2022 IL App (4th) 210560-U NOTICE NO. 4-21-0560 FILED This Order was filed under December 8, 2022 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT limited circumstances allowed 4th District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Piatt County RANDY A. YOUNKER, ) No. 19CF50 Defendant-Appellant. ) ) Honorable ) Rodney S. Forbes, ) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court. Justices Harris and Zenoff concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion by admitting propensity evidence under section 115-7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 2018)); the evidence was relevant, probative, and not unfairly prejudicial.
¶2 A jury convicted defendant, Randy A. Younker, of one count of predatory criminal
sexual assault of a child (720 ILCS 5/11-1.40 (a)(1) (West 2018)). The State’s evidence included
the testimony of four other victims of defendant admitted on the State’s motion under section 115-
7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3 (West 2018)). The
evidence further included testimony by the complaining witness, also admitted under section
115-7.3, of an offense committed against her by defendant in a different county.
¶3 On appeal, defendant argues, “[T]he sheer volume, dissimilarity, and age of the
other-crimes evidence” the trial court admitted under section 115-7.3 was an abuse of discretion and deprived him of a fair trial. He does not challenge the sufficiency of the evidence. The State
argues no abuse of discretion occurred. We agree and affirm.
¶4 I. BACKGROUND
¶5 On June 25, 2019, the State charged defendant with two counts of sex crimes
against sisters Au. S. and Ad. S. The State alleged defendant had committed predatory criminal
sexual assault of a child (720 ILCS 5/11-1.40 (a)(1) (West 2018)) against Au. S. by placing his
finger in her vagina. It alleged he had committed aggravated criminal sexual abuse (720 ILCS
5/11-1.60 (c)(1)(i) (West 2018)) against Ad. S. by fondling her sex organ. It alleged both offenses
occurred between April 2017 and April 22, 2019, in Piatt County. The court severed the counts on
defendant’s motion. The State elected to proceed on the count involving Au. S.
¶6 The State filed five motions in limine invoking section 115-7.3 of the Code. It
sought admission of evidence of other charged and uncharged offenses to show defendant’s
propensity, intent, and motive to commit the charged offense. The court considered each motion
in turn.
¶7 First, the State sought to admit a certified copy of defendant’s 2003 conviction of a
count of aggravated criminal sexual abuse, which was based on his fondling of the breasts of A.Y.,
his daughter. It further sought to admit the testimony of A.Y. relating to incidents not resulting in
convictions. A.Y. would testify defendant touched her vagina with his finger and put his finger in
her vagina “on multiple occasions” when she was about seven or eight. When she was between 8
and 15 years old, defendant would touch her breasts both over and under her clothing. When she
was 13 or 14, defendant began touching her leg and side when she and her brother were watching
television with him. On one occasion, after A.Y.’s brother left the room, defendant placed A.Y.’s
hand on his uncovered penis and moved it back and forth.
-2- ¶8 Defense counsel objected. Counsel conceded courts have admitted evidence of
offenses committed more than 10 years before a charged offense but argued the court should deem
this evidence unduly prejudicial because it “would really amount to piling on the scales of justice
against my client at trial.”
¶9 The court granted the motion. It found there was “proximity in time,” although
there was a “delay” which would “somewhat lessen the probative value of this evidence.” It further
found the incidents A.Y. was expected to describe were similar to that in the charge based on the
ages of the victims, the type of abuse, the location of the abuse in residences, and the victims’
status as family members. It therefore concluded the probative value of this evidence greatly
outweighed any unfair prejudice to defendant.
¶ 10 Second, the State sought to admit the testimony of C.S. C.S.’s sister was formerly
married to defendant, and defendant and C.S.’s sister lived in the same residence as C.S. for about
three years. C.S. was nine in 1987, when defendant began dating her sister. She was also nine when
he began touching her breasts and putting his hand under her clothing and placing his finger in her
vagina. These incidents occurred “regularly” while she lived in the same residence as defendant
and less frequently when she went to visit her sister when her sister and defendant were living
elsewhere. When C.S. was about 13, defendant took her on a motorcycle ride to a park and had
sexual intercourse with her while she tried to fight him off. She then began running away from
home and thereafter had little contact with defendant.
¶ 11 Defense counsel argued the probative value of the testimony would be low because
it would all relate to uncharged conduct.
¶ 12 The court granted this motion. Its analysis was essentially the same as for the first
motion in limine. It noted the roughly 30-year gap between the incidents to which C.S. would
-3- testify and the charged offense lessened the probative value of the evidence. However, this gap
“[was] not fatal.”
¶ 13 Third, the State sought to admit the testimony of L.C., C.S.’s daughter and a niece
of defendant’s ex-wife. In 2003, L.C. told a police officer that, when she was eight, she was in the
living room of her aunt’s house. Defendant grabbed her and put her in his lap. He put his hand
beneath her underpants and touched her “private.” He put his finger inside her “private” “ ‘a
little.’ ” Something like this happened “multiple times” and sometimes it hurt. She reported these
incidents to her mother and to a cousin.
¶ 14 Defense counsel objected, arguing the incidents at issue occurred 17 or 18 years
before the incident here and the charges based on L.C.’s reports were dismissed, making admission
of this evidence unfairly prejudicial.
¶ 15 The court’s analysis again was essentially similar:
“Again, weighing the probative value of this evidence against the undue
prejudice to the defendant, the Court has considered the proximity in time. The
charged offense occurred approximately sixteen years after this alleged offense
with [L.C.]. So it’s older. That lessens the probative value. But again, that is not
fatal. The Court is to look at the factual similarity of the events. In this case, there
was a family relationship or frequent visits and contact with both alleged victims;
that the defendant engaged in sexual conduct or abuse of the minor girls in their
residence; that the girls were of similar age; and that [Au. S.] was ten to twelve and
[L.C.] was between five and eight. In both instances the defendant is alleged to have
committed similar sexual acts on the minor victim in that he used his fingers to
touch or penetrate the victims’ vaginas, and the defendant is significantly older than
-4- the victim and a family member. Given the degree of factual similarity to the charge
predicate offense I will allow the testimony of [L.C.] in this case. I do not find that
it would unduly prejudice the defendant.”
¶ 16 Fourth, the State sought to admit Au. S.’s testimony about an incident which
resulted in a charge against defendant in Macon County. Au. S. would testify that when she was
about 11, defendant and his wife—Au. S.’s grandmother—were staying with Au. S.’s immediate
family. One morning, she and Ad. S. got into the bed defendant and her grandmother were sharing.
Au. S. fell asleep. She woke to find defendant had his hand beneath her underpants and was rubbing
her vagina.
¶ 17 Defense counsel argued, because defendant was facing charges in Macon County
for the offense to which Au. S. would testify, “at a certain point we get to where essentially we’re
just piling on, and any probative value, Judge, is clearly outweighed by the undue prejudice to
[defendant].”
¶ 18 The court granted the motion, noting the incident at issue was close in time to the
charged incident and quite similar.
¶ 19 Fifth, the State sought to admit Ad. S.’s testimony concerning the conduct charged
in the severed count. She would testify that, when defendant and her grandmother would visit, she
would get into their bed in the morning. After her grandmother got up, defendant would touch her
“ ‘under her stomach’ ”—an area which she identified as her vagina in a forensic interview—and
move his hand around. This happened “multiple times.”
¶ 20 Defense counsel argued it was inappropriate for the State to use evidence relating
to a severed count. The court granted this motion, noting the incident was close in time and quite
similar.
-5- ¶ 21 At defendant’s jury trial, the State argued in its opening, “You are *** going to hear
evidence that this is not the first time that [defendant] has done something like this.”
¶ 22 The jury heard evidence defendant told the police he had not sexually touched
Au. S. He told the police he believed Au. S.’s and Ad. S.’s claims were the result of the girls’
father attempting to retain visitation. He also claimed Au. S. was angry because he had relayed her
admission to having smoked marijuana to his wife.
¶ 23 Au. S. was 15 at the time of trial. She testified she saw her grandmother and
defendant every weekend. One weekend around Thanksgiving, when she was about 11 or 12, she
and Ad. S. got into bed between defendant and her grandmother, who were visiting her family in
Decatur in Macon County. Defendant “slid his hand into [her] pants, and he started massaging
[her] vagina area.” She did not know how to react, so she “just laid there and just waited until it
was done.”
¶ 24 Later, Au. S.’s family visited her grandmother and defendant at their apartment in
Monticello in Piatt County. She testified that at her grandparents’ apartment, she was lying
crosswise between defendant and her grandmother, watching a movie with her feet on defendant’s
lap. Their legs were covered by a blanket. Defendant slowly slid his hand up her leg. He pushed
his hand under her shorts and underwear and put his finger into her vagina. This hurt, but she was
afraid to say anything, even when defendant left for the bathroom. She could not remember
whether anyone else was in the room at the time. When she and her family left, defendant
whispered he was sorry. She did not disclose the incident to anyone because she was afraid of how
her mother’s boyfriend, Jason, would react.
¶ 25 On cross-examination, Au. S. said she believed her mother, Jason, and her brother
JJ were probably present in the room, sitting on another couch. She also said Ad. S. might have
-6- been sitting on the couch to the right of her grandmother. She knew her grandmother was awake
during the incident because her grandmother asked defendant a question about the movie. She
thought her family members had fallen asleep. She held still as defendant started touching her and
during the sexual touching even though she was thinking about calling out to her grandmother or
her mother.
¶ 26 Au. S. agreed she had denied being touched by defendant when her stepfather asked
her whether any such incident had occurred. Au. S. also agreed she had told defendant she had
smoked marijuana with her stepfather.
¶ 27 Alison Elsea, the senior forensic interviewer at the Child First Center in Decatur,
authenticated a video recording of the interview she conducted with Au. S. and a transcript of that
recording. The recording was shown with redactions to which the parties had agreed.
¶ 28 Au. S. was not quite 13 when the interview occurred and was in seventh grade. She
reported to Elsea that Ad. S. was the first to disclose abuse by defendant. Au. S. and Ad. S. were
staying in Kentucky with Au. S.’s stepfather, who was Ad. S.’s father. (Au. S. thought of her
stepfather as her real father because he had been with her mother from when she was three months
old. Her mother and her stepfather no longer lived together.) Ad. S. told her father defendant was
abusing her. Ad. S.’s father then asked Au. S. if defendant had touched her. She denied any abuse,
but she told Elsea the denial had been a lie.
¶ 29 Au. S. described the incident in Monticello to Elsea, explaining it occurred when
her mother, Jason, and her brother JJ—who was “just a baby”—were dozing on the other couch.
When prompted, she said Ad. S. was also there.
“So they’re dozing off. Everybody was like dozing off. And then I feel him
start touching my legs, and then he started putting his hands up my shorts, and then
-7- he was touching my private part, and then he put his finger in me, and it didn’t feel
good at all. It hurted [sic]. And I didn’t move about it. In my head the whole time I
was kind of saying [‘]stop, stop, stop.[’] In my head I was yelling [‘]Mom.[’] Like,
I didn’t know what to do.”
Au. S. said the other name for her private part was vagina. She said her grandmother was dozing
during the movie but then asked defendant a question about the movie while the abuse was
occurring. He answered it as though nothing unusual was happening.
¶ 30 C.S. was 43 when she testified. Defendant had married C.S.’s sister, Crystal, in
1985 or 1986, but he had lived with Crystal for two years before the two married. When defendant
and Crystal first started living together, the two stayed with C.S. in C.S.’s mother’s house. C.S.
was not quite nine when Crystal and defendant started dating, and Crystal was seven and a half
years older than C.S. C.S. was nine when defendant started touching her vagina and breasts both
over and under her clothing; this happened “[a]ll the time” when he was living in the same house
with her. Defendant would start touching her whenever there was no one nearby. The touching
continued until she was 15, but between the time she was 13 and 15, she “ran away a lot” to avoid
defendant. (During some of this time, defendant and Crystal had their own home.) Defendant also
would “pretty much make it to where like [she] was his girlfriend,” which meant “basically like
you’re having sex.” She tried to tell her mother about the abuse once early on, but, when her mother
confronted defendant, “he played it like he didn’t do anything wrong,” and her mother did nothing
more. Furthermore, C.S. was afraid reporting the abuse would be harmful to Crystal—she had
observed that defendant was abusive to Crystal.
-8- ¶ 31 C.S. continued seeing Crystal in defendant’s presence even after C.S. had her own
children. She brought her children because she thought she was defendant’s only victim.
Nevertheless, she was careful to ensure her daughter was never alone with defendant.
¶ 32 After C.S.’s testimony, the court told the jury defendant had been convicted of
aggravated criminal sexual abuse in a 2003 Macon County case; the count on which he was
convicted stated he had fondled the breasts of A.Y. A.Y. was one of Crystal’s two children with
defendant.
¶ 33 A.Y. was 32 when she testified. She said that, from the time she was 7 until she
turned 15 or 16, defendant touched her breasts and vagina. This happened too many times for her
to count. He would take her into the bedroom and touch her. At first, he would touch her through
her clothing, but later, he sometimes touched her under her clothing. These incidents sometimes
occurred when other people were present but not watching. For instance, he touched her near her
vagina under her swimsuit when they were in the water during a family expedition to a beach.
There were other similar incidents. One morning when she was 15, she was in the house with her
father and brother after her mother left for work. Defendant called her into his bedroom and asked
her to rub his back. He got upset, she tried to leave, and he pulled her back and punched her in the
face. He then pulled his pants down and tried to push her head toward his penis. When she refused
the implied order, he pushed her hand onto his penis and had her “jack him off.” She again tried
to leave the room, but he pulled her back and told her he would kill her and her mother if she said
anything. Further, she did not disclose the other abuse because she was afraid defendant was going
to hurt her mother, whom he had threatened to hurt more than once. She said nothing until her
cousin disclosed abuse and the police interviewed her.
-9- ¶ 34 L.C., C.S.’s daughter, was 26 when she testified. The family was close, so she saw
Crystal and defendant regularly. She would often spend weekends at the house where defendant
and Crystal lived with their son and their daughter A.Y. She described repeated acts of abuse by
defendant, which, as best she could recall, started when she was four years old. The first time she
could remember defendant abusing her, several family members were present in the same room
but asleep. A.Y. was asleep next to her, and Crystal was also present but asleep. Defendant put his
hands into her pants and told her to be quiet. On another occasion, she was awakened by defendant
taking her out of her bedroom. He then tried to force his penis into her mouth. Defendant would
often wait for times when the two were alone to try to pull her clothing down. When others left the
room he was in, he would touch her breasts, her vaginal area, and her buttocks. L.C. said some
form of abuse happened every time she went to defendant’s house: “He would find any time that
he could do something to [her], even if there were people in the house.” The abuse went on for
about four years. Defendant had threatened to kill her mother and her aunt, so she did not tell
anyone about the abuse while it was still occurring. However, she later realized she did not have
to fear defendant and disclosed the abuse.
¶ 35 Ad. S. was 11 at the time of the trial. When she was six or seven, she was in bed
with defendant and her grandmother. Defendant touched her “under [her] stomach.” She and
defendant would “play around” or wrestle when her grandmother was out of the room and then
“it” would happen. She was not sure how many times some form of abuse had happened, but she
agreed it was more than five times. She had disclosed the abuse to her father when he asked
whether anything had happened.
¶ 36 Defense counsel made no objections during trial to any evidence presented.
Counsel did, however, object to the use of a transcript of Elsea’s interview of Au. S.
- 10 - ¶ 37 The State rested after Ad. S.’s testimony. Defendant rested without presenting any
evidence.
¶ 38 The court instructed the jury concerning the use of other-crimes evidence, stating,
“Evidence has been received that the defendant has been involved in offenses other than that
charged in the information.” The court further advised the jury it should consider such evidence
only for “the defendant’s intent, motive, and propensity to commit sexual assaults.” The jury found
defendant guilty of the charged offense.
¶ 39 Defendant filed a posttrial motion in which he asserted, among other things, the
court erred in granting all five motions in limine. He contended, “The Court failed to balance the
State’s requested evidence versus the unfairly prejudicial impact it would have on Defendant.” He
particularly objected to admission of Ad. S.’s testimony after he moved to sever the count
involving her. The court rejected defendant’s argument, stating it deemed the evidence was
admissible for the reasons it stated when it granted the motions. The court noted, had the counts
not been severed, the jury hearing both counts would likely have heard the forensic interview of
Ad. S.
¶ 40 The court sentenced defendant to 38 years’ imprisonment, and the State then
dismissed the severed count. Defendant moved for reconsideration of his sentence, the court denied
the motion, and defendant timely appealed.
¶ 41 II. ANALYSIS
¶ 42 Defendant now argues the trial court abused its discretion by allowing other-crimes
evidence to dominate the trial. He suggests, under the holding in People v. Cardamone, 381 Ill.
App. 3d 462 (2008), a court must consider the cumulative effect of all the other-crimes evidence
when it weighs the probative value of the evidence the State seeks to admit under section 115-7.3
- 11 - against any undue prejudice to the defendant. Here, he contends the court should have limited the
other-crimes evidence to “only that which was necessary to show a propensity,” rather than
admitting all the evidence the State sought to admit under section 115-7.3. Defendant further
argues the court abused its discretion by admitting evidence of acts that were dissimilar to the
charged act and evidence of acts from the distant past. Finally, he contends the State’s case was
highly dependent on the credibility of a single witness, Au. S., and this limitation prevents the
evidence from being overwhelming; he thus argues the State cannot show the court’s abuse of
discretion was harmless beyond a reasonable doubt.
¶ 43 The State argues the court properly applied section 115-7.3 in granting each motion
in limine. Further, Cardamone “is distinguishable, as the number of witnesses and uncharged acts
presented in Cardamone dwarfs those here.”
¶ 44 Under Illinois Rule of Evidence 404(b) (eff. Jan. 1, 2011), “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action
in conformity therewith except as provided by sections 115-7.3, 115-7.4, and 115-20 of the
[Code].” See also People v. Donoho, 204 Ill. 2d 159, 170 (2003). Section 115-7.3 permits the use
of evidence of other crimes in cases in which the defendant is accused of certain sex crimes
(including predatory criminal sexual assault of a child); that section allows the trier of fact to
consider such evidence, “if that evidence is otherwise admissible under the rules of evidence[,]
*** for its bearing on any matter to which it is relevant.” 725 ILCS 5/115-7.3(a)(1), (b) (West
2018). As Rule 404(b) indicates, propensity to commit sex offenses is one of those matters for
which other-crimes evidence is admissible under section 115-7.3. See Donoho, 204 Ill. 2d at 176.
¶ 45 Section 115-7.3(c) provides:
- 12 - “In weighing the probative value of the evidence against undue prejudice to the
defendant, the court may consider:
(1) the proximity in time to the charged or predicate offense;
(2) the degree of factual similarity to the charged or predicate offense; or
(3) other relevant facts and circumstances.” 725 ILCS 5/115-7.3(c)
(West 2018).
¶ 46 Our supreme court has urged trial courts “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.” Donoho, 204 Ill. 2d at 186.
“When weighing the prejudicial effect of admission, a court should consider whether the
other-crimes evidence will become the focus of the trial, or whether it might otherwise be
misleading or confusing to the jury.” People v. Perez, 2012 IL App (2d) 100865, ¶ 47.
Nevertheless, a reviewing court should not overturn a decision to admit other-crimes evidence
absent an abuse of discretion. Donoho, 204 Ill. 2d at 182. An abuse of discretion occurs when the
trial court’s decision is arbitrary, fanciful, or unreasonable or when no reasonable person would
take the position adopted by the trial court. Donoho, 204 Ill. 2d at 182.
¶ 47 Defendant argues the trial court abused its discretion by admitting other-crimes
evidence which, by exceeding the amount strictly necessary to show his propensity to commit sex
offenses of the kind with which he was charged, suggested to the jury (in essence), he is an
incorrigible sex offender. He suggests this was error under Cardamone. We deem Cardamone to
be distinguishable.
¶ 48 In Cardamone, the defendant, a gymnastics coach, was charged with 26 counts of
predatory criminal sexual assault of a child or aggravated criminal sexual abuse against 14
- 13 - gymnastics students who trained at the gym where he coached. Cardamone, 381 Ill. App. 3d at
464. The State moved in limine under section 115-7.3 to allow testimony of uncharged conduct by
the complainants and other witnesses; the court allowed the testimony by the complainants and
one other witness. Cardamone, 381 Ill. App. 3d at 488. However, the court “excluded some of the
State’s requested evidence, namely, incidents that allegedly occurred with persons other than the
complainants or outside of a gymnastics setting (e.g., regarding [the] defendant’s stepsister).”
Cardamone, 381 Ill. App. 3d at 488. A jury found the defendant guilty of nine counts of aggravated
criminal sexual abuse against seven complainants. Cardamone, 381 Ill. App. 3d at 488.
¶ 49 On appeal, the appellate court in Cardamone concluded the trial court had abused
its discretion by admitting more evidence of uncharged conduct than was necessary to show the
defendant’s propensity to commit the offenses. Cardamone, 381 Ill. App. 3d at 493-94. The
Cardamone court, examining only the uncharged conduct testified to by the seven complainants
involved in the charges resulting in convictions, determined the jury had heard evidence of
between 158 and 257 incidents of abuse from those witnesses (Cardamone, 381 Ill. App. 3d at
492); the range was the result of uncertainties in the complainants’ testimony. The Cardamone
court held the trial court should have considered other relevant circumstances in admitting
evidence under section 115-7.3. Of most relevance here:
“In the face of so many allegations of misconduct, there was a great risk that the
jury could find that defendant must have done something, or that it could find
defendant guilty beyond a reasonable doubt not of the charges but, instead, of
uncharged acts.” (Emphasis in original.) Cardamone, 381 Ill. App. 3d at 494.
¶ 50 Defendant is correct this case presents a parallel with Cardamone in that the jury
heard more propensity evidence than it heard evidence of the charged offense. However, that
- 14 - limited parallel fails to make Cardamone dispositive here. The discussion of Cardamone in Perez
makes clear why no abuse of discretion occurred here. In short, “Cardamone was an extreme case”
(Perez, 2012 IL App (2d) 100865, ¶ 49), and this case is not.
¶ 51 In Perez, the State charged the defendant with two counts of aggravated criminal
sexual abuse against S.C. (the much younger sister of the defendant’s girlfriend) and two counts
of aggravated criminal sexual abuse against D.W. (the daughter of the defendant’s girlfriend).
Perez, 2012 IL App (2d) 100865, ¶¶ 4-5. The court severed the counts relating to the two victims.
Perez, 2012 IL App (2d) 100865, ¶ 4. However, in the proceedings on the counts relating to S.C.,
the State sought admission of S.C.’s testimony about multiple uncharged incidents and D.W.’s
testimony about the charged incidents in the severed matter. Perez, 2012 IL App (2d) 100865, ¶ 5.
The court, interpreting Donoho and Cardamone, “determined that the statute and case law
permitted introduction of the evidence” and therefore permitted the State to introduce the evidence.
Perez, 2012 IL App (2d) 100865, ¶ 5.
¶ 52 At trial, S.C. testified to seven specific incidents or classes of incidents:
(1) One class of incidents of abuse occurred “more than five times” (Perez, 2012
IL App (2d) 100865, ¶ 10);
(2) Another class of incidents of abuse occurred “[o]n more than 10 occasions”
(Perez, 2012 IL App (2d) 100865, ¶ 11);
(3) “ ‘[M]ost every time’ ” S.C. was at her sister’s house, the defendant would
commit acts of abuse (Perez, 2012 IL App (2d) 100865, ¶ 11);
(4) “[A] ‘couple’ of times” the defendant waited for S.C. when she returned from
school and tried to enter the house with her (Perez, 2012 IL App (2d) 100865, ¶ 12);
- 15 - (5) Once, when S.C. was returning from school, the defendant came into her home
with her and tried to forcibly hug her (Perez, 2012 IL App (2d) 100865, ¶ 12);
(6) The defendant once approached S.C. while she was ironing and “pushed his
penis against her bottom, and wrapped his arms around her stomach” (Perez, 2012
IL App (2d) 100865, ¶ 13); and
(7) S.C. testified she told a detective, “[O]n about 18 occasions” the defendant
climbed into bed with her and pressed his groin against her “ ‘butt’ ” and back
(Perez, 2012 IL App (2d) 100865, ¶ 15).
Thus, S.C. testified to 37 incidents in total⸻assuming no overlap, but not attempting to quantify
the incidents S.C. described as happening “ ‘most every time.’ ” Perez, 2012 IL App (2d)
100865, ¶ 11.
¶ 53 D.W. testified the “defendant would come up from behind [her], put his arms
around her shoulders, and ‘go down’ to her stomach such that his arms and hands would touch her
breasts”; “[t]his happened ‘like 20’ times.” Perez, 2012 IL App (2d) 100865, ¶ 19. D.W.’s
testimony brought the total incidents of which the jury heard testimony to approximately 57.
¶ 54 The jury found the defendant guilty of both charges. Perez, 2012 IL App (2d)
100865, ¶ 40. Defendant appealed, contending, inter alia, “that reversible error occurred where
the majority of the State’s case was comprised of other-crimes evidence.” Perez, 2012 IL App (2d)
100865, ¶ 43.
¶ 55 The Perez court “recognized that Cardamone’s application of section 115-7.3 to
the circumstances therein likely reflect[ed] the ‘outer bounds’ of the rule, leaving more ‘subtle
inner striations’ to determining when the volume of other-crimes evidence admitted under section
- 16 - 115-7.3 becomes unduly prejudicial.” Perez, 2012 IL App (2d) 100865, ¶ 49 (quoting People v.
Walston, 386 Ill. App. 3d 598, 619 (2008)).
¶ 56 Further, the Perez court warned against giving undue weight to issues of undue
prejudice in cases involving evidence introduced under section 115-7.3:
“[I]n general, the danger of unfair prejudice in the context of a section 115-7.3
case, as opposed to a common-law other-crimes case, is greatly diminished by the
very fact that section 115-7.3 upended the long-standing rule that other-crimes
evidence to establish propensity is per se unfairly prejudicial—instead,
introduction for propensity is actually proper. [Citation.] Thus, while undue
prejudice can arise in a section 115-7.3 case, ‘the actual limits on the trial court’s
decisions on the quantity of propensity evidence to be admitted under section
115-7.3 are relatively modest, especially when combined with the highly
deferential abuse-of-discretion standard that governs review of such trial court
decisions.’ [Citation.] Moreover, while the court must carefully consider the
quantity of other-crimes evidence and be mindful of probative value and undue
prejudice, it may consider that any undue prejudice of ‘more thorough other-crimes
evidence’ admitted under section 115-7.3 will be ‘less’ unduly prejudicial than in a
common-law other-crimes case. [Citation.]” (Emphasis in original.) Perez, 2012 IL
App (2d) 100865, ¶ 49 (quoting Walston, 386 Ill. App. 3d at 619-22).
¶ 57 We conclude this case is most similar to Perez; it is not “an extreme case” (Perez,
2012 IL App (2d) 100865, ¶ 49), and no abuse of discretion occurred.
¶ 58 First, we agree with the State that the number of incidents presented to the jury here
was qualitatively different in effect from the number in Cardamone. The Cardamone court
- 17 - determined “the seven complainants upon whose allegations [the] defendant was convicted
testified that [the] defendant committed between 158 and 257 uncharged acts.” Cardamone, 381
Ill. App. 3d at 491. Further, because the Cardamone court attempted to enumerate only the
incidents testified to by the seven complainants whom the jury found the defendant guilty of
abusing, the total number of incidents of which the Cardamone jury heard testimony likely
numbered in the multiple hundreds. Here, defendant makes no attempt to enumerate the number
of incidents, but points instead to the State’s reliance on the witnesses’ testimony to patterns of
abuse. Thus, when defendant tabulates the incidents used as propensity evidence, he notes Au. S.’s
testimony to one act, C.S.’s testimony to acts occurring “ ‘[a]ll the time’ ” from ages 9 to 15,
A.Y.’s testimony to acts occurring “ ‘[t]oo many times to count’ ” from ages 7 to 16, L.C.’s
testimony to acts occurring “from ages 4 to 8” “ ‘[e]very time’ ” she made one of her regular
weekend visits to defendant’s house, and Ad. S.’s testimony to acts occurring “ ‘[m]ore than five
times’ ” when she was 7. Although this testimony might leave the impression of a large number
of acts, the jury could not have reasonably supposed the witnesses were describing multiple
hundreds of acts. The evidence here was more akin to the approximately 57 acts described in Perez.
¶ 59 Second, in contrast to Cardamone, little risk existed the jury “could find defendant
guilty beyond a reasonable doubt not of the charges but, instead, of uncharged acts.” Cardamone,
381 Ill. App. 3d at 494. Much of the propensity evidence came from adult witnesses who obviously
were not the victim of the charged offense. Nothing in the trial proceedings suggests the jury could
have believed Ad. S. was the victim of the charged offense. Au. S. testified to a single uncharged
offense, one occurring in Macon County, not Piatt County. This stands in contrast to Cardamone,
in which the jury heard 14 complaining witnesses testify to 26 charges, but also hundreds of
- 18 - uncharged offenses, circumstances greatly increasing the probability the jury would lose track of
what evidence was propensity evidence and what evidence described charged offenses.
¶ 60 Defendant argues, factual differences between this case and Cardamone aside,
under the rule in Cardamone, the trial court was required to act to limit the predisposition evidence
to “only that which was necessary to show a propensity.” In effect, he argues, “In the face of so
many allegations of misconduct, there was a great risk that the jury could find that defendant must
have done something.” (Emphasis in original.) Cardamone, 381 Ill. App. 3d at 494. He thus
contends the court erred when it permitted the State to introduce evidence beyond the quantity it
needed to make its legitimate case; he suggests the admission of older and dissimilar propensity
evidence was particularly unnecessary.
¶ 61 We disagree with defendant. First, we emphasize all the evidence was highly
probative in that it demonstrated defendant’s persistent propensity to opportunistically abuse his
young female relatives. It was thus for the court to decide in its discretion precisely how much of
this evidence to admit. As the Cardamone court conceded, when propensity evidence is probative,
“it is difficult to determine precisely where to draw the line” as to when such evidence becomes
excessive. Cardamone, 381 Ill. App. 3d at 497. But, as Perez suggests, when the highly deferential
abuse-of-discretion standard is combined with the lessened undue prejudice associated with
evidence admitted under section 115-7.3, the actual limits on the propensity evidence admitted
under section 115-7.3 are necessarily quite narrow, and findings of an abuse of discretion should
generally be limited to extreme cases⸻such as Cardamone. Perez, 2012 IL App (2d) 100865,
¶ 49. For the reasons we have stated, this was not such a case.
¶ 62 Beyond objecting to the volume of the other-crimes evidence, defendant contends
that the specifics of the other-crimes evidence denied him a fair trial for two reasons. First,
- 19 - defendant argues the court abused its discretion by admitting evidence of acts that were dissimilar
to the charged act: “[E]ven though the charged offense was a single act, without a threat of force
element, the State elicited evidence of threats of force from two witnesses, A.Y. and L.C., that
[defendant] threatened to kill them and their family.” Second, defendant argues the court abused
its discretion by admitting evidence of acts from the distant past: “[T]hree of the other-crimes
witnesses, C.S., A.Y., and L.C., testified to events that happened decades ago, over periods of
years, rendering the testimony especially prejudicial and difficult to defend against.” We find these
arguments unpersuasive.
¶ 63 Initially, we deem defendant, by failing to offer cogent argument and include
citations to relevant authorities, has forfeited his assertion that some of the evidence related to acts
that were too dissimilar to the charged act. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). To be
sure, defendant notes, under section 115-7.3(c)(2), a court must consider, among other things, “the
degree of factual similarity to the charged or predicate offense.” 725 ILCS 5/115-7.3(c)(2) (West
2018). However, nowhere in his brief does defendant cite any authority addressing when
other-crimes evidence becomes so dissimilar as to cause unfair prejudice.
¶ 64 Forfeiture aside, the other crimes evidence was consistent with the standard set out
in Donoho: “to be admissible, other-crimes evidence must have ‘some threshold similarity to the
crime charged.’ ” Donoho, 204 Ill. 2d at 184 (quoting People v. Bartall, 98 Ill. 2d 294, 310 (1983)).
Here, all the other-crimes evidence related to defendant’s abuse of young female relatives,
primarily by digital penetration of the vagina, touching near the vagina, or touching of breasts. We
acknowledge the alleged dissimilarity, specifically the “threat of force element,” but note the
other-crimes evidence must have only “ ‘some threshold similarity to the crime charged.’ ”
(Emphasis added.) Donoho, 204 Ill. 2d at 184 (quoting Bartall, 98 Ill. 2d at 310). We conclude the
- 20 - trial court’s decision to admit the other crimes evidence was not arbitrary, fanciful, or
unreasonable.
¶ 65 Second, we disagree that it was an abuse of discretion for the court to admit
other-crimes evidence that occurred years before the charged conduct. “[The] admissibility of
other-crimes evidence should not *** be controlled solely by the number of years that have elapsed
between the prior offense and the crime charged.” (Internal quotation marks omitted.)
Donoho, 204 Ill. 2d at 183. “Instead, courts should evaluate this issue on a case-by-case basis.”
Donoho, 204 Ill. 2d at 183. The supreme court has declined to adopt a bright-line rule about when
prior acts are per se too old to be admitted under section 115-7.3. Donoho, 204 Ill. 2d at 183-84.
¶ 66 According to the information, the act for which defendant was charged took place
over a period of time, specifically April 2017 to April 22, 2019. Likewise, C.S., A.Y., and L.C.
testified as to similar acts that occurred over a period of time, approximately 14 to 30 years prior
to the conduct at issue in this case.
¶ 67 “The appellate court has affirmed admission of other-crimes evidence of over 20
years old under the exceptions because the court found it to be sufficiently credible and
probative.” Donoho, 204 Ill. 2d at 184; see also People v. Lobdell, 2017 IL App (3d) 150074,
¶¶ 21-22 (affirming the admission of a rape conviction from nearly 30 years before the charged
criminal sexual assault). Therefore, while the passage of 14 to 30 years since the prior offense may
lessen its probative value, “standing alone it is insufficient to compel a finding that the trial court
abused its discretion by admitting evidence about it.” Donoho, 204 Ill. 2d at 184.
¶ 68 We acknowledge the acts to which C.S. testified are near the limits for the age of
acts that have been allowed as evidence under section 115-7.3. However, given the overall
similarity of her experiences to those of Au. S., the pattern her testimony helped to establish was
- 21 - highly probative. The State was correct about what the other-crimes evidence tended to show when
it argued, “[Defendant has] been doing things like this most of his adult life.” This other-crimes
evidence was highly probative of defendant’s propensity to opportunistically abuse his younger
female relatives.
¶ 69 III. CONCLUSION
¶ 70 For the reasons stated, we affirm the judgment of the circuit court of Piatt County.
¶ 71 Affirmed.
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