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People v. Boand9/30/2005
nst undue prejudice to the defendant, the court may consider:
(1) the proximity in time to the charged or predicate offense;
(2) the degree of factual similarity to the charged or predicate offense; or
(3) other relevant facts and circumstances.
(d) In a criminal case in which the prosecution intends to offer evidence under this Section, it must disclose the evidence, including statements of witnesses or a summary of the substance of any testimony, at a reasonable time in advance of trial, or during trial if the court excuses pretrial notice on good cause shown." 725 ILCS 5/115--7.3 (West 2004).
In this case, the other sex offenses occurred within three years of the alleged criminal sexual assault of Shepherd. Furthermore, the offenses were nearly factually identical. Each case involved a dating encounter in which defendant provided the woman with a powerful sedative, waited for her to lose consciousness, and then sexually penetrated her while she was unconscious. These similarities support the trial court's decision to admit the other sex offenses as evidence of defendant's propensity to commit criminal sexual assault, and we conclude that the trial court did not abuse its discretion in doing so.
We further conclude that the trial court did not abuse its discretion in admitting the other-crimes evidence to show defendant's modus operandi, motive, intent, and opportunity. Defendant's modus operandi, motive, intent, and opportunity were identical in the assaults of Shepherd, Brounstein, and Semmen. Defendant garnered the women's trust in a romantic context and then intentionally delivered a powerful sedative to incapacitate them for the purpose of sexually assaulting them. The other-crimes evidence was relevant to and probative of the disputed issue of whether defendant incapacitated Shepherd with the methadone to facilitate the assault.
However, we conclude that the trial court abused its discretion in instructing the jury to consider the other-crimes evidence to determine the issue of identity. No one disputes that defendant was in the bedroom with Shepherd at the time of the alleged sexual assault. Therefore, the identity of the accused is not at issue. When a trial court instructs a jury to consider other-crimes evidence to determine unimportant issues, the court diminishes the important questions that are at issue. See People v. Lenley, 345 Ill. App. 3d 399, 409 (2003) (because only the issue of the burglar's identity was at issue, the trial court abused its discretion in instructing the jury to consider evidence of the defendant's other burglaries as they related to intent, motive, design, and absence of mistake in the present burglary). In this case, the trial court diminished the importance of the issues of modus operandi, motive, intent, and opportunity by instructing the jury to also consider the other-crimes evidence to determine the offender's identity.
As to the criminal -sexual-assault charge, we conclude that the trial court did not abuse its discretion in finding that the probative value of the evidence of modus operandi, motive, intent, and opportunity outweighed its prejudicial effect. However, we reach the opposite conclusion regarding the drug-induced-homicide and involuntary-manslaughter charges.
2. Drug-Induced Homicide and Involuntary Manslaughter
Defendant also argues that he is entitled to a new trial because the evidence of his other sex crimes was inadmissible to show modus operandi, motive, intent, opportunity, and identity regarding the drug-induced homicide and involuntary manslaughter. While section 115--7.3 of the Code applies to the criminal-sexual-assa
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