People v. Raymond (404 Ill. App. 3d 1028, 2010)

JUSTICE ROBERT E. GORDON

delivered the opinion of the court:

Following a jury trial, defendant Antonio Raymond (defendant) was convicted of predatory criminal sexual assault of a child. After considering evidence in aggravation and mitigation, the trial court sentenced him to 20 years’ imprisonment. Defendant’s motion to reconsider the sentence was denied, and defendant filed this timely appeal. On appeal, defendant argues that his conviction should be reversed because the State failed to prove the element of penetration beyond a reasonable doubt. Defendant further raises several arguments for a new trial: (1) that the trial court denied defendant a fair trial by refusing to allow him to argue mistake of age as a defense; (2) that the trial court erred in allowing evidence concerning defendant’s prior conviction for aggravated criminal sexual abuse; (3) that the trial court violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) during jury selection by not inquiring into all of the Zehr factors (People v. Zehr, 103 Ill. 2d 472, 477 (1984)); and (4) that the State inflamed jurors’ passions through improper remarks during closing argument and rebuttal, thereby preventing defendant from receiving a fair trial. Finally, defendant asks for a reduced sentence because he claims that his sentence was excessive. We affirm.

BACKGROUND

On June 7, 2006, 23-year-old defendant Antonio Raymond was arrested when police officers entered a house in which they discovered defendant and 12-year-old KS (victim) on a bed, both naked from the waist down. Defendant was charged with predatory criminal sexual assault of a child. 720 ILCS 5/12 — 14.1(a)(1) (West 2008).

Prior to trial, the State moved in limine to bar defendant from referencing his belief that the victim was over the age of 17, arguing that mistake of age was not a valid defense to the charge of predatory criminal sexual assault of a child. Defendant responded that the victim told police that she was 19 and later changed her stated age to 15; one officer’s arrest report stated that defendant told police that “[s]he told me she was nineteen years old.” Defendant argued that the victim’s statements as to her age were relevant to her credibility. The trial court granted the State’s motion and denied defendant the use of a mistake of age defense.

Additionally, the State moved in limine for the trial court to allow other crimes evidence concerning defendant’s prior conviction for aggravated criminal sexual abuse of a victim named JP, as well as evidence of an alleged sexual assault against a woman named SM. As part of its argument against the admission of the other crimes evidence, the defense stated that the victim in the case at bar had told defendant that the house in which they were discovered belonged to her cousin. The trial court granted the State’s motion regarding both JP and SM. In allowing the other crimes evidence, the court stated that “[t]he Court has reviewed the motion, considered the arguments, response to the motion, considered the case law, specifically Donahue, considered the federal rules of evidence, specifically 413, and United States versus Withorn, cited at 204 F 3d 790, Eighth Circuit Court case in 2000, allowing prior sexual assaults to prove a defendant’s propensity to rape teenage girls and then possibly claim that they have consented.” The trial court then found that “the four years for three separate sexual assaults is, in fact, close in time. All of the incidents occurred in locations where, I guess, we could say normally consensual sex does not occur; a vehicle, a shed, and an abandoned home.” The trial court ruled: “The Court has weighed the probative versus the prejudicial value and finds that the prior sexual assaults which occurred within four years are admissible.” However, later the trial court granted defendant’s motion to reconsider with regard to SM.

Jury selection for the trial began on September 9, 2008. The trial court read the charges to the entire venire and cautioned that the grand jury indictment was not evidence against defendant. The court then informed the jury that defendant was presumed innocent, that the State had the burden of proving defendant guilty beyond a reasonable doubt, and that defendant was not required to prove his innocence.

The trial court then called a group of 14 prospective jurors from the venire for further questioning. When the trial court addressed the group, the court stated: “The Defendant as I stated is not required to prove his innocence. He has a right to testify. He has a right to remain silent. Should he exercise this right to remain silent and not testify, is there anybody who would hold that against him? No response.” The court continued: “The State has the burden of proving the Defendant guilty beyond a reasonable doubt. Should the State meet their burden of proof beyond a reasonable doubt, is there anybody seated in the jury box who could not or would not go into the jury room with your fellow jurors and the law that governs this case as I give it to you and sign a verdict form of guilty. Anybody who could not or would not do that for any reason? No response.” The court concluded: “Should the state fail to meet their burden of proof beyond a reasonable doubt, is there anybody seated in the jury box who could not or would not go into the jury room with your fellow jurors and sign a verdict form of not guilty? No response.”

The trial court then further questioned the prospective jurors individually, after which the parties excused seven jurors on peremptory challenges or for cause and retained the rest, placing them in the jury room. The trial court then called a second group of 14 prospective jurors from the venire. The trial judge gave similar instructions to the second group:

“The Defendant Mr. Raymond is presumed innocent of the charges against him. The State has the burden of proving him guilty beyond a reasonable doubt. He is not required to prove his innocence. He is not required to testify. He choose not to testify, is there anybody seated in the jury box who would hold that against him? No response.

If the State meets that burden of proof beyond a reasonable doubt, is there anybody seated in the jury box who could not or would not go into the jury room with your fellow jurors and the law that governs this case as I give it to you and sign a verdict form of guilty? Anybody who could not or would not do that for any reason? No response.

Should the State fail to meet their burden of proof beyond a reasonable doubt, is there anybody seated in the jury box who could not or would not go into the jury room with your fellow jurors and the law that governs this case as I give it to you and sign a verdict form of not guilty? No response.”

Again, the trial court then questioned the prospective jurors individually. The parties excused an additional 7 prospective jurors by peremptory challenges or for cause, leaving a total of 12 sworn jurors and 2 sworn alternates.

Defendant’s trial began on September 9, 2008. During the State’s case in chief, Chicago police department officers John Beluso and John Tait testified as to the events that occurred on June 7, 2006. Officer Beluso testified that he and his partner were called to a two-story house on South Ingleside Avenue concerning a reported criminal trespass in progress. They were met at the building by Officer Tait and two other officers. When the police officers arrived, the front door was partially open and the officers entered the building.

Officer Beluso described the house as “abandoned,” testifying that “it was dirty. There was clothes everywhere. It’s obvious that no one lived there”; Officer Tait also described the building as “an abandoned house.” Officer Tait testified that when he entered the house, he saw litter throughout the house and that the house “[sjmelled pretty bad.”

Officer Tait then testified that, shortly after entering, he heard “movement” and “shuffling” coming from the second floor, which began to resemble squeaking sounds, and the officers went upstairs. Once at the top of the stairs, Officer Tait determined that the sounds were coming from a bedroom and the officers proceeded to the bedroom, which Officer Tait testified had no door. Once at the bedroom, Officer Tait stood in the doorway while Officer Beluso stood behind him. Officer Tait testified that he had an unobstructed view into the bedroom and saw two individuals, who he identified as defendant and the victim, on a bed approximately five to seven feet away. Officer Tait testified that the victim looked “young, like [a] teenager.”

Officer Tait then entered the bedroom, where he heard grunting noises coming from defendant and the victim, and noticed that both were naked from the waist down. The victim was lying on her back, with her arms around defendant’s back and her legs “[sjpread wide open.” Defendant was lying on top of the victim’s pelvic area, their hips were touching, and his legs were between hers. Defendant’s buttocks were “moving up and down” in what Officer Tait described as a “humping fashion.” Officer Tait testified that he observed them for a second or two and his first impression was “[t]hat they were having intercourse.” Officer Tait ordered defendant to stand up, and when he did, Officer Tait noticed that defendant’s penis was wet and erect. Officer Tait then arrested defendant, charging him with criminal trespass to land.

On cross-examination, Officer Tait admitted that his supplemental report failed to state some of the details that he testified to on direct examination. The report failed to state that Officer Tait heard grunting noises, that the victim was on her back with her hands on defendant’s back, and that the victim’s legs were spread. Additionally, the report did not state that defendant was moving in a “humping fashion” or that defendant’s penis was wet and erect. Finally, the report did not state that the victim looked young or that Officer Tait thought that they were engaged in sexual intercourse. Officer Tait did not prepare any reports in addition to the supplemental report.

Officer Tait further admitted that he did not see defendant’s penis inside the victim’s vagina, nor did he see defendant’s penis touch the victim. Additionally, the victim was not screaming or crying, and defendant was not arrested for any sexual offense.

Officer Beluso also testified that when he entered the bedroom, he saw defendant lying in a bed with the victim, both of whom were naked from the waist down. The victim’s legs were spread open and the defendant was lying in between them while making a “thrusting motion up and down.” Officer Beluso testified that Officer Tait told defendant to stand up and when he did, Officer Beluso observed that defendant’s penis was erect.

On cross-examination, Officer Beluso conceded that his arrest report did not state that he saw defendant “on top” of the victim. Additionally, Officer Beluso admitted that defendant was arrested for criminal trespass to land and not for any sexual offense.

The victim’s mother, Kimberly S., also testified at trial. Kimberly S. testified that the victim was born on August 10, 1993, making the victim 12 years old and in the sixth grade at the time of the offense on June 7, 2006. She also identified a photograph of the victim and the victim’s birth certificate. According to one officer’s police report, Kimberly S. told the police at the time of the arrest that she had once filed a missing persons report on the victim for not returning home, but was not questioned about her statement at trial. On cross-examination, however, Kimberly S. testified that she discovered that the victim did not attend school on June 7, 2006, and that she informed the police that KS was missing, although she did not file a missing persons report. A photograph of the victim on the day of the offense was also admitted into evidence.

In addition, jp the victim from defendant’s prior conviction for aggravated criminal sexual abuse, testified at the trial. In August of 2002, JP lived at the Hulton Children’s Home, a group home which was operated by the Department of Children and Family Services (DCFS) and accepted residents up to 21 years old. On cross-examination, JP agreed that she was considered a “runaway” and a “runner” at the time. JP was 14 years old, while defendant, who was also a resident, was 19.

On August 3, 2002, JP and five other residents, including defendant, left the dormitory after curfew and went to a nearby shed. Inside the shed, defendant and JP had sexual intercourse. At the time, JP was unaware of defendant’s age. JP testified on cross-examination that the residents stayed in the shed for approximately eight hours and then left together. JP also admitted that she only reported the incident because a staff member at the home interviewed her concerning the curfew violation and that defendant did not force her to go into the shed.

At the end of the State’s case in chief, the parties stipulated to a certified record of defendant’s guilty plea to aggravated criminal sexual abuse for the conduct involving JE The certified record stated: “on or about August 3, 2002, [defendant] committed an act of sexual penetration with JP who was at least 13 years of age, but under 17 years of age, and the Defendant had sexual intercourse with jp that Defendant was at least five years older than JE” The State then rested its case.

Defendant did not present any evidence and did not testify at trial.

Prior to closing arguments, the trial court informed the jury: “Both sides have rested. We’re now proceeding with what’s called closing arguments. They are not evidence. They are statements made by the attorneys reflecting on what they believe the evidence has shown.”

In its closing argument, the State began by saying, “Ladies and gentlemen, at times laws are designed to protect those who cannot protect themselves, from those too immature, either physically or emotionally. Twelve year old girls fall into that category. That’s why there is a legislative difference between predatory criminal sexual assault and rape. They are two completely different things.” The State then went through the elements of the crime, including a description of the bedroom in which defendant and the victim were discovered: “Officer Taitt [sic] went into the room on that second floor. You know what, it turned out to be this lovely bedroom. Sort of an oasis in that abandoned building, isn’t it. See the pretty pink sheets on the bed, see the stuffed animals strewn about the bed. Things that little girls like.”

After discussing the elements of the case, the State discussed the use of circumstantial evidence and emphasized that the jury was also allowed to use its common sense. The prosecutor then stated:

“Now, the Judge is also going to tell you and make it very clear, the only evidence that you are allowed to consider when you are in that room deliberating is what came out of the mouths of the witnesses who got up on this stand, sat in that chair and swore to tell the truth. Not the attorney’s questions, not the arguments of the attorneys. Only what was testified to from that witness stand.”

Near the end of its argument, the State referred to defendant’s prior conviction, with two objections by the defense:

“PROSECUTOR: [JP] was another one of the Defendant’s young victims, where the Defendant pled guilty to what he had done to her. The Defendant’s intent, motive and propensity. Well, what was the Defendant’s intent in each of these cases. To have sex. What was his motive with [JP], with [KS]. Sexual pleasure. The Defendant’s propensity. Look at the similarities between those two girls. They are one year apart. They are both emotionally troubled teens.

DEFENSE COUNSEL: Objection, Judge.

THE COURT: Sustained.

PROSECUTOR: [JP] is in DCFS custody. [KS] was playing hooky from school. So, Defendant’s propensity. Defendant likes sex with—

DEFENSE COUNSEL: Objection, Judge.

THE COURT: Overruled.”

During its closing argument, the defense urged the jurors not to consider the prior crime:

“By the way, we need to bring in this old case. Let’s bring in this old case. Maybe, you know, to show Mr. Raymond is a bad person or he involves himself in some type of action. We’re not asking you to like Mr. Raymond. This is not a contest of likability. This is a criminal case that requires proof beyond a reasonable doubt. This is a criminal case that requires more than two officers coming in here and telling you two different stories of information that there is no document of, just because they are police officers. That is not how the criminal justice system functions.”

Later during the State’s rebuttal, the defense objected three times:

“PROSECUTOR: This is not a case about police reports. This is a case that is about twelve year old [KS] and this Defendant, 23 year old Antonio Raymond. He keeps getting older, year after year, and his victims keep getting younger. First, in 2002, August 3rd of 2002, he takes [JP] who is then fourteen years old to a shed.

DEFENSE COUNSEL: Objection, Judge.

THE COURT: Overruled.

PROSECUTOR: To a shed where she’s with five other people, if you count the Defendant, a group of them. He has sex with her. Now in 2006 he worked his way down to a 12 year old, [KS]. And the defense wants to ask you where is [KS], Why isn’t she here. Who cares where [KS] is. [KS] is this girl in the picture. She is twelve years old.

What he was there to do was to have sex with [KS]. Somebody who is his type. He likes young girls. [JP] was 14. [KS] was 12. He likes busty girls. Kind of chunky girls.

You saw [JP] up there. You will see the picture of [KS]. He likes girls that are troubled, that are run-aways.

DEFENSE COUNSEL: Objection.

THE COURT: Sustained.

PROSECUTOR: [JP] ran away from her youth home. [KS] ran away from home. He likes girls who are troubled so he can turn—

DEFENSE COUNSEL: Objection.

THE COURT: Overruled.

PROSECUTOR: He likes girls that he can turn into the woman that he wants. That’s what he was trying to do that day.”

While closing her argument during the State’s rebuttal, the prosecutor stated:

“[W]e as a society have drawn a fine in the sand. We have drawn the line at thirteen. We say under the age of thirteen, that’s a different ballgame than people over the age of thirteen. We’re not talking about a sixteen year old and a seventeen year old, close in age. One had a birthday, turned seventeen, and the other one didn’t. That’s not it.

We’re talking about a twelve year old. That’s where the line in the sand is. Our law doesn’t allow people to claim that that eight year old, boy, she looks thirty. That five year old, she’s turning forty-five next month. Our line in the sand is at twelve.

* ❖ *

We’d ask you to abide by that line in the sand and go back and consider the evidence and to find this Defendant guilty of predatory criminal sexual assault with a child.”

After closing arguments, the trial court instructed the jury on the law, including a jury instruction that “[n] either opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on the evidence should be disregarded.” The court also instructed the jury to “disregard questions and exhibits which were withdrawn or to which objections were sustained.” The court further instructed the jurors:

“The Defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that he is guilty.

The State has the burden of proving the guilt of the Defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The Defendant is not required to prove his innocence.

The fact that the Defendant did not testify must not be considered by you in any way in arriving at your verdict.”

The jury found defendant guilty of predatory criminal sexual assault of a child, and defendant’s later motion for a new trial was denied.

At the sentencing hearing, the trial court considered defendant’s presentence investigation report and heard evidence of aggravation and mitigation. The court heard testimony regarding defendant’s alleged assault of SM, as well as arguments from the attorneys describing defendant’s prior conviction for aggravated criminal sexual abuse of JP, defendant’s social and mental history, specific instances of dishonesty in the presentence investigation report, and defendant’s two convictions for drug related offenses. At the hearing, defendant also made a statement that he was sorry for his actions.

In imposing its sentence, the trial court stated that defendant was sorry for his actions and that he “never really had a chance” because of his home environment. The court also noted that defendant had a history of three felony convictions, and that he had been given the opportunity to rehabilitate himself by receiving probation for one offense, but the probation was terminated unsatisfactorily. The trial court specifically stated that the evidence regarding SM would be given little weight. The court sentenced defendant: “Again, taking your criminal history, your social history into consideration, and all the factors set out in the statute, it is for the protection of society and young women throughout our state, country, that the sentence of this Court is 20 years in the Illinois Department of Corrections.”

Defendant immediately filed a motion to reconsider the sentence in view of his background and the nature of his participation in the offense, which the trial court denied, stating that the sentence “is not excessive in light of your background and your participation in the offense, you being the actual offender in this case.” Defendant filed this timely appeal.

ANALYSIS

On appeal, defendant raises six issues. First, he argues that his conviction should be reversed because the State failed to prove the element of sexual penetration beyond a reasonable doubt. Defendant further raises four issues that he claims entitle him to a new trial: (1) that the trial court denied defendant a fair trial by refusing to allow him to argue mistake of age as a defense; (2) that the trial court erred in allowing evidence concerning defendant’s prior conviction for aggravated criminal sexual abuse; (3) that the trial court violated Supreme Court Rule 431(b) during jury selection by not inquiring into all of the Zehr factors; and (4) that the State prevented defendant from receiving a fair trial by inflaming jurors’ passions through improper remarks during closing argument and rebuttal. Finally, defendant asks for a reduced sentence because he claims that his sentence was excessive.

I. Element of Penetration

In order to be convicted of predatory criminal sexual assault of a child, the accused must be 17 years of age or over, the victim must be under 13 years of age, and the accused must commit “an act of sexual penetration” with the victim. 720 ILCS 5/12 — 14.1(a)(1) (West 2008). “Sexual penetration” is further defined as “any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person ***. Evidence of emission of semen is not required to prove sexual penetration.” 720 ILCS 5/12— 12(f) (West 2008).

Defendant argues that the State did not prove the element of sexual penetration beyond a reasonable doubt. In reviewing whether the State has proven an element of the crime beyond a reasonable doubt, the standard of review is whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements beyond a reasonable doubt. People v. Quintana, 332 Ill. App. 3d 96, 103 (2002). When presented with a challenge to the sufficiency of the evidence, the reviewing court will not reverse the conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt as to defendant’s guilt. Quintana, 332 Ill. App. 3d at 103.

Defendant argues that there was no evidence that defendant’s penis touched the victim’s vagina and, therefore, no sexual penetration was established. Defendant relies heavily on the language of People v. Finley that states that sexual penetration requires “actual contact” between the sex organ of one person and the sex organ, mouth or anus of another. People v. Finley, 178 Ill. App. 3d 301, 307 (1988). However, the “actual contact” language used in Finley is simply a way of distinguishing “sexual conduct,” an element of criminal sexual abuse, from “sexual penetration,” an element of criminal sexual assault. Finley, 178 Ill. App. 3d at 307 (“[A] finding that sexual penetration did not occur does not preclude a finding that sexual conduct did occur. The latter may be committed ‘through clothing,’ the former may not”). In fact, other than holding that aggravated criminal sexual abuse is a lesser included offense of aggravated criminal sexual assault, the Finley court does not discuss criminal sexual assault at all, since the conviction that was the subject of the appeal was for criminal sexual abuse. Finley, 178 Ill. App. 3d at 305.

It is true that, as the Finley court noted, sexual penetration cannot be established if the only contact between the parties is through clothing. Finley, 178 Ill. App. 3d at 307. However, defendant seemingly misinterprets this “actual contact” requirement as a “direct evidence of contact” requirement, arguing that since Officers Tait and Beluso did not actually see defendant’s penis touching the victim’s vagina and there was no medical evidence or testimony from the victim, sexual penetration could not have been proven beyond a reasonable doubt. We do not find this argument persuasive.

Defendant is correct in stating that there was no medical evidence showing redness or abrasions on the victim’s vagina or semen present. However, the lack of semen or trauma to the victim’s genitals is not dispositive of the issue of penetration. The statute itself explicitly states that “[ejvidence of emission of semen is not required to prove sexual penetration.” 720 ILCS 5/12 — 12(f) (West 2008). Similarly, courts have held that evidence of trauma is unnecessary because the statute considers penetration to have occurred as a result of “any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person.” (Emphasis added.) 720 ILCS 5/12 — 12(f) (West 2008). For instance, the defendant in People v. Moore argued that without evidence of trauma and with the victim’s hymen still intact there could not have been penetration. People v. Moore, 199 Ill. App. 3d 747, 773 (1990). We rejected that argument, holding that “it is clear that the statutory definition does not require physical penetration but merely requires contact.” Moore, 199 Ill. App. 3d at 773. Thus, these factors are not necessary for a finding of penetration.

The most serious flaw in defendant’s argument is his focus on direct evidence. While direct evidence in the form of testimony from the victim or in some other form would clearly be helpful in determining whether there was penetration, it is not required. The trier of fact is allowed to make reasonable inferences based on the evidence presented, and may find penetration in the absence of direct evidence.

The case of People v. Herring, 324 Ill. App. 3d 458 (2001), is instructive. The defendant in that case was convicted of two counts of home invasion and four counts of aggravated criminal sexual assault. Herring, 324 Ill. App. 3d at 459. On appeal, the defendant argued that he was not proven guilty beyond a reasonable doubt of all four counts of aggravated criminal sexual assault because there was only evidence of three instances of penetration. Herring, 324 Ill. App. 3d at 459. In the contested instance, the victim had testified that she was lying face up on the floor with the defendant lying over her, with his knees on top of her and his legs on either side of her. Herring, 324 Ill. App. 3d at 466. The defendant had his penis out, had pulled the victim’s clothes down below her knees, had both hands on her mouth and was “ ‘trying to stick his thing in.’ ” Herring, 324 Ill. App. 3d at 466. However, the victim also testified that the defendant “ ‘never did get a chance to really do anything’ ” and never explicitly stated that any contact occurred. Herring, 324 Ill. App. 3d at 464.

We emphasized that the issue of penetration is a question of fact that should be determined by the trier of fact and that a lack of detail in the victim’s testimony only affects the weight of the evidence. Herring, 324 Ill. App. 3d at 464; see also People v. Shum, 117 Ill. 2d 317, 356 (1987). Further, “the trier of fact is not required to disregard the natural inferences that flow normally from the evidence, nor is it required to search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt.” Herring, 324 Ill. App. 3d at 464, citing People v. Bull, 185 Ill. 2d 179, 205 (1998). We noted that the trier of fact is entitled to draw all reasonable inferences from both direct and circumstantial evidence, including an inference of penetration. Herring, 324 Ill. App. 3d at 465. We affirmed the defendant’s conviction, holding that, “even without direct testimony from the victim that ‘contact’ occurred, the trier of fact could reasonably infer that ‘contact, however slight,’ occurred.” Herring, 324 Ill. App. 3d at 466.

Similarly, the jury in the instant case could reasonably have inferred that some contact occurred between defendant and the victim’s genitals. Officer Tait testified that he heard grunting noises coming from the bedroom. Officers Tait and Beluso both testified that they saw defendant and the victim lying on a bed, naked from the waist down, with defendant on top of the victim. Both officers stated that the victim’s legs were spread open and that defendant’s legs were between hers. Both officers also explained that defendant was moving his buttocks; Officer Beluso characterized defendant as making a “thrusting motion up and down,” while Officer Tait said that defendant was moving in a “humping fashion.” Finally, when Officer Tait ordered defendant to stand up, both officers noticed that defendant’s penis was erect, while Officer Tait also noticed that it was wet. Certainly, a reasonable inference from this testimony was that defendant’s penis had made contact with the victim’s genitals. Viewing all of the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found that defendant committed predatory criminal sexual assault of a child beyond a reasonable doubt.

II. Mistake-of-Age Defense

Defendant also argues that the trial court erred when it denied defendant the opportunity to present a defense based on mistake of age because predatory criminal sexual assault of a child is not a strict liability offense. Prior to trial, the trial court granted the State’s motion in limine barring defendant from referencing his belief that the victim was over 17. As a threshold matter, in order to preserve the issue for appeal, defendant was required to raise the issue by objecting at trial and in a posttrial motion. People v. Martinez, 242 Ill. App. 3d 915, 925 (1992). Defendant has failed to do so and therefore has waived his right to this claim. People v. Daniels, 331 Ill. App. 3d 380, 389 (2002).

Nevertheless, defendant urges us to review this claim under plain error. “[TJhe plain-error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). However, before we reach the issue of plain error, we must first determine whether any error occurred at all. People v. Walker, 392 Ill. App. 3d 277, 294 (2009) (“[i]n a plain error analysis, ‘the first step’ for a reviewing court is to determine whether any error at all occurred”). We find the trial court’s denial of the use of mistake of age as a defense to be proper and therefore, there was no error, much less plain error.

The Second District of the Appellate Court had the opportunity to consider this issue in People v. Douglas, 381 Ill. App. 3d 1067, 1081 (2008), where it held that mistake of age is not a defense to a charge of predatory criminal sexual assault of a child. In its opinion, the Douglas court performed a thorough and persuasive analysis of the statutory language, the language of similar statutes, Illinois case law, and foreign authority.

Defendant urges us not to rely on Douglas, claiming that the Second District improperly relied on the case of People v. Barfield, 187 Ill. App. 3d 257 (1989), which was rejected by the Illinois Supreme Court in People v. Terrell, 132 Ill. 2d 178 (1989). In Barfield, we held that aggravated criminal sexual assault of a victim under 13 was a strict liability crime and, with no analysis, concluded that it was not a defense for the defendant to claim that he believed that the victim was over the age of 13. Barfield, 187 Ill. App. 3d at 264.

The challenge before our supreme court in Terrell was whether the aggravated criminal sexual assault statute was unconstitutional because it required a less culpable mental state than was required for aggravated criminal sexual abuse, a lesser offense. Terrell, 132 Ill. 2d at 206. In its decision, the court rejected at least part of Barfield's holding when it noted that “the legislature clearly did not intend the aggravated criminal sexual assault statute to define a strict liability or public welfare offense” and, accordingly, held that “a mental state of either intent or knowledge implicitly is required for sexual penetration to occur.” Terrell, 132 Ill. 2d at 209. Significantly, the Terrell court focused exclusively on the sexual penetration element and not on any of the other elements, including the age of the victim. In fact, when defining “aggravated criminal sexual assault,” the court stated: “Aggravated criminal sexual assault is defined in section 12 — 14 of the Criminal Code [(Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14)], which specifies that an accused commits aggravated criminal sexual assault if he or she commits an act of ‘sexual penetration’ under certain defined circumstances [citation].” (Emphasis added.) Terrell, 132 Ill. 2d at 207. The court never discussed the other “defined circumstances,” which include the age of the victim, supporting the conclusion that its analysis applies only to the element of penetration. It is clear that Terrell does require a mental state for sexual penetration, but it is equally clear that the decision does not address any of the other elements of the crime. Thus, the Douglas court’s consideration of Barfield was not improper.

Moreover, the Douglas court did not reach its conclusion solely by considering Barfield but instead relied on a number of factors to support its holding that the mistake-of-age defense was not available. The court began with the statutory language itself, as well as the statutes defining mental states and defenses to article 12 sex crimes. Douglas, 381 Ill. App. 3d at 1070-74. From this, the court determined that the age of the accused and of the victim were “attendant circumstances” that did not require a mental state. Douglas, 381 Ill. App. 3d at 1074.

After examining the language of the statute itself, the court then analyzed how the statute has been interpreted, considering Barfield, Terrell, and People v. Burton, 201 Ill. App. 3d 116 (1990). From this, it determined that the scant case law seems to support the idea that mistake of age is not a defense. Douglas, 381 Ill. App. 3d at 1077. Finally, the court considered foreign authority to see how other jurisdictions had interpreted analogous statutes. Douglas, 381 Ill. App. 3d at 1077-80.

The Douglas court additionally addressed arguments based on public policy, several of which were also raised by defendant in the instant case. The court discussed the traditional understanding that offenses requiring no mens rea were disfavored, and specifically analyzed the United States Supreme Court case of Morissette v. United States, 342 U.S. 246, 96 L. Ed. 288, 72 S. Ct. 240 (1952). Douglas, 381 Ill. App. 3d at 1081-83. The court noted that even in Morissette, the United States Supreme Court recognized that sexual offenses were treated differently than other crimes and traditionally did not require a mental state with regard to the victim’s age. Douglas, 381 Ill. App. 3d at 1084. The Douglas court also addressed the defendant’s labeling of the crime as “strict liability,” stating that it was not a strict liability crime because the act of penetration required a mental state. Douglas, 381 Ill. App. 3d at 1085. Finally, the court noted that predatory criminal sexual assault of a child, as well as other statutory rape crimes, address the public policy concern of protecting vulnerable members of society. Douglas, 381 Ill. App. 3d at 1085. We adopt the Douglas court’s reasoning and find that the trial court correctly denied defendant the opportunity to present the defense of mistake of age.

III. Other Crimes Evidence

The next issue that defendant raises is that the trial court erred in admitting evidence concerning defendant’s prior conviction for aggravated criminal sexual abuse. The decision to admit or exclude other crimes evidence rests within the sound discretion of the trial court and that decision will not be disturbed absent an abuse of discretion. People v. Childress, 338 Ill. App. 3d 540, 545 (2003). A trial court abuses its discretion only when its ruling is “arbitrary, fanciful or where no reasonable person would take the view adopted by the trial court.” Childress, 338 Ill. App. 3d at 545, citing People v. Illgen, 145 Ill. 2d 353, 364 (1991).

Generally, evidence concerning other crimes is inadmissible to demonstrate a propensity to commit a crime. People v. Donoho, 204 Ill. 2d 159, 170 (2003). The evidence is not considered irrelevant; rather, it is considered to be too likely to persuade the jury to convict the defendant based on his past bad behavior. Childress, 338 Ill. App. 3d at 548. Other crimes evidence is admissible to prove certain facts, such as “intent, modus operandi, identity, motive, [and] absence of mistake,” but may still be excluded if the prejudicial effect of the evidence substantially outweighs its probative value. Donoho, 204 Ill. 2d at 170, citing Illgen, 145 Ill. 2d at 364-65.

The Illinois legislature made an exception to the common law bar against the use of other crimes evidence to show propensity in the case of certain sexual crimes. Section 115 — 7.3 of the Code of Criminal Procedure of 1963 provides:

“(a) This Section applies to criminal cases in which:

(1) the defendant is accused of predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse, criminal sexual abuse, child pornography, aggravated child pornography, or criminal transmission of HIV;

❖ >!< sfc

(b) If the defendant is accused of an offense set forth in paragraph (1) or (2) of subsection (a) or the defendant is tried or retried for any of the offenses set forth in paragraph (3) of subsection (a), evidence of the defendant’s commission of another offense or offenses set forth in paragraph (1), (2), or (3) of subsection (a), or evidence to rebut that proof or an inference from that proof, may be admissible (if that evidence is otherwise admissible under the rules of evidence) and may be considered for its bearing on any matter to which it is relevant.

(c) In weighing the probative value of the evidence against 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.” 725 ILCS 5/115 — 7.3 (West 2008).

Our Illinois Supreme Court has held that this statute allows courts to admit evidence of other crimes to show the defendant’s propensity to commit sex offenses. Donoho, 204 Ill. 2d at 176.

In this case, the trial court allowed the State to introduce evidence of defendant’s 2002 conviction for aggravated sexual abuse of JE It also initially granted the State’s motion to allow evidence of an uncharged sexual assault against SM, but later granted defendant’s motion to reconsider that ruling. In allowing the other crimes evidence, the court stated:

“The Court has reviewed the motion, considered the arguments, response to the motion, considered the case law, specifically Donahue, considered the federal rules of evidence, specifically 413, and United States versus Withorn, cited at 204 F 3d 790, Eighth Circuit Court case in 2000, allowing prior sexual assaults to prove a defendant’s propensity to rape teenage girls and then possibly claim that they have consented.

The Court finds the four years for three separate sexual assaults is, in fact, close in time. All of the incidents occurred in locations where, I guess, we could say normally consensual sex does not occur; a vehicle, a shed, and an abandoned home.

The Court has weighed the probative versus the prejudicial value and finds that the prior sexual assaults which occurred within four years are admissible.”

Section 115 — 7.3 and Donoho require the court to consider three factors in balancing the probative and prejudicial value of other crimes evidence: proximity in time, degree of factual similarity, and other relevant facts and circumstances. 725 ILCS 5/115 — 7.3 (West 2008); Donoho, 204 Ill. 2d at 183. The trial court explicitly considered the first two factors and also announced that the evidence would be admitted after balancing its probative and prejudicial value. We cannot say that the trial court abused its discretion in making that decision.

The first factor, proximity in time, weighs in favor of admission. The time between the assault of JE and the encounter with the victim in the instant case was four years. There is no bright line rule about when a crime is too distant in time to be admitted; instead, the proximity in time must be evaluated on a case-by-case basis and is a factor in determining the other crime’s probative value. Donoho, 204 Ill. 2d at 183-84.

In this case, the four-year lapse between the assault of JP and the encounter with the victim was not too distant in time to be admissible. Moreover, defendant seems to agree, because his brief does not mention the fact that the trial court considered four years to be close in time but his brief solely focuses on the factual similarities between the crimes. Thus, we cannot say that the trial court abused its discretion in finding the two incidents to be close in time.

The second factor to be considered in the balancing test is the degree of factual similarity between the two crimes. In order for other crimes evidence to be admissible, there must be some “ ‘threshold similarity’ ” to the charged crime. Donoho, 204 Ill. 2d at 184, quoting People v. Bartall, 98 Ill. 2d 294, 310 (1983). If the other crimes evidence is being used to show modus operandi or that the charged offense was part of a common scheme or design, the level of similarity between the charged offense and the other crime must be high; “[t]he two offenses must share such distinctive common features as to earmark both acts as the handiwork of the same person.” Illgen, 145 Ill. 2d at 372-73, citing People v. McKibbins, 96 Ill. 2d 176, 185-86 (1983). If, however, the evidence is being used for some other purpose, such as the absence of an innocent frame of mind or the presence of criminal intent, “mere general areas of similarity will suffice” for the evidence to be admissible. Illgen, 145 Ill. 2d at 373, citing McKibbins, 96 Ill. 2d at 185-86. Our supreme court has determined that the use of other crimes evidence to show propensity allowed by section 115 — 7.3 requires only “ ‘mere general areas of similarity’ ” between the past offense and the charged offense to be admissible. Donoho, 204 Ill. 2d at 184, quoting Illgen, 145 Ill. 2d at 372-73. Additionally, because “no two independent crimes are identical,” the presence of some differences does not defeat admissibility. Donoho, 204 Ill. 2d at 185, citing Illgen, 145 Ill. 2d at 373. However, an increase in factual similarity leads to an increase in the probative value of the other crimes evidence. Donoho, 204 Ill. 2d at 184, citing Bartall, 98 Ill. 2d at 310.

Defendant relies heavily on the cases of People v. Johnson, 389 Ill. App. 3d 618 (2009), and People v. Holmes, 383 Ill. App. 3d 506 (2008), to argue that the similarities between the crimes are not sufficient to support admission of the other crimes evidence. Initially, it is important to note that the decision to admit or exclude other crimes evidence is necessarily fact-specific, so the fact that one court admitted or excluded evidence based on the particular facts before it does not necessarily mean that the same result applies in another case with different facts.

Additionally, one critical distinction between the cases cited by defendant and the case at bar is the nature of the crime itself. This case involves an adult engaging in sexual intercourse with a child. The kinds of facts relevant to that type of case differ greatly from the types of facts important in the case of a sexual assault involving force, as is present in both Holmes and Johnson. For instance, in Holmes, there were details including how the parties knew each other, how the defendant attacked each victim, the presence of a weapon, and threatening language from the defendant. Holmes, 383 Ill. App. 3d at 508-09. Likewise, in Johnson, the relevant facts included details about where the victims were abducted, where they were taken to be assaulted, and whether the defendant used physical force and threatened to kill the victims. Johnson, 389 Ill. App. 3d at 624. Those kinds of facts are often simply not present in the type of case before us today.

Instead, the relevant facts would likely focus on details such as the relationship between the parties, the age of the victim, and where the parties went to have their encounters. For example, the important facts in People v. Taylor, 383 Ill. App. 3d 591, 595 (2008), included that the defendant was in a position of trust or authority to the victims, he lured the victims by offering to assist them, the victims were all male and shared the defendant’s surname, and the manner in which the defendant performed sex on the victims. Similarly, our supreme court in Donoho focused on the age range of the children, that children of both genders were included, that both incidents involved the defendant inserting his finger into the girl’s vagina, and that both incidents involved the defendant forcing both children to touch his penis. Donoho, 204 Ill. 2d at 185. Finally, in People v. Butler, 377 Ill. App. 3d 1050, 1066 (2007), the Fourth District Appellate Court considered that both incidents involved a teenage female relative in the care of defendant and her husband, that both incidents involved defendant and her husband giving the victim alcohol, and that defendant initiated the encounters while her husband watched and encouraged the contact.

Nevertheless, because defendant relies on Holmes and Johnson, we will look at each of those cases in depth. In Holmes, we considered two instances of other crimes evidence that were excluded by the trial court. The victim in the case knew the defendant from high school and alleged that he punched and choked her inside his vehicle, threatened her with a knife, and raped her. Holmes, 383 Ill. App. 3d at 508. The defendant then drove her to his father’s house and said that he wanted her to tell his father that they were getting married; he threatened to kill her if she disobeyed him, but let her leave at some point. Holmes, 383 Ill. App. 3d at 508.

The trial court denied the prosecution’s attempt to introduce evidence of the other two crimes, finding that the 1994 crime was too distant in time from the charged crime and that the 1996 crime was not similar to the charged offense. Holmes, 383 Ill. App. 3d at 510. On appeal, we found that the trial court abused its discretion by barring evidence of the 1994 crime, because it was not too remote in time and there were a number of similarities between the crimes. Holmes, 383 Ill. App. 3d at 516-17. Both victims were women who had rejected defendant’s advances, both assaults occurred during the day, defendant punched both victims and assaulted them at knifepoint, and defendant later claimed that each woman had consented. Holmes, 383 Ill. App. 3d at 516-17.

However, we held that the evidence of the 1996 crime was properly excluded by the trial court. Holmes, 383 Ill. App. 3d at 519. While the 1996 crime was close in time to the charged offense, we found that the details of the crimes were not similar because in the 1996 crime: (1) there was a second person present in the apartment at the time of the attack, (2) the victim voluntarily entered the defendant’s bedroom and only later resisted, (3) defendant did not threaten the victim with a weapon, (4) there was no actual penetration in the 1996 case because defendant was interrupted, and (5) the victim in the 1996 crime escaped from defendant while the victim in the charged offense was allowed to leave. Holmes, 383 Ill. App. 3d at 518-19.

Similarly, in Johnson, we held that other crimes evidence should not have been admitted because of lack of similarity. The victim in that case was pulled into an alley at 9:30 p.m. and brought to an abandoned building. Johnson, 389 Ill. App. 3d at 619. Though the defendant did not have a weapon, he threatened to kill her if she did not do as he said, at which point the defendant vaginally penetrated the victim. Johnson, 389 Ill. App. 3d at 619.

At trial, the prosecution attempted to introduce other crimes evidence of an uncharged sexual assault occurring in 2003, which the trial court allowed. Johnson, 389 Ill. App. 3d at 620-21. On appeal, we found that the trial court abused its discretion when it admitted the evidence because of the differences between the crimes and the fact that the trial court did not perform a meaningful analysis of the prejudicial effect of the evidence. Johnson, 389 Ill. App. 3d at 625. Specifically, we noted that the victim in the charged offense was only assaulted by one man, while the 2003 victim was assaulted by two, and that the 2003 victim testified that the defendant used a vehicle, blew cocaine in her face and gave her alcohol, and anally penetrated her, which were circumstances not present in the case being tried. Johnson, 389 Ill. App. 3d at 625.

Defendant attempts to argue that Johnson and Holmes demonstrate that generic similarities such as vaginal penetration are insufficient and that the details of the crimes must be equivalent. However, neither Johnson nor Holmes stands for such a proposition. It is true that both cases had a number of details that we compared in determining whether the other crimes evidence should have been admitted. However, neither case contained any sort of requirement for the number or type of details necessary for there to be sufficient similarity. Instead, both cases involved a factual comparison based on the evidence in the record.

Additionally, defendant argues a number of times that details must be equivalent and that “generic” or “general” similarities are insufficient. In fact, as noted above, our supreme court has explicitly stated that the details do not have to be equivalent, and often cannot be. Donoho, 204 Ill. 2d at 185 (“The existence of some differences between the prior offense and the current charge does not defeat admissibility because no two independent crimes are identical”). Moreover, if other crimes evidence is being used to show propensity as allowed by section 115 — 7.3, then “ ‘mere general areas of similarity will suffice.’ ” Donoho, 204 Ill. 2d at 185, quoting Illgen, 145 Ill. 2d at 372-73.

When looking for general similarities, it is rare to find a case comparing crimes that does not also contain significant differences. For instance, in Donoho, the supreme court found that the trial court did not abuse its discretion in admitting other crimes evidence despite differences including (1) in one case the defendant had no relationship to the children while in the other he was their stepfather; (2) in one case there was a single incident while in the other there were several incidents spanning three years; (3) one case involved a boy and girl at the same time while in the other, conduct occurred with them separately; and (4) in one case he told the children they were playing a game while in the other he threatened to ground them if they told anyone. Donoho, 204 Ill. 2d at 185. Likewise, the court in Taylor found that the trial court abused its discretion by excluding other crimes evidence even though the victims differed in age and maturity level and, most notably, the charged crime included anal penetration with a hairbrush as well as mutual masturbation, while the earlier offense did not include either. Taylor, 383 Ill. App. 3d at 595-96. Thus, the fact that differences are present does not mean that there is not general similarity.

In this case, there are general areas of similarity between the two crimes. The two victims were female and were in the same age range of 12 to 14 years old. Defendant was significantly older than each of the girls; he was almost 20 when he assaulted JP and 23 when he committed the charged offense against KS. Both girls seem to have had problems with their home lives; JP described herself as a “runaway” and a “runner,” while evidence indicated that KS had not attended school on at least one occasion, prompting her mother to inform the police. Both encounters were in places where defendant was not permitted to be; his assault of JP was in a shed on the group home’s property after curfew, while the encounter with KS occurred in a possibly abandoned house that did not belong to either of them. The locations were also places that were at least somewhat familiar to the victims; JP was a resident at the group home at the time of the assault, while defendant claimed that KS told him that the house belonged to her cousin. Both began as consensual encounters, and both involved vaginal penetration.

Defendant correctly points out that there were several differences between the two crimes, as well. During defendant’s assault of JP, there were four other people present; with KS, they were alone. The encounter with JP occurred late at night, while the incident with KS was during the day. Defendant also argues that the encounter with JP took place in a public shed while the one with KS took place in a private house; actually, the shed was on the group home’s property and in the instant case, defendant was in fact initially arrested for criminal trespass to land because the house did not belong to either of the parties. Nevertheless, the shed was arguably a more public place than was the house.

Defendant argues that the differences between the crimes, as well as similarities that he characterizes as “generic,” demonstrate that the trial court abused its discretion in allowing evidence of the other crime to be admitted. While the difference in the number of people present could be found to be significant, we find that the other factual similarities were sufficient for the trial court to determine that the evidence was admissible. We note that defendant attempts to paint vaginal penetration and the minority of the victim as common facts in cases of predatory criminal sexual assault of a minor and implies that any similarity on that basis is insufficient. It may be that penetration and the minority of the victim are elements of the crime, but that does not mean that these facts cannot be considered in analyzing the similarity of the crimes.

The final factor to be considered in the analysis includes any other relevant facts and circumstances. One factor relevant to our discussion is the care that the trial court took in determining whether the evidence would be admissible. In its ruling, the court referenced the motions, the arguments, the relevant case law, and the analogous federal rule of evidence and federal case law. The trial court also initially allowed two instances of other crimes evidence, but reconsidered one after determining that there were not enough similarities, indicating that the trial court closely considered the factors required by the statute.

Moreover, the other crimes evidence was not presented in a way that the jury would tend to convict defendant only because he was a bad person deserving punishment. A trial court that admits other crimes evidence must be careful that the evidence does not become the focal point of the trial. People v. Boyd, 366 Ill. App. 3d 84, 94 (2006). Here, the other crimes evidence was not. The State presented only one witness, JR as well as a certified record of defendant’s guilty plea. The State also referred to JP during its closing argument, with the trial court sustaining some of defendant’s objections and overruling others. Defendant’s closing argument also reduced the prejudicial value of the evidence because defense counsel specifically referred to JP and asked the jury not to give the prior conviction any weight. After considering all of the factors in balancing the probative value of the other crimes evidence against its prejudicial impact, we find that the trial court did not abuse its discretion in admitting evidence of defendant’s prior conviction for aggravated criminal sexual abuse.

IV Supreme Court Rule 431(b)

Defendant’s fourth issue on appeal is that the trial court violated Supreme Court Rule 431(b). He argues that the trial court failed to mention one required Zehr principle and did not inquire into the other three properly.

Although supreme court rules are not statutes, they have “ ‘the force of law, and the presumption must be that they will be obeyed and enforced as written.’ ” Robidoux v. Oliphant, 201 Ill. 2d 324, 332 (2002), quoting Bright v. Dicke, 166 Ill. 2d 204, 210 (1995). Issues concerning the interpretation of a supreme court rule are reviewed de novo. People v. Reed, 376 Ill. App. 3d 121, 125 (2007).

Illinois Supreme Court Rule 431(b) is a codification of our supreme court’s holding in People v. Zehr, 103 Ill. 2d at 477. In Zehr, our supreme court held that it is “essential to the qualification of jurors in a criminal case *** that they know” and accept four fundamental principles: (1) that defendant is presumed innocent; (2) that defendant is not required to produce any evidence on his own; (3) that defendant must be proven guilty beyond a reasonable doubt; and (4) that defendant’s failure to testify on his own behalf cannot be held against him. Zehr, 103 Ill. 2d at 477. These four principles are commonly known as the four “Zehr principles.” People v. Jocko, 389 Ill. App. 3d 247, 259 (2009); People v. Martinez, 386 Ill. App. 3d 153, 158 (2008); People v. Gilbert, 379 Ill. App. 3d 106, 109 (2008).

Currently, Supr