                                Illinois Official Reports

                                        Appellate Court



                          People v. Baldwin, 2014 IL App (1st) 121725



Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                   WILLIE BALDWIN, Defendant-Appellant.



District & No.            First District, Sixth Division
                          Docket No. 1-12-1725



Filed                     August 15, 2014



Held                       Defendant’s convictions for aggravated criminal sexual assault and
(Note: This syllabus aggravated criminal sexual abuse were upheld where defendant
constitutes no part of the waived review of the ruling on the admission of the diagnosis of the
opinion of the court but victim’s personality disorder by failing to present an offer of proof as
has been prepared by the to the basis for the diagnosis, any error was harmless in view of the
Reporter of Decisions overwhelming evidence of defendant’s guilt and the extensive cross-
for the convenience of examination the trial court allowed as to the victim’s mental health,
the reader.)               and the trial court did not err in accepting the testimony of the State’s
                           DNA expert over that of the defense expert.




Decision Under            Appeal from the Circuit Court of Cook County, No. 07-CR-1301; the
Review                    Hon. Timothy J. Joyce, Judge, presiding.




Judgment                  Affirmed.
     Counsel on               Michael J. Pelletier and Jonathan Yeasting, both of State Appellate
     Appeal                   Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Mary L. Boland, and Samuel C. Ray, Assistant State’s Attorneys, of
                              counsel), for the People.



     Panel                    PRESIDING JUSTICE ROCHFORD delivered the judgment of the
                              court, with opinion.
                              Justices Lampkin and Reyes concurred in the judgment and opinion.


                                                OPINION

¶1          Following a bench trial, defendant, Willie Baldwin, was convicted of two counts of
       aggravated criminal sexual assault and one count of aggravated criminal sexual abuse. The
       trial court sentenced defendant to two consecutive 15-year terms of imprisonment for the
       aggravated criminal sexual assault convictions and one consecutive 3-year term of
       imprisonment for the aggravated criminal sexual abuse conviction. On appeal, defendant
       contends: (1) the trial court erred in excluding evidence of the complainant’s diagnosis of
       antisocial personality disorder; (2) his trial counsel committed ineffective assistance; and (3)
       the trial court erred in admitting evidence of an unrelated sexual assault against a third person
       on a propensity theory. We affirm.
¶2          Defendant was charged with one count of armed habitual criminal, four counts of
       aggravated kidnapping, one count of armed robbery, six counts of aggravated criminal sexual
       assault, and four counts of aggravated criminal sexual abuse against the victim, E.W. Prior to
       trial, the State filed a motion in limine to admit certain other-crimes evidence, specifically, of
       defendant’s aggravated criminal sexual assault of a second victim, D.D., approximately six
       months prior to E.W.’s assault. The motion was made pursuant to section 115-7.3 of the
       Code of Criminal Procedure of 1963 (Criminal Code) (725 ILCS 5/115-7.3 (West 2010)),
       which applies, in relevant part, to a defendant who is accused of aggravated criminal sexual
       assault. Section 115-7.3(b) provides that evidence of defendant’s commission of another
       aggravated criminal sexual assault “may be admissible (if that evidence is otherwise
       admissible under the rules of evidence) and may be considered for its bearing on any matter
       to which it is relevant.” 725 ILCS 5/115-7.3(b) (West 2010). Section 115-7.3(c) further
       provides:
                “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
                    2010).


                                                   -2-
¶3        The trial court here weighed the factors mentioned in section 115-7.3(c) and granted the
     State’s motion, ruling that the evidence of defendant’s aggravated criminal sexual assault
     against D.D. was admissible in E.W.’s case to show his propensity to commit sex offenses.
     (We will discuss the basis of the trial court’s ruling in more detail later in this opinion.) The
     trial court granted the State’s motion despite the fact that when D.D.’s case went to trial, the
     jury there acquitted defendant of aggravated criminal sexual assault alleging forced oral
     penetration and was unable to reach a verdict on a second count alleging forced vaginal
     penetration.
¶4        On the day of defendant’s bench trial in the E.W. case, defendant made an oral motion in
     limine to admit evidence that in 2011, the University of Utah Assessment and Referral
     Services (hereinafter, Assessment and Referral Services) had diagnosed E.W. with antisocial
     personality disorder following her arrest for several offenses in Utah. Defendant explained
     that he had not made the motion earlier because he had only recently received the report from
     Assessment and Referral Services containing E.W.’s diagnosis. Defendant sought a
     preliminary ruling from the trial court that E.W.’s diagnosis of antisocial personality disorder
     was relevant and admissible with regard to her truthfulness. Defendant also sought guidance
     from the trial court regarding the best way to introduce E.W.’s diagnosis into evidence in the
     event it found the diagnosis relevant and admissible. Defendant stated:
                  “If you should find her antisocial diagnosis relevant, we would either need [E.W.]
             to endorse that she has information that she had been diagnosed with that or a
             stipulation from the State as to that diagnosis. Absent those things I don’t think the
             court can consider them in which case we would have to hire an expert.
                  Of course, since we received this information late, we have not had the ability to
             contact or procure an expert and we’re ready for trial. And so we probably cannot
             answer ready for trial unless we can sort of lay some ground work for how that
             evidence would come in. The expert would either be the clinician herself, would have
             to be flown in from Utah or, like I said, if there was a stipulation as to the diagnosis
             itself and if your Honor were to take judicial notice of the definition of antisocial
             personality disorder, that would be satisfactory to us.”
¶5        The record on appeal contains neither any written motion in limine seeking the
     preliminary finding of admissibility with regard to E.W.’s diagnosis, nor the report from
     Assessment and Referral Services containing the diagnosis and the reasons therefore.
¶6   The trial court ruled that evidence of E.W.’s diagnosis was inadmissible under section
     115-7.1 of the Criminal Code (725 ILCS 5/115-7.1 (West 2010)), which prohibits a court
     from requiring a witness who is the victim of an alleged sex offense to undergo a psychiatric
     or psychological examination. However, the trial court also ruled that defendant could
     cross-examine E.W. regarding her specific conduct leading to the diagnosis of antisocial
     personality disorder.

¶7                                            I. Trial
¶8                      A. E.W.’s Testimony Regarding the Sexual Assault
¶9       At trial, E.W. testified she was 24 years old at the time of trial in 2011 and had been
     living in Salt Lake City, Utah, since the end of 2006. On February 3, 2003, E.W. was 15
     years old and living with her grandmother at 53rd and Hermitage Avenue in Chicago. At


                                                 -3-
       about 9 p.m. that evening, E.W. was waiting at the bus stop at 53rd Street and Ashland
       Avenue. When the bus did not come, E.W. began walking south on Ashland Avenue toward
       the next bus stop. As she was walking, she heard defendant, who was sitting in a car facing
       north on Ashland Avenue, “holler” at her to come over to his car. E.W. refused because she
       did not know defendant. Defendant drove off north on Ashland Avenue and E.W. continued
       walking south on Ashland Avenue.
¶ 10        E.W. testified that she again saw defendant as he drove up a side street behind her, turned
       on Ashland Avenue, and pulled up alongside her with his passenger window down.
       Defendant leaned over the passenger seat and pulled out a gun with his left hand and pointed
       it at E.W. Defendant demanded that E.W. get in the car and he threatened to shoot her if she
       ran away.
¶ 11        E.W. testified she complied and entered his car. Defendant placed the gun in the driver’s
       side door panel and drove south on Ashland Avenue. As he was driving, defendant asked
       E.W. whether she had any money in her pocket. E.W. said no. Defendant responded that he
       would search E.W., and that if she had any money, he would kill her. E.W. then gave
       defendant her money, approximately $60 or $70. Defendant offered her a “primo” cigarette
       and beer; she refused.
¶ 12        E.W. testified defendant drove into an alley and forced her to perform oral sex on him
       while he remained in the driver’s seat. Defendant then ordered E.W. to climb over into the
       back seat, where he forced her to engage in sexual intercourse (penis to vagina) with him.
       During the course of this, defendant touched her breast with his mouth.
¶ 13        E.W. testified that after defendant finished having sex with her, they returned to the front
       seat of the car and defendant drove out of the alley. Defendant told E.W. that he had been
       watching her for the last two months and that now he was going to drive her to the west side
       of Chicago and kill her. E.W. did not attempt to get away at that point because, in addition to
       the gun, defendant also “had a knife and one of them arrow-bow crosses up there in that car.”
¶ 14        E.W. testified that at 68th Street and Damen Avenue, defendant came to a stop to avoid
       hitting two people who were crossing the street. Taking advantage of the opportunity, E.W.
       jumped out of the car and ran to a gas station near 67th Street and Ashland Avenue and used
       a pay phone to call the police.
¶ 15        Officer Maria Hernandez testified she was dispatched to 68th Street and Damen Avenue
       at around 9 p.m. on February 3, 2003, where she saw E.W., who was very upset, distraught,
       and crying. E.W. stated she had been sexually assaulted. Officer Hernandez asked E.W. some
       “brief questions” and then put her in the squad car and drove her to the University of Chicago
       Hospital.

¶ 16                            B. Testimony Regarding the Investigation
¶ 17       E.W. testified that at the hospital, doctors examined her and a criminal sexual assault kit
       was administered to her. The parties stipulated that nurse Harwood would testify that the
       criminal sexual assault kit included the taking of oral, vaginal, and rectal cultures.
¶ 18       Officer Hernandez spoke with E.W. at the hospital and made a police report based on that
       conversation. E.W. testified she provided a description of defendant as a dark-skinned man
       with brown eyes and a beard, wearing a khaki jogging suit, a leather jacket, black gloves, and
       driving a white car. Officer Hernandez testified that during the conversation, E.W. never


                                                   -4-
       mentioned that defendant had touched her breasts, nor did she state that defendant had told
       her he had been watching her for two months and that he was going to take her to the west
       side of Chicago to kill her. Instead, E.W. stated that defendant had dropped her off on the
       south side of Chicago near 68th Street and Damen Avenue, after which she walked to 67th
       Street and Ashland Avenue. E.W. testified that Officer Hernandez was mistaken in her
       recollection of their conversation and that defendant had not voluntarily dropped her off after
       the sexual assault but, rather, she had escaped from his car.
¶ 19       Nicholas Richert, who was formerly a forensic scientist for the Illinois State Police,
       testified that in 2006, defendant’s DNA registered as a hit in the Combined DNA Index
       System (CODIS) for the sexual assault of the other-crimes victim, D.D. On December 8,
       2006, defendant was arrested at 63rd Street and Ashland Avenue. E.W. testified that on
       December 10, 2006, she went to the police station and picked defendant out of a lineup as the
       man who had sexually assaulted her.

¶ 20                                     C. The Forensic Evidence
¶ 21       The parties stipulated that if called to testify, Charles Widerstrom, an evidence technician
       with the Chicago police department, would testify that on February 4, 2003, he went to the
       emergency room of the University of Chicago Wyler’s Hospital and recovered E.W.’s sealed
       criminal sexual assault kit. Maria Fiorelli, a forensic scientist with the Illinois State Police,
       would testify she examined E.W.’s criminal sexual assault kit, which included vaginal, oral
       and rectal swabs. Ms. Fiorelli discovered semen on the vaginal and rectal swabs.
¶ 22       The parties stipulated that if called to testify, Melissa Thompson, a DNA analyst
       employed by Orchid Cellmark, would testify she performed a Polymerase Chain
       Reaction/Short Tandem Repeat DNA analysis on the samples retrieved from E.W. and
       obtained a DNA profile suitable for comparison from the blood standard collected from E.W.
       Ms. Thompson used differential extraction DNA analysis on E.W.’s vaginal swabs that
       yielded a nonsperm fraction and a sperm fraction of DNA. In the nonsperm fraction, Ms.
       Thompson identified a female DNA profile that matched E.W.’s DNA. From the sperm
       fraction, Ms. Thompson deduced a single male DNA profile which was summarized in a
       report and sent to the Illinois State Police.
¶ 23       The parties stipulated that if called to testify, Chicago police evidence technician
       Abelardo Rodriguez would testify that on December 10, 2006, he collected a buccal swab
       standard from defendant and delivered it to the Chicago police department forensic services
       division. The buccal swab was then sent to the Illinois State Police crime lab for DNA
       analysis.
¶ 24       The parties stipulated that if called to testify, forensic scientist Nicholas Richert would
       testify that in 2007 he received defendant’s buccal swab standard and the DNA data
       generated by Orchid Cellmark for the vaginal swabs collected from E.W. Mr. Richert
       conducted DNA analysis on defendant’s buccal swab standard and obtained a DNA profile
       suitable for comparison purposes. Mr. Richert compared the deduced male DNA profile from
       E.W.’s vaginal swabs with defendant’s DNA profile, and concluded within a reasonable
       degree of scientific certainty that the male DNA profile from E.W.’s vaginal swabs matches
       defendant’s DNA profile. Defendant’s profile is only expected to occur in approximately “1
       in 170 quadrillion black, 1 in 1 quintillion white, or 1 in 1.4 quintillion Hispanic unrelated


                                                   -5-
       individuals.”

¶ 25                  D. E.W.’s Criminal Background and Mental Health Evaluation
¶ 26       In Utah, E.W. pleaded guilty to attempted criminal mischief, a Class A misdemeanor, in
       2008 and was sentenced to 24 months’ probation. E.W. subsequently violated her probation
       when she tested positive for methamphetamines, THC, and cocaine and was sentenced to 200
       days in jail.
¶ 27       In March 2011, E.W. also pleaded guilty to attempted possession with intent to distribute
       a controlled substance, a Class A misdemeanor, and was sentenced to 24 months’ probation.
       In May 2011, E.W. pleaded guilty to retail theft, a Class B misdemeanor, and received a fine
       and 12 months’ probation. E.W. received consideration at sentencing by the Utah courts for
       her subsequent testimony against the defendant here.
¶ 28       As part of her sentence for retail theft, E.W. was ordered to undergo a mental health
       evaluation at Assessment and Referral Services. On September 29, 2011, E.W. received a
       mental health evaluation by Lisa Croudy, an associate professional counselor at Assessment
       and Referral Services. The parties stipulated that if called to testify, Ms. Croudy would
       testify that during the evaluation, E.W. stated she first smoked marijuana once at age 15 and
       again at age 16, after which she used marijuana every other day until it made her feel “weird”
       and then she smoked marijuana once a month until she was 21 years old.
¶ 29       E.W. testified, contrary to the stipulated testimony of Ms. Croudy, that she only smoked
       marijuana one time. She tried an ecstasy pill two times. E.W. testified she had not used
       cocaine or methamphetamine by themselves, but that one of the ecstasy pills contained
       cocaine and methamphetamine. E.W. admitted that when officers searched her home in Utah
       in August 2010 and arrested her for possession with intent to deliver, she told an officer that
       the crack cocaine recovered from her home was for her personal use.
¶ 30       The parties stipulated that if called to testify, Sharron Johnson would testify she is a
       licensed clinical social worker at Valley Mental Health in Salt Lake City, Utah, and she
       interviewed E.W. on October 17, 2011. In the interview, E.W. stated she believes in the
       paranormal and she recounted an auditory hallucination of hearing her name called. In an
       interview with Ms. Johnson on October 27, 2011, E.W. stated she has seen ghosts all her life.

¶ 31                                      E. Other-Crimes Evidence
¶ 32       At trial, the State introduced evidence of defendant’s prior sexual assault of D.D., as
       propensity evidence. D.D., who was 37 years old at the time of trial here in 2011, testified
       that on July 27, 2002, just before 10 p.m., she was walking at 16th Street and Pulaski Avenue
       on her way to a party. A black male who she did not know approached her in his car and
       pointed a gun at her. D.D. was afraid that she might get shot, so she entered his car. The man
       put the gun to her side and began driving. D.D. acknowledged that she had previously
       testified, at the trial on her case against defendant, that she did not remember if she had seen
       a gun before entering the car.
¶ 33       D.D. testified they drove to the south side of Chicago and stopped near 49th Street and
       Halsted Avenue. The man climbed on top of D.D. and forced her to engage in oral and
       vaginal sex. D.D. could not remember if the man took any money from her, but she did
       remember that he took her State identification.


                                                  -6-
¶ 34       D.D. testified that after the man finished having sex with her, he let her go. She ran down
       the street to a pay phone and called the police. The police arrived and took her to the hospital
       where a sexual assault kit was completed.
¶ 35       The parties stipulated that on December 9, 2006, D.D. viewed a lineup at the police
       department. Defendant was one of the persons in the lineup. D.D. did not identify anyone in
       that lineup as her assailant.
¶ 36       Mr. Richert testified that in 2006 he was provided with a buccal standard from defendant.
       Mr. Richert was able to generate a DNA profile from that standard suitable for comparison
       purposes. Mr. Richert later compared defendant’s DNA profile to the DNA profiles identified
       in D.D.’s vaginal swabs by Orchid Cellmark. Mr. Richert was able to identify a major male
       DNA profile in D.D.’s vaginal swabs that matched the DNA profile of defendant. Mr.
       Richert testified that “[t]he major male DNA profile identified in the vaginal swabs would be
       expected to occur in approximately 1 in 170 quadrillion black, 1 in 1 quintillion whites or 1
       in 1.4 quintillion Hispanic unrelated individuals.”
¶ 37       Defendant’s expert witness, Dr. Karl Reich, challenged Mr. Richert’s DNA analysis in
       D.D.’s case and testified that the vaginal swabs used by Orchid Cellmark lacked enough
       DNA evidence to deduce a single major DNA profile to compare against defendant’s DNA.
       Dr. Reich conceded that defendant was not eliminated as a DNA match, but claimed the male
       DNA profile that matched defendant’s DNA was only one possible profile that could have
       been deduced for the vaginal swabs.

¶ 38                                   F. Defendant’s Case-in-Chief
¶ 39       Defendant testified that on February 3, 2003, he lived at 6401 South Oakley, one block
       from 63rd Street and Ashland Avenue. At approximately 7 p.m. on that date, defendant
       walked east on 63rd Street, in order to catch a bus at 63rd Street and Oakley Avenue to go to
       a friend’s house. The bus never came, so defendant continued walking east on 63rd Street in
       the direction of Damen Avenue. He saw E.W. standing on 63rd Street and Seeley Avenue,
       attempting to flag down cars. Defendant stated that he knew the area around 63rd Street and
       Seeley Avenue is regularly frequented by prostitutes soliciting sex.
¶ 40       Defendant testified he walked over to E.W., and she said, “What’s up with you, man?
       You want to get down with me or what?” Defendant understood E.W. to be saying that she
       was “selling her body.” Defendant asked E.W. how much she was charging and she replied
       $10. Defendant asked where they were going to go to have sex, and E.W. told defendant to
       follow her.
¶ 41       Defendant testified E.W. took him to an alley along 63rd Street between Seeley Avenue
       and Damen Avenue and they went into an unlocked garage. Defendant handed E.W. a $10
       bill and she put it in her pocket. They took off their clothes and laid down on a couch that
       was inside the garage. The two then had sexual intercourse. Defendant did not use a condom.
       They did not have oral sex.
¶ 42       Defendant testified that after having sex, they put their clothes back on and walked out of
       the garage and into the alley. Defendant pulled about $290 from his pocket to get money for
       the bus. When E.W. saw the amount of money in defendant’s hand, she said she should have
       charged him more than $10. Defendant told her he had given her what she had asked for.
       E.W. then responded that she would call the police unless defendant gave her an additional


                                                  -7-
       $30. Defendant told her to “[d]o what you feel like you’ve got to do” and he walked away
       and caught the bus at Damen Avenue.
¶ 43       Following defendant’s testimony, the trial court admitted into evidence a certified copy
       of defendant’s Class 4 felony conviction for domestic battery in 2005.

¶ 44                                  G. The Trial Court’s Findings
¶ 45       At the conclusion of the trial, the trial court found that E.W.’s testimony regarding
       defendant’s sexual assault of her was compelling and credible and corroborated by her
       prompt outcry to Officer Hernandez and the DNA evidence. The trial court also credited Mr.
       Richert’s testimony over Dr. Reich’s testimony and found that the other-crimes evidence of
       defendant’s sexual assault on D.D. established defendant’s propensity to commit sex crimes.
       The trial court convicted defendant of two counts of aggravated criminal sexual assault (for
       penis to vagina contact, and for penis to mouth contact) and one count of aggravated criminal
       sexual abuse (for mouth to breast contact) and sentenced defendant to two consecutive
       15-year terms of imprisonment for the aggravated criminal sexual assault convictions and
       one consecutive 3-year term of imprisonment for the aggravated criminal sexual abuse
       conviction. Defendant appeals.

¶ 46                                           II. The Appeal
¶ 47       First, defendant argues the trial court erred in denying his oral motion in limine seeking a
       preliminary determination that the diagnosis by Assessment and Referral Services that E.W.
       has antisocial personality disorder was relevant and admissible at trial to show her
       untruthfulness. The Diagnostic and Statistical Manual of Mental Disorders, fourth edition,
       text revision (DSM-IV-TR) defines antisocial personality disorder as “a pervasive pattern of
       disregard for and violation of the rights of others occurring since age 15 years, as indicated
       by three (or more) of the following”:
                   “1) failure to conform to social norms with respect to lawful behaviors as
               indicated by repeatedly performing acts that are grounds for arrest
                   2) deceitfulness, as indicated by repeated lying, use of aliases, or conning others
               for personal profit or pleasure
                   3) impulsivity or failure to plan ahead
                   4) irritability and aggressiveness, as indicated by repeated physical fights or
               assaults
                   5) reckless disregard for safety of self or others
                   6) consistent irresponsibility, as indicated by repeated failure to sustain consistent
               work behavior or honor financial obligations
                   7) lack of remorse, as indicated by being indifferent to or rationalizing having
               hurt, mistreated, or stolen from another.” American Psychiatric Association,
               Diagnostic and Statistical Manual of Mental Disorders 706 (4th ed., text rev. 2000).
¶ 48       At the hearing on the in limine motion, defendant argued that E.W.’s diagnosis of
       antisocial personality disorder called into question her truthfulness and therefore should be
       admitted at trial. The trial court disagreed, finding that E.W.’s diagnosis was inadmissible
       under section 115-7.1 of the Criminal Code, which states:


                                                   -8-
               “Except where explicitly authorized by this Code or by the Rules of the Supreme
               Court of Illinois, no court may require or order a witness who is the victim of an
               alleged sex offense to submit to or undergo either a psychiatric or psychological
               examination.” 725 ILCS 5/115-7.1 (West 2010).
¶ 49        The trial court acknowledged that the examination resulting in E.W.’s diagnosis of
       antisocial personality disorder had already taken place in Utah as a condition of her probation
       and therefore did not technically fall within section 115-7.1, which prohibits the court from
       requiring a witness who is the victim of a sex offense to undergo a future psychiatric or
       psychological exam. However, the trial court stated that section 115-7.1 “evinces a
       legislative intent that not only should people not be subjected to such during the discovery
       process while the case is pending, but it is not a relevant area of inquiry for an alleged victim
       of an alleged sexual assault because it’s not relevant.”
¶ 50        On appeal, defendant argues that the trial court misinterpreted the legislative intent
       underlying section 115-7.1. Defendant cites to People v. Wheeler, 151 Ill. 2d 298 (1992), in
       which our supreme court made the following findings regarding the legislative intent
       underlying section 115-7.1:
                   “Section 115-7.1 was intended to eliminate the defense practice of intimidating
               sex-offense victims through psychological examinations focusing on their
               competency and credibility as witnesses. During debate on section 115-7.1, the
               legislature noted the disparity of treatment accorded victims of sex-offense crimes as
               compared to victims of non-sex crimes. [Citation.] The legislature also expressed
               concern that defendants used court-ordered psychological examinations as a way to
               embarrass and intimidate sex-offense victims. [Citation.] By eliminating the defense
               tactic of requesting psychological examinations, section 115-7.1 places victims of sex
               crimes in the same position as victims of other crimes.” Id. at 307-08.
¶ 51        Defendant here argues that “[t]his kind of intrusive questioning by defense experts [to
       embarrass and intimidate sex offense victims] is plainly not what occurred when E.W. was
       examined at the behest of Utah state officials as a condition of her probation” and diagnosed
       with antisocial personality disorder. Accordingly, defendant argues that the trial court erred
       in finding that E.W.’s diagnosis of antisocial personality disorder was barred under section
       115-7.1. Defendant argues that E.W.’s diagnosis was relevant and admissible to show her
       lack of truthfulness and to support defendant’s theory that E.W. was a prostitute who made a
       false accusation of sexual assault because she was upset over the amount of money defendant
       paid her for her sexual services.
¶ 52        In addressing defendant’s argument, we note that “[w]hile mental health history is
       relevant as it relates to credibility, and is thus a permissible area of impeachment, before such
       evidence may be introduced, its relevance must be established.” People v. Plummer, 318 Ill.
       App. 3d 268, 279 (2000). “The burden is on the party seeking to introduce the evidence to
       establish its relevance to the witness’s credibility.” Id. Thus, it was incumbent on defendant
       to establish how E.W.’s diagnosis was relevant to her veracity. At the hearing on defendant’s
       in limine motion, defendant’s only effort to establish the relevance of E.W.’s diagnosis to her
       veracity was to present the trial court with the DSM-IV-TR definition of antisocial
       personality disorder and to argue that a person with such a diagnosis “might be a liar.”
¶ 53        However, we note that the DSM-IV-TR lists seven factors that can lead to a diagnosis of
       antisocial personality disorder, three of which need to be present for the diagnosis to occur.

                                                   -9-
       Only one of the seven possible factors that can lead to an antisocial personality disorder
       diagnosis, “deceitfulness,” directly goes to E.W.’s truthfulness. Defendant failed to argue or
       make an offer of proof that the “deceitfulness” factor was present in E.W.’s diagnosis; in
       fact, defendant failed to make an offer of proof as to any of the specific factors that E.W. was
       found to have suffered from. “It is well recognized that the key to saving for review an error
       in the exclusion of evidence is an adequate offer of proof in the trial court. [Citations.] The
       purpose of an offer of proof is to disclose to the trial judge and opposing counsel the nature
       of the offered evidence and to enable a reviewing court to determine whether exclusion of the
       evidence was proper.” (Emphasis added.) People v. Andrews, 146 Ill. 2d 413, 420-21 (1992).
       In the absence of an offer of proof regarding the basis of E.W.’s diagnosis, and in the absence
       in the appellate record of the report from Assessment and Referral Services containing the
       basis of the diagnosis, we are unable to determine whether E.W.’s diagnosis of antisocial
       personality disorder was premised on her deceitfulness such that it would have been relevant
       and admissible to support defendant’s theory that E.W. was falsely accusing him of sexual
       assault; accordingly, the issue of whether the trial court erred in finding that evidence of
       E.W.’s diagnosis was inadmissible is waived. Id. at 421. As defendant waived review of the
       trial court’s ruling that E.W.’s diagnosis of antisocial personality disorder was inadmissible,
       we need not address the basis of said ruling, specifically, whether defendant’s examination
       and diagnosis by Assessment and Referral Services falls within section 115-7.1.
¶ 54        Defendant contends no detailed offer of proof was made because the trial court told
       defense counsel that it was unnecessary. We disagree. At the hearing on the in limine motion,
       defense counsel told the trial court that he wanted guidance as to how he should prove up,
       during trial, E.W.’s diagnosis of antisocial personality disorder. The trial court subsequently
       ruled that the diagnosis was inadmissible under section 115-7.1. Defense counsel then stated
       “Since you’ve now ruled that we will not be able to get into the diagnosis or the–how they
       arrived at the diagnosis, the issue of whether I have to prove that up through an expert or a
       stipulation or a learned treatise, I think then becomes moot.” The trial court responded, “I
       think so too because even if you did it by any of those mechanisms, it would still be
       irrelevant and still prohibited by the rationale underlying the existence of 115-7.1 in the first
       instance.”
¶ 55        The foregoing colloquy between defense counsel and the trial court related to the type of
       proof that would have been necessary at trial to prove up E.W.’s diagnosis of antisocial
       personality disorder. The trial court stated that such a discussion of trial proof was moot
       because the evidence of E.W.’s diagnosis was not admissible. Defense counsel made no
       request that he be allowed to make a pretrial offer of proof regarding the factors underlying
       the diagnosis to preserve the issue for appellate review, nor did the trial court foreclose such
       an offer of proof.
¶ 56        Further, we note that any error in the exclusion of E.W.’s diagnosis of antisocial
       personality disorder was harmless, where the trial court permitted defendant to extensively
       cross-examine E.W. regarding her mental health and where the evidence against defendant
       was overwhelming. See People v. Davis, 185 Ill. 2d 317, 338 (1998) (the extent of
       cross-examination otherwise permitted and the overall strength of the prosecution’s case are
       relevant factors in determining whether the exclusion of evidence was harmless).
¶ 57        Specifically, with regard to defendant’s cross-examination of E.W., the trial court here
       stated during its ruling on defendant’s motion in limine that defendant could “certainly

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       cross-examine [E.W.] about specific instances that she relates that lead some professional to
       conclude certain opinions.” The trial court also ruled that “if she says [to the professional]
       that she hears voices, well, that’s something that you may be able to bring out. If she says
       *** something to the effect that she sees ghosts, that’s something you may well be able to
       bring out.” Pursuant to the trial court’s ruling, defendant presented considerable evidence at
       trial regarding E.W.’s mental health, including her auditory hallucination of hearing her
       name called, her prior drug use, and her belief in the paranormal.
¶ 58        With respect to the strength of the prosecution’s case, we note that E.W. consistently
       identified defendant as her attacker and the trial court specifically found her testimony to be
       credible and “compelling.” As a reviewing court, we cannot substitute our judgment for that
       of the trial court, which heard the witnesses and determined their credibility. In re V.Z., 287
       Ill. App. 3d 552, 565 (1997). The trial court also noted that E.W.’s testimony was
       corroborated by her “prompt outcry to Officer Hernandez very shortly after” the attack as
       well as the DNA evidence. Expert testimony established the fact of sexual intercourse
       between defendant and E.W.; the male DNA profile from E.W.’s vaginal swabs matched
       defendant’s DNA profile, and such a profile was only expected to occur in 1 in 170
       quadrillion black, 1 in 1 quintillion white, or 1 in 1.4 quintillion Hispanic unrelated
       individuals. In addition, there was the other-crimes evidence of defendant’s aggravated
       criminal sexual assault on D.D. which was admitted to show defendant’s propensity to
       commit sex crimes.
¶ 59        Given all the evidence brought out at trial regarding E.W.’s mental health, and the
       strength of the prosecution’s case, we cannot say defendant was prejudiced by the exclusion
       of E.W.’s diagnosis of antisocial personality disorder. Any error in its exclusion was
       harmless.
¶ 60        Next, defendant contends his counsel provided ineffective assistance. To determine
       whether defendant was denied his right to effective assistance of counsel, we apply the
       two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Defendant must
       show, first, that “counsel’s representation fell below an objective standard of reasonableness”
       (id. at 688), and second, that he was prejudiced such that “there is a reasonable probability
       that, but for counsel’s unprofessional errors, the result of the proceeding would have been
       different” (id. at 694).
¶ 61        Defendant contends that after the other-crimes evidence of his aggravated criminal sexual
       assault of D.D. was admitted under section 115-7.3, his counsel provided ineffective
       assistance by failing to introduce rebuttal evidence that the jury in the D.D. case had
       acquitted him of one of the two aggravated criminal sexual assault charges (alleging forced
       oral penetration against D.D.) while failing to reach a verdict on the other charge (alleging
       forced vaginal penetration). Defendant contends such rebuttal evidence should have been
       introduced under section 115-7.3(b) (725 ILCS 5/115-7.3(b) (West 2010)) (allowing
       defendant to present “evidence to rebut” other-crimes evidence).
¶ 62        In support of his claim of ineffective assistance, defendant cites People v. Ward, 2011 IL
       108690. In Ward, the defendant there, Perry Ward, was convicted of the criminal sexual
       assault of M.M. Id. ¶ 2. During his trial, the trial court admitted evidence that Ward had also
       been involved in the criminal sexual assault of another woman, L.S. Id. ¶ 1. The evidence
       was admitted under section 115-7.3 to show his propensity to commit sex crimes. Id. When


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       Ward sought to have evidence admitted of his acquittal in L.S.’s case, though, the trial court
       rejected his request. Id.
¶ 63       On appeal to the supreme court, Ward argued the trial court erred in refusing to admit
       evidence that he had been acquitted of sexually assaulting L.S. Id. ¶ 21. The supreme court
       conducted a balancing test to weigh the probative value of admitting the acquittal evidence
       against the undue prejudice to Ward if the other-crimes evidence were admitted without the
       admission of the acquittal evidence. Id. ¶¶ 35-46. With respect to the probative value of
       admitting the acquittal evidence, the supreme court noted that “[w]ithout the benefit of even
       the general knowledge that [Ward] was acquitted of assaulting L.S., the jury could easily
       have been swayed after hearing only parts of the story. Here, the probative value of the
       acquittal evidence is in its ability to provide the jury with a more complete context for L.S.’s
       testimony. While the M.M. jury still had an independent duty to determine the credibility of
       her testimony and evaluate its weight, the acquittal evidence would have provided another
       part of the picture that was otherwise sorely absent.” Id. ¶ 40.
¶ 64       With respect to the undue prejudice to Ward if the other-crimes evidence were admitted
       without the admission of the acquittal evidence, the supreme court noted:
               “[T]he potential for prejudice is readily apparent from L.S.’s highly detailed
               testimony about [Ward’s] alleged violent attack on her, followed by her statement
               that she had previously testified in another case. ***
                    ***
                    Given the graphic nature of the depiction of [Ward’s] alleged attack on L.S., the
               jury naturally would have assumed the State had pressed charges against [Ward],
               providing a *** likely context for L.S.’s prior testimony. Therefore, L.S.’s testimony
               left the jury to speculate whether those charges against [Ward] were ongoing or had
               already been resolved. The admission of evidence that [Ward] had been acquitted of
               assaulting L.S. would have put to rest that speculation and provided a context for her
               statements about having ‘already’ given testimony.” Id. ¶¶ 41-43.
¶ 65       The supreme court found that “[d]ue to the inherently high, and often overly persuasive,
       probative value of such propensity evidence, the need to avoid unfair prejudice by providing
       a full context for the other-crimes testimony is readily apparent. Given the real possibility the
       jury would convict [Ward] based on his alleged prior bad acts alone, barring the acquittal
       evidence further enhanced the already high danger of undue prejudice against him.” Id. ¶ 46.
       The supreme court concluded that “barring the admission of the acquittal evidence was an
       abuse of the trial court’s discretion. The ruling was unreasonable under the facts and
       circumstances of this case.” Id. ¶ 48.
¶ 66       In the present case, defendant argues that, pursuant to Ward, defense counsel should have
       introduced evidence of his acquittal in the D.D. case of one of the charges of aggravated
       criminal sexual assault (forced oral penetration) and of the inability of the jury to reach a
       verdict on the other charge (forced vaginal penetration).
¶ 67       The State counters that defense counsel committed no ineffective assistance in the present
       case, as he made the trial court aware, during pretrial proceedings, that the D.D. case resulted
       in an acquittal on the forced oral penetration count and a hung jury on the forced vaginal
       penetration count. Defendant responds that the trial court could not properly consider, at trial
       here, the result of D.D.’s case because said result was never introduced into evidence. See


                                                  - 12 -
       People v. Borrelli, 392 Ill. 481, 492 (1946) (holding that evidence proffered only at a pretrial
       hearing may not be considered at trial as such evidence is “no part of the trial on the merits”).
       Defendant contends his counsel was ineffective for failing to introduce the result of D.D.’s
       case into evidence at his trial in the present case in order to rebut the other-crimes evidence
       of his aggravated criminal sexual assault against D.D.
¶ 68       We agree with defendant that defense counsel’s failure to introduce the result of D.D.’s
       case into evidence at his trial here foreclosed the trial court from considering said result in
       rebuttal to the other-crimes evidence. However, we find no ineffective assistance in defense
       counsel’s failure to offer the result of D.D.’s case into evidence in rebuttal to the
       other-crimes evidence, as defendant was not prejudiced thereby because he would have been
       convicted even if the rebuttal evidence had been introduced and entered into evidence.
       Specifically, the record indicates that although the trial court found that the other-crimes
       evidence of defendant’s aggravated criminal sexual assault on D.D. established defendant’s
       propensity to commit sexual crimes, the court’s primary reason for convicting defendant
       related to E.W.’s credible testimony at trial regarding defendant’s sexual assault of her,
       coupled with her outcry after the assault and the corroborative DNA evidence. In reaching
       this conclusion, we quote from the trial court’s findings following defendant’s trial:
                   “[E.W.] testified regarding how it was that she was assaulted, taken off the street
               at gunpoint, put into this vehicle, transported to an alley, subjected to oral intercourse
               by force, vaginal intercourse by force. The offender kissed her breasts. The testimony
               was compelling.
                   She made a prompt outcry to Officer Hernandez very shortly after this alleged
               incident. ***
                   [Defense counsel] did an excellent job endeavoring to impeach [E.W.’s]
               testimony with her drug use [and with] [t]estimony concerning her criminal history.
               *** But in light of the physical evidence, the circumstances of her outcry, her
               identification of [defendant] almost four years later confirmed by the DNA evidence
               from her vagina, even her beliefs regarding the paranormal don’t sway the court in
               connection with her credibility. I suppose we could snicker at someone’s belief in
               ghosts, but we could probably snicker at all sorts of other religious beliefs. The fact
               that people have those beliefs, the fact that some might deem the beliefs in the
               paranormal and beliefs in ghosts to be indicative of delusions, there’s no indication of
               any delusional activity by her in connection with this because the person she claims
               had sex with her we know did have sex with her, and we know that not from his own
               testimony, but from the DNA evidence adduced in connection with the rape kit,
               collection by the Chicago Police Department, and its analysis by the Illinois State
               Police. And having listened to her testify, I believe her.” (Emphases added.)
¶ 69       We adduce from these comments that it was E.W.’s consistent testimony regarding
       defendant’s sexual assault of her, in conjunction with her rapid outcry to Officer Hernandez
       and the corroborative DNA evidence, which convinced the trial court of E.W.’s credibility.
       The trial court’s discussion of E.W.’s credibility was separate from its discussion of the
       other-crimes evidence of defendant’s aggravated criminal sexual assault against D.D.; when
       making its credibility determination that it believed E.W.’s account that defendant had
       sexually assaulted her, the trial court made no reference to the other-crimes evidence. This
       indicates to us that the court would have convicted defendant based on E.W.’s testimony, the

                                                   - 13 -
       testimony of Officer Hernandez, and the DNA evidence, even in the absence of the
       other-crimes evidence or even if the other-crimes evidence had been rebutted with evidence
       of his acquittal/hung jury in the D.D. case. Accordingly, defendant was not prejudiced by his
       defense counsel’s failure to introduce evidence rebutting the other-crimes evidence, and
       therefore his claim of ineffective assistance fails.
¶ 70       Next, defendant contends the trial court erred in admitting the other-crimes evidence of
       his aggravated criminal sexual assault against D.D., because “[t]o allow evidence of [a] prior
       sexual offense for which an accused has been acquitted threatens notions of basic fairness,
       and falls outside of the plain language of [s]ection 115-7.3.” Initially, we note defendant was
       acquitted on only one charge of aggravated criminal sexual assault (based on forced oral
       penetration) in the D.D. case; the jury was hung on the other charge of aggravated criminal
       sexual assault (based on forced vaginal penetration) in the D.D. case. Thus, the issue is
       whether, under section 115-7.3, defendant’s acquittal on the oral penetration count in the
       D.D. case should have precluded the admission, here, of the other-crimes evidence on that
       count.
¶ 71       When interpreting a statute, our main objective is to determine and give effect to the
       legislative intent. In re Marriage of Cozzi-DiGiovanni, 2014 IL App (1st) 130109, ¶ 31. The
       most reliable indicator of the legislature’s intent is the statutory language, which must be
       given its plain and ordinary meaning. Id. Our standard of review for the construction and
       application of a statute is de novo. Id.
¶ 72       Section 115-7.3 states in pertinent part that where defendant is accused of the “offense”
       of aggravated criminal sexual assault, evidence of his commission of another “offense” of
       aggravated criminal sexual assault “may be admissible (if that evidence is otherwise
       admissible under the rules of evidence) and may be considered for its bearing on any matter
       to which it is relevant.” 725 ILCS 5/115-7.3 (West 2010). The plain language of the statute
       does not require that there have been a conviction on the other offense of aggravated criminal
       sexual assault in order for evidence of said offense to be admitted, nor does it state that
       evidence of the other offense may not be admitted where a trial on that offense resulted in an
       acquittal.
¶ 73       We further note that the mere fact of acquittal does not necessarily mean that defendant
       did not commit the alleged other offense; instead, it shows that the State was unable to prove
       every element of its case beyond a reasonable doubt. See People v. Jackson, 149 Ill. 2d 540,
       550-51 (1992). The fact that the State was unable to prove every element of the other offense
       beyond a reasonable doubt when that case was brought to trial does not automatically
       foreclose its subsequent admission as other-crimes evidence against the defendant in a
       different case; our supreme court has held that the proof of other crimes committed by
       defendant need not be beyond a reasonable doubt but rather must be “more than a mere
       suspicion.” People v. Thingvold, 145 Ill. 2d 441, 456 (1991). “[T]he State is not precluded
       from ‘relitigating an issue when it is presented in a subsequent action governed by a lower
       standard of proof.’ ” Jackson, 149 Ill. 2d at 550 (quoting Dowling v. United States, 493 U.S.
       342, 349 (1990)). In Jackson, our supreme court held that evidence of prior criminal conduct
       can be considered at sentencing even if defendant is acquitted of that conduct, because the
       burden of proof at sentencing is lower than proof beyond a reasonable doubt. Id. at 549-53.
       Similarly, defendant’s earlier acquittal on the aggravated criminal sexual assault charge
       (alleging oral penetration) in the D.D. case under the “beyond a reasonable doubt” standard

                                                 - 14 -
       of proof did not bar the subsequent admission, here, of the other-crimes evidence on that
       charge, where the admission of the other-crimes evidence was governed by the lower “more
       than a mere suspicion” standard of proof.
¶ 74       Next, defendant argues that even if section 115-7.3 did not automatically foreclose the
       admission of the other-crimes evidence, the trial court still should have denied its admission
       after weighing the relevant factors. Section 115-7.3 provides that the relevant factors the trial
       court should consider when deciding whether to admit other-crimes evidence include: “(1)
       the proximity in time [of the other offense] 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 2010). We review the trial court’s
       admission of the other-crimes evidence for an abuse of discretion. Ward, 2011 IL 108690,
       ¶ 21.
¶ 75       At the hearing on the State’s motion to admit the other-crimes evidence of defendant’s
       aggravated criminal sexual assault against D.D., the trial court first noted that the assault
       against D.D. was alleged to have occurred only about six months prior to the alleged assault
       against E.W. The trial court found this was a relatively short gap in time that weighed in
       favor of the admission of the other-crimes evidence, noting that other-crimes evidence had
       been admitted in cases in which there had been far longer gaps between the crimes. See
       People v. Donoho, 204 Ill. 2d 159, 186 (2003) (affirming the admission of other-crimes
       evidence where there was a 12- to 15-year gap between crimes).
¶ 76       The trial court next found that the degree of factual similarity between the two offenses
       weighed in favor of the admission of the other-crimes evidence. The trial court noted that
       both offenses were predicated on defendant approaching a female in his automobile, at
       similar times at night on the south side of Chicago, and forcing them into the car at gunpoint
       and then robbing and sexually assaulting them. In addition, we note that both victims were
       African-American, and that defendant penetrated both of them orally and vaginally. This case
       is similar to People v. Williams, 2013 IL App (1st) 112583, in which the appellate court
       affirmed the admission of other-crimes evidence, where the similarities in the two offenses
       included: both victims were young African-Americans; they were both alone at night; the
       assaults occurred in close geographic proximity to each other; they both involved vaginal
       penetration; and the assailant held the victims down with his body weight. Id. ¶ 48. The
       appellate court found that the facts were sufficiently similar to support admissibility of the
       other crime under section 115-7.3. Id. The instant case is largely analogous to Williams in the
       similarity between defendant’s assault on E.W. and his assault on D.D. As in Williams, the
       facts of the two cases are sufficiently similar to support the admissibility of the other-crimes
       evidence.
¶ 77       The trial court then considered the final factor, “other relevant facts and circumstances.”
       725 ILCS 5/115-7.3(c) (West 2010). In weighing this factor, the trial court addressed
       defendant’s argument that the introduction of evidence of defendant’s sexual assault of D.D.
       would cause a mini-trial because of the amount of time that the parties would spend
       presenting expert testimony regarding the DNA analysis of D.D.’s vaginal swabs. The trial
       court recognized that the danger of such a mini-trial is that the State’s evidence of the other
       crime against D.D. could “overshadow some relative paucity or almost lack of evidence
       regarding the charged crime [such] that the jury would then find [defendant] guilty simply
       because they believed he did the *** other crime rather than the charged crime.”

                                                  - 15 -
¶ 78       However, after considering the expert testimony that would likely be introduced with
       regard to defendant’s assault against D.D., namely the testimony of the State’s expert,
       Mr. Richert, and defendant’s expert, Dr. Reich, the trial court concluded that it would not be
       so overwhelming as to result in a mini-trial prejudicial to defendant, and so granted the
       State’s motion to admit the other-crimes evidence.
¶ 79       Given that the trial court engaged in a meaningful analysis of all three statutory factors
       that was in line with the established case law, we find no abuse of discretion in its admission
       of the other-crimes evidence of defendant’s aggravated criminal sexual assault against D.D.
¶ 80       Defendant argues, though, that after the jury entered a partial acquittal in the D.D. case, it
       was “unfair” and “harassing” for the State to present the nearly “identical” E.W. case against
       him utilizing evidence from the D.D. case as other-crimes evidence, and that the harassing
       nature of the State’s prosecution should have caused the trial court to bar the other-crimes
       evidence. We disagree. Defendant was separately charged with committing two entirely
       separate crimes: the sexual assault against D.D. in July 2002, and the unrelated sexual assault
       against E.W. approximately six months later in February 2003. After the D.D. case was taken
       to trial and a partial acquittal entered, the State properly brought the E.W. case to trial and
       sought the admission of the other-crimes evidence as it was allowed to do under section
       115-7.3. There was nothing unfair or harassing in the State’s prosecution of defendant for his
       alleged sexual assaults of D.D. and E.W., nor was there anything unfair or harassing in the
       State’s utilization of section 115-7.3 to seek the admission of other-crimes evidence. As
       discussed earlier in this opinion, the trial court committed no abuse of discretion in admitting
       the other-crimes evidence.
¶ 81       Defendant next argues that the trial court erred in crediting the testimony of the State’s
       expert, Mr. Richert, over the testimony of the defense expert, Dr. Reich, with regard to the
       DNA analysis of D.D.’s vaginal swabs and finding that the other-crimes evidence of
       defendant’s sexual assault on D.D. established defendant’s propensity to commit sex crimes.
       Defendant argues that the trial court should have made the opposite finding, i.e., that Dr.
       Reich was more credible than Mr. Richert, and then excluded the other-crimes evidence. We
       disagree. See People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009) (“in a bench trial, it is for
       the trial judge, sitting as the trier of fact, to determine the credibility of witnesses, to weigh
       evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the
       evidence”).
¶ 82       For the foregoing reasons, we affirm the circuit court.

¶ 83      Affirmed.




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