People v. Partin
| Decision Date | 29 May 1987 |
| Docket Number | No. 85-3124,85-3124 |
| Citation | 156 Ill.App.3d 365,509 N.E.2d 662 |
| Parties | , 109 Ill.Dec. 1 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard PARTIN, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Paul P. Biebel, Jr., Public Defender of Cook County, Chicago, for defendant-appellant; Kathleen M. Pantle, Asst. Public Defender, of counsel.
Richard M. Daley, State's Atty., County of Cook, Chicago, for plaintiff-appellee; Thomas V. Gainer, Jr., Joan E. Disis, Caroline Koplin, Asst. State's Attys., of counsel.
Following a jury trial in the circuit court of Cook County, defendant, Richard Partin, was found guilty of indecent liberties with a child (Ill.Rev.Stat.1981, ch. 38, par. 11-4(a)(2)) and child pornography (Ill.Rev.Stat.1981, ch. 38, par. 11-20(a)) and sentenced to a term of 15 years imprisonment in the Illinois Department of Corrections. He now appeals, contending that the trial court erroneously allowed testimony of other crimes into evidence and that the sentence imposed was excessive. For the reasons set forth below, we affirm.
At trial, complainant testified that he met defendant in the fall of 1979 at the John Maloney Funeral Home in Chicago where he was seeking a job. Defendant hired him to perform general maintenance work during the evening, such as mopping floors and dusting, and paid him $10 to $15 per job. Complainant continued working for defendant through 1982 and, in July 1982, when he was 14 years old, he visited defendant in his apartment located on the second floor of the funeral home. He asked defendant what he could do to build up his body, and defendant replied that if he ate the right food and exercised he could build himself up. Defendant offered to help him and took his photograph with a Polaroid camera while complainant was fully clothed and seated in a chair.
Defendant then instructed complainant to take his clothes off and stand by the bed. Complainant testified that he agreed to do so because defendant often told him that he had the power to execute people, and he was afraid of defendant. After complainant had undressed, defendant used a cloth tape measure to measure parts of his body and then wrote these measurements on a legal pad. After measuring complainant's arm, leg and chest, defendant began to rub complainant's penis for two to three minutes until complainant sustained an erection; defendant then measured complainant's penis and recorded this measurement. Defendant also photographed complainant while he was naked and told him how and where to pose. These three photographs, as well as the one taken while complainant was fully clothed, were later introduced into evidence.
After he had been photographed, complainant dressed, and defendant told him not to tell anyone what had occurred. Complainant testified that he was frightened of defendant and did not inform his parents or the police of what had happened at that time. He continued working at the funeral home for a short time thereafter and never spoke to any of the other employees there about defendant.
The State also called S.B. as a witness. After defense counsel moved to prevent his testimony, the trial court allowed him to testify. S.B. stated that in August 1982, when he was 14 years old, complainant introduced him to defendant and defendant hired him to take over complainant's job after complainant quit. Defendant told S.B. that he was to clean up after wakes and to dust and vacuum once a week after John Maloney left the funeral home.
Defendant later informed S.B. that he was preparing a study on adolescents and would be taking measurements of S.B.'s body for the study. Although S.B. initially refused, in September or October 1982 S.B. agreed to go to defendant's room in the funeral home for the measurements. Defendant asked S.B. to undress and then measured S.B.'s erect and non-erect penis. At a subsequent visit, defendant measured S.B.'s non-erect penis and then, after they "masturbated each other," measured S.B.'s erect penis. S.B. continued to work for defendant at the funeral home until May 1983 and had sexual contact with him about once a week until leaving the job. During two of S.B.'s visits to defendant's apartment, defendant showed him the photographs he had taken of complainant while he was naked.
J.C., another State witness who also testified over defendant's objections, stated that his mother had worked at the Maloney Funeral Home and that he obtained a job there working for defendant. He was paid by defendant and never received a check from John Maloney. During the summer of 1982, when he was 14 years old, J.C. visited defendant's apartment at the funeral home to talk to defendant. Defendant rubbed J.C.'s penis with his hand. J.C. continued to have these encounters with defendant once a week until January 1984 when he left his job at the home. During his employment, he was shown the pictures defendant had taken of complainant, which defendant kept in an urn on his desk, and noticed that defendant had an instamatic camera.
The final witness, Samuel Christian, a youth officer for the Chicago police department testified that on March 27, 1984, he and his partner, Brian Killacky, executed a search warrant for defendant's apartment at the Maloney Funeral Home. The warrant was obtained as a result of an investigation which involved another youth, E.B. The officers seized several items from defendant's apartment, including a Polaroid camera and pictures of naked youths--the four photographs of complainant among them--and took defendant into custody. They brought defendant to the station, processed him, and, after advising him of his Miranda rights, questioned him about several photographs they had found. Defendant told the officers that some of the photographs were of complainant and that he had taken them. He stated that he touched the boy's penis to cause an erection. Defendant later repeated these statements to an assistant State's Attorney who prepared a written statement.
After closing arguments, the jury found defendant guilty of indecent liberties with a child and child pornography. Defendant's motion for a new trial was denied, and he was sentenced to a term of 15 years imprisonment. After sentence was imposed, defendant pleaded guilty to indecent liberties with a child for offenses committed with S.B. and J.C. and was sentenced to two 10-year terms of imprisonment to run concurrently with the 15-year term he received in the case at bar.
Defendant now contends that the trial court committed reversible error when it allowed testimony of other offenses by defendant into evidence. The State asserts that defendant waived this issue by failing to include it in his motion for a new trial. Alternatively, the State argues that even if defendant had not waived the issue, the trial court did not err in allowing the testimony of S.B. and J.C., who were victims of crimes similar to the crime of which complainant was a victim; i.e., their testimony was admissible as evidence of a common scheme or design or modus operandi.
We first observe that the general rule is that failure by a defendant to raise an issue in a written motion for a new trial waives that issue and it cannot constitute grounds for reversal on review. (People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856.) A reviewing court, however, may notice plain errors or defects affecting substantial rights of a defendant even if they are not brought to the attention of the trial court. (54 Ill.2d 280, 282, 296 N.E.2d 856.) In the instant case, we find no reason to depart from the general rule and note that even if defendant had not waived the issue of whether the contested testimony was properly admitted into evidence, the trial court's admission of this testimony into evidence would be upheld.
Moreover, evidence of other crimes is admissible if it is relevant for any purpose other than to show the defendant's character or propensity to commit crime. (People v. Kimbrough (1985), 138 Ill.App.3d 481, 484, 93 Ill.Dec. 82, 485 N.E.2d 1292.) If the evidence is relevant to prove modus operandi, knowledge, intent, lack of mistake, or that the crime charged was part of a common design, scheme or plan of the defendant, it is admissible. (138 Ill.App.3d 481, 484-85, 93 Ill.Dec. 82, 485 N.E.2d 1292.) It is within the discretion of the trial court to decide whether evidence of other crimes is relevant to a material issue in the case and whether the probative value of the evidence outweighs its prejudicial effect; a reviewing court will overturn the trial court's decision to admit such evidence only if there has been a clear abuse of discretion. People v. Fuller (1983), 117 Ill.App.3d 1026, 1036, 73 Ill.Dec. 474, 454 N.E.2d 334.
In the case at bar, the trial court admitted into evidence the testimony of S.B. and J.C. under the common design or scheme and modus operandi exceptions to the general rule requiring exclusion of evidence of other offenses. Many courts, like the trial court here, use the terms "common design or scheme" interchangeably with "modus operandi " (see People v. Fuller (1983), 117 Ill.App.3d 1026, 73 Ill.Dec. 474, 454 N.E.2d 334; People v. Burgin (1979), 74 Ill.App.3d 58, 29 Ill.Dec. 694, 392 N.E.2d 251), but the terms have separate and distinct meanings. "Common design" refers to a larger criminal scheme of which the crime charged is only a portion and is often relevant to show the motive for the crime charged. (People v. Barbour (1982), 106 Ill.App.3d 993, 999-1000, 62 Ill.Dec. 641, 436 N.E.2d 667.) "Modus operandi " means method of working and refers to a pattern of criminal behavior that is so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer; it is useful in showing that the accused is the perpetrator of the crime charged. (106 Ill.App.3d 993,...
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