People v. Pitts

FIRST DIVISION
September 30, 1998

No. 1-97-1788

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

JIMMY PITTS,

Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

Honorable
Daniel J. Kelley,
Judge Presiding.


JUSTICE O'BRIEN delivered the opinion of the court:
Following a jury trial, defendant, Jimmy Pitts, was convicted
of aggravated criminal sexual assault, aggravated criminal sexual
abuse, and attempted aggravated criminal sexual assault. The trial
court sentenced defendant to a term of natural life for the
aggravated criminal sexual assault conviction, 14 years for the
aggravated criminal sexual abuse conviction, and 15 years for the
attempted aggravated criminal sexual assault conviction, the terms
to run consecutively. On appeal, defendant contends the trial
court erred by: (1) admitting evidence of other sexual crimes
committed by defendant; (2) admitting hearsay testimony of
statements made by the two minor victims; (3) failing to properly
instruct the jury; and (4) improperly sentencing defendant to
consecutive terms. We affirm.
At trial, Brandi testified that in October 1993 she was eight
years old and lived with her mother, brother, two sisters, and her
mother's boyfriend (defendant). On October 16, 1993, the defendant
and Brandi's mom went to a party, leaving Brandi and her three
siblings alone in the house. The children played for awhile, then
Brandi went to bed.
Around 1 a.m., defendant walked into the bedroom where Brandi
was sleeping, picked her up, carried her to her mother's bedroom,
and set her down on the bed. Defendant and Brandi were alone in
the room.
Defendant locked the bedroom door and twice asked Brandi to
take off her clothes. Brandi refused both times. Defendant put
his hand up the left leg of her pajamas and rubbed his hand on her
vagina. Defendant then "put his finger half-way in [her] vagina."
Defendant pulled his penis out of his pants and told her to touch
it. He grabbed her hand by the wrist and made her rub his penis.
He told her that he was going to have sex with her when she turned
14. He also told her that he would kill her if she told anyone
what he had done. Then he carried her back to her bedroom, put her
in bed, and walked towards her sisters' (Sonja and Lourina's)
bedroom.
Brandi got out of bed and hid behind the refrigerator in the
kitchen, in order to see what defendant was going to do next.
Brandi observed her sister, Sonja, get out of bed and walk into the
kitchen. Her other sister, Lourina, was still asleep in the
bedroom. Brandi saw defendant close the bedroom door and jam a
screwdriver into the lock in order to keep it closed. Defendant
then told Sonja that he wanted her to fill some jugs full of water
and take them to the car.
Sonja went into the bathroom and filled the jugs with water.
Sonja and defendant then walked out the back door; Brandi heard
them walk upstairs to the vacant second-floor apartment. Brandi
went back to her bedroom and lay down on the bed. She heard
screaming and thumping coming from upstairs. She woke up her
brother, Ahmad, who shared the bedroom with her, and then they ran
upstairs to the second-floor apartment and opened the door.
Brandi saw Sonja lying face-down on the floor. Defendant was
standing "some steps away" from Sonja. He had a pocket knife in
his hand. When defendant saw Brandi and Ahmad, he ran out the
front door. Brandi, Sonja, and Ahmad ran to their apartment
downstairs and locked the door. Brandi looked out the living room
window and saw defendant drive away. Brandi, Sonja, and Ahmad then
ran to a neighbor's house and called their grandmother. The
grandmother told them to come right over, so they went to her
house. Brandi told her grandmother what defendant had done to her,
and the grandmother called the police.
Sonja testified that she was 13 years old in October 1993. On
October 16, 1993, the defendant and Sonja's mom went to a party,
leaving Sonja and her three siblings home alone. Sonja watched
some television with her brother and sisters, then went to bed at
approximately 11 p.m.
She woke up when she heard defendant come in the front door.
Defendant later walked into her bedroom and asked her to take some
water jugs to the vacant apartment upstairs. She filled the jugs
with water, walked upstairs, and set them next to the bathroom
door. She was about to walk out the back door, when defendant came
up behind her and locked the door.
Defendant grabbed her and put a knife to her neck. Sonja
screamed and stomped her feet on the floor. Defendant told her to
shut up, otherwise he would kill her. Then he dragged her to the
living room and laid her face-down on the floor. Defendant lay on
top of her back, then got off and told her to turn over. As
defendant started to unbutton his pants, Brandi and Ahmad pushed
open the door and walked inside. When defendant saw them, he ran
out the front door.
Sonja, Brandi, and Ahmad ran downstairs to their apartment and
locked the door. Sonja looked out the window and saw defendant
drive away, then the three of them went to a neighbor's house. The
neighbor took Sonja to her grandmother's house, and the grandmother
called the police.
Ahmad testified that he was 11 years old in October 1993. On
October 16, 1993, Ahmad's sister, Brandi, woke him up and told him
that she heard somebody upstairs. Ahmad heard his sister, Sonja,
screaming. Ahmad and Brandi ran to the upstairs apartment, where
he saw Sonja lying on the floor. Defendant was standing over her,
with a knife in his hand. When defendant saw Ahmad and Brandi, he
ran out the front door. Ahmad, Brandi, and Sonja then ran
downstairs and waited there until defendant drove away. Then they
ran to a neighbor's house and called their grandmother. They went
to their grandmother's house, and she called the police.
Doris, the children's grandmother, testified she and her
husband were asleep in their home on October 17, 1993, when she was
awakened by a phone call at approximately 1 or 2 a.m. Following
the conversation, the four grandchildren came to her house. Doris
testified that Brandi told her defendant had touched the outside of
her vagina and had inserted his finger inside her vagina. Doris
also testified that Sonja told her defendant had put a knife to her
throat, threw her on the floor, took his knee and pressed her legs
apart.
The jury convicted defendant of aggravated criminal sexual
assault against Brandi, aggravated criminal sexual abuse against
Brandi, and attempted aggravated criminal sexual assault against
Sonja. The trial court sentenced defendant, respectively, to
natural life, 14 years' imprisonment, and 15 years' imprisonment,
the terms to run consecutively. Defendant filed this timely
appeal.
First, defendant argues the trial court erred by admitting
evidence of another sexual crime he committed nine years prior to
trial. Specifically, Tonya H. testified that in September 1987
she was 13 years old and living with her mother and younger sister
in Chicago. Defendant was her mother's boyfriend at that time, and
he often spent the night at their house. At around 11:30 p.m. on
September 12, 1987, Tonya was sitting on her front porch, talking
to some friends. Defendant walked outside and asked Tonya to come
inside and follow him into the apartment, so that she could lock
the back door behind him when he left. Tonya followed defendant
to the back of the apartment, where there was an enclosed room with
a furnace, sink, and a door that led to the outside of the
building. Defendant asked her to unlock the door leading outside,
then lock it again when he left.
Tonya turned her back to defendant and began to unlock the
door. Defendant came up behind her, put his arms around her, and
rubbed her breasts. Tonya fell face-up on the ground, and
defendant got on top of her. Defendant began moving his body in a
back and forth motion. Tonya called out for her mom, and defendant
put his hand over her mouth, told her to be quiet, and threatened
to kill her if she told her mom what he was doing.
Defendant told Tonya to get up and pull down her pants. She
did as he asked. Defendant put one hand inside Tonya's vagina,
while his other hand rubbed her body. Defendant then made Tonya
lie back down. He lay on top of her for two or three minutes.
Then he got up and walked out the door.
The trial court admitted Tonya's testimony to show defendant's
intent and modus operandi. Defendant contends the trial court
erred in admitting said testimony.
Generally, evidence of other crimes is inadmissible if
relevant merely to establish defendant's propensity to commit
crime. People v. McKibbons, 96 Ill. 2d 176, 182 (1983). The law
distrusts the inference that because defendant has committed other
crimes, he is more likely to have committed the crime charged.
People v. Bobo, 278 Ill. App. 3d 130, 132 (1996). The erroneous
admission of evidence of such other crimes is extremely prejudicial
and ordinarily calls for reversal. Bobo, 278 Ill. App. 3d at 132.
However, evidence of other crimes is admissible if relevant
for any purpose other than to show defendant's propensity to commit
crime, such as motive, intent, or modus operandi. Bobo, 278 Ill.
App. 3d at 132. As we discussed in People v. Kimbrough, 138 Ill.
App. 3d 481, 486-87 (1985):
"Modus operandi means, literally,
'method of working.' It refers to a
pattern of criminal behavior so distinct
that separate crimes or wrongful conduct
are recognized as the work of the same
person. [Citation.] If evidence of
other crimes is offered to prove modus
operandi, there must be some clear
connection between the other crime and
the crime charged which creates a logical
inference that if defendant committed one
of the acts, he may have committed the
other act. This inference of identity
does not arise from the mere fact that
the crime charged and the other crime
share certain common features or marks of
similarity, for it may be that these
similarities are shared not only by the
crime charged and defendant's other
crime, but also by numerous distinct
crimes committed by persons other than
the defendant. Rather, the inference is
created when both crimes share peculiar
and distinctive common features so as to
earmark both crimes as the handiwork of
the defendant. [Citation.]"
Here, the earlier crime against Tonya, and the crimes against
Brandi and Sonja, share distinctive common features so as to
earmark all the acts as the handiwork of the same person.
Defendant met and gained the trust of all three victims while
dating and living with their mothers. All three victims were
minors at the time of the assaults; Tonya and Sonja were 13, and
Brandi was eight. On the night of the assaults, defendant went to
the home of each of his victims around midnight. Defendant tricked
Tonya and Sonja into doing a chore (retrieving jugs of water in
Sonja's case, locking a door in Tonya's case) so that he could be
alone with them. Defendant carried Brandi to a bedroom so that he
could be alone with her. Defendant forced both Tonya and Sonja to
lie on the floor. He lay on top both Tonya and Sonja. He inserted
his finger into Tonya's vagina, and he inserted his finger into
Brandi's vagina; he was interrupted after pushing Sonja to the
floor and unbuttoning his pants. He threatened to kill Tonya,
Sonja, and Brandi.
Given the substantial similarities between defendant's crime
against Tonya and his crimes against Brandi and Sonja, the trial
court did not abuse its discretion in admitting Tonya's testimony
to show defendant's modus operandi.
Defendant argues that there was no issue at trial regarding
his identity or intent, and therefore the trial court should not
have admitted Sonja's testimony. We disagree. Defendant's defense
at trial was that he did not commit the charged offenses; he sought
to attack the credibility of his accusers. Modus operandi evidence
was relevant to the issue of whether defendant committed the
charged crimes. See Kimbrough, 138 Ill. App. 3d at 487
("[e]vidence of other crimes may be relevant *** to the issue of
who committed a crime [and] to the issue of whether a crime was
committed at all"); People v. Fuller, 117 Ill. App. 3d 1026, 1034
(1983)("evidence of *** modus operandi [is] admissible in
prosecutions for sex offenses even where the identity of the
accused [is] not in dispute.")
Defendant also cites People v. Esterline, 159 Ill. App. 3d 164
(1987), and People v. Woltz, 228 Ill. App. 3d 670 (1992), in which
the appellate court held that any similarities between the crimes
charged and prior offenses were outweighed by the differences, such
that modus operandi had not been demonstrated. In Esterline, the
charged crime involved defendant exposing himself to the victim,
using lewd language, and touching her thigh over her pants, while
the prior offenses involved a variety of dissimilar activity, such
as engaging in oral sex with a child and masturbating through the
centerfold of a pornographic magazine. Esterline, 159 Ill. App. 3d
at 170. In Woltz, the charged crime involved defendant grabbing
the victim while walking along a public road with her, putting his
hands down her pants, sticking his fingers "inside" her, fondling
her breast, and requesting that she touch his penis. In the prior
offense, the victim was at defendant's home when he grabbed her,
threw her on the floor of his son's room and "raped" her. Woltz,
228 Ill. App. 3d at 676. The court held that neither the acts nor
the circumstances under which they took place showed sufficient
similarities to establish modus operandi. Woltz, 228 Ill. App. 3d
at 676.
By contrast, as discussed earlier in this opinion, defendant
in the present case engaged in substantially similar behavior with
the prior victim, Tonya, and the victims (Brandi and Sonja) of the
charged offense. Further, the circumstances were virtually
identical; in each case, defendant sexually attacked the daughter
of his girlfriend, in her home, at night. Thus, Esterline and
Woltz are inapposite; the trial court here did not abuse its
discretion in admitting Tonya's testimony as modus operandi.
Defendant argues that his crime against Tonya, which occurred
some six years prior to his crimes against Brandi and Sonja, was
too remote to be admissible. We disagree. The issue of remoteness
goes to the weight of the evidence rather than its admissibility.
People v. Jendras, 216 Ill. App. 3d 149, 160 (1991); see also
People v. McMillan, 86 Ill. App. 3d 208 (1980)(10-year gap between
prior sexual misconduct and offense charged did not preclude
admission of evidence).
Defendant argues that the State overstepped its bounds during
closing argument when it "encouraged the jury to improperly
consider the testimony of [Tonya] as evidence of [defendant's]
propensity to commit the charged offense." Defendant failed to
object to all but one of the allegedly improper comments and
thereby waived any claim of error with regard to those comments.
People v. Enoch, 122 Ill. 2d 176, 186 (1988). Further, the trial
judge sustained the objection to the one complained-of comment,
thereby curing any prejudice to defendant. See People v.
Childress, 158 Ill. 2d 275, 298 (1994).
Next, defendant argues the trial court erred by admitting
Brandi's and Sonja's hearsay statements to their grandmother,
Doris, as excited utterances. A hearsay statement is admissible as
an "excited utterance" if there is (1) an occurrence sufficiently
startling to produce a spontaneous and unreflecting statement; (2)
an absence of time to fabricate; and (3) a relationship between the
statement and the circumstances of the occurrence. People v.
Meras, 284 Ill. App. 3d 157, 161-62 (1996); People v. Smith, 152 Ill. 2d 229, 258 (1992). Each case rests on its own facts and is
judged by the totality of the circumstances surrounding the event.
Meras, 284 Ill. App. 3d at 162.
In the present case, the totality of the circumstances
indicates that Brandi's and Sonja's statements were excited
utterances. Specifically, the incidents of sexual conduct between
defendant and the two minor children were sufficiently startling to
produce spontaneous statements. See People v. Hart, 214 Ill. App.
3d 512, 522 (1991) ("It seems firmly established that an incident
of sexual conduct between an adult and a child of 'tender years' is
an occurrence sufficiently startling to produce a spontaneous
statement"). There was an absence of time to fabricate the
statements; after watching defendant drive away, the children
immediately ran to a neighbor's house, where they called their
grandmother. They stayed at the neighbor's house for only a few
minutes, and then the neighbor drove them to their grandmother's
house, which was nearby. Also, the statements the children made to
their grandmother related to the circumstance of the occurrence;
specifically, Brandi related how defendant had inserted his finger
in her vagina, and Sonja related how defendant had grabbed her from
behind and pushed her to the ground.
Defendant argues that Brandi's and Sonja's statements were not
spontaneous, because they were made in response to repeated
questions from the grandmother. In support, defendant cites People
v. Sommerville, 193 Ill. App. 3d 161 (1990), which held that a
victim's statements about a sexual assault were not spontaneous
when made in response to a series of questions, including "'What's
wrong?'" "'By who?'" "'Are you okay?'" and "'is he there with you
now?'" Sommerville, 193 Ill. App. 3d at 174-75.
A review of the record here indicates that the grandmother did
not ask repeated questions to Brandi and Sonja; rather, she asked
them to tell her "what happened," after which they made their
statements. Our supreme court has held that a statement made in
response to the question "what happened?" does not destroy its
spontaneity. People v. Shum, 117 Ill. 2d 317, 343 (1987).
Defendant argues that the grandmother's testimony contradicted
Sonja's testimony. Specifically, the grandmother testified that
Sonja told her that defendant used his penis or leg to spread her
legs apart; Sonja never testified that defendant spread her legs in
such a manner. We find no error. Any contradiction goes to the
weight of the evidence rather than its admissibility.
Defendant argues that the trial court erred in allowing the
grandmother to testify to the details of Brandi's and Sonja's
complaints against defendant. In support, defendant cites People
v. Evans, 173 Ill. App. 3d 186 (1988), and People v. Hermosillo,
256 Ill. App. 3d 1020 (1993), which held that under the "prompt
complaint" exception to the hearsay rule, only the fact of the
complaint, not its details, is admissible. Evans and Hermosillo
are inapposite to the present case, which involves testimony
admitted under the excited utterance exception to the hearsay rule,
as opposed to the prompt complaint exception.
Defendant argues that the trial court erred in failing to
first hold a section 115-10(b)(1) (725 ILCS 5/115-10 (West 1996))
hearing prior to admitting Brandi's and Sonja's statements to the
grandmother. Section 115-10 is the codification of a hearsay
exception created to admit hearsay statements of children under the
age of 13 who have been sexually abused. People v. E.Z., 262 Ill.
App. 3d 29, 34 (1994). Section 115-10 is inapplicable here,
because Brandi's and Sonja's statements were not admitted pursuant
to that section but, rather, pursuant to the excited utterance
exception to the hearsay rule.
Defendant argues that section 115-10 is the sole means for
admitting hearsay testimony of minors. We disagree. Neither the
language of the statute nor the case defendant cites in support,
People v. Mitchell, 155 Ill. 2d 344 (1993), states that section
115-10 is the sole basis for the admission of such testimony. In
fact, our supreme court has explicitly recognized that hearsay
testimony of minors can come in under section 115-10 or, as here,
under the excited utterance exception to the hearsay rule. See
People v. Zwart, 151 Ill. 2d 37 (1992); see also People v. Scott,
284 Ill. App. 3d 336, 337 (1996).
Next, defendant argues the trial court erred by failing to
instruct the jury pursuant to section 115-10(c)(725 ILCS 5/115-
10(c)(West 1996)) about the factors to consider when determining
the weight and credibility of the children's statements. We find
no error, since, as discussed above, the children's statements were
admitted pursuant to the excited utterance exception, not section
115-10.
Next, defendant argues the trial court erred in giving the
following jury instruction pursuant to Illinois Pattern Jury
Instructions, Criminal, No. 3.14 (3d ed. 1992)(hereinafter IPI
Criminal 3d):
"Evidence has been received that the defendant
has been involved in an offense other than those
charged in the indictment.
This evidence has been received on the issues
of the defendant's intent and modus operandi and
may be considered by you only for that limited
purpose.
It is for you to determine whether the
defendant was involved in that offense and, if so,
what weight should be given to this evidence on the
issues of intent and modus operandi."
Defendant argues that the trial court erred in giving the
third paragraph, quoted above; defendant contends said paragraph is
nowhere to be found in IPI Criminal 3d No. 3.14. Defendant is
mistaken. See IPI Criminal 3d No. 3.14[3].
Finally, defendant argues the trial court erred in imposing
consecutive sentences for his aggravated criminal sexual assault of
Brandi, his aggravated criminal sexual abuse of Brandi, and his
attempted aggravated criminal sexual assault of Sonja. Defendant
waived review of this issue by failing to raise it in his post-
sentencing motion. People v. Reed, 177 Ill. 2d 389, 394 (1997).
Even choosing to address the issue on the merits, we find no error.
Under section 5-8-4(a) of the Unified Code of Corrections, the
trial court must impose consecutive sentences when a defendant
commits multiple offenses as part of a single course of conduct
during which no substantial change in the nature of the criminal
objective occurred and one of the offenses is a criminal sexual
assault or aggravated criminal sexual assault. 730 ILCS 5/5-8-
4(a)(West 1996); People v. Bole, 155 Ill. 2d 188 (1993).
In Bole, our supreme court held that the defendant's three
convictions for criminal sexual assault arose from offenses
committed on three separate dates, and thus were separate events,
not committed in a single course of conduct. Bole, 155 Ill. 2d at
194. However, the supreme court also noted that given the
statutory definition of "conduct" as "an act or a series of acts,
and the accompanying mental state" (720 ILCS 5/2-4 (West 1996)), a
single course of conduct "could include a range of activity and ***
is not necessarily confined to a single incident." Bole, 155 Ill. 2d at 193.
In the present case, the defendant attacked Brandi and Sonja
on the same date, in the same apartment building, and within
minutes of each other. The series of acts involving the two
children, occurring over a short time period, was a single course
of conduct during which the nature of defendant's criminal
objective remained the same, i.e., to sexually assault the
daughters of his girlfriend. Accordingly, the trial court did not
err in sentencing defendant to consecutive terms.
For the foregoing reasons, we affirm the trial court. As part
of our judgment, we assess defendant $150 as costs for this appeal.
Affirmed.
GALLAGHER, J., and O. FROSSARD, J., concur.