People v. Ward

2022 IL App (5th) 190422-U

Opinion

NOTICE 2022 IL App (5th) 190422-U NOTICE Decision filed 04/07/22. The This order was filed under text of this decision may be NO. 5-19-0422 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Monroe County. ) v. ) No. 17-CF-136 ) GLENN PATRICK WARD, ) Honorable ) Dennis B. Doyle, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE CATES delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion in admitting propensity evidence of other sexual crimes committed by the defendant. The evidence presented at the defendant’s trial was sufficient to sustain a conviction for all 15 counts of predatory criminal sexual assault of a child.

¶2 The defendant, Glenn Patrick Ward, was convicted of 15 counts of predatory

criminal sexual assault of a child following a jury trial. The trial court sentenced the

defendant to an aggregate term of 150 years’ imprisonment. The defendant appeals his

convictions, arguing that the trial court erred in admitting propensity evidence pursuant to

section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3

(West 2016)) and that the State failed to produce sufficient evidence to convict the 1 defendant on all 15 counts of predatory criminal sexual assault of a child. For the following

reasons, we affirm.

¶3 I. BACKGROUND

¶4 On October 11, 2017, the State charged the defendant by criminal information with

15 counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West

2016)). Each count alleged that the defendant, who was 17 years of age or older, committed

an act of sexual penetration by placing his fingers in the vagina of A.A., who was under 13

years of age at the time of the offenses. Each count further alleged that the crimes charged

occurred on or between January 1, 2012, and December 31, 2012. The defendant is A.A.’s

great-uncle. The incidents allegedly occurred in two locations, the defendant’s apartment

on Hamacher Street in Waterloo, Illinois, and in a shed behind A.A.’s house that had been

converted into a bedroom.

¶5 A. Pretrial Proceedings

¶6 Prior to trial, the State notified defense counsel via email that the State intended to

introduce the testimony of K.S., the niece of the defendant’s ex-wife. The State claimed

the testimony was admissible pursuant to section 115-7.3 of the Code (725 ILCS 5/115-7.3

(West 2016)). In 1998, K.S. had accused the defendant of digitally penetrating her on three

occasions. These incidents allegedly occurred in Poplar Bluff, Missouri. The State

provided the defendant with a summary of K.S.’s accusations.

¶7 Both the State and the defendant filed motions in limine regarding the admission of

K.S.’s testimony. Initially, the trial court denied the State’s motion and granted the

defendant’s motion. The trial court found that the timeliness of the State’s disclosure was 2 not reasonable as the defendant’s trial was scheduled to begin the following week. The

State moved for a continuance to allow additional time for discovery concerning the

propensity evidence. The trial court granted this motion.

¶8 Further discovery was conducted, and the State filed a second motion in limine to

admit K.S.’s testimony. In response, the defendant filed a motion in limine arguing that

K.S.’s testimony was too removed from the present testimony to be of probative value. The

defendant further argued that the allegations were investigated and found to be without

merit and the defendant was never charged with an offense related to the accusations.

Finally, the defendant argued that the State had not provided all “reports, statements,

investigative notes, medical records and/or other documentation” regarding the allegations

made by K.S. The defendant further claimed that many of the records no longer existed

because the records were more than 20 years old and/or had been destroyed. The defendant

also alleged that the Missouri Department of Social Services Children’s Division

representatives who had investigated the case were deceased or could not be located.

¶9 The trial court held a hearing on the parties’ motions. At this hearing, K.S. testified

about three incidents where the defendant allegedly inserted his fingers into K.S.’s vagina.

The defendant cross-examined K.S. concerning the allegations. On cross-examination,

K.S. indicated that no charges were ever filed against the defendant. K.S. testified that in

addition to the police, K.S. had disclosed the incidents to several individuals, including

K.S.’s mother, K.S.’s grandmother, K.S.’s Aunt Carla (the defendant’s ex-wife), and a

pastor at her family’s church. K.S. indicated that she was unaware of the pastor’s

whereabouts. K.S. also met with Dr. Claudia Preuschoff, who performed a “safe” exam on 3 K.S. She also indicated that she attended counseling with Dr. Jane Niskey and Sharon

Cross. K.S. testified that she had spoken privately with Dr. Preuschoff and Dr. Niskey, and

that they no longer had records regarding K.S.’s case or any recollection of what K.S. had

disclosed to them.

¶ 10 After hearing the arguments of the parties, the trial court granted the State’s motion

in limine and denied the defendant’s motion in limine. In granting the State’s motion, the

trial court remarked that K.S. “certainly seemed like she could be credible.” The trial court

found that the allegations made by K.S. were similar to the facts alleged by A.A. The trial

court noted that K.S. and A.A. were similar ages; they had a similar relationship with the

defendant; and K.S. and A.A. alleged a similar sex act. The trial court also noted that the

allegations occurred under similar circumstances, where the defendant was home alone

with both A.A. and K.S. The trial court acknowledged that the 14-year time period between

the allegations made by K.S. and A.A. was an “extreme long period of time.” The trial

court further acknowledged that an investigation into the K.S. allegations had been done

and that the defense was not able to interview certain witnesses and that records regarding

the case had been lost or destroyed. The trial court concluded that after weighing the

factors, the “extreme similarity” of the allegations made the probative value of the evidence

outweigh the prejudicial effect.

¶ 11 B. The Jury Trial

¶ 12 Officer Eric Zaber testified that he became involved in the case after receiving

information that A.A. had been sexually abused. Officer Zaber traveled to Waterloo Jr.

High School and met with A.A.’s parents as well as the school’s principal, assistant 4 principal, and guidance counselor. Officer Zaber did not interview A.A. but did set up an

interview for A.A. at the Child Advocacy Center (CAC).

¶ 13 After the CAC interview, Officer Zaber interviewed the defendant at the home of

his mother, Bernice Ward, in Broseley, Missouri. The interview with the defendant was

recorded, and an excerpt of the interview was played for the jury. The interview excerpt

provided as follows.

¶ 14 Officer Zaber informed the defendant that he was not under arrest and read him his

Miranda 1 rights. Officer Zaber advised the defendant that he had spoken with A.A., who

informed Officer Zaber that the defendant lived with A.A.’s family and was “fond” of A.A.

Officer Zaber stated that he wanted to “talk to [the defendant] about that, and see if

anything had happened” that Officer Zaber “should know about.” The defendant replied,

“You talking about a sexual thing here?” Officer Zaber told the defendant that Officer

Zaber had gotten that impression from A.A., “but never intercourse or anything.”

¶ 15 The defendant confirmed that he had lived in an apartment with two roommates

before moving into the shed behind A.A.’s house in 2012. Officer Zaber asked the

defendant if he was ever alone with A.A. The defendant told Officer Zaber that A.A. used

to spend the night with the defendant and that he and A.A. watched movies together. The

defendant stated that he had animated movies such as “Ice Age.” He also had action and

“sci-fi” movies that he liked to watch, but no pornographic movies.

1 Miranda v. Arizona, 384 U.S. 436 (1966). 5 ¶ 16 When asked if the defendant had ever seen A.A. without clothes on, the defendant

stated that A.A. would sometimes change her clothes when getting ready for school. He

also stated that A.A. would stay the night at his apartment, and that he would run a bath for

A.A. The defendant stated that A.A.’s father asked the defendant to watch A.A. while she

took a bath because “sometimes she gets *** in trouble and, everything, she’ll fall asleep

or something.” The defendant further stated that he helped A.A. dry off after a bath and

helped her put on clothes. The defendant denied touching A.A. in an inappropriate or sexual

manner.

¶ 17 Following his interview with the defendant, Officer Zaber investigated other

allegations made against the defendant. Zaber testified that A.A.’s father provided Officer

Zaber with information that when the defendant lived with his sister, Barbara Weber, “there

may have been an incident where [the defendant] left the house quickly.” A.A.’s father had

suggested that the defendant molested one of Weber’s children. Officer Zaber spoke with

Weber who informed Officer Zaber that nothing had happened. Officer Zaber also

interviewed K.S. in Poplar Bluff and prepared a report of the interview.

¶ 18 On cross-examination, Officer Zaber testified that he went to A.A.’s residence but

was unable to observe the shed because A.A.’s father did not allow Officer Zaber to enter

the house. Officer Zaber also testified that he did not visit the Hamacher apartment. As to

A.A.’s allegations, Officer Zaber was not provided with specific times for the allegations.

¶ 19 A.A. testified that the defendant first touched her inappropriately in February 2012,

when A.A. was nine years old. During this time, A.A. often spent the night at the Hamacher

apartment. When A.A. spent the night, she slept in the defendant’s bed with the defendant. 6 A.A. slept in the clothes she had worn that day, and the defendant slept in either boxers or

was naked.

¶ 20 A.A. testified that the first time she recalled something inappropriate happening was

in the defendant’s bedroom. The defendant asked A.A. to remove her clothes, and A.A.

laid on the bed. The defendant inserted his fingers into A.A.’s vagina, then put his tongue

in her vagina. The incident lasted approximately 10 minutes. Afterwards, the defendant

told A.A. not to tell anyone. A.A. testified that the defendant committed these acts “three

to seven times” but “probably closer to three.” A.A. specifically recalled that these acts

occurred on at least three occasions and that each incident occurred the same way. During

these incidents, the defendant either wore boxers or was naked. A.A. testified that the

defendant bathed her and dried her off, “sometimes before, sometimes after” the incidents

occurred. The defendant also helped A.A. with getting dressed. A.A. stated that when she

was at home during this time period, she took showers and did not require assistance with

bathing or getting dressed.

¶ 21 In the “middle of Spring or early Summer” of 2012, the defendant moved into the

shed behind A.A.’s house. In the shed, the defendant had a bed with a metal headboard and

footboard, a dresser with a TV, a desk with a computer, and a “pile of junk.” The shed had

no bathroom or upstairs. A.A. testified that while the defendant lived in the shed, she spent

the night with the defendant and slept in his bed. A.A. wore her clothes, and the defendant

slept either in boxers or was naked.

¶ 22 A.A. testified that the defendant continued to touch her inappropriately in the shed.

A.A. stated that the incidents were similar to the incidents at the Hamacher apartment. 7 When A.A. visited the defendant in the shed, they had “a normal conversation like nothing

had ever happened” and often played computer games. The defendant also played the

movie, Ice Age, for A.A. While Ice Age was playing, the defendant asked A.A. to remove

her clothing, and A.A. laid on the bed. The defendant inserted his fingers and then tongue

into A.A.’s vagina. Afterwards, A.A. would get dressed, and the defendant would “tidy

up” the bed. A.A. then laid in the bed and either fell asleep or “stay[ed] up for a little bit.”

A.A. testified that on approximately three occasions, the defendant bound her arms and on

another two occasions, bound both her arms and legs. The defendant used either a rope or

belt to bind A.A. When the defendant bound only A.A.’s arms, he inserted his finger and

tongue into A.A.’s vagina. When the defendant bound A.A.’s arms and legs, he only

inserted his finger into her vagina. A.A. estimated that the incidents in the shed occurred

10 times, “might be more.” A.A. affirmed that on five occasions at least some part of her

body was bound. She estimated that on “five to eight” occasions, her limbs were not bound.

¶ 23 The sexual acts ended in October 2012. A.A. testified that between the incidents at

the Hamacher apartment and the shed, the defendant digitally penetrated her “[a]round 15”

times.

¶ 24 Initially, A.A. did not tell anyone about the sexual acts because she was “trying to

process what had happened” and “didn’t understand what had happened.” When A.A. was

in the sixth grade, she told a friend “what had happened” with the defendant but asked the

friend to not tell anyone. In the seventh grade, A.A. made the same disclosure to another

friend, but again, asked this friend to not tell anyone. Finally, in the eighth grade, A.A.

made a disclosure to a third friend. Although A.A. asked this friend not to tell anyone, the 8 friend informed the school guidance counselor about what A.A. had disclosed. A.A. spoke

with the guidance counselor, and A.A.’s parents were notified. Finally, A.A. testified that

she did not know K.S.

¶ 25 On cross-examination, A.A. admitted that she had told the guidance counselor that

the defendant digitally penetrated her 20 to 30 times but told the CAC worker that it

occurred “maybe 15” times. A.A. testified that she recalled that the abuse happened

“around 15 times.” A.A. also admitted that she told the guidance counselor that the sexual

acts first occurred in the shed and then the defendant’s apartment. A.A. stated her memory

was “foggy” and that she was under emotional distress at the time. Following these

incidents, A.A. was not subjected to any medical or psychological tests. Furthermore, A.A.

never attended professional counseling but often talked to her guidance counselors.

¶ 26 Timothy Joellenbeck, the defendant’s former coworker and roommate, testified that

he lived with the defendant at the Hamacher apartment for approximately two years.

Joellenbeck’s wife also stayed at the apartment, and another individual lived in the

basement. Joellenbeck testified that between January 1, 2012, and the summer of 2012,

A.A. spent the night at the apartment with the defendant four to five times per month.

Joellenbeck further testified that he often worked overnight shifts and was away from the

apartment at night, but his wife would have been at the apartment. Joellenbeck stated that

he never witnessed “anything illicit” occur between the defendant and A.A., but also stated

that the defendant’s bedroom door was always closed whenever the defendant and A.A.

were in the defendant’s bedroom.

9 ¶ 27 Prior to K.S.’s testimony, the trial court, at the defendant’s request, read a limiting

instruction to the jury regarding propensity evidence. The trial court informed the jury that

K.S. would testify about conduct involving the defendant other than that charged in the

information. The trial court instructed the jury that the evidence was being received on the

issue of the defendant’s propensity to commit a crime and may be considered by the jury

only for that limited purpose. The trial court further instructed the jury that they were to

determine whether the defendant was involved in the conduct and what weight to give the

evidence on the issue of the defendant’s propensity to commit a crime.

¶ 28 K.S. testified that in 1998, she had several “uncomfortable” encounters with the

defendant. At the time, K.S. was nine years old. K.S. stated that these encounters happened

“three to four” times that she could recall, three times with specificity. K.S. further stated

that each of these encounters occurred approximately one week apart from one another

during the month of July.

¶ 29 K.S. testified that she lived in Poplar Bluff with her parents. The defendant was

married to K.S.’s Aunt Carla. K.S. and her parents lived in a basement apartment, and the

defendant and Carla lived in an upstairs apartment in the same building. In the summer of

1998, K.S.’s mother occasionally had difficulty finding a babysitter for K.S., and the

defendant offered to watch K.S. whenever a babysitter was unavailable. When the

defendant acted as the babysitter for K.S., the “situations took place.” K.S. described three

incidents where the defendant committed acts of sexual penetration against her.

¶ 30 In the first incident, the defendant asked K.S. if she knew what the female and male

sex organs looked like. The defendant drew pictures of people and their anatomy and of 10 people performing sex acts on each other. Next, the defendant played a pornographic movie

for approximately 15 to 20 minutes. The defendant then instructed K.S. to go into the

bathroom and “wipe [her] private parts down.” After K.S. did this, the defendant told K.S.

to go into the bedroom and lie on the bed. The defendant entered the bedroom, wearing a

t-shirt and underwear. The defendant laid on the bed next to K.S. and instructed her to

remove her pants. After K.S. complied, the defendant inserted his fingers into K.S.’s

vagina. The incident lasted a “few” minutes until K.S. told the defendant that it hurt. The

defendant told K.S. to get dressed, and they went into the living room where the defendant

turned on the Disney movie “Flubber.” K.S. testified that the defendant told her that she

could not tell anyone what had happened. The defendant stated that everyone would be

mad at K.S. and the defendant if they knew what had happened and that Carla would

“leave” the defendant. The defendant also told K.S. that her mother had been sexually

abused by K.S.’s grandfather. No one believed K.S.’s mother when she disclosed the abuse.

The defendant told K.S. that no one would believe her either.

¶ 31 In the second incident, the defendant played another pornographic movie for K.S.

and again told K.S. to clean herself in the bathroom. The defendant then told K.S. to go

into the bedroom and lie on the bed. The defendant laid on the bed next to K.S., instructed

her to remove her “bottoms,” and inserted his fingers into her vagina. After the defendant

stopped, he told K.S. to go into the living room, and the defendant played Flubber for K.S.

The defendant had “pretty much the exact same conversation” with K.S. about not telling

anyone.

11 ¶ 32 On the day of the third incident, K.S. had argued with her mother because K.S. did

not want to go to the defendant’s apartment. K.S.’s mother “spanked” K.S. and told her

that she had to go to the defendant’s apartment that day. At the defendant’s apartment, the

defendant played a pornographic movie and instructed K.S. to clean herself in the

bathroom. This time, K.S. locked herself in the bathroom. The defendant knocked on the

door, asked K.S. if she was okay. He told K.S. to exit the bathroom. K.S. exited the

bathroom and “was being grumpy.” The defendant began playing with K.S.’s hair and tried

to joke with her. The defendant subsequently told K.S. to go into the bedroom. K.S.

complied and laid on the bed. The defendant instructed K.S. to remove her shorts, but she

refused. The defendant removed K.S.’s shorts and inserted his fingers into her vagina. After

the defendant stopped, he played the movie Flubber for K.S. Subsequently, they had the

same conversation about not telling anyone.

¶ 33 Shortly after the third incident, K.S. and her family moved to another part of town,

and the defendant and Carla moved to Broseley, Missouri. After K.S. and her family moved

into their new home, K.S. disclosed the defendant’s sexual acts to her mother. K.S.’s

mother contacted the Poplar Bluff Police Department, and K.S. made a statement at the

police station. K.S. later underwent a “safe” exam. K.S. testified that she did not know

A.A.

¶ 34 On cross-examination, K.S. indicated that she was aware the Poplar Bluff Police

Department investigated her accusations and that, to her knowledge, no charges were ever

filed against the defendant. K.S. affirmed that Officer Zaber had requested her to sign an

authorization form to obtain counseling records, but K.S. never returned the form. 12 ¶ 35 After the State rested its case, the defendant moved for a directed verdict. The trial

court denied the defendant’s motion, and the defendant presented his case.

¶ 36 The defendant recalled Officer Zaber as a witness. As part of his investigation,

Officer Zaber recorded a phone conversation between A.A. and the defendant on May 8,

2017. The conduct leading to the charges in this case was not discussed during the phone

call. The defendant introduced a copy of the recorded phone call, however, for the purpose

of showing A.A.’s demeanor during that time.

¶ 37 The defendant testified that when A.A. was nine years old, she often accompanied

the defendant wherever he went. The defendant further testified that A.A. spent the night

with him at his apartment and in the shed, but with her parents’ knowledge and permission.

The defendant indicated that A.A.’s younger brother also spent the night with the defendant

in the shed “a couple of times.” The defendant denied ever touching A.A. in an

inappropriate way and denied that he wore boxers. The defendant testified that he “could

not come up with any kind of explanation as to why [A.A.] would make an accusation like

this.”

¶ 38 As to K.S., the defendant denied ever babysitting K.S. and claimed that he only

spent a limited amount of time with her. The defendant testified that K.S. had access to his

apartment and would come over because she liked watching movies. The defendant further

testified that K.S.’s mother had asked the defendant to run K.S. a bath when K.S.’s mother

could not get home early enough. K.S.’s mother allegedly asked the defendant to do this

because K.S. would “make the water too hot and scalded herself.” The defendant testified

that during July 1998, he worked for the first two weeks until he was injured at work. The 13 defendant was then confined to his home for approximately five weeks. The defendant

denied touching K.S. in an inappropriate way.

¶ 39 On cross-examination, the defendant testified that he did not believe it was

inappropriate to bathe A.A. The defendant stated that he would check on A.A. at her

father’s request and that he would help dry her with a towel because she did not “dry off

sufficiently” in the bathroom. The defendant further testified there was “nothing

inappropriate” about A.A. sharing a bed with him. As to K.S., the defendant believed that

K.S. made up the allegations against him because she had asked to live with the defendant

and Carla. The defendant claimed that K.S. was having problems with her parents and no

longer wanted to live with them. The defendant and Carla decided that they could not afford

to have K.S. live with them and that it was best for K.S. to stay with her parents. The

defendant testified that approximately two weeks later, K.S. made the accusations against

the defendant.

¶ 40 Finally, the defendant called his sisters, Beverly Menke and Barbara Weber, as well

as his mother, Bernice Ward, as witnesses. Menke testified that the family had a lot of

family gatherings and that A.A.’s family attended most of the gatherings. Menke had not

seen A.A. or her father since the allegations against the defendant had been made. Weber

testified that she had been contacted by Officer Zaber about a time when the defendant

lived with Weber in 1993. Weber further testified that Officer Zaber informed her that an

accusation had been made that there was “something inappropriate” that had occurred with

one of Weber’s daughters while the defendant lived with Weber. She stated that she had

questioned her daughters, who informed Weber “absolutely nothing had happened.” 14 ¶ 41 Bernice Ward testified that A.A. had visited Bernice’s house for three weeks in 2013

and two weeks in 2014. Bernice confirmed that the defendant was at her house during those

times. When A.A. visited, Bernice never observed the defendant inappropriately touch

A.A. Bernice testified that she kept in regular contact with Carla and had seen her as

recently as two weeks before the trial. Bernice further testified that Carla had never

mentioned K.S.’s allegations against the defendant.

¶ 42 After the close of evidence, the defendant moved for a directed verdict. The trial

court denied the defendant’s motion. After the parties made their closing arguments, the

trial court read the jury instructions applicable to the case, which included the limiting

instruction regarding propensity evidence. Following deliberations, the jury found the

defendant guilty on all 15 counts of predatory criminal sexual assault of a child.

¶ 43 The defendant filed a posttrial motion for judgment notwithstanding the verdict or

a new trial. The defendant argued that the State failed to prove the defendant guilty beyond

a reasonable doubt and failed to prove every material allegation in the information beyond

a reasonable doubt. The defendant also argued that the trial court erred in allowing K.S. to

testify. The trial court denied the defendant’s motion.

¶ 44 The defendant was sentenced to 10 years in the Illinois Department of Corrections

for each conviction to be served consecutively, for an aggregate term of 150 years, followed

by 3 years of mandatory supervised release. This appeal followed.

¶ 45 II. ANALYSIS

¶ 46 A. Admission of Propensity Evidence under Section 115-7.3

15 ¶ 47 The defendant contends that the trial court erred in admitting the testimony of K.S.

to show the defendant’s propensity to commit predatory criminal sexual assault. The

defendant argues that the trial court abused its discretion in admitting this evidence because

K.S.’s allegations were approximately 14 years old. The defendant further argued that by

the time of trial, “many of the details and witnesses pertinent to the investigation were

unavailable, making K.S.’s highly prejudicial testimony essentially unimpeachable.”

¶ 48 Generally, evidence of other crimes is inadmissible to demonstrate a defendant’s

propensity to commit the charged crime. People v. Donoho, 204 Ill. 2d 159, 170 (2003).

Section 115-7.3 of the Code provides an exception to this general rule. This statute was

enacted to enable courts to admit evidence of other crimes to show a defendant’s propensity

to commit sex offenses if the requirements of the statute are met. Donoho, 204 Ill. 2d at

176.

¶ 49 Section 115-7.3 applies to criminal cases where a defendant is charged with certain

enumerated sex offenses, including predatory criminal sexual assault of a child. 725 ILCS

5/115-7.3(a)(1) (West 2016). If a defendant is tried for one of the enumerated sex offenses,

the State may introduce evidence that the defendant also committed another specified sex

offense, for any relevant purpose. 725 ILCS 5/115-7.3(b) (West 2016). Before other-crimes

evidence may be admitted, however, the trial court must engage in a balancing test,

weighing the probative value of the evidence against undue prejudice to the defendant.

People v. Ward, 2011 IL 108690, ¶ 26. In making this determination, the court may

consider: “(1) the proximity in time to the charged or predicate offense; (2) the degree of

16 factual similarity to the charged or predicate offense; or (3) other relevant facts and

circumstances.” 725 ILCS 5/115-7.3(c) (West 2016).

¶ 50 A reviewing court will not reverse the trial court’s decision to admit other-crimes

evidence absent an abuse of discretion. Donoho, 204 Ill. 2d at 182. An abuse of discretion

occurs where the trial court’s evaluation is arbitrary, fanciful, or unreasonable or where no

reasonable person would take the view adopted by the trial court. Donoho, 204 Ill. 2d at

182. Reasonable minds can differ about whether other-crimes evidence is admissible

without requiring reversal under the abuse of discretion standard. Donoho, 204 Ill. 2d at

186.

¶ 51 We begin with the factual similarities between the allegations made by A.A. and

K.S. To be admissible, other-crimes evidence must have some threshold similarity to the

crime charged. People v. Braddy, 2015 IL App (5th) 130354, ¶ 39. Some factual

differences do not defeat admissibility because no two crimes are identical. Braddy, 2015

IL App (5th) 130354, ¶ 39. Mere general areas of similarity are sufficient to support

admissibility. People v. Lobdell, 2017 IL App (3d) 150074, ¶ 23. As factual similarities

increase, so does the probative value of other-crimes evidence. People v. Smith, 2015 IL

App (4th) 130205, ¶ 23.

¶ 52 The factual similarities in this case are numerous. Both K.S. and A.A. were nine-

year-old girls. The defendant was K.S.’s uncle and A.A.’s great-uncle. The sexual assaults

occurred while the defendant was alone with the victims in a caretaking or supervisory

role. The sexual assaults were committed in the defendant’s bed. He initiated the sexual

assaults by having the victims lie on the bed and remove their clothing. In each sexual 17 assault, the defendant inserted his fingers into the victims’ vaginas. After the sexual

assaults, the defendant asked the victims not to tell anyone about what had happened. In

addition to the factual similarities in this case, the trial court noted at the hearing on the

parties’ motions in limine that K.S. testified and appeared to be credible.

¶ 53 When considering proximity in time between the charged offense and the past

conduct, courts should evaluate this issue on a case-by-case basis. Donoho, 204 Ill. 2d at

183. No bright-line rule controls when a prior offense is too old to be admitted under

section 115-7.3. Braddy, 2015 IL App (5th) 130354, ¶ 32. Although the passage of time

may lessen the probative value of other-crimes evidence, that fact alone does not determine

the admissibility of the evidence. Braddy, 2015 IL App (5th) 130354, ¶ 32.

¶ 54 Here, the information alleged that the charged conduct against A.A. occurred during

the year 2012. K.S.’s allegations allegedly occurred in 1998, approximately 14 years

earlier. The defendant contends that this 14-year period undermines the probative value of

K.S.’s testimony. Other courts, however, have found similar periods of time did not defeat

admissibility. See, e.g., Donoho, 204 Ill. 2d at 186 (finding that although 12 to 15 years

had elapsed, there were substantial factual similarities regarding the nature of the abuse

sufficient to justify the admission of other-crimes evidence); Braddy, 2015 IL App (5th)

130354, ¶ 37 (finding that a 20-year time lapse was significant, but the testimony was

sufficiently credible and reliable to be probative); and Smith, 2015 IL App (4th) 130205,

¶¶ 29 (period of 12 to 18 years). While the 14-year time lapse in the present case is

significant, standing alone, it is insufficient to defeat the admissibility of K.S.’s testimony.

18 ¶ 55 The defendant argues that other relevant facts and circumstances warranted the

exclusion of K.S.’s testimony: (1) the fact that K.S.’s allegations were investigated by

police at the time and found to be unsubstantiated, and (2) the lack of relevant

documentation and witnesses available for trial. The defendant asserted that uncharged

allegations are less probative than conduct for which a defendant has been tried and

convicted and that the jury might have been tempted to convict the defendant because he

had “gotten away with it.” The defendant further asserted that records related to K.S.’s

allegations and the witnesses K.S. made disclosures to were no longer available.

¶ 56 We acknowledge that uncharged allegations may present problems, particularly

when a substantial period of time has elapsed between allegations. We cannot say,

however, that the trial court abused its discretion in this case. The record shows that the

trial court engaged in a meaningful assessment of the probative value of K.S.’s testimony

against the undue prejudice to the defendant. The trial court heard K.S.’s testimony at a

hearing and found that she appeared to be credible. The trial court considered the proximity

in time and observed that the records in this case involving K.S. had apparently been lost

or destroyed and that the defendant was apparently unable to interview witnesses that had

talked to K.S. about the allegations against the defendant. The trial court found, however,

that the probative value of K.S.’s testimony outweighed the prejudicial effect because of

the “extreme similarity” between the allegations made by A.A. and K.S.

¶ 57 The prejudicial impact of the evidence was also limited by a number of factors. The

defendant had an opportunity to cross-examine K.S. on the record prior to trial. At trial,

the defendant was able to establish that the allegations had been investigated and that no 19 charges were filed against the defendant as a result of the investigation. Finally, the trial

court in this case gave a limiting instruction to the jury prior to K.S.’s testimony which

stated that the jury was to consider her testimony only for the limited purpose of the

defendant’s propensity to commit a crime. This instruction was given again prior to the

jury’s deliberations.

¶ 58 Considering the foregoing, we find that the trial court did not abuse its discretion in

admitting K.S.’s testimony pursuant to section 115-7.3 to demonstrate the defendant’s

propensity to commit predatory criminal sexual assault of a child.

¶ 59 B. Sufficiency of the Evidence

¶ 60 The defendant contends that the evidence was insufficient to support convictions

for all 15 counts of predatory criminal sexual assault alleged in the information because

the evidence was based on “estimates” made by the victim. We disagree.

¶ 61 A criminal conviction will not be reversed unless the evidence is so improbable or

unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v. Collins,

106 Ill. 2d 237, 261 (1985). When the defendant challenges the sufficiency of the evidence,

it is not the reviewing court’s function to retry the defendant. Collins, 106 Ill. 2d at 261.

Rather, “ ‘the relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Collins, 106

Ill. 2d at 261 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It is trier of fact’s

responsibility to make determinations regarding the credibility of the witnesses and the

weight to be accorded to their testimony, to resolve conflicts or inconsistencies in the 20 evidence, and to draw all reasonable inferences from the evidence. People v. Ortiz, 196 Ill.

2d 236, 259 (2001). A reviewing court will not substitute its judgment for that of the trier

of fact on these matters. Ortiz, 196 Ill. 2d at 259. A reviewing court, however, is not

absolutely bound by the trier of fact’s verdict, as the court’s ultimate duty is to

independently evaluate the reasonableness of the evidence. People v. Cunningham, 212 Ill.

2d 274, 280 (2004).

¶ 62 The testimony of a single witness is sufficient to convict even when contradicted by

the defendant if the testimony is positive and the witness is credible. People v. Anderson,

325 Ill. App. 3d 624, 634 (2001). The State is not required to corroborate a victim’s

testimony with physical or scientific evidence to convict a defendant. People v. Willer, 281

Ill. App. 3d 939, 948-49 (1996). Moreover, as the appellate court has observed, other

jurisdictions have found that a child victim need not specify the exact number of times the

sexual acts occurred, so long as there were “ ‘some reliable indicia that the number of

charged acts actually occurred.’ ” People v. Letcher, 386 Ill. App. 3d 327, 334-35 (2008)

(quoting Rose v. State, 123 Nev. 194, 203 (2007)).

¶ 63 To sustain a conviction for predatory criminal sexual assault of a child, the State

must prove that the defendant was 17 years of age or older, that the defendant committed

an act of sexual penetration, and that the victim was under the age of 13. 720 ILCS 5/11-

1.40(a)(1) (West 2016). “Sexual penetration” is defined as:

“any contact, however slight, between the sex organ or anus of one person

and an object or the sex organ, mouth, or anus of another person, or any

intrusion, however slight, of any part of the body of one person or of any 21 animal or object into the sex organ or anus of another person, including, but

not limited to, cunnilingus, fellatio, or anal penetration. Evidence of emission

of semen is not required to prove sexual penetration.” 720 ILCS 5/11-0.1

(West 2016).

¶ 64 The type of sexual penetration is not an element of the offense, and its inclusion in

the charging document is merely surplusage. People v. Foley, 206 Ill. App. 3d 709, 718

(1990). If the statutory language used describes specific conduct, the charging instrument

need not specify the exact means by which the conduct was carried out. Foley, 206 Ill. App.

3d at 718. “The State need only prove that a type of sexual penetration occurred beyond a

reasonable doubt.” (Emphasis in original.) Foley, 206 Ill. App. 3d at 718.

¶ 65 Here, A.A. testified that the defendant committed numerous acts of sexual

penetration against her during the year of 2012, when she was nine years old. A.A. provided

a time frame for when the sexual acts occurred, testifying that they began in February 2012

and ended in October 2012. A.A. testified that while staying at the defendant’s apartment,

he had A.A. remove her clothes and lie on the bed. She stated the defendant inserted his

fingers and tongue into her vagina. A.A. stated that these acts occurred on three to seven

occasions but “probably closer to three.” A.A. further testified that when the defendant

lived in the shed behind A.A.’s house, he inserted his fingers and tongue into her vagina.

A.A. recalled that on three occasions, the defendant bound her arms. A.A. also recalled that

on two other occasions, the defendant bound both her arms and legs. A.A. testified that

when the defendant bound both her arms and legs, he only inserted his fingers into her

vagina. A.A. further testified that the defendant committed the sexual acts five times when 22 she was bound in some fashion and another five to eight times when she was not bound.

A.A. further estimated that the sexual acts in the shed occurred 10 times, “might be more.”

When asked to provide a total number of times the defendant inserted his fingers into

A.A.’s vagina, A.A. testified “[a]round 15.” Thus, the evidence was sufficient to support

all 15 convictions for predatory criminal sexual assault of a child.

¶ 66 For the foregoing reasons, the defendant’s convictions are affirmed.

¶ 67 Affirmed.