                                                                         SECOND DIVISION
                                                                         OCTOBER 19, 2010




1-08-1126

THE PEOPLE OF THE STATE OF ILLINOIS,                             )       Appeal from the
                                                                 )       Circuit Court of
                Plaintiff-Appellee,                              )       Cook County.
                                                                 )
        v.                                                       )       No. 04 CR 29867
                                                                 )
JAMES DECALUWE,                                                  )       Honorable
                                                                 )       Timothy Chambers,
                Defendant-Appellant.                             )       Judge Presiding.


        JUSTICE CUNNINGHAM delivered the opinion of the court:

        The defendant, James Decaluwe, was indicted for the offenses of armed violence, attempted

aggravated criminal sexual assault and aggravated kidnapping. At his jury trial in the circuit court

of Cook County, the defendant raised an insanity defense. The jury was provided with the following

verdict forms as to each of the offenses: not guilty, not guilty by reason of insanity, guilty, and guilty

but mentally ill. On December 14, 2007, the jury found the defendant guilty of armed violence,

attempted aggravated criminal sexual assault and aggravated kidnapping. The defendant’s motion

for a new trial was denied. The defendant was sentenced to consecutive terms of imprisonment of

15 years for armed violence, 6 years for attempted aggravated criminal sexual assault and 6 years for

aggravated kidnapping. The trial court denied the defendant’s motion to reconsider the sentences.

A notice of appeal pursuant to Supreme Court Rule 606(b) was timely filed by the defendant. 210

Ill. 2d R. 606(b).
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       On appeal, the defendant raises the following issues: (1) whether his conviction for attempted

aggravated criminal sexual assault must be reversed because the “substantial step” element of

aggravated criminal sexual assault was not satisfied, and (2) whether the trial court erred in allowing

the State to introduce into evidence marginally relevant and highly prejudicial photographs. For the

reasons stated below, we reverse the defendant’s conviction and sentence for attempted aggravated

criminal sexual assault; further, we reverse and remand for a new trial the defendant’s convictions and

sentences for armed violence and aggravated kidnapping.

                                          BACKGROUND

       The record reveals that on November 17, 2004, at approximately 6 p.m., the defendant James

Decaluwe drove his Cadillac automobile to a basketball court at a school in Lincolnwood, Illinois,

where several male youths were playing basketball. The defendant asked if any of the youths wanted

to help him move boxes for $100, and they all responded affirmatively. The defendant chose the 14-

year-old victim (U.A.) from the group of boys.

       At trial, U.A. gave the following testimony. He entered the backseat of the defendant’s car

but moved to the front seat when the defendant ask him to do so. The defendant introduced himself

as “Jack,” and during the ride, the defendant touched U.A. on his shoulder and near his thighs and

said that they were “going to have a fun time.” The defendant parked one block from his house, and

he and U.A. walked through an alley to the defendant’s backyard. U.A. unlocked the gate at the

defendant’s request and they walked through the backyard and entered the basement of the house

through the back door. U.A. testified that the defendant said no one else was at home. The

defendant asked U.A. to sit on the sofa. The defendant handed U.A. a camera, telling U.A. that U.A.

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was going to take a picture of the defendant. The defendant then told U.A. that he was going upstairs

to change and warned U.A. that if the defendant’s wife came down to the basement, U.A. should hide

behind the sofa. The defendant then left for about 30 seconds and returned wearing the same

clothing. His jacket was open and a gun was tucked in his waistband.

       U.A. further testified that when the defendant allowed him to leave the basement to get water,

he opened the door and ran outside. The defendant ran after him. The defendant caught U.A. and

held his sweater, brandishing a gun. The defendant pointed the gun at U.A.’s head and said, “You

better come back in before I kill you.” U.A. persuaded the defendant to release his grip momentarily.

However, when the defendant released his hold on U.A.’s sweater, U.A. ran away from the defendant

and escaped. U.A.’s family contacted the police. In the two days that followed, U.A. led police

officers to the defendant’s home, described the contents of the defendant’s backyard and gave a

description of the camera and gun that he saw in the defendant’s home. He also identified the

defendant in a photo lineup and in an in-person lineup.

       A day after the event, the Lincolnwood police obtained a warrant to arrest the defendant and

a search warrant allowing a search of the defendant’s home and car. The physical search started

shortly before midnight on November 18, 2004, and uncovered a green Polaroid camera that U.A.

identified in court as the one which the defendant handed him in the basement. The search also turned

up shredded photographs in a wastebasket in the defendant’s home. In addition, three photographs

along with a Polaroid camera were discovered among the belongings of the defendant’s girlfriend,

who also lived in the house. One photograph depicted a dog, one was of the defendant wearing only

shorts, and a third photograph was the torso of a nude adult male.

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       The defendant’s girlfriend, Margaret Cronin, whom he later married, was present at the home

at the time of the police search. When asked about the whereabouts of a gun, Cronin at first said that

during the prior week the defendant had asked her to take the gun out of the house and she gave it

to her boss, William Meskin. Cronin later changed her story and said the defendant and she had

driven to Meskin’s house just that day, November 18, at approximately 9:30 p.m. and gave Meskin

the gun. A police officer drove Cronin to Meskin’s house and they retrieved the gun.

       Cronin gave the following testimony during the trial. Starting on approximately November

15, 2004, the defendant had been acting “very psychotic, being very threatening; [j]ust acting very

abnormal.” She did not feel safe, so she moved out of the bedroom they shared. Cronin testified that

the defendant became very paranoid, that he stated that he heard voices and thought someone was

watching him. The defendant spoke of delusional stories about being contacted by a congressman

regarding Russian helicopters. Cronin identified the subjects in the photographs that had been

retrieved from the home during the police search. They were photographs of the dog that she and

the defendant jointly owned, the defendant in his shorts and the defendant’s naked torso. Cronin

stated that she had taken the photographs in 1999 “for fun.”

       Cronin also stated that neither she nor the defendant had been sleeping for several days

leading up to November 18, 2004. When Cronin arrived home from work on November 18, the

defendant told her that he had hired a young boy the day before to help pack stereo equipment in the

basement because Cronin had told the defendant that he had to move out of the house. The defendant

told Cronin that when he left the basement, the boy ran out of the door. The defendant, fearing that

the boy had stolen something, yelled at the boy, threatening to kill him. The defendant told Cronin

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that he feared the police might come and take his gun away since he had threatened to kill the boy.

       Cronin agreed that the gun that the prosecutor showed her during trial might have been the

gun that belonged to the defendant. She also stated, “a gun is a gun to me. They all look the same,

menacing.” Cronin testified that on Monday night, November 15, 2004, the defendant threatened her

with a gun because she refused to have sex. She was able to get the defendant to calm down. She

also believed that defendant owned a rifle that he kept in the basement. However, she never thought

about it when they were delivering the handgun to her boss. The rifle was discovered during the

police search.

       Cronin testified regarding the defendant’s use of the diet pill Bontril. She said that when the

defendant took the pill, he acted very restless and aggressive, had mood swings, did not eat, had a

distended abdomen, was thirsty, drank a lot of water, would stare blankly into space and did not

sleep. Cronin believed that the defendant started taking Bontril in early October 2004. During the

week of November 15, according to Cronin, the defendant was acting very paranoid and heard voices

and music, and told her delusional stories. On Tuesday, November 16, Cronin had threatened the

defendant that if he did not seek help from a psychiatrist, he would have to leave the house. The

defendant had an appointment with his psychiatrist on Tuesday, November 16, but did not keep it.

Cronin testified that after that, they “kind of stopping communicating.”

        Cronin said that when she had first arrived home from work on the evening of November 18,

the house was dark and the defendant was slumped over in a chair, drooling. After Cronin revived

him, he could not talk for several minutes. The defendant told her that he had taken a lot of

medication to counteract the effects of the Bontril. That same evening, on the way back from taking

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the gun to her employer’s house, Cronin attempted to drive the defendant to Lutheran General

Hospital, but when he realized what she was doing, he tried to get out of the car.

       There was testimony at trial by Sergeant John Walsh of the Lincolnwood police department

that the defendant had received his Miranda rights at the police station and that he admitted picking

up U.A., whom the defendant described as 16 years old. He also admitted that he took U.A. through

the alley to the basement of the house he shared with Cronin. The defendant claimed he offered U.A.

$20 to move boxes. According to the defendant’s confession, the defendant went to the garage to

get some tape and saw the boy running out the back door. The defendant thought the youth had

stolen something from him, so the defendant shouted, “You either get back here right now or I will

blow your fucking head off.” He looked unsuccessfully for the boy after he ran away.

       According to police testimony, the defendant’s version of the events changed during his

interrogation at the police station. The defendant’s demeanor was very cooperative and articulate,

and the defendant remembered details. The defendant never mentioned hallucinations. There was

also testimony from the police officer that when confronted with the information that the police knew

about him using a gun to force Cronin to have sex, the defendant related a sexual fantasy he had that

Cronin would have sex with a boy. Sergeant Walsh testified that the defendant stated that prior to

finding U.A. at the basketball court, he had driven around the Lincolnwood Town Center Mall

looking for a boy.

        According to testimony from Sergeant Walsh, the defendant told Walsh that he wanted the

boy to take nude photographs of him and he wanted to have sex with the boy. Walsh testified that

the defendant said he “was able to stop himself.” According to Walsh’s testimony, the defendant

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stated that he knew the police would be coming, that he got rid of the gun, and that he shredded some

nude photographs of himself and Cronin. Walsh further testified that the defendant said he believed

that his actions regarding U.A. resulted from a homosexual encounter that he had in high school.

Assistant State’s Attorney Richard Albanese testified that he had a conversation with the defendant

prior to taking the defendant’s statement, and the defendant did not mention wanting to have sex with

the boy. According to Detective Walsh’s testimony, when later questioned about that omission, the

defendant stated he did not want to talk about it. The defendant’s signed statement which was

introduced into evidence, included a portion that stated he was giving the statement free from the

effects of drugs and alcohol “except for the diet pills he took at about 3:00 p.m. on Thursday,

November 18th.”

        A psychiatrist retained as an expert witness by defense counsel testified that the defendant

suffered from bipolar disorder, amphetamine psychosis and borderline personality disorder. The

psychiatrist’s opinion was based on interviews with the defendant and his wife, police reports, a

discussion with the defendant’s treating psychiatrist, and the defendant’s medical and prescription

history. The treating psychiatrist related to the expert that the defendant had struggled with a series

of addictions, including compulsive gambling, cocaine, amphetamines and alcoholism. According to

the treating psychiatrist, the defendant had been on various mood stabilizers and antidepressants and

starting in mid-October 2004, was prescribed a high dose of a diet pill named Bontril that was similar

to an amphetamine. After taking these pills, the defendant had two car accidents, had become

agitated and told Cronin about his auditory hallucinations.

       Immediately after his arrest, the defendant spent two weeks in the psychiatric wing of Cook

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County jail and was diagnosed with a mild bipolar disorder and placed on suicide watch. The

psychiatrist for the defense also testified that the defendant’s self-image and his sexual functioning

had been compromised by testicular cancer at age 20 and prostate cancer in 2000, and from the

treatment for those cancers.

        The State called Dr. Susan Messina, a psychologist, as an expert witness. She testified that

she had interviewed the defendant on several occasions, had spoken with the defendant’s treating

psychiatrist and had reviewed police and medical reports. Dr. Messina’s conclusion was that although

the defendant had addictive polysubstance dependence and bipolar disorder in partial remission, he

was legally sane at the time of the offenses and did not lack substantial capacity to appreciate the

criminality of his actions.

        During jury deliberations, the jury questioned the court regarding the meaning of the verdict

of “guilty with a mental illness.” The court referred the jury to the instruction defining mental illness

as a substantial disorder of thought, mood, or behavior “which impaired [the defendant’s] judgment,

but not to the extent that he was unable to appreciate the wrongfulness of his behavior.” The jury

returned a verdict of guilty of armed violence, attempted aggravated criminal sexual assault and

aggravated kidnapping. The defendant received consecutive sentences of 15 years for armed

violence, 6 years for attempted aggravated criminal sexual assault and 6 years for aggravated

kidnapping, for a total of 27 years’ imprisonment. The defendant’s motion for a new trial was denied

by the trial court. The defendant’s motion to reconsider his sentence as being excessive was also

denied by the trial court. The defendant filed a timely appeal.

        On appeal, the defendant claims that (1) his conviction for attempted aggravated criminal

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sexual assault must be reversed because his actions did not satisfy the “substantial step” element of

attempted aggravated criminal sexual assault, and (2) the trial court erred in allowing the State to

introduce marginally relevant and highly prejudicial photographs into evidence during the trial.

                                              ANALYSIS

        Our supreme court has made it clear that the issue of jurisdiction is a threshold issue, whether

or not the parties have raised it. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d

209, 213, 902 N.E.2d 662, 664 (2009). In this case, although the State has not raised the question

of jurisdiction, we examine that question sua sponte. The defendant’s notice of appeal stated that he

was appealing from “2 counts of Armed violence and kidnapping.” However, on appeal the first issue

raised by the defendant is whether his conviction for attempted aggravated criminal sexual assault

should be reversed.

        We are mindful that a strict construction of the requirements of Supreme Court Rule 606(d)

would mean that this court does not have jurisdiction to consider the issues raised by the defendant

on appeal regarding his conviction for the offense of attempted aggravated criminal sexual assault

because he has not specifically listed that offense in his notice of appeal. 210 Ill. 2d R. 606(d); People

v. Lowe, 30 Ill. App. 3d 49, 51, 331 N.E.2d 639, 640-41 (1975). However, if we examine the case

law regarding this jurisdictional question, it is evident that a notice of appeal should be liberally

construed and considered as a whole. The notice will be “deemed sufficient to confer jurisdiction on

an appellate court when it fairly and adequately sets out the judgment complained of and the relief

sought, thus advising the successful litigant of the nature of the appeal.”         Lang v. Consumers

Insurance Service, Inc., 222 Ill. App. 3d 226, 229, 583 N.E.2d 1147, 1150 (1991).

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        In the case of People v. Lewis, 234 Ill. 2d 32, 912 N.E.2d 1220 (2009), the supreme court

held that although the defendant only listed the order denying his motion to suppress evidence in his

notice of appeal and he was also challenging a street-value fine that was imposed without an

evidentiary hearing and the appellate court did have jurisdiction over the appeal. In that case, the

court noted that the defendant’s notice of appeal accurately identified his conviction, and the section

of the notice form headed “Nature of order appealed from, other than conviction” was left blank.

Similarly, in the instant case, the defendant left the section labeled “Nature of order appealed from,

other than conviction” blank, indicating that he was appealing from his entire conviction. The court

in Lewis determined that the defendant’s notice of appeal was sufficient to confer jurisdiction on the

appellate court when the notice was considered as a whole and liberally construed. Lewis, 234 Ill.

2d at 39, 912 N.E.2d at 1225. See also People v. Frey, 50 Ill. App. 3d 437, 444-45, 365 N.E.2d 283,

289 (1977) (where the court stated that, although the defendant’s notice of appeal did not mention

the specific theft conviction he was attacking on appeal, “[a]ll but the most narrow and technical

reading of the instant notice of appeal would indicate that defendant was appealing from all the

judgments entered below, including the conviction of theft”).

        In this case, the defendant did not specifically list his conviction for attempted aggravated

criminal sexual assault on the notice of appeal form; however, the issue was fully briefed and argued

by him and by the State. At no point in the appellate process did the State raise the issue of forfeiture

of this issue by the defendant because he failed to list that specific conviction in his notice of appeal.

The State was clearly informed of the nature and basis of the defendant’s appeal. Both sides made

arguments directed to the issue of the conviction for attempted aggravated criminal sexual assault so

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it cannot be said that the State did not have sufficient notice of the issue, nor was the State prejudiced

in any way. Accordingly, this court has jurisdiction to hear the defendant’s appeal from his conviction

for attempted aggravated criminal sexual assault.

         A person commits the offense of aggravated criminal sexual assault when he commits an act

of sexual penetration upon the victim by use of force or threat of force during the commission of any

other felony. 720 ILCS 5/12-13(a)(1), 12-14(a)(4) (West 2004). An examination of the specific

indictment against the defendant relating to the charge of attempted aggravated criminal sexual

assault in this case reveals that the defendant was charged as follows:

                         “Attempt aggravated criminal sexual assault - while armed

                with a handgun, demanded verbally and physically that the victim take

                naked pictures of him.”

Since the crime of sexual assault requires sexual penetration of the victim, the defendant argues that

attempted criminal sexual assault must necessarily include a substantial step toward sexual

penetration. The defendant asserts that the conduct alleged in the indictment does not constitute a

substantial step towards sexual penetration as would be necessary to complete the crime charged.

Further, there was no testimony from U.A. that the defendant specifically demanded that U.A. take

naked photographs of the defendant.

        In determining what constitutes a substantial step towards sexual penetration as contemplated

in the offense of attempted criminal sexual assault, courts must examine the facts and the

circumstances of each case. People v. Grathler, 368 Ill. App. 3d 802, 809, 858 N.E.2d 937, 943

(2006). As the appellate court stated in People v. Hawkins, 311 Ill. App. 3d 418, 427, 723 N.E.2d

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1222, 1229 (2000), “[a]n attempt crime is one ‘that falls short of completion through means other

than the defendant’s voluntary relenting,’ ” quoting People v. Dogoda, 9 Ill. 2d 198, 203, 137 N.E.2d

386, 389 (1956). “The crime of attempt is complete upon the completion of a substantial step (with

the requisite intent), and subsequent abandonment of the criminal purpose is no defense.” Hawkins,

311 Ill. App. 3d at 424, 723 N.E.2d at 1226, citing People v. Myers, 85 Ill. 2d 281, 290, 426 N.E.2d

535, 539 (1981). When a reviewing court is asked to set aside a criminal conviction for insufficiency

of evidence, the relevant standard is whether, after reviewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. People v. Jackson, 232 Ill. 2d 246, 280, 903 N.E.2d 388, 406 (2009).

       On appeal, the defendant acknowledges that the State proved his intent to have sex with the

victim via Sergeant Walsh’s testimony at trial wherein the defendant admitted to Walsh that he

wanted to have sex with the victim. What the State failed to prove, the defendant argues, is that he

performed a substantial step toward the sexual penetration of the victim.

       During the trial, the State’s witnesses related the content of the defendant’s conversations

after his arrest wherein the defendant stated that he wanted U.A. to take nude photographs of him.

There was also testimony that the defendant admitted that he had experienced a sexual fantasy

wherein Cronin had sex with a boy and that he had a homosexual experience in high school. Sergeant

Walsh testified that the defendant admitted to him that he wanted to have sex with U.A., but was able

to “stop himself.” The written confession that the defendant signed, however, had no mention of the

defendant’s desire to have sex with the victim, merely the desire to have the victim take nude

photographs of the defendant.

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       The issue is, however, whether the defendant took a substantial step toward sexual

penetration of the victim, thereby committing the crime of attempted aggravated criminal sexual

assault. The defendant had not disrobed, had not asked the victim to disrobe, and had not told the

victim that he wanted to commit a sexual act with him, nor had the defendant committed an act which

would have indicated that he intended to have sex with the victim. The only acts which the State

alleged in the indictment were “while armed with a handgun, [the defendant] demanded verbally and

physically that the victim take naked pictures of him.” However, the record reveals that there was

no testimony presented at trial in which U.A. testified that the defendant demanded that he take nude

photographs of the defendant.

       U.A.’s testimony stated that the defendant handed him a camera and told him that he was

going to have U.A. take photographs of the defendant. Although a police officer testified that the

defendant admitted during interrogation following his arrest that he wanted U.A. to take nude

photographs of him, the record shows that the defendant never communicated that request to U.A.

There was no mention of nudity according to U.A.’s testimony. Although the State introduced into

evidence the photograph of the nude male torso that was found among Cronin’s things, the record

reveals no nexus between that photograph and the events of November 17, 2004, which culminated

in the defendant being charged with attempted aggravated criminal sexual assault. The State

advances no sufficient or relevant evidence in furtherance of its argument that the defendant had

committed a substantial step toward sexual penetration of the victim as required to prove the essential

element of the crime charged. The record makes it clear that no such evidence exists.

       Accordingly, we hold that the facts of this case do not prove beyond a reasonable doubt the

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charge of attempted aggravated criminal sexual assault. As discussed, the facts alleged in the

indictment and those revealed at trial were not sufficient to make a finding beyond a reasonable doubt

of attempted aggravated criminal sexual assault. We therefore reverse the defendant’s conviction and

sentence on this count.

       The defendant’s second contention on appeal is that the trial court erred in allowing the State

to introduce into evidence two irrelevant and highly prejudicial photographs, one that depicted the

defendant nude and the other in which he is shown wearing only shorts. We review a trial court’s

decision to admit evidence under the standard of abuse of discretion. People v. Kliner, 185 Ill. 2d

81, 146, 705 N.E.2d 850, 883 (1998). The trial court’s exercise of its discretion will not be disturbed

unless there has been an abuse that has prejudiced the defendant. People v. Williams, 181 Ill. 2d 297,

314, 692 N.E.2d 1109, 1119 (1998). Evidence is relevant, and thus admissible, where it tends to

prove a material fact at issue and where the probative value of the evidence outweighs the prejudicial

effect. People v. Bobo, 375 Ill. App. 3d 966, 972, 874 N.E.2d 297, 305 (2007). Evidence of a

defendant’s prior acts may be admitted in order to prove a defendant’s motive, intent, identity or the

absence of mistake. People v. Foster, 76 Ill. 2d 365, 374, 392 N.E.2d 6, 10 (1979).

        The defendant in this case argued unsuccessfully during a hearing in limine before the trial

that the photographs were not relevant and were too far removed in time from the alleged crimes to

be allowed into evidence. The defendant also objected at trial when the photographs were admitted.

The defendant argues on appeal that the photographs had minimal relevance to his sanity at the time

of the incident and admission of the photographs “had the likely effect of making [him] look deviant

or ridiculous in the eyes of the jury.” The defendant further claims that this error in admitting the

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photographs was not harmless because he had made a strong case that he was legally insane at the

time of the offenses or that he was guilty but mentally ill. The effect of the photographs, the

defendant urges, was to strongly persuade the jury that he was the type of person who would, in the

absence of mental disease or defect, attempt to force a young boy to participate in his “fetish.”

       The defendant relies upon the case of People v. Hendricks, 137 Ill. 2d 31, 560 N.E.2d 611

(1990) in support of his argument. In Hendricks, the supreme court ruled that evidence of the

defendant’s prior acts, which was intended to prove an intent to commit murder, was not sufficiently

linked to the offense and was not used for the purpose the prosecution stated. The prior acts did not,

in fact, show a progression of sexual aggression that the State relied upon to establish a motive for

the crime, but instead painted the defendant as evil and perverted and confused the issue as to why

that evidence was offered. Hendricks, 137 Ill. 2d at 54-55, 560 N.E.2d at 621-22.

       The defendant also argues that the case of People v. Kannapes, 208 Ill. App. 3d 400, 567

N.E.2d 377 (1990), supports his contention that it was error to allow the photographs into evidence

and that they were highly prejudicial to him. In the Kannapes case, the defendant was charged with

and convicted of the crime of delivery of cocaine. The State offered into evidence a photograph of

the defendant wearing a shirt that had the words “Enjoy Cocaine.” The reviewing court reversed the

conviction and remanded the case because it concluded that the State had invited the jury to draw the

conclusion that defendant was guilty of the crime because he had been photographed in a T-shirt

bearing the words “Enjoy Cocaine.” Kannapes, 208 Ill. App. 3d at 407, 567 N.E.2d at 381.

        In this case, on appeal and during the trial, the State argued that it used the photographs to

corroborate testimony that defendant had admitted that he wanted the victim to take nude

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photographs of him. There was testimony offered at trial that defendant stated in his conversations

with police after he was arrested that he had destroyed nude photographs of himself and his girlfriend

before the police search. The State contends that the admission of the photographs and the testimony

at trial that the police found shredded photographs in defendant’s home combine to corroborate the

defendant’s statement that he wanted to have the victim take nude photographs of him. Cronin

testified that she had taken the nude photograph of the defendant five years earlier and it was found

among her belongings. There was no evidence that the defendant owned the photograph or had any

knowledge that Cronin had kept it during the five years since it was taken.

          Evidence is relevant at trial if it has the tendency to make the existence of a fact that is

important to the determination of an action either more or less probable then it would be without the

evidence. People v. Morgan, 197 Ill. 2d 404, 455-56, 758 N.E.2d 813, 843 (2001). Evidence may

be rejected by a trial court on the grounds of relevancy if the evidence is remote, uncertain or

speculative. People v. Cloutier, 156 Ill. 2d 483, 501, 622 N.E.2d 774, 784 (1993). Additionally,

admissibility may also depend upon whether the probative value of the evidence outweighs its

prejudicial effect on the defendant. People v. Monroe, 66 Ill. 2d 317, 323, 362 N.E.2d 295, 297

(1977).

          We believe that allowing the photographs into evidence in this case invited speculation by the

jury regarding the defendant’s character. Given the nature of the charges, it can reasonably be

inferred that the photographs affected the jury’s judgment about the defendant. Any probative value

that the photographs may have had was greatly outweighed by their prejudicial effect on the jury.

In this context, it has been recognized that the term “prejudice” means “ ‘an undue tendency to

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suggest decision on an improper basis, commonly an emotional one, such as sympathy, hatred,

contempt, or horror.’ ” People v. Eyler, 133 Ill. 2d 173, 218, 549 N.E.2d 268, 288 (1989), quoting

M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §403.1 (4th ed. 1984).

        In this case the State has not advanced a reasonable explanation regarding how the two

photographs were relevant to the crime charged. Given the highly prejudicial impact of such

evidence, the probative value must clearly be established. We find no such probative value. What

we do find is a highly prejudicial impact by the introduction into evidence of five-year-old

photographs of questionable relevance. We hold that it was error for the trial court to have allowed

the photographs into evidence.

       Accordingly, for the reasons stated, we reverse the defendant’s conviction and sentence for

attempted aggravated criminal sexual assault.

       We reverse and remand for a new trial the defendant’s convictions and sentences for armed

violence and aggravated kidnapping. We note that, if the evidence had been presented at trial in a

manner free from error, there was sufficient evidence to convict the defendant of these two offenses.

Thus, there is no issue of double jeopardy as to these two counts. People v. Baines, 399 Ill. App.

3d 881, 900, 927 N.E.2d 158, 173 (2010).

       Reversed in part and reversed and remanded in part.

       THEIS, P.J., and KARNEZIS, J., concur.




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