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People v. Boand9/30/2005
ined in part by his focus on assaulting Shepherd. However, proof of defendant's failure to assist Levin is satisfied by the undisputed evidence that he assessed Levin's condition and did not help her. The recklessness of this conduct was all that was at issue. Thus, only evidence of defendant's omission was relevant; and evidence of defendant's affirmative act of assaulting Shepherd in the bedroom was unnecessary to proving the involuntary manslaughter. Therefore, the identity-of-evidence factor weighs in favor of severing the sexual-assault charge from the homicide counts.
In Willer, we held that the evidence did not establish a common method in the defendant's perpetration of the sex offenses. The evidence showed that, over an eight-year period, the defendant would regularly become intoxicated, enter one daughter's room at 3 a.m., wake her, rub her back and buttocks, remove her pajamas, rub her chest, kiss her, and then penetrate her vaginally. The defendant also attempted oral sex with her approximately 10 times after she turned 8 or 9 years old. By contrast, the defendant fondled the other daughter only once, rubbing her back and bare buttocks one evening at 8 p.m. before she had gone to sleep. Willer, 281 Ill. App. 3d at 952. Even though each of the assaults was initiated with a back rub and occurred in the victim's bedroom, we concluded that there were "marked differences" in how the defendant perpetrated the offenses. Willer, 281 Ill. App. 3d at 952.
In this case, like in Willer, the indictment did not allege that defendant used a common method in committing criminal sexual assault, drug-induced homicide, and involuntary manslaughter. The drug-induced-homicide and involuntary-manslaughter counts were each based on Levin's drug overdose, while the criminal-sexual-assault count was based on Shepherd's inability to consent to sexual penetration. Defendant's initial delivery of methadone to Levin caused her drug overdose, but the second delivery of methadone in the bedroom several hours later caused Shepherd's inability to consent to sexual penetration. We conclude that the two distinct deliveries of methadone do not qualify as a common method of perpetrating the offenses because defendant did not intend for Shepherd and Levin to be victimized in the same way.
Finally, in Willer, we accorded little weight to the judicial efficiency achieved by trying the charges together. We noted that judicial efficiency cannot be the main factor in a trial court's decision not to sever charges because the question will always be present when the severance issue arises. We acknowledged that protecting young victims from being forced to testify twice is a worthy goal of judicial efficiency; however, we concluded that this factor was not implicated because the testimony of each girl would not be admissible in the other's trial if the charges were tried separately. As in Willer, the goal of judicial efficiency does not weigh heavily in favor of a single trial in this case. Shepherd, an adult, would have been better equipped than a child to testify twice to the traumatic events of the night in question. Moreover, it is possible that a trial court would exclude as prejudicial any testimony about the assault during a separate trial on the homicide counts.
Despite the deferential standard of review applied to a trial court's decision on these issues, we conclude that the court abused its discretion in denying defendant's motion to sever the criminal -sexual-assault charge from the homicide charges. We next discuss how the court's error on the severability issue was compounded by the admission of the other-crimes evidence and the corresponding jury instruction.
B. Admission of U
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