People v. Johnson

• Decision Date: 16 January 2020
• Docket Number: No. 1-16-2332,1-16-2332
• Citation: 439 Ill.Dec. 386,148 N.E.3d 126,2020 IL App (1st) 162332
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Henry JOHNSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (1st) 162332

148 N.E.3d 126

439 Ill.Dec. 386

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Henry JOHNSON, Defendant-Appellant.

No. 1-16-2332

Appellate Court of Illinois, First District, Fourth Division.

Order filed January 16, 2020

Rehearing denied February 13, 2020

James E. Chadd, Patricia Mysza, and Ann B. Mclennan, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Mary L. Boland, Assistant State's Attorneys, of counsel), for the People.

JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant, Henry Johnson, was found guilty of armed robbery, aggravated kidnapping, and two counts of aggravated criminal sexual assault. The evidence presented at trial showed that defendant forced the victim, A.B.,¹ into his van at knife point, where he sexually assaulted her. A.B. was able to escape the van and alert a security guard at a nearby senior citizen home. At trial, the State presented other-crimes evidence showing that defendant had been involved in a similar incident two weeks later and was eventually arrested. On appeal, defendant contends that he was denied a fair trial where the court improperly allowed excessive other-crimes evidence regarding the separate sexual assault incident that occurred weeks after the incident at bar. Defendant further contends that the court denied defendant his constitutional right to present a defense where it prevented him from questioning the victim and the State's DNA expert about two unidentified male DNA profiles, which did not match defendant, found on the victim's vaginal swab. Defendant also contends that the court erred in refusing to allow defendant to inquire into the specific nature of the victim's pending disorderly conduct charge. Defendant further contends that his 46-year sentence is excessive given the mitigating factors presented. Finally, defendant contends that he is entitled to two additional days of presentence custody credit. For the reasons stated, we affirm defendant's convictions and sentence and remand the cause to the circuit court so that defendant can file a motion pursuant to Illinois Supreme Court Rule 472(e) (eff. May 17, 2019).

¶ 2 I. BACKGROUND

¶ 3 A. Pretrial Motions

¶ 4 1. Other Crimes Evidence

¶ 5 Prior to trial, the State filed a motion to allow evidence of other crimes. In its motion, the State outlined the facts of a sexual assault it contended that defendant committed about two weeks after the events in the case at bar. The State asserted that the circumstances in that case were factually substantially similar to the incident at bar and occurred only two weeks later. The State asserted that, in the other case, defendant forced a woman, J.G., into his van at knife point, where he attempted to rape her. J.G. was able to escape from the van and eventually contacted police after receiving assistance from a witness. The events led to defendant's arrest. The State sought to admit the evidence to prove defendant's propensity, identity, and motive and to refute any claim of consent. In response, defendant contended that the other-crimes evidence should not be admitted because the evidence was more prejudicial than probative.

¶ 6 The court ruled that the incident involving J.G. was relevant in the case at bar on the issue of consent. The court also found that there was "great similarity" between the two incidents with regard to the location, vehicle, and method. The court therefore found that the other-crimes evidence could be admitted to show "identification and identity." The court further found that the evidence could be admitted to show propensity "[a]s specified in the statute which deals with these types of sexual assault cases."

¶ 7 The State subsequently filed a supplemental motion to admit other-crimes evidence seeking to admit the evidence for the additional basis of establishing the circumstances of the arrest. The State contended that the circumstances of defendant's arrest in the incident with J.G. demonstrated how the police were led to the crime defendant committed with regard to A.B. The State sought to have a witness who identified defendant's van testify.

¶ 8 At a hearing on the State's motion, the court found that the other-crimes evidence was appropriate to show the circumstances of the arrest, but it expressed concern regarding how much of the evidence it would admit. The court noted that the more evidence it admitted, the more prejudicial the evidence became. The court determined that it would need to balance how much evidence it would admit against the possibility of unfair prejudice. The court stated that it would revisit that question before trial.

¶ 9 Defendant filed a motion to reconsider the court's ruling on the State's other-crimes motions, contending that the State could not prove that defendant committed a crime without the testimony of J.G., who the State did not have present as a witness. Defendant asserted that, therefore, evidence of the other crime could not be admitted. The court denied defendant's motion, but the court indicated that, prior to the presentation of the other-crimes evidence, it would give a limiting instruction to the jury instructing the jury that it should consider the other-crimes evidence only for identification and to explain the steps in the investigation.

¶ 10 2. Rape Shield Motion in Limine

¶ 11 Prior to trial, the State also filed a motion in limine pursuant to section 115-7 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-7 (West 2012) ), commonly known as the rape shield statute, seeking to prohibit defendant from eliciting evidence regarding A.B.'s prior sexual activity or reputation. Specifically, the State sought to bar evidence that the vaginal swab collected from A.B. showed two male DNA profiles, neither of which matched the DNA profile of defendant. Defendant opposed this motion, contending that the exclusion of the DNA evidence would hinder his defense. Defendant asserted that the DNA evidence would support his defense that A.B. "is possibly confusing the defendant with someone else whom she had sex with her [sic ] at a time close in proximity to the encounter between her and the defendant." Defendant maintained that this evidence would thus support his contention that A.B. was mistaken in her identification of defendant. Defendant also contended that the prohibition of this evidence would violate defendant's constitutional right to present a defense. The court granted the State's motion in limine , finding that it would not inhibit defendant's ability to present a defense.

¶ 12 B. Trial Testimony

¶ 13 1. State's Case-in-Chief

¶ 14 At trial, A.B. testified that in May 2012 she was homeless living in a shelter for battered women. She would also occasionally stay with friends or relatives and had a cell phone provided by the shelter. In 2008, A.B. pled guilty to a misdemeanor charge of attempted possession of an illegal prescription. She also testified that she currently had a pending case for felony disorderly conduct but confirmed that the State had not made her any promises with regard to that case. On May 28, 2012, she spent the night at a friend's house while her children were at her aunt's house. She left the friend's house around 3 a.m. on May 29 because she had to get her children ready for school. On her way to her aunt's home, she stopped at the intersection of Kilpatrick Avenue and Madison Street to wait for a bus. While she was looking to see if the bus was coming, defendant approached her from behind with a butcher knife and instructed her to get into his van. A.B. did not see the knife but could feel something sharp being pressed into her side. Defendant told her to get into his van or he would kill her.

¶ 15 A.B. got into the front passenger seat of defendant's van, and defendant climbed over her into the driver's seat. Defendant told A.B. that he was going to rape her, rob her, and kill her. A.B. had a purse that contained her identification, cell phone, and pictures of her children. Defendant drove away with A.B. in the van and parked it on Kilpatrick Avenue and Van Buren Street. Defendant instructed A.B. to get into the backseat of the van. Defendant then climbed into the backseat with A.B. and told her to take off her shirt. When A.B. removed her shirt and bra, some money fell out. Defendant picked up the money, put it in his pocket, and then told her to put her shirt and bra back on.

¶ 16 Defendant then told A.B. to perform oral sex on him. A.B. complied, but defendant did not ejaculate. Defendant then told A.B. to lie down on her back and take off her pants so that he could have vaginal sex with her. A.B. again complied, but only took one leg out of her pants. Defendant had vaginal sex with A.B. for about a minute and then stopped, but defendant did not ejaculate. A.B. told defendant that she was pregnant and had kids, but he told her that it did not matter because she was not going to live. Defendant then told A.B. to turn around so that he could have anal sex with her.

¶ 17 A.B. testified that at that point she started to look for an "escape route" because she knew "it was almost over with."

A.B. was able to open the lock on the rear driver's side door and then jumped out of the van onto her knees. A.B. left her cell phone, purse, and shoes in defendant's van. A.B. ran away from the van but was able to see part of the license plate number for the van: 38 N. A.B. also observed that defendant had an Edward Hines, Jr. VA Hospital (Hines VA) identification badge and thought he was an employee. A.B. ran to a nearby senior citizen home and started running around the building and knocking on the windows and doors looking for help. A security guard at the senior citizen home called the police for A.B. Then, A.B. called the friend she had stayed with the night before. A.B. first went to see her children, and then she...