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                                Appellate Court                           Date: 2019.07.22
                                                                          10:19:44 -05'00'



                   People v. Petrakis, 2019 IL App (3d) 160399



Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption             MATTHEW J. PETRAKIS, Defendant-Appellant.



District & No.      Third District
                    Docket No. 3-16-0399



Filed               March 22, 2019
Rehearing denied    April 23, 2019



Decision Under      Appeal from the Circuit Court of Peoria County, No. 15-CF-680; the
Review              Hon. John P. Vespa, Judge, presiding.



Judgment            Affirmed.


Counsel on          James E. Chadd, Peter A. Carusona, and Andrew J. Boyd, of State
Appeal              Appellate Defender’s Office, of Ottawa, for appellant.

                    Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino, David J.
                    Robinson, and Nicholas A. Atwood, of State’s Attorneys Appellate
                    Prosecutor’s Office, of counsel), for the People.



Panel               JUSTICE CARTER delivered the judgment of the court, with opinion.
                    Justices McDade and O’Brien concurred in the judgment and opinion.
                                             OPINION

¶1       Defendant, Matthew J. Petrakis, appeals from his aggravated criminal sexual abuse
     conviction. Defendant argues the State presented and the court erroneously admitted
     prejudicial evidence that defendant had committed other acts of promoting prostitution. We
     affirm.

¶2                                         I. BACKGROUND
¶3       The State charged defendant by indictment with promoting juvenile prostitution (720 ILCS
     5/11-14.4(a)(1) (West 2014)), aggravated criminal sexual abuse (id. § 11-1.60(d)), and
     promoting prostitution (id. § 11-14.3(a)(1)). Before trial, defendant filed a motion in limine to
     bar the State from introducing evidence of defendant’s other similar conduct or offenses. The
     State objected to the motion and argued that evidence of defendant’s other crimes was
     admissible to show propensity, intent, knowledge, absence of mistake, and any other relevant
     facts. See 725 ILCS 5/115-7.3 (West 2014).
¶4       At the hearing on defendant’s motion, defendant argued evidence of his prior similar
     offenses was more prejudicial than probative and evidence of defendant’s prior acts of
     prostitution could not be admitted as propensity evidence under section 115-7.3 of the Code of
     Criminal Procedure of 1963 (Code). Id. The court denied defendant’s motion and found
             “the Rules of Evidence allow evidence of other crimes if it is put forth only to show
             motive, absence of mistake, intent, things like that. Denied for that reason alone, but
             also I’m also denying it for a second reason, that being that I think it’s quite obvious
             that the statute in question, 725 ILCS 5/115-7.3, Subparagraph (a), the intent of the
             statute is certainly, and it’s not even close, intended—is intended to cover cases like
             this which would be promoting juvenile prostitution and aggravated criminal sexual
             abuse and promoting prostitution. So that’s reason number two. And by the way, I
             don’t know if this is a third reason or just information, I want the Defendant—well, I
             would make an instruction if asked, if an instruction is warranted regarding me
             instructing the jury that they can only consider this evidence for this purpose, period.”
     The case proceeded to a jury trial.
¶5       K.H. testified that she was 16 years old when she met defendant in May 2015. Immediately
     before she met defendant, K.H. was talking with defendant’s cousin, Austeena, outside of
     Austeena’s house when defendant drove up. Defendant gave his cell phone number to K.H.
     with instructions for K.H. to send him a text message. K.H. told defendant that she was 16
     years old. Defendant “started smiling and started looking at [K.H.] up and down.” K.H. sent
     defendant a text message as he drove away. Two days later, K.H. met defendant at his
     apartment where they had sexual intercourse.
¶6       Defendant maintained a sexual relationship with K.H. for approximately one month.
     During this time, defendant told K.H. that he loved her and that K.H. was “the best thing that
     ever happened to him.” As defendant and K.H.’s relationship progressed, defendant mentioned
     that he fantasized about having sexual intercourse with K.H. and two other men at the same
     time. Defendant asked K.H. if she would participate in his sexual fantasy and did not discuss
     the details with her. K.H. agreed to participate. Later, K.H. overheard defendant say during a
     telephone conversation that “he had a nice white girl that they would be—and that he would


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       make it worth your while if you would have sex with them.” Defendant did not mention a price
       for the encounter and only said that it would be “worth [the other man’s] while.”
¶7          When defendant attempted to arrange this sexual encounter, K.H. “had a bad feeling” and
       told defendant that she could not meet him and the two men because her father was angry.
       Defendant told K.H. that she was “worthless, and that he never meant anything he said in the
       beginning” of their relationship. On May 3, 2015, defendant again attempted to arrange for
       K.H. to have sexual intercourse with the two other men. K.H. refused to participate. K.H.
       estimated that she had sexual intercourse with defendant 12 times. Their relationship ended in
       late May 2015. K.H. also acknowledged that she had initially told one of the investigating
       officers that she did not have a sexual relationship with defendant. K.H. explained that she
       initially did not want to admit that she had made a mistake.
¶8          On cross-examination, K.H. denied telling defendant that she was 18 years old and restated
       that she told defendant she was 16 years old. K.H. also acknowledged that she had originally
       lied to an investigating officer about being pregnant with defendant’s child.
¶9          S.D. testified that she met defendant in 2011. S.D. told defendant that she was 15 years old.
       Defendant responded that “[h]e didn’t care,” and he and S.D. entered into a sexual relationship.
       At first, defendant treated S.D. nicely, but as their relationship progressed, defendant became
       more controlling. Defendant lived with his mother, and he told S.D. that if she committed acts
       of prostitution, she and defendant could use the proceeds to obtain a home. S.D. loved
       defendant and, therefore, she engaged in acts of prostitution. Defendant accompanied S.D. to
       meet with her prostitution patrons and collected the money. During S.D.’s relationship with
       defendant, she received a tattoo on her lower abdomen that said “ ‘In the property of Matt P.’ ”
       S.D.’s relationship with defendant lasted for approximately six months. In the fall of 2011,
       S.D. and defendant were stopped by a police officer while S.D. was engaged in an act of
       prostitution.
¶ 10        K.N. testified that in March 2015, when she was 15 years old, she was living in foster care.
       At the time, she was unhappy in her home and asked a friend to pick her up. Her friend arrived
       at the home with defendant. Defendant drove K.N. and her friend to a hotel in Peoria.
       Defendant told K.N. if she wanted to stay in the hotel room, then she needed to perform oral
       sex on him, and if defendant told K.N. to have sexual intercourse with another person, she had
       to obey him. K.N. refused defendant’s instruction, and defendant left the hotel room. The next
       day, K.N. was riding in defendant’s vehicle when defendant forced her out of the door and sped
       away. K.N. was caught by the door and dragged down the road. On cross-examination, K.N.
       said that she never had any sexual contact with defendant.
¶ 11        Peoria police officer Sherrell Stinson testified that he arrested defendant on May 14, 2015.
       Defendant told Stinson that he was 44 years old.
¶ 12        The defense called Antonio Armstrong to testify. Armstrong testified that he was friends
       with defendant. Defendant and Armstrong would drive around town searching for girls.
       During one of their drives, Armstrong told defendant to stop his vehicle on Malone Street so
       Armstrong could speak with K.H. At the time, K.H. was walking by herself. Armstrong asked
       for K.H.’s name, age, and telephone number. K.H. told Armstrong her name, said that she was
       18 years old, and gave her telephone number to Armstrong. Armstrong put K.H.’s telephone
       number in defendant’s cell phone because Armstrong had a girlfriend and he did not want her
       to find K.H.’s telephone number in his cell phone. After this meeting, Armstrong sent one or
       two text messages to K.H., but he did not meet with K.H.

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¶ 13       On cross-examination, Armstrong said that he told an interviewing police officer that he
       knew how old K.H. was when they met on Malone Street. The State impeached Armstrong’s
       statement with a recording of Armstrong’s police interview in which he responded in the
       negative to a question about whether he knew K.H.’s age. On redirect examination, Armstrong
       explained that he thought the investigator was asking if he initially knew K.H.’s age and that he
       only learned K.H.’s age after she said that she was 18 years old.
¶ 14       After the parties presented their closing arguments, the court instructed the jury, in relevant
       part, that
               “Evidence has been received that the Defendant has been involved in offenses other
               than those charged in the indictment. This evidence has been received on the issues of
               the Defendant’s intent, motive, design or knowledge and may be considered by you
               only for that limited purpose.
                   It is for you to determine whether Defendant was involved in those offenses and if
               so, what weight should be given to this evidence on the issues of Defendant’s intent,
               motive, design or knowledge, and as to the indictment for aggravated criminal sexual
               abuse the Defendant’s propensity to commit that offense.”
¶ 15       The jury began deliberations at 3:09 p.m. At 5:10 p.m., the jury indicated that it had
       reached its verdict. The jury found defendant guilty of aggravated criminal sexual abuse and
       not guilty of promoting juvenile prostitution and promoting prostitution.
¶ 16       Defendant filed a motion for acquittal notwithstanding the verdict or a new trial. Defendant
       argued the court erred in denying his motion in limine to exclude evidence of his prior crimes.
       The court denied defendant’s motion and sentenced defendant to 24 years in prison. Defendant
       appeals.

¶ 17                                          II. ANALYSIS
¶ 18        Defendant argues that his conviction must be reversed and the case remanded for a new
       trial because the State presented a significant amount of prior crimes evidence that was
       inadmissible under section 115-7.3 of the Code and its prejudicial effect far outweighed its
       probative value. The State concedes that evidence of defendant’s prior promotion of
       prostitution was inadmissible under section 115-7.3 of the Code. However, the State argues the
       court correctly admitted this evidence to show defendant’s motive and intent to commit the
       two prostitution-related charges. We find the court did not abuse its discretion when it admitted
       this evidence to show defendant’s motive and intent. Alternatively, if the court erred, any error
       was harmless given the weight of evidence against defendant.
¶ 19        We review the circuit court’s decision to admit evidence of defendant’s prior crimes for an
       abuse of discretion. People v. Donoho, 204 Ill. 2d 159, 182 (2003). The court abuses its
       discretion where its decision to admit evidence is arbitrary, fanciful, or unreasonable or where
       no reasonable person would take the view adopted by the court. Id. As a court of review, we
       “may not simply substitute [our] judgment for that of the trial court on a matter within the trial
       court’s discretion.” People v. Illgen, 145 Ill. 2d 353, 371 (1991). In particular, we leave to the
       sound discretion of the circuit court the decision of whether the probative value of a
       defendant’s other crimes evidence is outweighed by its prejudicial effect. Id. at 375. We will
       not reverse the court’s decision unless it evinces a clear abuse of discretion. Id.



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¶ 20       At the outset, we note the parties’ dispute is limited to the court’s admission of evidence of
       defendant’s prior prostitution-related crimes because evidence of defendant’s prior sex abuse
       was admissible under section 115-7.3(a)(1) of the Code. 725 ILCS 5/115-7.3(a)(1) (West
       2014). With regard to this issue, we accept the State’s concession that prostitution offenses are
       not admissible to show defendant’s propensity to engage in similar offenses under section
       115-7.3 of the Code. The two prostitution offenses that the State charged defendant with are
       not expressly listed in section 115-7.3 and, therefore, the court erred when it ruled that this
       section permitted the use of prior prostitution cases to prove defendant’s propensity.
       Additionally, we note that Illinois Rule of Evidence 404(b) (eff. Jan. 1, 2011), which permits
       the admission of otherwise excluded character evidence (infra ¶ 22), expressly incorporates
       section 115-7.3. However, this does not end our review because Rule 404(b) also permits the
       use of character evidence “for other purposes, such as proof of motive, opportunity, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident.” Ill. R. Evid. 404(b)
       (eff. Jan. 1, 2011).
¶ 21       Generally, evidence of a defendant’s prior crimes is inadmissible because it is so
       persuasive of defendant’s propensity to commit crimes that it becomes unfairly prejudicial.
       Donoho, 204 Ill. 2d at 170. This general rule is founded on the principal that:
                    “ ‘A person cannot be convicted of an offense upon proof that he committed
               another, however persuasive in a moral point of view such evidence may be. *** It
               would lead to conviction upon the particular charge made by proof of other acts in no
               way connected with it and to uniting evidence of several to produce a conviction for a
               single one.’ ” People v. Rogers, 324 Ill. 224, 230 (1926) (quoting People v. Governale,
               86 N.E. 554, 556 (N.Y. 1908)).
¶ 22       Rule 404(b) serves as an exception to this general rule. It permits the State to introduce
       evidence of a defendant’s other crimes, wrongs, or acts to show motive, opportunity, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident. Ill. R. Evid. 404(b)
       (eff. Jan. 1, 2011). However, evidence of a defendant’s other crimes used to show motive or
       intent may still be excluded from evidence if its prejudicial effect substantially outweighs its
       probative value. Donoho, 204 Ill. 2d at 170. Therefore, when presented with evidence of a
       defendant’s prior crimes, the court must conduct a “meaningful assessment of the probative
       value versus the prejudicial impact of the evidence.” Id. at 186. However, the court need not
       conduct this balancing test on the record. See People v. Casillas, 195 Ill. 2d 461, 486 (2000)
       (declining to find error where the transcript makes clear that the court applied the balancing
       test before admitting evidence of defendant’s other crimes even though the court did not
       expressly articulate it).
¶ 23       In this case, the court’s ruling, “the Rules of Evidence allow evidence of other crimes if it is
       put forth only to show motive, absence of mistake, intent, things like that,” establishes that the
       court conducted the balancing test off the record and concluded that defendant’s prior bad acts
       were more probative of his motive and intent than they were prejudicial. See id. We agree.
       Defendant exhibited a similar pattern of behavior and course of conduct with each victim.
       Defendant began his relationship with each victim by engaging in or attempting to engage in a
       sexual relationship. After establishing the relationship, defendant encouraged the victims to
       engage in sex acts with other individuals and specifically advocated for one victim to commit
       acts of prostitution. As a result, evidence of defendant’s prior acts of promoting prostitution


                                                    -5-
       was highly probative of defendant’s motive and intent to commit similar acts of sexual
       misconduct.
¶ 24       Significantly, the court limited any potential prejudice to defendant by instructing the jury
       that it could only consider evidence of defendant’s prior acts “on the issues of the Defendant’s
       intent, motive, design or knowledge.” See Illgen, 145 Ill. 2d at 376. Nothing in the record
       indicates that the jury disregarded this instruction. Therefore, we adhere to our “[f]aith in the
       ability of a properly instructed jury to separate issues and reach a correct result.” Id.
¶ 25       Even if we were to find that the court abused its discretion in admitting evidence of
       defendant’s prior acts of prostitution, this error would be harmless given the overwhelming
       evidence of defendant’s guilt of aggravated criminal sexual abuse. There is no dispute in this
       case that the 44-year-old defendant had sexual intercourse with the 16-year-old victim several
       times during the time frame in question. At trial, the only issue of contention was whether
       defendant reasonably believed that K.H. was 18. In opposition to the defense’s position that
       defendant believed K.H. was 18 years old was K.H.’s unequivocal testimony that she told
       defendant that she was 16 years old when they first met. This evidence was buttressed by the
       properly admitted evidence that defendant had a propensity for engaging in or attempting to
       engage in sexual relationships with underage girls. See 725 ILCS 5/115-7.3(a), (b) (West
       2014); Donoho, 204 Ill. 2d at 176 (finding that the legislature enacted section 115-7.3 of the
       Code to enable courts to admit evidence of other crimes to show defendant’s propensity to
       commit sex offenses if the requirements of section 115-7.3 were satisfied). Thus, the weight of
       the evidence established that K.H. was 16 years old at the time of the offenses which rendered
       any potential evidentiary error harmless.

¶ 26                                     III. CONCLUSION
¶ 27      The judgment of the circuit court of Peoria County is affirmed.

¶ 28      Affirmed.




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