                                     2013 IL App (1st) 112583
                                                                              THIRD DIVISION
                                                                              November 20, 2013

                                          No. 1-11-2583


                                         IN THE
                              APPELLATE COURT OF ILLINOIS
                                FIRST JUDICIAL DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,                        )       Appeal from the
                                                            )       Circuit Court of
               Plaintiff-Appellee,                          )       Cook County.
                                                            )
       v.                                                   )
                                                            )       No. 01 CR 14985
SANDY WILLIAMS,                                             )
                                                            )
                                                            )       Honorable
               Defendant-Appellant.                         )       Evelyn B. Clay,
                                                            )       Judge Presiding.


       PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.
       Justices Neville and Pucinski concurred in the judgment and opinion.

                                           OPINION

¶1     A jury convicted defendant Sandy Williams of aggravated criminal sexual assault and

aggravated kidnaping of E. B. and acquitted him of armed robbery. Williams was sentenced to

concurrent terms of natural life for the aggravated criminal sexual assault conviction and 20

years in prison for the aggravated kidnaping conviction.

¶2     Williams had previously been convicted, on August 23, 1985, for aggravated criminal

sexual assault and sentenced to 25 years in prison. He was paroled on February 4, 1997, and on

August 3, 2000, arrested and charged with aggravated criminal sexual assault of a 16-year-old

African-American girl, N.H. Later, DNA extracted from semen on oral swabs taken from N.H.
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matched Williams' DNA. Williams' DNA also matched evidence recovered from the aggravated

criminal sexual assaults of four other women, A.M., S.R., L.J., and E.B.

¶3      On June 13, 2001, Williams was arrested and charged for the assault of E.B. The matter

proceeded to jury trial. Williams asserted a consent defense and, in response, the State presented

testimony regarding Williams' prior criminal sexual assault of N.H. Williams argues that (1) the

trial court abused its discretion in admitting other-crimes evidence of N.H.'s assault because its

prejudicial effect outweighed its probative value; and (2) the trial court committed reversible

error by not allowing him to present DNA evidence from N.H.'s sexual assault kit to rebut the

other-crimes evidence that was offered by the State to show propensity in this case.

¶4     We affirm Williams' convictions finding, first, that the trial court did not abuse its

discretion by admitting testimony of Williams' prior aggravated criminal sexual assault of N.H.,

where Williams asserted a consent defense and the evidence was presented to show propensity,

and where its probative value outweighed its prejudicial effect. We find, second, that Williams

did not properly preserve his claim that he should have been allowed to present DNA evidence

from the assault of N.H. to rebut the evidence of his assault on N.H. Further, we find that the

trial court's denial of Williams' request to present evidence relating to another male DNA profile

in N.H.'s sexual assault kit was not an abuse of discretion. This evidence was not relevant to the

issue of whether N.H. consented to sexual intercourse with Williams. Finally, we modify

Williams' sentence for aggravated criminal sexual assault to run consecutively rather than

concurrently to the sentence for aggravated kidnaping.




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¶5                                     BACKGROUND

¶6                        Motion to Admit Other-Crimes Evidence

¶7     In February 2009, before trial, the State filed a motion to admit evidence of other-crimes

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

(West 2008)). Specifically, the motion requested that the trial court allow evidence of other

sexual assaults against A.M. and N.H. The State asserted that the close proximity in time

between the assaults of E.B. (December 1, 1998), A.M. (May 26, 1999), and N.H. (August 3,

2000) weighed in favor of allowing the other-crimes evidence. The State also argued that (1)

each of the sexual assaults occurred in similar areas and were carried out in a similar manner, (2)

many factual similarities existed where each of the victims was an African-American young

woman, was much smaller than Williams, lived near the South Side of Chicago, and was alone

and vulnerable when assaulted, and (3) the assaults occurred in close geographic proximity to

each other and near Williams' residence. The State maintained that the other-crimes evidence

was relevant to rebut any claim by Williams that E.B. consented. Finally, the State argued that

the probative value of the other-crimes evidence was not substantially outweighed by the

possible prejudicial effect of the evidence.

¶8     Williams filed a written response to the State's motion, arguing that the probative value of

the other-crimes evidence was outweighed by the prejudicial effect of the evidence. Williams

argued that the time periods between the assaults were long and there were many factual

dissimilarities among the assaults. He also asserted that the other-crimes evidence should not be

admitted where the probative value was outweighed by the unfair prejudice. Williams noted that


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if the trial court granted the State's motion to admit other-crimes evidence, Williams should be

allowed to present evidence that there was a mixture of DNA profiles identified from the vaginal

and anal swabs taken from N.H.'s sexual assault kit.

¶9     The trial court conducted a hearing on the State's motion to admit the evidence. The trial

court allowed the State's motion, finding (1) the probative value of the evidence outweighed any

prejudicial effect, (2) the other-crimes evidence was not remote in time, (3) the evidence was

factually similar, and (4) Williams asserted a consent defense. Accordingly, the trial court

concluded that the other-crimes evidence pertaining to A.M. and N.H. was allowed on the issue

of propensity. The trial court denied Williams' motion to reconsider the ruling.

¶ 10                                  Evidence at Trial

¶ 11    At trial, E.B. testified that on December 1, 1998, she was 16 years old and about 4 feet

9 inches tall. On that evening, E.B. was visiting her boyfriend, Mario Johnson, at his

apartment at 64th Street and Lowe Avenue in Chicago. E.B. testified that she and Johnson

kissed and he gave her a "hickey" on her neck. Johnson wanted to engage in further sexual

activity, but they did not because E.B. was menstruating.

¶ 12   At about 9:45 p.m., E.B. walked to the bus stop next to the Aldi grocery store at 63rd

Street and Lowe Avenue to take the bus home. Johnson walked E.B. half way to the bus stop,

then she walked the rest of the way alone. When E.B. arrived, Williams was also waiting at the

bus stop. After a long wait for the bus, E.B. decided to walk to a friend's house a few blocks

away, on 59th Street, to call her mother for a ride home. E.B. walked through the Aldi parking

lot, toward 59th Street. When she looked behind her, she saw that Williams was also walking


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through the parking lot. Williams then "angled off" and started to walk in a different direction so

that it no longer appeared that he was following her.

¶ 13    E.B. testified that as she continued to walk toward her friend's house, she saw another

shadow run up to her. Williams grabbed her by the neck from behind, placed a knife to her neck,

and said, "Bitch, don't you holler, don't you scream, don't you say shit or I'm going to cut you."

E.B. began to panic and cry. Williams asked her if she had any money and where she lived. He

then placed his arm around E.B.'s shoulder and walked along-side her, creating the appearance

that they were a couple. Williams held the knife pressed to E.B.'s neck as he looked for a place

to take her. E.B. testified that Williams seemed like "a giant" to her and she was afraid he would

cut her. Williams instructed her to stop crying and that once he cut the vein in her throat, E.B.

would bleed to death.

¶ 14    E.B. tried to get away, but Williams grabbed her jacket and she got caught in the

drawstring. Williams hit E.B. in the face and said, "[B]itch, I'm not playing with you."

Williams then dragged E.B. toward a dark area on the side of the Aldi where the shopping carts

were stored. E.B. grabbed a railing to try to stop him from dragging her into the dark area, but

Williams beat her fingers then tried to cut her fingers with the knife. E.B. let go of the railing so

that her fingers would not be cut, and Williams dragged her behind the shopping carts, where he

ripped off her shirt and pulled down her pants. Williams pinned E.B.'s thighs down with his legs

and inserted his penis into her vagina. After he ejaculated, Williams pulled up his pants and ran

away.

¶ 15    E.B. testified that she put her clothes back on, but could not find her underwear. She ran


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back to Johnson's apartment. On the way, she saw Johnson's brother and told him what

happened. E.B. then told Johnson what happened and the police arrived at his apartment. E.B.

described the assault to the police and was taken to the hospital, where she described the assault

to the doctor and nurse. E.B. had pain in her jaw from where Williams hit her, pain in her neck

from where the knife was pressed into her, and pain in her vagina from the rape. E.B. had a

pelvic exam performed and was given medicine for her pain.

¶ 16   On June 13, 2001, E.B. viewed a lineup at the police station and identified Williams as

the individual who assaulted her. After visually identifying Williams, E.B. asked the detectives

if she could hear the lineup participants speak. E.B. testified that when she heard Williams's

voice, it immediately confirmed that he was the person who raped her.

¶ 17   Mario Johnson testified, that on the date in question, he was E.B.'s boyfriend. On the

evening of December 1, 1998, Johnson and E.B. were talking and kissing in the hallway of his

apartment. Johnson testified that he was "a very bad guy" back then and made E.B. leave

because she was menstruating and unable to have sex with him that night. Johnson testified that

he gave E.B. a hickey on her neck because he was cheating on her with another girl and wanted

to make E.B. feel better. Johnson testified that he walked E.B. half way to the bus stop because

he wanted to get back home to the other girl.

¶ 18   Johnson testified that later that evening, his brother brought E.B. back to his apartment.

E.B. was crying, her clothing was torn off. E.B. told him that she had been raped and described

her assailant. Johnson's brother gave E.B. a shirt to wear, and Johnson and his brother left to

look for E.B.'s assailant. Johnson's mother called him back to the apartment and he accompanied


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E.B. to the hospital. Johnson also testified that an investigator from the Cook Count State's

Attorney's office took a swab of his mouth, pursuant to his consent.

¶ 19   Jane Malaluan, testified that she was the nurse who treated E.B. in the emergency room

that night. Malaluan observed that E.B. had human bite marks on her neck and tenderness in her

vaginal area. Malaluan was present when a sexual assault kit was performed on E.B., which

included swabs of her vagina and neck, and a blood sample.

¶ 20   Two forensic biologists from the Illinois State Police crime lab testified regarding the

vaginal swabs from E.B.'s sexual assault kit. The biologists testified that the swabs tested

positive for the presence of semen, though at the lowest possible level. The kit also contained

swabs that tested negative for semen but positive for saliva. The amount of DNA extracted from

the vaginal swabs was too small for the type of DNA analysis performed at that time by the

Illinois State Police crime lab, so the samples were stored for future analysis.

¶ 21   In 2001, the Illinois State Police lab sent the vaginal swabs from E.B.'s sexual assault kit

to Cellmark Diagnostics for further DNA analysis. Dr. Robbin Cotton testified, as a DNA expert

from Cellmark, that analysis of the semen from the swabs produced a male DNA profile. But,

Cellmark did not have a known male sample to compare to that profile. Dr. Cotton testified that

there was a clear primary male donor in the sperm fraction, as well as three small signals that

could have been either a second male donor or machine-generated artifacts.

¶ 22   A blood sample was taken from Williams in August 2000, while he was in custody on a

different matter. Sandra Lambatos, a DNA expert, testified that the major male profile deduced

by Cellmark for E.B.'s vaginal swab matched the DNA profile derived from William's blood


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sample.

¶ 23   The parties stipulated that the male DNA profile found on the swab of E.B.'s bite mark

matched the DNA profile from Johnson's buccal swab.

¶ 24                                 Other-Crimes Evidence

¶ 25   The State called Eddie Kimble to testify regarding the assault of N.H. Kimble testified

that at about 9 p.m., on August 3, 2000, he and his two sons were walking their dog in a park

near 75th Street and Jeffrey Boulevard. Kimble saw a man on top of a woman in the grass a few

feet from the sidewalk. Kimble testified that it appeared that the man and woman were having

sex. Kimble did not think much of it because it was not uncommon to see such activity in the

park. But, as Kimble walked past, he noticed that the man had his hand over the woman's face.

Kimble asked if everything was alright, and the woman screamed "Help me" and "He raped me

and he is trying to kill me." The woman was screaming and hysterical. Kimble asked the man to

get off the woman, and the man, whom Kimble identified as Williams, told Kimble to leave and

mind his own business. Williams also told Kimble that the woman was his girlfriend and that

everything was okay. Kimble testified that the woman sounded desperate and was trying to

separate herself from Williams.

¶ 26   Kimble told his sons to run to the gas station to call police, then Kimble dialed 911 on his

cell phone. Williams stood up and pulled up his pants. Kimble was talking to the police on his

cell phone and told Williams to let the woman go. The woman broke free from Williams and ran

to Kimble. Kimble saw that her eyes and face were swollen and bloody. She was also missing

some articles of clothing. The woman asked Kimble not to leave because if he did, she thought


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Williams would kill her. Williams moved toward Kimble in a manner that led him to believe

that Williams was going to hit him. Kimble testified that he decided to stay with the woman and

defend himself. Kimble heard sirens nearby and then Williams walked away. Kimble testified

that he subsequently identified Williams in a lineup at the police station.

¶ 27   Officer Tamara Matthews testified that, on August 3, 2000, she and her partner responded

to a call of criminal sexual assault and met Kimble and N.H. at the scene. Officer Matthews

noticed that N.H.'s face was swollen and covered in blood and her clothing was disheveled.

Kimble provided Officer Matthews with a description of N.H.'s assailant. Officer Matthews

drove around the area and, within minutes, saw Williams about three blocks from the park.

Williams matched Kimble's description and he had blood dripping from his hands and on his

clothing. Officer Matthews placed Williams in custody. Officer Matthews testified that upon

returning to the park, she observed a pair of woman's underwear, a sock, a shoe, a set of keys,

and a shirt at the scene. Officer Matthews called for an evidence technician and turned the case

over to detectives.

¶ 28   Williams chose not to testify and the defense rested without presenting evidence.

¶ 29   During closing arguments, the defense did not challenge the fact that Williams had sex

with E.B., but, rather, asserted that the encounter was consensual. The defense pointed to

inconsistencies between E.B.'s testimony and other trial evidence, and noted that the DNA

evidence raised some possibility of the presence of semen from someone other than Williams.

The defense argues that the jury should disregard the other-crimes evidence because Kimble did

not witness the actual assault and N.H. did not testify in this case. The State argued that E.B.


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provided credible testimony about the sexual assault, which was corroborated by the DNA

evidence and testimony from Johnson. The State responded in rebuttal that, just as in the case of

N.H., the sexual encounter between Williams and E.B. was not consensual.

¶ 30   The jury found Williams guilty of aggravated criminal sexual assault and aggravated

kidnaping, and acquitted him of armed robbery. The trial court denied Williams' motion for a

new trial and sentenced him to concurrent terms of natural life in prison and 20 years in prison.

¶ 31   Williams timely appeals.

¶ 32                                        ANALYSIS

¶ 33                           Propriety of the Other-Crimes Evidence

¶ 34   Williams first contends that the trial court abused its discretion in admitting evidence of

the prior criminal sexual assault of N.H. Williams argues that the prejudicial effect of this other-

crimes evidence outweighed any probative value where: (1) the assaults were not particularly

close in time, (2) the assaults were not factually similar, and (3) other relevant factors weighed

against admission.

¶ 35   A decision to admit evidence of a prior criminal offense rests within the sound discretion

of the trial court, and we will not reverse its decision unless there was a clear abuse of discretion.

People v. Wilson, 214 Ill. 2d 127, 136 (2005). We will find an abuse of discretion 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).

¶ 36   Section 115-7.3 of the Code (725 ILCS 5/115-7.3 (West 2008)) provides an exception


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to the common law bar against the use of other-crimes evidence to show propensity in cases,

where, as here, a defendant is accused of criminal sexual assault. Under this section, evidence of

another 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 2008). Our supreme court has held that under this

statute, relevant matters include allowing evidence of other-crimes to show a defendant's

propensity to commit sex offenses. Donoho, 204 Ill. 2d at 176. Under this interpretation, other-

crimes evidence is probative to rebut a defendant's claim of consent. People v. Johnson, 389 Ill.

App. 3d 618 (2009); see also People v. Boyd, 366 Ill. App. 3d 84, 93 (2006).

¶ 37   Where the other-crimes evidence meets the threshold statutory 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. The statute

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 2008).

Williams does not dispute that the other-crimes evidence satisfied the statutory requirements for

admissibility under section 115-7.3. Williams additionally does not contest the relevance of

other-crimes evidence to the consent defense, nor that it contains probative value. Rather,


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Williams claims that the trial court erred in its application of the balancing test prescribed by

section 115-7.3(c). Accordingly, the question for us on appeal is whether the trial court abused

its discretion when it determined that the prejudicial effect of the evidence of Williams' prior

offense was not substantially greater than its probative value. 725 ILCS 5/115-7.3(c) (West

2008).

¶ 38     The record shows that the trial court properly conducted an analysis of the three factors

listed in the statute for weighing the probative value of the other-crimes evidence against the

danger of unfair prejudice. At the pretrial hearing, the trial court noted:

         "[I] find that every prong of Donoho has been met. And the court will admit that

         these matters were not remote in time. They were factually similar. And the third

         prong is met that there is a consent defense. The court finds that it is very

         relevant. So every prong has been met of the Donoho case and the statute, and the

         court finds that on the issue of propensity, these other prior matters will come in."

The trial court further explained, "[A]fter weighing the probative and relevant nature of these

prior cases against the undue prejudice, the court finds that it is very much relevant, and it

outweighs the undue, any prejudice that would come about by having these other cases come into

play here."

¶ 39     Nonetheless, Williams contends that the trial court erred where (1) the proximity in time,

(2) factual dissimilarities, and (3) other relevant factors precluded the trial court from properly

admitting the other-crimes evidence.

¶ 40            Proximity in Time Between Charged Offense and Other-Crimes Evidence


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¶ 41   With respect to the time difference between the other-crimes evidence and the

charged offense, our supreme court held in Donoho:

        " '[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.' [Citation.] Instead, courts should evaluate this

       issue on a case-by-case basis. [Citation.] Therefore, we decline to adopt a bright-

       line rule about when prior convictions are per se too old to be admitted under

       section 115–7.3. Instead, it is a factor to consider when evaluating its probative

       value." Donoho, 204 Ill. 2d at 183-84 (quoting People v. Illgen, 145 Ill. 2d 353,

       370 (1991)).

The Donoho court then held that a 12- to 15-year time gap between offenses, by itself, was

insufficient to render the admission of a prior offense an abuse of discretion. Donoho, 204 Ill. 2d

at 184. The appellate court has upheld other-crimes evidence that was more than 20 years old.

People v. Davis, 260 Ill. App. 3d 176, 192 (1994).

¶ 42   In the present case, the charged offense occurred 20 months before the sexual assault

against N.H. This is a relatively short gap in time between crimes, which the trial court properly

determined weighed in favor of admissibility.

¶ 43                           Degree of Factual Similarity

¶ 44   Other-crimes evidence must have " 'some threshold similarity to the crime charged' " to

be admissible. Donoho, 204 Ill. 2d at 184 (quoting People v. Bartall, 98 Ill. 2d 294, 310 (1983)).

As factual similarities increase, so does the relevance, or probative value, of the other-crimes


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evidence. Donoho, 204 Ill. 2d at 184.

¶ 45   We find that the facts of the 1998 assault against E.B. are sufficiently similar to the facts

of the 2000 assault against N.H. The sexual assaults against E.B. and N.H. were in the same area

of the city, within miles of each other on the south side of Chicago. The victims were African-

American and 16 years old at the time of the assaults. Further, the assaults occurred at night

when both victims found themselves alone and vulnerable. The victims were both penetrated

vaginally by their assailant.

¶ 46   Williams contends that there are "substantial factual differences" between the two

assaults; for example, while there was a knife in the current case, no knife was used in assault of

N.H. Also, N.H. was severely beaten in the face and sexually assaulted in an open area of a park,

while E.B. was not severely beaten and was brought to a hidden area of a parking lot. In

addition, N.H.'s assailant asked her a question before attacking her, while E.B.'s assailant silently

approached her. While Williams highlights these factual differences, our supreme court has

instructed that " 'mere general areas of similarity will suffice' to support admissibility" where the

evidence is not being offered under the modus operandi exception. Donoho, 204 Ill. 2d at 184

(quoting Illgen, 145 Ill. 2d at 372-73). Some differences between the offenses do not defeat

admissibility "because no two independent crimes are identical." Donoho, 204 Ill. 2d at 185. As

this court has previously concluded, " 'Even though defendant correctly observes these factual

discrepancies, we find that he exaggerates their significance in light of the stated compelling

similarities.' " People v. Ross, 395 Ill. App. 3d 660, 676 (2009) (quoting People v. Taylor, 383 Ill.

App. 3d 591, 596 (2008)).


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¶ 47   Williams argues that we should follow People v. Johnson, where this court held that

"significant dissimilarities" between the two assaults, along with the trial court's failure to

conduct a meaningful assessment of the other-crimes evidence's prejudicial effect, led to the

conclusion that the trial court erred in admitting other-crimes evidence to establish the

defendant's propensity to commit sexual offense. People v. Johnson, 406 Ill. App. 3d 805, 812

(2010). Unlike Johnson, the trial court carefully weighed the probative value against the

prejudicial nature of the other-crimes evidence. In addition, Johnson rests on factual

circumstances not present in Williams' case. In Johnson, the victim in the prior offense was

assaulted by the defendant and another perpetrator, while the charged offense involved the

defendant alone with the victim. Johnson, 406 Ill. App. 3d at 811. The testimony in the earlier

case also showed that the defendant forced cocaine and alcohol on the previous victim and anally

penetrated her, which was conduct absent from the charged offense. Johnson, 406 Ill. App. 3d at

808, 811. The differences both in the number of perpetrators and in the defendant's conduct

during the assaults weighed against the relevance of the prior assault to the charged offense in

that case. Johnson, 406 Ill. App. 3d at 811-12.

¶ 48   In contrast, the prior crime contains only minor factual dissimilarities. The assault

against N.H. occurred at night in a park while the assault against E.B. happened at night in a

parking lot. The assault against E.B. involved the use of a knife and the assailant using his body

to hold the victim down to penetrate her vaginally, while the assault against N.H. involved

beating her and then the assailant lying on top of her to penetrate her vaginally. In one case, the

assailant asked a question before the attack while in the other case, the assailant was silent before


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attacking his victim. We find that these dissimilarities are not enough to disqualify the other-

crimes evidence. The similarities as noted above, include: both victims were 16 years old; both

victims were African-American; the victims 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. These similarities are enough to fall

within the requisite "general areas of similarity" as articulated by our supreme court. (Internal

quotation marks omitted.) Donoho, 204 Ill. 2d at 184. We find no error in the trial court's

consideration of the factual dissimilarities.

¶ 49                                   Other Relevant Factors

¶ 50   In the present case, the other-crimes evidence was used to meet Williams' consent

defense. This court has previously noted that a defendant's "no-force" defense at trial increased

the probative value of the other-crimes evidence. Ross, 395 Ill. App. 3d at 674-75. In addition,

although the trial court found both sexual assaults against A.M. and N.H. were relevant and

admissible, the State only presented evidence as to the assault against N.H. The State's decision

to limit the amount of other-crimes evidence reduced the possible prejudicial effect of the

evidence at defendant's trial. See People v. Johnson, 406 Ill. App. 3d 805, 810 (2010).

¶ 51   In sum, we find that the trial court properly weighed the probative value of the other-

crimes evidence against the prejudice to Williams and did not abuse its discretion in admitting

such evidence.

¶ 52                           Rebuttal of Other-Crimes Evidence

¶ 53   Williams also contends that the trial court erred in denying his request to present evidence


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that N.H.'s sexual assault kit showed mixed DNA profiles. Williams argues that he should have

been allowed to introduce evidence that an unknown male DNA profile was found on N.H.'s

vaginal and rectal swabs to rebut the other-crimes evidence.

¶ 54   Initially, the State argues that Williams waived this argument by not filing a motion to

admit this evidence, or making an offer of proof to the trial court regarding the DNA results from

N.H.'s sexual assault kit. The record shows that Williams filed a response to the State's motion

to admit the other-crimes evidence, in which Williams argued: "Should this Honorable Court

sustain the State's motion to allow proof of other crimes, Mr. Williams would request that this

Honorable Court ensure that the DNA evidentiary issues from the case involving [N.H.] also

come to light. There was a mixture of DNA profiles identified from the vaginal swabs [and] ***

rectal swabs *** Given the consideration that someone else's DNA was found in her vagina and

rectum, this information must be included should this Honorable Court grant the State's motion,

as anything else would be misleading, biased, and incomplete." At the hearing on the State's

motion, Williams also argued that the swabs from N.H.'s sexual assault kit indicated "the

probability of additional sources of human DNA both in the anal and the vaginal swabs." In

response, the State objected to Williams' request and argued that the admission of the DNA

results would result in a "mini trial," which Illinois courts have cautioned against. Therefore, the

record indicated that Williams raised this argument before the trial court.

¶ 55    But, Williams failed to include his argument with respect to the DNA evidence in

his motion for a new trial. “It is well settled that, to preserve an issue on appeal, a defendant

must object to the purported error at trial and include it in his written posttrial motion.” People v.


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Glasper, 234 Ill. 2d 173, 203 (2009). Otherwise, the argument is forfeited on appeal. Id.

Williams did not raise the issue in his posttrial motion. Accordingly, the issue is forfeited.

Williams, nonetheless, contends that the issue is reviewable under plain error analysis.

¶ 56   The plain error doctrine allows us to consider a forfeited error when either (1) a clear or

obvious error occurs and the evidence is so closely balanced that the error alone threatens to tip

the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear

or obvious error occurs and that error is so serious that it affects the fairness of the defendant's

trial and challenges the integrity of the judicial process, regardless of the closeness of the

evidence. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Under both prongs of the plain

error analysis, the burden of persuasion remains with the defendant. Id. Ultimately, before a

plain error analysis may be undertaken, the defendant must show that an error occurred, for,

absent error, there can be no plain error. See People v. McGee, 398 Ill. App. 3d 789, 794 (2010)

(citing People v. Herron, 215 Ill. 2d 167, 187 (2005)).

¶ 57   Here, Williams argues that the trial court abused its discretion by precluding the

admission of evidence that N.H.'s sexual assault kit contained another male DNA profile to rebut

the evidence of N.H.'s sexual assault. Williams asserts that the DNA evidence was highly

probative because it related to the credibility of the other-crimes evidence and its exclusion was

highly prejudicial because without the DNA evidence, the jury was presented with an

"incomplete, misleading, and highly inflammatory version of the story."

¶ 58   We note that rebuttal of other-crimes evidence is contemplated by the plain statutory

language of section 115-7.3, which permits admission of both evidence of "defendant's


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commission of another [enumerated] offense or offenses" and "evidence to rebut that proof or an

inference from that proof." 725 ILCS 5/115-7.3(b) (West 2008); see also People v. Ward, 2011

IL 108690, ¶ 27. Under this section, evidence of another criminal sexual assault or, with respect

to this argument, evidence to rebut that proof, "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 2008).

¶ 59    Williams claims that he should have been permitted to cross-examine Kimble's testimony

that he observed Williams sexually assaulting N.H. with evidence that showed another male

DNA profile in N.H.'s sexual assault kit. In this appeal, Williams relies on a lab report from the

Illinois State Police, Division of Forensic Services. The lab report indicated that semen from the

oral swab from N.H.'s sexual assault kit matched Williams' DNA, but semen from the vaginal

and anal swabs matched an unidentified male DNA profile. Williams asserts that he should have

been permitted to present this DNA evidence to challenge the other-crimes evidence presented

and Kimble's testimony that Williams engaged in vaginal sex with N.H. The State argues that

Williams is precluded from relying on the lab report where it was not a document entered into the

record before the trial court and this court is not permitted to take judicial notice of it. As

previously explained, however, the record shows that the parties presented arguments before the

trial court on the admissibility of evidence pertaining to the presence of another male DNA

profile in N.H.'s sexual assault kit. The results of the DNA testing performed on N.H.'s sexual

assault kit were referred to throughout the trial record. Therefore, we will address Williams'

argument in this respect.


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¶ 60   While section 115-7.3(b) permits evidence to rebut other-crimes evidence, the rebuttal

evidence must pass the threshold statutory requirements of admissibility and relevance. 725

ILCS 5/115-7.3(b) (West 2008); Donoho, 204 Ill. 2d at 182-83. The Illinois rape shield law

prevents a defendant from introducing certain evidence pertaining to a complainant's prior sexual

activity. Section 115-7(a) of the Code provides:

       "[T]he prior sexual activity or the reputation of the alleged victim or corroborating

       witness under Section 115-7.3 of this Code is inadmissible except (1) as evidence

       concerning the past sexual conduct of the alleged victim or corroborating witness under

       Section 115-7.3 of this Code with the accused when this evidence is offered by the

       accused upon the issue of whether the alleged victim or corroborating witness under

       Section 115-7.3 of this Code consented to the sexual conduct with respect to which the

       offense is alleged; or (2) when constitutionally required to be admitted." 725 ILCS

       5/115-7(a) (West 2008).

Here, neither exception applies. N.H. did not have a prior sexual relationship with Williams. In

People v. Cornes, the court explained:

       "Defendant's right of confrontation necessarily includes the right to cross-examine

       witnesses, but that right does not extend to matters which are irrelevant and have little or

       no probative value. Complainant's past sexual conduct has no bearing on whether she has

       consented to sexual relations with defendant. The legislature recognized this fact and

       chose to exclude evidence of complainant's reputation for chastity as well as specific acts

       of sexual conduct with third persons in cases of rape and sexual deviate assault. *** The


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       legislature was acting well within its powers in enacting reasonable legislation intended

       to eliminate the cruel and abusive treatment of the victim at trial by precluding the

       admission of prejudicial and irrelevant material and to promote the lawful administration

       of the criminal justice system." People v. Cornes, 80 Ill. App. 3d 166, 175-76 (1980).

In People v. Sandoval, our supreme court determined that, under the Illinois rape shield law, the

defendant in a rape trial was not entitled to present evidence rebutting the victim's direct

testimony that she had never had anal sex with a man other than defendant. The court explained

that the victim's prior sexual encounters with a third party had no impact on the issue of consent

and were not relevant to the victim's bias, prejudice or motive to testify falsely in charging the

defendant. People v. Sandoval, 135 Ill. 2d 159, 176 (1990). The court noted that the defendant

was not prevented from presenting his theory of case by exclusion of this evidence. Id. at 180-

81.

¶ 61   The evidence regarding the presence of another unknown male DNA profile

in N.H.'s sexual assault kit had no bearing on whether N.H. consented to sexual intercourse with

Williams. Rape shield statues, however, do not prevent a defendant from introducing evidence

of the victim's past sexual conduct when it is relevant to establish bias, motive, or prejudice.

Sandoval, 135 Ill. 2d at 174-75. The introduction of DNA evidence indicating that N.H. engaged

in sexual activity with an individual other than Williams would not have shed light on any

motive or bias that N.H. might have had against Williams. Therefore, we find the trial court's

exclusion of evidence relating to the DNA profiles in N.H.'s sexual assault kit to rebut the

evidence of N.H.'s sexual assault was not an abuse of discretion. Since we find no error, we


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decline to review Williams' contention under the plain error analysis.

¶ 62   Williams relies on our supreme court's determination in Ward, 2011 IL 108690, to

support his argument that he should have been permitted to rebut the evidence of N.H.'s sexual

assault with the DNA evidence contained in her sexual assault kit. In Ward, our supreme court

held that the trial court abused its discretion by refusing to admit evidence of the defendant's

acquittal of a criminal sexual assault where that criminal sexual assault had been presented as

other-crimes evidence. The Ward defendant was charged with the criminal sexual assault of

M.M., and the trial court admitted evidence, under section 115-7.3 of the Code, that the

defendant had also been involved in the criminal sexual assault of another woman, L.S. When

the defendant sought to have evidence admitted of his acquittal in L.S.'s case, the trial court

rejected his request. Id. ¶1. Our supreme court held that "the acquittal evidence that the

defendant sought to admit would have aided in rebutting the inference created by L.S.'s testimony

that he had a propensity to commit sex offenses, making it admissible under section 115-7.3." Id.

¶ 27. The court found that the acquittal evidence was relevant and the probative value of the

evidence was not outweighed by undue prejudice. Id. ¶¶ 38, 41. The court concluded that the

acquittal evidence was necessary to provide "a full context for the other-crimes testimony" and,

therefore, the barring of the admission of the acquittal evidence was an abuse of the trial court's

discretion. Id. ¶¶ 46, 48.

¶ 63   We find Ward distinguishable from the present case. In Ward, the court considered the

admission of acquittal evidence to rebut the other-crimes evidence introduced in that case. In

contrast, the evidence here involved the victim's alleged sexual conduct with a third person. The


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court in Ward found that the acquittal evidence was relevant to rebut the inference that the

defendant had a propensity to commit sex offenses. Unlike Ward, the evidence regarding the

presence of another male DNA profile is not relevant to the issue of whether N.H. consented to

sexual intercourse with Williams. Nor is the DNA evidence relating to another male donor

profile relevant to rebut the inference that Williams had a propensity to commit sex offenses.

Further, as explained above, the Illinois rape shield law restricts the admission of such evidence

as it relates to N.H.'s alleged sexual conduct with a third person. The trial court's denial of

Williams' request to present the DNA evidence from N.H. sexual assault kit was not an abuse of

discretion.

¶ 64                                         Sentencing

¶ 65   In its brief, the State requests that we modify Williams' sentence for aggravated

criminal sexual assault to run consecutively to the sentence for aggravated kidnaping. Williams

did not respond to this contention.

¶ 66   Section 5-8-4(a)(ii) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a)(ii) (West

2008) (now 730 ILCS 5/5-8-4(d)(2) (West 2010)) requires that consecutive sentences be imposed

where multiple sentences are imposed and the defendant was convicted of aggravated criminal

sexual assault. A sentence that does not conform to a statutory requirement is void, and we may

correct a void sentence at any time. People v. Arna, 168 Ill. 2d 107, 113 (1995).

¶ 67   Because Williams was convicted of aggravated criminal sexual assault, he is subject to

consecutive sentences even though he was sentenced to natural life. See People v. Petrenko, 237

Ill. 2d 490, 506-07 (2010) (natural life sentences are subject to consecutive sentencing mandates


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of section 5-8-4(a)). In People v. Williams, 238 Ill. 2d 125, 151 (2010), the supreme court, citing

Petrenko, held that a 60-year sentence for aggravated kidnaping was properly ordered to be

served consecutively to two concurrent natural life sentences for aggravated criminal sexual

assault. Similarly, in the present case, the 20-year prison term for aggravated kidnaping must be

served consecutively to the natural life sentence for aggravated criminal sexual assault and we

modify the sentence accordingly.

¶ 68                                  CONCLUSION

¶ 69   We find that the trial court properly weighed the probative value of the other-crimes

evidence against the prejudice to Williams and did not abuse its discretion in admitting such

evidence. Nor did the trial court abuse its discretion in denying Williams' request to introduce

evidence pertaining to the presence of another male DNA profile in the victim's sexual assault kit

to rebut the other-crimes evidence. Therefore, we affirm Williams' convictions but modify his

sentences to run consecutively.

¶ 70   Affirmed as modified.




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