defendant must show that trial counsel performed deficiently

and that he suffered resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To

demonstrate deficient performance, defendant “must show that counsel’s representation fell below

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an objective standard of reasonableness.” Id. at 688. When assessing counsel’s performance, we

must “indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance” and that counsel’s “challenged action[s] might be considered

sound trial strategy.” (Internal quotation marks omitted.) Id. at 689. To demonstrate prejudice,

defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of [his trial] would have been different.” Id. at 694. Because the trial court rejected

defendant’s ineffective assistance claims after an evidentiary hearing, we apply “a bifurcated

standard of review, wherein we defer to the trial court’s findings of fact unless they are against the

manifest weight of the evidence, but make a de novo assessment of the ultimate legal issue of

whether counsel’s actions support an ineffective assistance claim.” People v. Nowicki, 385 Ill.

App. 3d 53, 81 (2008).

¶ 38 Defendant first contends that counsel failed to adequately prepare him for trial. He alleges

that counsel only met with him in the hallway prior to trial for five minutes and did not show him

the State’s discovery materials before trial, including the text messages he sent to C.S. and

photographs of his and C.S.’s injuries. But trial counsel flatly denied these allegations at the post-

trial evidentiary hearing. Counsel testified that he met with defendant at least five or six times at

his office in the two years preceding the trial and that they also conferred for 10 to 15 minutes

before or after pre-trial court appearances. Counsel further testified that he had at least two in-

office meetings with defendant to prepare for trial, one about a month before trial and another on

the week of trial. Counsel testified that each of these trial preparation meetings lasted at least an

hour.

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¶ 39 Counsel also refuted defendant’s contention that he was not shown the State’s discovery

materials before trial, including his text messages and the photographs of both his and C.S.’s

injuries. In particular, counsel testified that he showed defendant the police reports, witness

statements, grand jury transcripts, text messages, and photographs that were tendered by the State

in discovery. (Defendant also contends that counsel did not show him pictures of the Christmas

presents that the State used at trial. But the only picture of Christmas presents introduced at trial

was the picture included in one of defendant’s text messages.) With respect to the text messages,

moreover, counsel testified that he reviewed them with defendant and warned him that they could

be damaging without a viable strategy to address them. Counsel also testified that he showed

defendant the photograph depicting an injury on his thigh and discussed with defendant his

explanation for the injury.

¶ 40 The trial court granted defendant an evidentiary hearing on his claims, but defendant opted

not to testify at the hearing, leaving trial counsel’s testimony unrebutted. Although the trial court

did not make an express credibility finding, we think it clear that the court implicitly credited trial

counsel’s testimony when, in the course of rejecting defendant’s claims, the court recounted

counsel’s testimony and noted that the testimony contradicted defendant’s allegations. Because

that factual finding is not against the manifest weight of the evidence, we defer to it. See Nowicki,

385 Ill. App. 3d at 81. In light of trial counsel’s unrebutted and credited testimony, defendant has

not met his burden of establishing that counsel was deficient in his preparation of defendant for

trial. See People v. Valladares, 2013 IL App (1st) 112010, ¶ 52 (“The defendant bears the burden

of demonstrating he received ineffective assistance of counsel.”).

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¶ 41 Next, defendant contends that trial counsel failed to adequately cross-examine C.S. and

challenge the State’s case with available evidence. But the record refutes these allegations as well.

Defendant asserts that counsel failed to challenge C.S. concerning the supposed impossibility of

her having bit defendant’s thigh in the manner she described. At trial, C.S. testified that, after

defendant pushed her to the ground and forced his penis into her mouth, she turned her head to the

side and bit his thigh. Defendant contends that C.S. could not have bit his thigh in this manner

because she testified that her head was immobilized by the mattress behind her. But C.S. testified

that she could not move her head backwards due to the mattress being behind her. The mattress

did not similarly prevent her from moving her head to the side, which was what enabled her to bite

defendant’s thigh. We see no internal inconsistency in C.S.’s testimony nor any obvious avenue

of effective cross-examination on this point.

¶ 42 Defendant further argues that counsel failed to effectively cross-examine C.S. about her

allegations that defendant previously sexually assaulted her and failed to present evidence

demonstrating the consensual nature of that encounter. In particular, defendant contends that

counsel should have introduced two photographs of him and C.S. taken after the 2012 encounter

that would allegedly refute C.S.’s allegation that the encounter was nonconsensual and caused C.S.

to subsequently fear defendant. But at the evidentiary hearing, trial counsel testified that defendant

never provided him any photographs. Defendant did not testify at the hearing or introduce any

evidence to contradict counsel’s testimony. To this day, there is no evidence in the record that the

claimed photographs exist, much less that defendant provided them to counsel before trial. As

noted, the trial court implicitly credited trial counsel’s evidentiary hearing testimony, and that

credibility finding was not against the manifest weight of the evidence. In light of counsel’s

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unrebutted and credited testimony that defendant did not give counsel any photographs of

defendant and C.S., counsel cannot be deemed ineffective for failing to present such evidence at

¶ 43 Defendant relatedly argues that counsel was ineffective for failing to cross-examine C.S.

about the credibility and reliability of her testimony concerning the prior assault allegation. But

defendant does not identify any specific questions or areas of inquiry that would have undermined

C.S.’s credibility or reliability. His sole suggestion is that counsel should have asked C.S. whether

the 2012 encounter was consensual, but on direct examination she unequivocally described the

encounter as both nonconsensual and violent. We cannot fathom how simply asking her whether

the encounter was consensual on cross-examination would have led to an answer that undermined

her credibility. Regardless, trial counsel testified that he made the considered decision to refrain

from questioning C.S. about the prior assault allegation to avoid drawing added attention to that

incident. That is precisely the kind of strategic decision that is “generally immune from claims of

ineffective assistance of counsel.” People v. Dupree, 2018 IL 122307, ¶ 44. Defendant has not

overcome the “strong presumption” that counsel’s decision not to delve into the details of the prior

assault “might be considered sound trial strategy.” (Internal quotation marks omitted.) Strickland,

466 U.S. at 689.

¶ 44 Defendant also contends that trial counsel was ineffective for failing to pursue a number of

other areas of inquiry. He argues that counsel should have questioned him or C.S. about whether

C.S. was intoxicated; that counsel should have questioned C.S. about her method of birth control

and whether she gave defendant a condom after he told her that he did not feel her diaphragm; that

counsel should have asked C.S. or her sister whether C.S.’s sister and defendant had been involved

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in a sexual relationship; and that counsel should have called a witness to describe defendant’s

appearance shortly after he left C.S.’s apartment. But again, trial counsel’s unrebutted and credited

testimony at the evidentiary hearing was that defendant never told him about any of these matters.

¶ 45 Counsel testified that defendant did not identify C.S.’s sister as a potential witness even

though counsel repeatedly asked defendant whether he was aware of potential witnesses or other

favorable evidence. Nor does anything in the record establish that defendant otherwise informed

counsel of the alleged sexual relationship between defendant and C.S.’s sister. The same is true of

the unnamed witness who allegedly saw defendant shortly after he left C.S.’s apartment. Counsel

testified that, despite his repeated requests, defendant never provided him the names of any

potential witnesses. Indeed, even after he was given the opportunity to develop his claims at an

evidentiary hearing, defendant still has not identified this supposed witness or provided any

evidence establishing what his testimony would have been. In addition, counsel testified, without

contradiction, that defendant never told him that C.S. was intoxicated on the night of the alleged

assault. Counsel also testified, again without contradiction, that defendant did not tell him that C.S.

generally used a diaphragm for birth control or that she gave him a condom to wear during their

2013 encounter after he told her that he did not feel the diaphragm.

¶ 46 Defendant next argues that trial counsel was ineffective for failing to ask him “humanizing”

questions about his employment, education, and charity work to bolster his credibility. But

defendant offers no support for the proposition that failing to ask such questions amounts to

objectively unreasonable performance for constitutional purposes. See Strickland, 466 U.S. at 687

(demonstrating deficient performance requires a “showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”).

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Regardless, we note that counsel did in fact ask defendant about his employment, and defendant

responded that he worked for a travel basketball organization, where he coached, trained, and

“mentor[ed] young kids.” Defendant does not suggest how further questions about his education

or charity work would have bolstered his credibility. Indeed, he does not say what his answers to

such questions would have been. There is thus nothing in the record to suggest, much less

demonstrate, a reasonable probability that the trial court would have credited defendant’s

testimony and found him not guilty of the charged offenses if counsel had asked additional

“humanizing” questions, particularly in light of the court’s finding that defendant’s testimony

about the events in question was “contradictory and implausible.”

¶ 47 Finally, defendant argues that trial counsel was ineffective for failing to file a “motion to

suppress” or otherwise object to C.S.’s testimony about the alleged prior assault. But there was no

need for counsel to move to suppress that testimony. The State itself put the issue before the court

when it filed a motion to admit the testimony as other crimes evidence. And while trial counsel

did not file a written response to the motion, he orally opposed admission of the other crimes

evidence at both the pre-trial hearing on the issue and after C.S. testified at trial, when the court

revisited the question. Defendant has not shown that counsel’s handling of the issue was

objectively unreasonable. Nor has he demonstrated prejudice. As we discuss below, the trial court

did not err in admitting the evidence, and defendant has not shown any reasonable probability that

a more fulsome objection from trial counsel would have altered the court’s conclusion. Moreover,

in light of the overwhelming evidence of defendant’s guilt aside from the other crimes evidence,

and the trial court’s express assurance that it did not consider the other crimes evidence in reaching

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its verdict, there is no reasonable probability that defendant would have been acquitted even if the

other crimes evidence had been excluded.

¶ 48 B. Other Crimes Evidence

¶ 49 Defendant also contends that the trial court erred in allowing C.S. to testify about the prior

sexual assault. As recounted above, the trial court found that evidence of the prior sexual assault

was relevant on the issues of defendant’s intent, motive, and absence of mistake, as well as his

propensity to commit the charged offenses, and that the probative value of the evidence was not

substantially outweighed by the danger of unfair prejudice. Defendant contests only the last aspect

of this ruling, arguing that the trial court erred in weighing the probative value and potentially

prejudicial effect of the other crimes evidence. We review the trial court’s decision for an abuse

of discretion. People v. Dabbs, 239 Ill. 2d 277, 284 (2010) (“The admissibility of other-crimes

evidence is within the sound discretion of the trial court, and its decision on the matter will not be

disturbed absent a clear abuse of that discretion.”).

¶ 50 Evidence that a defendant has committed other crimes or prior bad acts is generally

inadmissible to prove the defendant’s propensity to commit a charged offense. See Ill. R. Evid.

404(b) (eff. Jan. 1, 2011) (“Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith [with certain exceptions

discussed below].”). Such evidence may be admitted, however, “for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Id. But “[e]ven if offered for a permissible purpose, such evidence will not be admitted

if its prejudicial effect substantially outweighs its probative value.” Dabbs, 239 Ill. 2d at 284; see

Ill. R. Evid. 403 (eff. Jan. 1, 2011) (“Although relevant, evidence may be excluded if its probative

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value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence.”)

¶ 51 Two exceptions to the general rule against the use of other crimes evidence to establish

propensity are relevant here. Under section 115–7.3 of the Code of Criminal Procedure (Code),

when a defendant is accused of any one of several enumerated sex offenses, including aggravated

criminal sexual assault, evidence that the defendant has previously committed one of the

enumerated sex offenses “may be admissible (if that evidence is otherwise admissible under the

rules of evidence) and may be considered for its bearing on any matter to which it is relevant,”

including propensity. 725 ILCS 5/115–7.3(b) (West 2012). Similarly, under section 115–7.4 of the

Code, when a defendant “is accused of an offense of 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.” 725 ILCS 5/115–7.4(a)

(West 2012). Both statutory provisions direct the trial court, when “weighing the probative value

of the evidence against undue prejudice to the defendant,” to consider its “proximity in time to the

charged or predicate offense,” its “degree of factual similarity to the charged or predicate offense,”

and any “other relevant facts and circumstances.” 725 ILCS 5/115–7.3(c) (West 2012); 725 ILCS

5/115–7.4(b) (West 2012).

¶ 52 As noted, defendant does not contest that evidence of his alleged prior sexual assault of

C.S. was relevant to proving his intent, motive, and absence of mistake with respect to the charged

offenses. Nor does he dispute that the prior sexual assault qualifies as both an enumerated sex

offense under section 115–7.3 and an offense of domestic violence under section 115–7.4 that may

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be admissible to establish his propensity to commit similar offenses. Rather, his sole argument is

that the evidence of his prior sexual assault carried a danger of unfair prejudice that substantially

outweighed the evidence’s probative value. Having considered the relevant statutory factors, we

disagree.

¶ 53 First, C.S. testified that the prior sexual assault took place about a year before the charged

offenses. There is no bright-line rule establishing when a prior crime or bad act is too old to be

admitted as other crimes evidence. People v. Donoho, 204 Ill. 2d 159, 183-84 (2003). We note,

however, that courts have “affirmed [the] admission of other-crimes evidence over 20 years old”

where the evidence was “sufficiently credible and probative.” Id. at 184. Here, the relatively close

proximity in time between the alleged prior sexual assault and the charged offenses weighs in favor

of admissibility.

¶ 54 Second, the degree of factual similarity between the prior assault and the charged offenses

also supports admissibility. Both the prior assault and the charged offenses involved defendant

attacking C.S. in her own apartment after coming to drop something off—a child support payment

in one case and Christmas presents for their children in the other. And contrary to defendant’s

assertion, both incidents involved violent sexual assaults, although the precise details of each

assault varied. C.S. testified that, in the 2012 incident, defendant pulled her onto a couch by her

hair, ripped down her pants, and forced his penis into her vagina. In the 2013 incident, as described

by C.S., defendant grabbed her in a bear hug, pulled down her tank top and bra, slapped her face

and covered her mouth with his hand, pushed her to the ground and forced his penis into her mouth,

put his hand around her neck and choked her, and eventually pulled down her pants and forced his

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penis into her vagina. Finally, in both instances, defendant threatened to kill her and their children

if she reported his assaults.

¶ 55 Defendant points to several differences between the two incidents. He notes that the

incident in 2012 involved only vaginal penetration whereas C.S. testified that the 2013 incident

involved both vaginal and oral penetration. He also asserts that the 2012 assault was less violent

than the 2013 assault. We acknowledge that, as described by C.S., the 2013 assault included several

violent acts by defendant—such as slapping C.S.’s face, covering her mouth with his hand, and

choking her—that were not present in the 2012 assault. 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. Rather, where other crimes evidence

is offered, as it was here, for a purpose other than establishing modus operandi, “mere general

areas of similarity will suffice to support admissibility.” (Internal quotation marks omitted.) Id.at

184. We think the general areas of similarity between the alleged prior assault and the charged

offenses that we outlined above were more than sufficient to support admissibility of the other

crimes evidence here.

¶ 56 Nor do any other relevant facts or circumstances weigh against admissibility. Defendant

argues that C.S.’s testimony about the prior assault should not have been admitted because the

allegations were uncharged and unproven. But the fact that defendant was never charged with the

prior assault is immaterial. See People v. Johnson, 368 Ill. App. 3d 1146, 1159 (2006) (“Whether

defendant was ever arrested or charged for his conduct that constitutes other-crimes evidence is

totally irrelevant to a determination of whether that evidence is admissible.”). Moreover, “the State

does not need to prove defendant’s involvement in [the] other crimes beyond a reasonable doubt

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but instead such proof must be ‘more than a mere suspicion.’” People v. Johnson, 2020 IL App

(1st) 162332, ¶ 52 (quoting People v. Thingvold, 145 Ill. 2d 441, 456 (1991)). Here, C.S.’s

testimony about the prior assault, which the trial court found reliable, adequately demonstrated

defendant’s commission of that assault by more than mere suspicion. For all these reasons, we

cannot say that the trial court abused its discretion in admitting C.S.’s testimony about defendant’s

alleged prior assault as other crimes evidence.

¶ 57 We note, however, that even if the trial court had abused its discretion in admitting the

evidence, the error was harmless. As with other evidentiary errors, an error in the admission of

other crimes evidence “is harmless if there is no reasonable probability that the [factfinder] would

have acquitted the defendant absent the error.” People v. Wesley, 2019 IL App (1st) 170442, ¶ 27

(citing In re E.H., 224 Ill. 2d 172, 180 (2006)). The trial judge, as the finder of fact at defendant’s

bench trial, expressly stated that she had not considered the other crimes evidence in reaching her

verdict. We have no reason to doubt that assurance.

¶ 58 As the court explained, C.S. testified “credibly and honestly” about the charged assault,

while defendant’s testimony was “contradictory and implausible.” We accept those credibility

determinations because they are not against the manifest weight of the evidence. See People v.

Swenson, 2020 IL 124688, ¶ 19 (“The trial court’s underlying credibility and factual findings [may

be] reversed only if they are against the manifest weight of the evidence.”). C.S.’s testimony was

also supported by “abundant corroboration,” including photographic evidence of injuries to her

and defendant that were consistent with her account of events and defendant’s text messages in

the hours after the assault, in which he apologized to C.S. and reminded her of his threat to kill her

and their children if she reported the assault to police. In light of the overwhelming evidence of

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defendant’s guilt aside from the other crimes evidence, there is no reasonable probability that the

trial judge would have acquitted defendant if the other crimes evidence had been excluded. Thus,

even if the court had erred in admitting that evidence, the error was harmless. Wesley, 2019 IL

App (1st) 170442, ¶ 27.

¶ 59 III. CONCLUSION

¶ 60 For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 61 Affirmed.

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