People v. Edwards

• Decision Date: 21 March 1990
• Docket Number: No. 2-89-0359,2-89-0359
• Citation: 552 N.E.2d 358,142 Ill.Dec. 8,195 Ill.App.3d 454
• Court: United States Appellate Court of Illinois
• Parties: , 142 Ill.Dec. 8 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darrel A. EDWARDS Defendant-Appellant.

Page 358

552 N.E.2d 358

195 Ill.App.3d 454, 142 Ill.Dec. 8

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darrel A. EDWARDS Defendant-Appellant.

No. 2-89-0359.

Appellate Court of Illinois Second District.

March 21, 1990.

Phyllis J. Perko, Harlovic & Perko, West Dundee, for Darrel A. Edwards.

James E. Ryan, Du Page County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Mary E. Gentile, Chicago, for the People.

Justice GEIGER delivered the opinion of the court:

Following a bench trial, the defendant, Darrel A. Edwards, appeals from convictions on four counts of aggravated criminal sexual abuse for which he received five-year sentences. (Ill.Rev.Stat.1987, ch. 38, par. 12-16(d).) He argues that the court erroneously allowed evidence of other crimes, that two of the convictions were neither properly charged nor proved, that the court improperly struck psychological evidence, and that the sentences are excessive. We affirm in part and reverse in part.

Under the Criminal Code of 1961 (the Code), a defendant commits aggravated criminal sexual abuse if he commits sexual penetration or sexual conduct with a victim who is at least 13 years old, but under 17 years old, and at least five years younger than himself. (Ill.Rev.Stat.1987, ch. 38, par. 12-16(d).) The Code defines "sexual conduct," in pertinent part, as "any intentional or knowing touching or fondling by * * * the accused * * * of the sex organs * * * of the victim * * * for the purpose of sexual gratification or arousal of the victim or the accused." (Ill.Rev.Stat.1987, ch. 38, par. 12-12(e).) The Code further defines "sexual penetration," in pertinent part, as "any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person." Ill.Rev.Stat.1987, ch. 38, par. 12-12(f).

The female victim testified that her birth date was May 10, 1972. She further testified as to her consensual sexual relations with the defendant in January and February 1988. Over the defendant's objection, the State presented evidence that the defendant provided the victim with ether, freon and/or marijuana to use in connection with all the couple's sexual conduct. The defendant's birth date is February 28, 1961.

In connection with the evidence of ether, freon and marijuana, the defendant's first argument on appeal is that the court committed reversible error in allowing evidence of use of intoxicants and drugs. We disagree.

Evidence of other crimes is admissible if relevant for some purpose such as modus operandi, intent, identification, motive, or absence of a mistake. (People v. Richardson (1988) 123 Ill.2d 322, 123 Ill.Dec. 908, 528 N.E.2d 612.) However, because it is overly persuasive, such evidence is not admissible if relevant merely to establish the defendant's criminal propensity. (Richardson, 123 Ill.2d at 338-39, 123 Ill.Dec. 908, 528 N.E.2d 612.) The erroneous admission of other-crimes evidence is not reversible if it was harmless error. 107 Ill.2d R. 615(a); Richardson, 123 Ill.2d 322, 123 Ill.Dec. 908, 528 N.E.2d 612.

We find no relevant purpose for admission of the instant evidence. Although the evidence of intoxicants and drugs was clearly intertwined with the continuing narrative of sexual conduct, it in no sense tended to prove or disprove the elements of the offense: the parties' ages and sexual behavior. Consequently, its admission was error.

Nevertheless, we find that the court's erroneous admission was harmless beyond a reasonable doubt. Importantly, this was a bench trial and, thus, there was no risk of overpersuading a jury. Furthermore, the court's comments reveal no emphasis upon the improper evidence. Given the unrebutted evidence of the parties' ages and their consensual sexual conduct, the admission of improper evidence did not prejudice the defendant's case.

The defendant's second argument on appeal is that he was not properly charged or proved guilty on counts II and IV, which were based upon his "sexual contact" with the victim. In charging the instant counts II and IV, the State alleged that the defendant "knowingly committed an act of sexual conduct with [the victim], who was at least 13 years of age but under 17 years of age, in that [he] placed his mouth on the vaginal area of [the victim, and] was at least five years older than [the victim]." We agree that the charges were insufficient.

As the defendant emphasizes, the instant charges omitted the Code's provision that the relevant sexual conduct was "for the purpose of sexual gratification or arousal of the victim or the accused." (Ill.Rev.Stat.1987, ch. 38, par. 12-12(e).) That provision was not, as the State urges, inessential merely because its source is the statutory definition of "sexual conduct" rather than the statutory definition of the charged offense, aggravated criminal sexual abuse.

The instant offenses of aggravated criminal sexual abuse cannot be fully defined without reference to the definition of "sexual conduct." In fact, the instant charges were generally couched in the language of the "sexual conduct" definition. However, the charges omitted one element in the definition of "sexual conduct" and, thus, an element in the instant offenses: that the relevant conduct was committed with the purpose of sexual arousal or...