                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Stevens, 2013 IL App (1st) 111075




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



District & No.             First District, Sixth Division
                           Docket No. 1-11-1075


Filed                      June 14, 2013


Held                       Defendant’s conviction for aggravated criminal sexual assault was upheld
(Note: This syllabus       over his contentions that the trial court erred in admitting evidence of his
constitutes no part of     prior aggravated criminal sexual assault conviction and in allowing the
the opinion of the court   prosecution to cross-examine him about that conviction, since the
but has been prepared      similarities between the offenses were sufficient to qualify as “general
by the Reporter of         areas of similarity,” and cross-examination of defendant about the prior
Decisions for the          offense was relevant and admissible to impeach defendant’s contention
convenience of the         that his conduct with the instant victim was consensual.
reader.)



Decision Under             Appeal from the Circuit Court of Cook County, No. 08-CR-21582; the
Review                     Hon. Nicholas Ford, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, Jonathan Steffy, and Brett C.
Appeal                     Zeeb, all of State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Anthony O’Brien, and Iris G. Ferosie, Assistant State’s Attorneys, of
                           counsel), for the People.


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



                                              OPINION

¶1          Following a bench trial, defendant, Mark Stevens, was convicted of three counts of
        aggravated criminal sexual assault and sentenced to 60 years’ imprisonment. On appeal,
        defendant contends the trial court abused its discretion in admitting proof of a prior
        aggravated criminal sexual assault. Defendant additionally contends the trial court erred in
        allowing the State to question him on cross-examination regarding evidence of the prior
        aggravated criminal sexual assault in violation of his right against self-incrimination. Based
        on the following, we affirm.

¶2                                                FACTS
¶3          Prior to trial, the State filed a motion in limine seeking to admit other crimes evidence
        regarding three aggravated criminal sexual assaults. Defendant filed an objection and answer.
        A hearing was held on the motion. The State argued that the three aggravated criminal sexual
        assaults occurred within six years of the offense at issue, that all of the sexual assaults were
        factually similar, and that the three sexual assaults were probative to show defendant’s
        identity, intent, motive, common scheme or design with regard to the sexual assault at issue,
        as well as defendant’s propensity to commit sex crimes. Defendant argued that the
        circumstances of the other cases varied greatly from those related to the offense in question
        and that the evidence of the other sexual assaults was “inherently unreliable.” The trial court
        granted the State’s motion and admitted the other crimes evidence, finding there were no
        differences between all of the sexual assaults that precluded them from being relied upon in
        the case at bar, that the cases were relevant to show motive, identity, and propensity, and that
        the probative value of the other crimes evidence outweighed any prejudicial effect on
        defendant.
¶4          At trial, the victim, B.P., testified that on October 1, 2002, she was 13 years old. On that
        date, she returned home from school around 3:30 p.m. and then proceeded to the mall to buy
        her mother a birthday present. The mall was located approximately 10 blocks from her home,

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     which was located on N. Lawler Avenue, in Chicago, Illinois. B.P. intended to return home
     by her curfew of 8:30 p.m. B.P. was with a friend while at the mall; however, the friend had
     to leave at some point. As a result, B.P. left the mall alone and began walking home. It was
     dark outside at the time. After walking for approximately one block, B.P. heard a male voice
     say “come here.” B.P. ignored the man and continued walking without turning around. The
     man, however, repeatedly demanded that B.P. “come here.” B.P. attempted to walk faster,
     but the man ran up from behind and grabbed B.P. The man, whom B.P. later identified as
     defendant, forced B.P. into the back of a car parked nearby. Another male was already seated
     in the back of the car. Defendant proceeded to the driver’s seat. B.P. testified that she tried
     to exit the car by “yanking on the door,” but the doors were locked and the windows did not
     function. According to B.P., she noticed an object on defendant’s hip that appeared to be the
     handle of a handgun.
¶5       B.P. testified that defendant drove the car for approximately one hour. Defendant then
     stopped the car, exited, and instructed B.P. to exit the car as well. Defendant grabbed B.P.
     by the arm and led her to the basement of an apartment building where she was left alone for
     5 to 10 minutes. B.P. testified that she attempted to flee from the basement, but it was dark
     and she could not find an exit. When defendant returned to the basement, he ushered B.P. to
     the front of the apartment building. B.P. did not observe the man that had been seated in the
     backseat of the car nor anyone else in the building. B.P. testified that defendant directed her
     to a landing between the first and second floors of the building and instructed her to remove
     her clothes. B.P. complied and defendant removed his pants. Defendant demanded that she
     put her mouth “on his dick.” B.P. was afraid so she complied, performing oral sex for
     approximately 5 to 10 minutes. Then, defendant instructed B.P. to get up and turn around at
     which time he forced his penis inside B.P.’s anus. B.P. was in pain and testified that
     defendant engaged in anal sex for about 10 to 15 minutes. Thereafter, defendant instructed
     B.P. to move yet again at which time he forced his penis into B.P.’s vagina for 20 to 30
     minutes. According to B.P., she could not stop defendant or move from underneath his
     weight.
¶6       B.P. further testified that she heard an individual enter the apartment building. In
     response, defendant stopped, put on his clothes, and left the building. B.P. dressed, but
     waited approximately 10 to 15 minutes before leaving the building for fear that defendant
     was lingering outside or would return. When she exited the building, B.P. ran to the nearest
     bus stop. B.P. rode two buses in order to get home. Upon arriving home, B.P. observed that
     her mother, Sheila Thomas, was speaking to a police officer. B.P. testified that she refused
     to tell the officer where she had been. However, once the officers left her home, B.P.
     informed Thomas about the offense.
¶7       According to B.P., Thomas took her to the hospital where a doctor performed a pelvic
     exam and swabbed her vagina and anus. While at the hospital, B.P. described the offense to
     the police and gave the police the clothes that she had been wearing. A couple of days after
     the offense, the police returned to B.P.’s house and requested that she show them where the
     sexual assault occurred. B.P. refused out of fear for her safety.
¶8       B.P. additionally testified that she spoke to the police in 2008. At that time, B.P. agreed
     to view a photographic array. B.P. identified defendant as the assailant in 2002 and became

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       physically ill and vomited after doing so. A couple of weeks later, B.P. viewed a lineup and
       again identified defendant as her assailant. B.P. identified defendant for a third time in court.
¶9         According to B.P., she observed defendant at least two times prior to the offense in
       question. B.P. said she observed defendant standing across the street from her school. B.P.
       noticed defendant because he was older than the kids at school and he would “just stand
       there.” B.P. never spoke to defendant prior to the offense.
¶ 10       On cross-examination, B.P. could not recall having told police on the night of the offense
       that defendant pointed a gun at her head, that there were three attackers, and that the assault
       took place in an apartment unit within the building.
¶ 11       Thomas testified that, on October 1, 2002, her 13-year-old daughter, B.P., had a curfew
       of 8:30 p.m. When B.P. was not home by her curfew, Thomas called the police. Sometime
       after the police arrived at her home, B.P. walked into the house. According to Thomas, B.P.
       appeared frightened. B.P. informed Thomas that she had been raped. Thomas could not recall
       whether B.P. provided the information regarding the rape in the presence of the police.
       Thomas then took B.P. to the hospital emergency room to be examined by a doctor.
¶ 12       The parties stipulated that, if called by the State, Doctor Monique Karaganis, an expert
       in pediatric medicine, would testify that she examined B.P. on October 1, 2002, at Cook
       County Hospital. Dr. Karaganis conducted a pelvic exam and observed a two-millimeter tear
       in B.P.’s hymen and two tears in her rectum, as well as bloody semen in B.P.’s vagina and
       rectum. Dr. Karaganis collected vaginal and oral swabs from B.P. and placed the swabs in
       an Illinois State Police sexual assault collection kit. Dr. Karagnis would testify that her
       findings were consistent with the use of force or forceful intercourse, but that she could not
       opine on the degree of force used or whether the intercourse was consensual.
¶ 13       The parties additionally stipulated that, if called by the State, a number of individuals
       would testify regarding the chain of custody of the sexual assault evidence kit, as well as
       B.P.’s undergarments, which were tested by the Illinois State Police crime lab. One male
       DNA profile was recovered from the samples in addition to B.P.’s DNA profile.
¶ 14       R.G. testified that, on September 3, 2008, she was 21 years old and lived on E. 68th
       Street in Chicago, Illinois. At the time, R.G. worked as a security officer at the Home Depot
       located on Cicero and Armitage in Chicago, Illinois. On the date in question, she left work
       at 9 p.m. and was on the Roosevelt Street “L” train platform when a man approached her
       from behind, pointed something hard and sharp in her back, and told her to go with him. The
       man warned R.G. that he would kill her if she screamed; R.G. complied out of fear. R.G.
       testified that she had never observed the man, whom she later identified as defendant, prior
       to that day. Defendant directed R.G. to a different train platform and they boarded a train.
       The pair transferred trains a number of times before exiting at the “UIC” stop.
¶ 15       Defendant directed R.G. to a nearby hotel on Ashland Avenue and requested a room.
       Defendant forced R.G. into the room and demanded that she remove her clothes. R.G.
       complied. Defendant then searched through R.G.’s clothing and found a switchblade knife
       that she carried for protection. According to R.G., defendant demanded that she “suck [his]
       dick,” but she refused. In response, defendant grabbed R.G. and threatened to kill her if she
       did not perform oral sex. R.G. began crying and complied while defendant threatened her

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       with her knife. R.G. continued oral sex for 45 to 60 minutes.
¶ 16       According to R.G., she attempted to escape from the room, but defendant grabbed her
       and choked her. R.G. said she screamed and believed she was going to die. Defendant then
       pushed R.G. to the ground and threatened to rape her. R.G. pleaded with defendant, but he
       attempted to force his penis into R.G.’s anus. R.G. continued to plead with defendant and
       informed him that she was menstruating. Defendant turned R.G. over onto her back and
       pinned her down with the weight of his body. As R.G. struggled, defendant inserted his penis
       into her vagina. Defendant initially wore a condom, but removed it at some point prior to
       ejaculating. Defendant continued to hold R.G.’s knife. After the assault, defendant forced
       R.G. to lie down with him and instructed that he would kill her if she told anyone about the
       offense. R.G. noted that her cellular phone rang twice during the incident. Defendant
       instructed her to answer the phone and “act natural.”
¶ 17       According to R.G., she and defendant left the hotel room and went to a gas station
       convenience store before boarding another train. Prior to exiting the train, defendant
       reminded R.G. not to report the incident to anyone. Defendant told R.G. that he would call
       her the next day and then he exited the train. R.G. testified that she had not given defendant
       her phone number. Once alone, R.G. called her friend and told her about the offense. In
       addition, when she arrived home, R.G. reported the offense to her mother. R.G.’s mother
       called for an ambulance, which transported R.G. to the hospital where a “rape kit” was
       performed. While at the hospital, R.G. spoke to two detectives. R.G. later accompanied the
       detectives to the hotel where the offense took place.
¶ 18       R.G. further testified that, prior to the date in question, she had received strange phone
       calls, which she later realized were from defendant. R.G. had no prior knowledge of
       defendant and did not know how he obtained her phone number. Defendant referred to
       himself as “Drayday” on the phone.
¶ 19       On cross-examination, R.G. identified herself on footage from video surveillance of the
       Chicago Transit Authority platforms and the convenience store on the date in question
       demonstrating that R.G. was at times following behind defendant or at a distance of 8 to 10
       feet from defendant.
¶ 20       Detective Anthony Padilla testified that in October 2008 he was assigned several sexual
       assault cases linked to defendant. Detective Padilla showed B.P. a photographic array, during
       which she vomited upon seeing a picture of defendant. B.P. positively identified defendant
       as committing the offense against her in 2002. Detective Padilla testified that he arrested
       defendant at his grandmother’s house on October 29, 2008. According to Detective Padilla,
       B.P. positively identified defendant in a police lineup. Then, after initially refusing,
       defendant complied with a warrant to produce a buccal swab. Detective Padilla further
       testified that he investigated defendant in relation to R.G.’s assault. Detective Padilla
       recovered a hotel card from the Rosemore Hotel on Jackson and Ashland. The card contained
       defendant’s name and address.
¶ 21       The parties stipulated that a proper chain of custody was maintained for defendant’s
       buccal swab. The parties further stipulated that, if called by the State, Ryan Paulsen, an
       expert in forensic DNA analysis with the Illinois State crime lab, received defendant’s buccal


                                                -5-
       swab and a DNA profile from B.P.’s evidence that was suitable for comparison. Paulsen
       concluded that the male DNA found on B.P. matched defendant’s DNA profile obtained
       from his buccal swab.
¶ 22        The State rested its case-in-chief and defendant requested a directed finding. The request
       was denied by the trial court.
¶ 23        The parties agreed to stipulate that, if called by defendant, Officer Guereca would testify
       that he responded to a call of a missing person on October 1, 2002. Officer Guereca would
       testify that he was present at B.P.’s house when she returned after the offense and she did not
       report the assault. The parties additionally agreed to stipulated that, if called, Officers Maltos
       and Crespo would testify that they interviewed B.P. at the hospital on the night of the offense
       and B.P. reported that three men were involved, that one of the men pointed a handgun to her
       head, and that the offender’s car was parked in the mall parking lot. By way of stipulation,
       Officer Gallagher, if called by defendant, would testify that he also interviewed B.P. on the
       night of the offense. B.P. reported that the incident took place in a third-story unit in the
       building located at 55th Street and Halsted Avenue in Chicago, Illinois, and that two other
       men were waiting inside the building. The final stipulation offered was that, on October 1,
       2002, B.P. told medical personnel at the hospital that she was attacked by African-American
       males that put a handgun to her head and instructed her to get into a car.
¶ 24        Defendant testified that he met B.P. on a phone chat line two weeks prior to October 1,
       2002. Defendant provided B.P. with his personal phone number, which she used after exiting
       the chat line. According to defendant, he and B.P. engaged in five or six phone conversations
       prior to meeting. Defendant was aware that B.P. lived with her mother and that her
       grandmother lived on the second floor. B.P. also told defendant that she could only call him
       after 3 p.m. because that was when her mother was not home. B.P. said she was 18 years old.
       Defendant testified that he met B.P. once and they engaged in consensual sex.
¶ 25        On cross-examination, defendant testified that he had used aliases in the past. Defendant
       initially denied taking B.P. to his home located on W. Garfield Boulevard in Chicago,
       Illinois. Defendant acknowledged that Garfield Boulevard is also known as 55th Street.
       However, defendant testified that B.P. asked to meet him, and because he was on house
       arrest, he brought B.P. to his house. Defendant said he and B.P. had planned on “sexual
       activity.” Defendant testified that he lived with his mother, but she was not home at the time.
       According to defendant, B.P. did not look like she was 13 years old. Defendant said he was
       26 years old at the time. Defendant described the building he lived in as a three-flat with six
       units. He lived on the first floor. The building had a basement and a small parking area in the
       rear.
¶ 26        According to defendant, B.P. requested marijuana when she arrived to his house.
       Defendant did not have any marijuana, so he sent B.P. to a nearby gas station, first alone and
       then with a neighbor from the second floor, to obtain a “blunt.” Upon their return, the
       neighbor and B.P. proceeded to smoke the “blunt.” Thereafter, B.P. told defendant that she
       needed to be home by 8 p.m., which defendant did not find strange. Defendant suggested that
       the pair move to the third floor to avoid the potential of his mother coming home. Defendant
       had access to the unoccupied third-floor apartment because he was the building janitor.


                                                  -6-
       Defendant asked B.P. if she was sure she wanted to “do this” and she replied, “yeah, that’s
       the reason why I came.” According to defendant, B.P. wanted to “try everything” and
       requested to perform oral sex on defendant. After completing oral sex, B.P. requested anal
       sex. Defendant testified that he wanted to “wait on that” because he “really didn’t want to
       do it because [he] thought it was kind of messed up.” B.P. agreed to vaginal sex, as suggested
       by defendant. Afterward, B.P. continued to want to engage in anal sex, so defendant
       complied. Defendant did not use a condom, but he did not ejaculate. Defendant testified that
       he later ejaculated after engaging in vaginal sex for a second time. According to defendant,
       B.P. consented to him tearing her vagina and rectum. Defendant denied seeing blood when
       he “washed up” after the sexual activities. Defendant testified that B.P. called him the next
       day and did not mention having been to the hospital or having spoken to the police.
¶ 27       Defendant further testified that he had been in B.P.’s neighborhood before and that his
       aunt and cousin, Donte Manuel, lived across the street from the mall. When asked about
       R.G., defendant denied knowing whether Manuel ever dated R.G. Defense counsel objected,
       arguing that defendant’s direct examination was “limited to the active case, not proof of other
       crimes.” The trial court overruled the objection, noting that defendant’s credibility was at
       issue and stating:
               “I don’t know how you can limit it like that. You’re right it’s an active case but he
           chose to testify and part of the evidence that he’s facing on a case that’s currently before
           me is the evidence of proof of other crimes and this notion that somehow something is
           off limits or that this is a limited testimony would be a novel concept in my view under
           the law.
               ***
               His credibility is at issue. You’re telling me that if an attorney such as yourself calls
           a witness and somehow just wants to talk about A and B and C and this other incident
           which is an aspect of the credibility of the witness is somehow off limit because–
                                                   ***
               *** [U]nder these circumstances, under these condition[s], his credibility, it was
           introduced for propensity which obviously whether or not that other incident occurred
           or how he might explain it would be something that would be relevant in this case also.”
¶ 28       Defense counsel responded by arguing that defendant had a separate and distinct fifth
       amendment right against self-incrimination for each case, and although he waived that right
       for one case, he did not waive his rights in both cases. The trial court provided defense
       counsel a 45-minute recess to find case law to support his argument. When the trial resumed,
       the court ruled that the State could cross-examine defendant regarding the R.G. case. Based
       on the trial court’s ruling, defense counsel then requested to speak to defendant in order to
       potentially strike his testimony from the record. The court denied the request where the
       State’s pretrial motion to admit other crimes evidence was granted after the court engaged
       in a balancing test to consider probative value of the evidence versus its prejudicial effect on
       defendant, the other crime was introduced during the State’s case-in-chief, and defendant
       choose to waive his fifth amendment rights by testifying regarding the B.P. offense.
¶ 29       When cross-examination resumed, defendant testified that he met R.G. at a bus stop at

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       Cicero and Lake. Defendant had pulled his car up to the corner and asked to speak to R.G.
       Defendant exited his car and R.G. asked whether he had any marijuana. Defendant responded
       in the negative, but R.G. provided defendant with her phone number. According to
       defendant, he and R.G. made plans to meet later at the Cicero green line “L” stop. Defendant
       denied telling R.G. that his name was “Dre Dre.” Defendant testified that the pair met as
       planned, but did not go anywhere. R.G. was wearing a work uniform. About one week later,
       the pair met at the Roosevelt green line “L” stop. Defendant and R.G. boarded the train and
       switched trains to a blue line train. The pair disembarked at the “UIC” stop. Defendant and
       R.G. patronized a gas station prior to going to a hotel. Defendant paid for a room using his
       identification in order to gain the rental. On the way to the room, defendant purchased snacks
       from a vending machine.
¶ 30       Once in the hotel room, the pair watched television, smoked marijuana, and drank
       alcohol. In exchange for the marijuana, R.G. told defendant she would perform oral sex on
       him. Defendant requested vaginal sex, but R.G. refused because she was menstruating. R.G.
       eventually stopped performing oral sex and defendant again requested vaginal sex. When
       R.G. refused, defendant removed her pants to inspect whether she actually was menstruating.
       R.G. had lied because she did not want to have vaginal sex. Defendant then demanded his
       marijuana and R.G. refused. R.G. inquired whether defendant had a condom. Defendant left
       the room to obtain a new condom from the hotel office. According to defendant, when he
       returned, he and R.G. had vaginal sex during which he wore a condom. Defendant testified
       that he ejaculated into the condom.
¶ 31       After the sexual activity was completed, defendant and R.G. left the hotel and walked to
       a gas station where defendant purchased water. Defendant and R.G. then proceeded to the
       “L” station. They boarded a train and both exited at the 69th Street stop. Defendant testified
       that the pair spoke for 15 to 20 minutes after exiting the train. The pair then parted ways.
¶ 32       Defendant testified that he was arrested the following day. He was read his Miranda
       rights. Defendant recalled requesting to speak to an attorney. Defendant denied speaking to
       any detective. When the State presented several statements defendant allegedly made to
       Detective Donte Cervin, defendant either stated that he could not recall the statements or
       denied having talked to the detective. Defendant additionally denied making any statements
       to an assistant State’s Attorney (ASA).
¶ 33       During the State’s rebuttal, Detective Cervin testified that he investigated R.G.’s sexual
       assault case. Detective Cervin initially interviewed R.G. while she was in the hospital. R.G.
       later directed Detective Cervin to the hotel where the offense occurred. Detective Cervin
       obtained the registration card signed by defendant when he rented the hotel room. The
       registration card provided defendant’s address.
¶ 34       Detective Cervin testified that he interviewed defendant at the police station after
       advising him of his Miranda rights. Defendant never requested an attorney. According to
       Detective Cervin, defendant said he and R.G. spoke on the phone approximately 10 to 15
       times prior to meeting on September 3, 2008. Defendant told the detective that he and R.G.
       agreed to meet at 8 p.m. or 9 p.m. at the Roosevelt and Lake green line “L” stop and then to
       proceed to a hotel room to smoke marijuana and drink alcohol. Defendant said R.G. agreed


                                                -8-
       to have sex with him for $60 and marijuana. When the pair met, defendant and R.G. went
       directly to the Rosemore hotel where defendant checked in and provided his identification.
       When R.G. requested the promised marijuana, defendant said he did not have any. Instead,
       defendant reported that R.G. agreed to have sex with him for $65. Defendant told Detective
       Cervin that he paid R.G. $40. R.G. asked defendant not to leave her alone, so the pair left the
       hotel together. Defendant said they walked to the BP gas station on Ashland where he bought
       two bottles of water and potato chips. Defendant and R.G. then walked to the train station.
       Defendant said he had consensual sex with R.G. for money. When the pair left the hotel
       room, R.G. was not upset or crying.
¶ 35       Detective Cervin further testified that he confronted defendant with R.G.’s account of the
       offense. Defendant denied R.G.’s account. After telling defendant that he had obtained video
       surveillance from the CTA which showed R.G. crying, defendant told Detective Cervin that
       R.G. cried three of four times on the train. Moreover, the video surveillance from the gas
       station showed defendant purchasing a small item that did not resemble bottled water or a
       bag of chips.
¶ 36       Detective Cervin additionally testified that he had a second conversation with defendant
       during which he reported that R.G. cried the entire way home. Defendant later told Detective
       Cervin that his cousin Manuel dated R.G. Defendant was unaware of whether R.G. knew he
       was Manuel’s cousin.

¶ 37                                            DECISION
¶ 38                            I. Admissibility of Other Crimes Evidence
¶ 39        Defendant contends the trial court erred in allowing the State to present prejudicial
       propensity evidence in violation of section 115-7.3 of the Code of Criminal Procedure of
       1963 (Code) (725 ILCS 5/115-7.3 (West 2002)).
¶ 40        It is within the trial court’s sound discretion whether to admit evidence of a prior criminal
       offense, and we will not reverse that decision on appeal unless there was a clear abuse of
       discretion. People v. Wilson, 214 Ill. 2d 127, 136 (2005). An abuse of discretion will be
       found only when a trial court’s decision is “arbitrary, fanciful or unreasonable” or “where no
       reasonable man would take the view adopted by the trial court.” (Internal quotation marks
       omitted.) People v. Donoho, 204 Ill. 2d 159, 182 (2003).
¶ 41        In general, evidence regarding other crimes is inadmissible when its purpose is to
       demonstrate a defendant’s propensity to commit a crime. Id. at 170. Instead, other crimes
       evidence is admissible to prove certain facts, such as “intent, modus operandi, identity,
       motive, [and] absence of mistake.” Id. at 170, 173. However, pursuant to section 115-7.3 of
       the Code, the legislature created an exception to the common law bar against the use of other
       crimes evidence to demonstrate propensity in cases where a defendant is accused of criminal
       sexual assault. 725 ILCS 5/115-7.3 (West 2002).
¶ 42        Pursuant to section 115-7.3(c) of the Code, prior to admitting other crimes evidence, a
       trial court must weigh the probative value of the evidence against the undue prejudice to the
       defendant. 725 ILCS 5/115-7.3(c) (West 2002). In doing so, a trial court may consider: “(1)
       the proximity in time to the charged or predicate offense; (2) the degree of factual similarity

                                                  -9-
       to the charged or predicate offense; or (3) other relevant facts and circumstances.” Id. When
       the evidence meets the threshold requirement of relevance and contains probative value, it
       is presumed to be admissible if its probative value is not substantially outweighed by its
       prejudicial effect. Donoho, 204 Ill. 2d at 182-83. Moreover, in Donoho, the Illinois Supreme
       Court interpreted section 115-7.3 to allow evidence of other crimes to demonstrate other
       relevant matters, including a defendant’s propensity to commit sex offenses. Id. at 176. In
       cases involving criminal sexual assault, such as the one here, other crimes evidence is
       probative to rebut a defendant’s claim of consent. People v. Boyd, 366 Ill. App. 3d 84, 93
       (2006).
¶ 43       The question on appeal is whether the trial court abused its discretion when it ruled that
       the prejudicial effect of the evidence of defendant’s prior offense was not substantially
       greater than its probative value. Defendant argues that the trial court abused its discretion in
       applying the balancing test prescribed by section 115-7.3(c) of the Code where the R.G.
       incident occurred six years after the charged conduct and where the B.P. and R.G. cases were
       factually dissimilar.
¶ 44       Turning to the first factor in the balancing test, there is no bright-line rule regarding when
       a defendant’s other crimes are per se too remote. Donoho, 204 Ill. 2d at 183. In People v.
       Illgen, 145 Ill. 2d 353 (1991), the supreme court advised:
               “As a general rule, other offenses which are close in time to the charged offense will
           have more probative value than those which are remote. Nevertheless, the admissibility
           of other-crimes evidence should not, and indeed cannot, be controlled solely by the
           number of years that have elapsed between the prior offense and the crime charged. The
           decision whether to admit or exclude such evidence must be made on a case-by-case
           basis by the trial judge responsible for evaluating the probative value of the evidence.”
           Id. at 370.
¶ 45       Here, six years elapsed between the offense against B.P. and the offense against R.G.
       While relevant in considering the probative value of the evidence, this time elapse is
       insufficient to find an abuse of discretion by the trial court. Donoho, 204 Ill. 2d at 184
       (“while the passage of 12 to 15 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”); People v. Ross, 395 Ill. App. 3d 660, 677 (2009) (finding
       a 17-year time elapse between crimes, which was mitigated by the defendant’s 5 years of
       incarceration, was insufficient to support a finding of an abuse of discretion).
¶ 46       Turning to the second factor in the section 115-7.3(c) balancing test, other crimes
       evidence must have “ ‘some threshold similarity to the crime charged’ ” in order to be
       admissible. Donoho, 204 Ill. 2d at 184 (quoting People v. Bartall, 98 Ill. 2d 294, 310 (1983)).
       However, “ ‘mere general areas of similarity will suffice’ to support admissibility” where the
       evidence is not offered under the modus operandi exception. Id. (quoting Illgen, 145 Ill. 2d
       at 372-73). Instead, some differences between the offenses will not defeat admissibility
       “because no two independent crimes are identical.” Id. at 185 (citing Illgen, 145 Ill. 2d at
       373). Other crimes evidence will be considered increasingly relevant or increasingly
       probative as the factual similarities across the cases increase. Id. at 184. Trial courts have


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       admitted other crimes evidence despite significant factual dissimilarities where it has been
       found that the prejudicial effect of the evidence does not substantially outweigh its probative
       value. See Ross, 395 Ill. App. 3d at 673-77.
¶ 47       In the case before us, the offenses against B.P. and R.G. were sufficiently similar under
       the balancing test. Both victims were young women–B.P. was 13 while R.G. was 21.
       Defendant approached both victims from behind. Both victims were threatened with
       perceived weapons where B.P. observed the handle of a handgun on defendant’s waist and
       defendant pressed a hard, sharp object into R.G.’s back upon approach. Both victims were
       transferred by force to another location. Both victims were forced to perform oral sex on
       defendant before he penetrated each victim anally and vaginally. Both victims reported
       having some form of prior knowledge of defendant where B.P. stated that she noticed
       defendant observing her school on at least two occasions and R.G. stated that defendant
       called her phone a number of times. These similarities across the offenses are enough to
       qualify as “general areas of similarity.” See Donoho, 204 Ill. 2d at 184. Moreover, the
       dissimilarities between the offenses were not enough to disqualify the evidence.
¶ 48       In sum, we find the trial court did not abuse its discretion when weighing the prejudicial
       impact and the probative value of the other crime evidence.

¶ 49                            II. Right Against Self-Incrimination
¶ 50       Defendant next contends the trial court erred in allowing the State to cross-examine him
       regarding the events that occurred with R.G. in violation of his fifth amendment right against
       self-incrimination. Specifically, defendant contends that his right against self-incrimination
       was violated where he was forced to answer questions beyond the scope of his direct
       examination concerning a separate, pending sexual assault case involving a different
       complainant.
¶ 51       The Illinois Constitution provides that “[n]o person shall be compelled in a criminal case
       to give evidence against himself.” Ill. Const. 1970, art. I, § 10. The immunity against self-
       incrimination, however, may be waived by a defendant who wishes to testify as a witness.
       People v. Parchman, 302 Ill. App. 3d 627, 635 (1998) (citing Brown v. United States, 356
       U.S. 148, 156 (1958)). Once the privilege has been waived, a defendant becomes subject to
       cross-examination in the same manner as any other witness. People v. Figueroa, 308 Ill.
       App. 3d 93, 99 (1999).
¶ 52       Generally, cross-examination is limited to matters raised during direct examination.
       People v. Enis, 139 Ill. 2d 264, 295 (1990). However, “it is proper to develop all
       circumstances within the knowledge of the witness which explain, qualify, discredit or
       destroy that witness’ direct testimony, even though they may incidentally constitute new
       matter which aids the cross-examiner’s case.” Id. (citing People v. Williams, 66 Ill. 2d 478,
       486 (1977)). It is within the discretion of the trial court to determine the latitude afforded on
       cross-examination and that decision will not be reversed absent an abuse of discretion. Id.
       Subject to the trial court’s discretion, “the prosecution is entitled and obligated to use all of
       the impeaching evidence it possesses in order to impact the credibility of the defendant if he
       chooses to testify.” People v. Jackson, 391 Ill. App. 3d 11, 33 (2009).

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¶ 53        In the case before us, we recognize that defendant did not testify about R.G. on direct
       examination. Our research has not revealed any case law with the same fact pattern as this
       case, i.e., where a defendant’s privilege against self-incrimination was raised at the trial level
       and the court allowed the State to cross-examine the defendant regarding prior crimes for
       which the door was not “opened” on cross-examination. Cf. People v. Sutton, 316 Ill. App.
       3d 874, 892 (2000) (where, on direct examination, the defendant “opened the door” by
       testifying that the victim moved out of his home due to arguments and the fact that he was
       selling drugs without mentioning the domestic violence that occurred three months prior to
       the victim’s death, and the trial court found the omission relevant and admissible on cross-
       examination to discredit his testimony). However, a defendant’s waiver of the privilege
       against self incrimination “is not partial; having once cast aside the cloak of immunity, he
       may not resume it at will, whenever cross-examination may be inconvenient or
       embarrassing.” People v. Dawson, 57 Ill. App. 3d 712, 715 (1978). In other words, once a
       defendant chooses to take the stand, he may not present a defense and then limit the State’s
       ability to impeach that testimony by avoiding relevant impeachment evidence during his
       direct. See People v. Peebles, 120 Ill. App. 3d 376, 381 (1983) (“[i]t is well established that
       a defendant who takes the stand in his own behalf, is not entitled to claim the privilege
       against self-incrimination on cross-examination on matters reasonably related to the subject
       matter of his direct examination”).
¶ 54        Here, defendant testified that the sexual encounter with B.P. was consensual. In fact,
       defendant alleged that B.P. pursued him and requested the sexual activity. Therefore, cross-
       examining defendant regarding the offense related to R.G. was relevant and admissible to
       “explain, qualify, discredit or destroy” defendant’s version of the events. See Enis, 139 Ill.
       2d at 295. We find support in case law holding that, in criminal sexual assault cases, other
       crimes evidence is admissible to challenge a consent defense. Boyd, 366 Ill. App. 3d at 93.
       “Once that threshold of similarity [between the charged crime and the other crime] has been
       met, courts have found other crimes evidence relevant in a sexual assault prosecution to
       prove defendant’s criminal intent or lack of an innocent frame of mind.” People v. Luczak,
       306 Ill. App. 3d 319, 324 (1999). In People v. Johnson, 239 Ill. App. 3d 1064 (1992), the
       trial court found that evidence of a prior sexual assault was admissible to demonstrate the
       defendant’s state of mind and to challenge the theory of defense that the victim consented
       to the sexual offense on trial. Id. at 1075; see also People v. Harris, 297 Ill. App. 3d 1073,
       1086 (1998). We have established that evidence of the R.G. offense was admissible pursuant
       to the section 115-7.3(c) balancing test in terms of proximity in time between the offenses
       and the similarity between the offenses. We find that the cross-examination of defendant
       about the R.G. offense was proper to challenge, discredit, and impeach defendant’s claim of
       a consensual sexual encounter with B.P.
¶ 55        In sum, we conclude the trial court did not violate defendant’s fifth amendment right in
       allowing cross-examination regarding the R.G. offense because it properly discredited
       defendant’s testimony, was probative of his intent and motive, and impeached his claim of
       consent.




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¶ 56                                   CONCLUSION
¶ 57       We affirm the judgment of the trial court where we find no abuse of discretion in
       allowing the admission of defendant’s other crimes evidence or the cross-examination of
       defendant regarding that evidence.

¶ 58      Affirmed.




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