                                                   FIFTH DIVISION
                                                   June 20, 2008



No. 1-07-0060

THE PEOPLE OF THE STATE OF ILLINOIS,     )    Appeal from the
                                         )    Circuit Court of
                Plaintiff-Appellant,     )    Cook County.
                                         )
v.                                       )    No. 05 CR 401
                                         )
MICHAEL TAYLOR,                          )    Honorable
                                         )    Marcus R. Salone,
                Defendant-Appellee.      )    Judge Presiding.



     PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of

the court:

     Defendant Michael Taylor was charged with multiple counts of

criminal sexual assault and aggravated criminal sexual abuse for

misconduct with a minor.    In this interlocutory appeal, the State

asserts that the trial court erred in refusing to admit

defendant's prior 1998 sexual offense as substantive evidence to

show propensity pursuant to section 115-7.3 of the Code of

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

2004)).   We reverse and remand for further proceedings.

     In December 2004, defendant was charged by indictment with

performing various sex acts with a 13-year-old male, W.T., while

defendant held a position of trust, authority or supervision in

relation to W.T.   Specifically, defendant is charged with

sexually assaulting and abusing W.T. while acting as W.T.'s

counselor and reverend.    The charges alleged eight counts of

criminal sexual assault and seven counts of aggravated criminal
1-07-0060



sexual abuse, occurring from October 5, 2004, through November

15, 2004.

    On June 23, 2006, defendant filed a motion to bar the use of

evidence of his prior conviction for sexual criminal assault to

impeach his credibility.   In response, the State filed a "Motion

for Proof of Other Crimes," seeking to admit defendant's prior

1998 sexual offense as substantive evidence to show propensity

pursuant to section 115-7.3.     According to the State's motion,

defendant's 1998 sexual offense stemmed from the commission of

illegal sex acts with a 17-year-old male victim between December

15, 1998, and December 23, 1998.     Defendant, while acting as the

chairman of the school board at the victim's high school, offered

to assist the victim with admission into college.     Thereafter,

defendant committed multiple sex acts with the victim, including:

(1) rubbing the victim's penis with his hand; (2) performing oral

sex on the victim; (3) licking the victim's anus; and (4) having

the victim rub defendant's penis with the victim's hand.     The

State also alleged that defendant assaulted the victim at

defendant's and the victim's residence, and that defendant gave

money to the victim on several occasions.

    Furthermore, the State alleged that in the current charges,

defendant was working at a shelter when he approached W.T. and

his mother and encouraged W.T.'s mother to live with relatives

who did not have room for W.T.     Defendant subsequently offered to



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have W.T. live with him.    Thereafter, between October 6, 2004,

and November 11, 2004, defendant, while in his residence,

performed oral sex on W.T., licked W.T.'s anus, inserted his

finger into W.T.'s anus, and inserted the handle of a hairbrush

into W.T.'s anus.

    In addition, the State alleged that defendant was a minister

at New Covenant Baptist Church at the time of both offenses and

that neither W.T. nor the other victim was related to defendant,

but both shared defendant's last name.

    Following a hearing, the trial court denied the State's

motion to admit evidence of defendant's prior conviction for

criminal sexual assault.    The trial court expressly stated:

                "There is, in my opinion, significant

            time difference between the previously

            adjudicated matter and the matter before this

            Court.

                There is also a significant difference

            in the age of the two [victims], significant

            not only in terms of years, but also in

            arguably the maturity of the respective

            victims or alleged victims.

                The third prong, that being relevant

            factors is of no moment, in my opinion.    I'm

            aware of the Supreme Court decision that the



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            State relies upon, and it really baffles me

            and it has running in long standing

            prohibition of proof of other crimes to show

            propensity.

                And I wish the justices in that case

            would sit here as I have and look out over

            people in this courtroom when the State

            begins to talk about the comparisons, the

            case at bar versus the prior matter.   Those

            justices would have seen as I did citizens in

            this courtroom shaking their head, frowning,

            none of which I believe was in accordance

            with the presumption of innocence."

    On appeal, the State first asserts that the trial court

erred as a matter of law by finding the evidence of the 1998

offense per se inadmissible.

    Under the common law, admission of other-crimes evidence is

generally prohibited to show propensity to commit the charged

crime.   People v. McKibbins, 96 Ill. 2d 176, 182 (1983).

However, the parties both rightly agree that section 115-7.3

created an exception for propensity evidence in sex offense

cases.   See People v. Donoho, 204 Ill. 2d 159, 176 (2003) ("the

legislature enacted section 115-7.3 to enable courts to admit

evidence of other crimes to show defendant's propensity to commit



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sex offenses").

    Section 115-7.3 applies to criminal cases, such as this,

where the defendant is accused of criminal sexual assault and

aggravated criminal sexual abuse.     725 ILCS 115-7.3(a) (West

2004).   Further, evidence of another offense of 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

115-7.3(b) (West 2004).   When weighing the probative value of the

prior offense against undue prejudice to the defendant, the court

may consider: (1) the proximity in time to the charged offense;

(2) the degree of factual similarity to the charged offense; and

(3) other relevant facts and circumstances.     725 ILCS 5/115-

7.3(c) (West 2004).

    The trial court's decision to admit or deny other-crimes

evidence to show the defendant's propensity to commit sex

offenses will not be disturbed absent an abuse of discretion.

Donoho, 204 Ill. 2d at 182.   A trial court abuses is discretion

where its ruling is arbitrary, fanciful or where no reasonable

person would take the view adopted by the court.     Donoho, 204

Ill. 2d at 182.   However, "[t]o the extent that the trial court

determine[s] that evidence [is] inadmissible per se as to its

probative value for propensity, that decision is incorrect as a

matter of law."   People v. Childress, 338 Ill. App. 540, 552 n.2



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1-07-0060



(2003).

    Here, we reject the State's contention that the trial court

erred as a matter of law by determining that evidence of

defendant's 1998 sexual offense was per se inadmissible.     In

denying the State's motion to admit the evidence, the court

stated that it found Donoho "baffl[ing]" in relation to the long-

standing common law prohibition of proof of other crimes to show

propensity.     Moreover, the court implied that the introduction of

the 1998 offense for propensity would have belied the presumption

of innocence.     However, the court expressly mentioned the three

factors of section 115-7.3(c) and even discussed, albeit briefly,

two of those factors, i.e., proximity in time and degree of

factual similarity.     Thus, we cannot conclude that the trial

court determined that the evidence concerning the 1998 offense

was inadmissible per se as to its probative value for propensity.

    Next, the State asserts that the trial court abused its

discretion by failing to conduct a meaningful analysis of the

probative value of defendant's prior conviction pursuant to

section 115-7.3.     Specifically, the State argues that the trial

court applied subsection (c) without first deciding whether

propensity evidence was allowed under the statute, thus making

its decision arbitrary and an abuse of discretion.

    In this case, it is unclear whether the trial court

considered defendant's 1998 sexual offense in terms of its



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probative value for propensity before applying the factors in

subsection (c).     See Childress, 338 Ill. App. 3d at 552.

Regardless, review of the record reveals that the two offenses

are eligible under subsection (a) and defendant's prior

conviction is otherwise admissible pursuant to subsection (b).

Thus, the ultimate issue is whether the trial court abused its

discretion when it determined that the prejudicial effect of

defendant's 1998 sexual offense outweighed its probative value

under subsection (c).     On this issue, the State correctly

contends that the 1998 offense was more probative than

prejudicial according to subsection (c)'s balancing test.

       First, the six-year gap in time between the 1998 offense and

the charged offense was not "significant," as stated by the trial

court.     In Donoho, the supreme court stated that "[t]he appellate

court has affirmed admission of other-crimes evidence over 20

years old under the exceptions because the court found it to be

sufficiently credible and probative."     Donoho, 204 Ill. 2d at

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

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.     Accordingly, we conclude that the six-year gap here was not

substantial.

       Second, even assuming the time lapse was significant, its



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1-07-0060



negative impact on the probative value of defendant's 1998

offense is overcome by the degree of factual similarity between

the two offenses.     As the factual similarities increase, so does

the probative value of other-crimes evidence.       People v. Wilson,

214 Ill. 2d 127, 142 (2005).     "To be admissible under the

statute, the other-crimes evidence should have some threshold

similarity to the charged crime."       People v. Boand, 362 Ill. App.

3d 106, 122 (2005).     However, because no two independent crimes

are identical, some factual disparity between a prior offense and

a current charge will not defeat admissibility.       Donoho, 204 Ill.

2d at 185, citing People v. Illgen, 145 Ill. 2d 353, 373 (1991).

    In the instant case, the facts of the 1998 offense are

sufficiently similar to the facts of the charged crime.        In both

cases, defendant was in a position of trust, authority, or

supervision in relation to the victim when he committed the

offense.     Moreover, in each case, defendant lured the victim by

offering to assist the victim with a pressing issue, i.e.,

admission into college and homelessness.       Furthermore, both of

the victims were males and each shared defendant's surname.

Regarding the sex acts, in each case defendant performed oral sex

on the victims and licked their anuses.       Other relevant facts and

circumstances include that defendant was a minister in both 1998

and 2004 and that defendant assaulted each victim at his

residence.     Based on this record, we conclude that the probative



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value of defendant's 1998 sexual offense outweighed any undue

prejudice and, thus, should have been allowed to be admitted as

evidence of defendant's propensity to commit sex crimes.

    In reaching this conclusion, we reject defendant's argument

that the factual similarities ended with the gender of the

victims.    Defendant advances that the victims differed in age and

maturity level, noting that the 17-year-old victim could be

criminally charged as an adult, was one year shy of being able to

vote, and of legal age to join the armed forces, while the 13-

year-old victim was not yet in high school, has few legal rights

of his own, and must be in the care of a guardian.     In addition,

defendant asserts that the sexual acts alleged differ greatly.

Defendant states that "[m]ost notably, the State alleges the use

of a hairbrush in the anus of the complaining witness.     No such

apparatus of any kind was used in the first matter.     Nor was

mutual masturbation."    Even though defendant correctly observes

these factual discrepancies, we find that he exaggerates their

significance in light of the stated compelling similarities.

Accordingly, defendant's position is not persuasive.

    In light of our decision that evidence of defendant's 1998

sexual offense is admissible to demonstrate his propensity to

commit a sexual offense, we need not reach the State's final

contention that the trial court abused its discretion where it

failed to consider whether the evidence was admissible under



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traditional common law principles.

    For the foregoing reasons, we reverse the order of the trial

court refusing to allow into evidence defendant's 1998 conviction

for criminal sexual assault and remand for further proceedings.

    Reversed and remanded.

    GALLAGHER and TULLY, JJ., concur.




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             1-07-0060


__________________________________________________________________________________________________________________________
                                 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                                             (Front Sheet to be Attached to Each Case)
_________________________________________________________________________________________________________________________
Please use the following
                    form The People of the State of Illinois,

                                                    Plaintiff-Appellant,

                           v.

                           Michael Taylor,

                                                    Defendant-Appellee.
_____________________________________________________________________________________________
                                            No.   1-07-0060
 Docket No.
                                          Appellate Court of Illinois
COURT                                     First District, FIFTH Division
 Opinion
  Filed                                      June 20, 2008
                                         (Give month, day and year)
 __________________________________________________________________________________________
                      PRESIDING JUSTICE JAMES FITZGERALD SMITH DELIVERED THE OPINION OF THE
                   COURT:

 JUSTICES                                                   TULLY and GALLAGHER, JJ., concur.

                                     Lower Court and Trial Judge(s) in form indicated in margin:
APPEAL from the
Circuit Court of Cook                                 Appeal from the Circuit Court of Cook County.
County; the Hon________
Judge Presiding.                                      The Hon. MARCUS R. SALONE, Judge presiding.
__________________________________________________________________________________________________________________________
                         Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word or
FOR APPELLANTS                                                       NONE if not represented.
John Doe, of Chicago

For APPELLEES, :            APPELLANT: STATE'S ATTORNEY, COUNTY OF COOK, Chicago, IL Richard A. Devine, State's Attorney, James E.
                            Fitzgerald and Mary L. Boland, Assistant State's Attorneys.
 _________________________________                                    __
Smith and Smith of
Chicago,                    APPELLEE: APRIL D. PREYAR, Chicago, IL April D. Preyar.
               __________________________________________________________________________________________________
(Joseph Brown, of counsel)
Add attorneys for third-
party appellants and/or
appellees.




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