No. 3-00-0506
November 27, 2001

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APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

JUSTICE McDADE delivered the opinion of the court:

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The defendant, Shannon Donoho, was convicted of one count ofcriminal sexual assault and four counts of aggravated criminalsexual abuse following a jury trial. At the sentencing hearing,defendant was sentenced to a 14-year term of imprisonment for thecriminal sexual assault and concurrent terms of 7 years ofimprisonment for each of the aggravated criminal sexual abuseconvictions. Defendant appeals from his convictions andsentences. We reverse and remand.

FACTS

Defendant was tried under a five-count indictment. Thefirst count charged criminal sexual assault, alleging that thedefendant, the stepfather of K.B., knowingly committed an act ofsexual penetration with K.B., who was under 18 years of age atthe time, in that he placed his mouth upon her vagina. He wasalso charged with and tried for four counts of criminal sexualabuse. The first two counts of criminal sexual abuse allegedthat the defendant committed acts of sexual conduct with K.B.,who was under the age of 18 years of age at the time, in that heknowingly touched her vaginal area and knowingly made her placeher hand on his penis for the purpose of his sexual arousal. Thelast two counts of criminal sexual abuse alleged that thedefendant committed acts of sexual conduct with his stepson,D.B., who was under 18 years of age at the time, in that heknowingly touched D.B.'s penis and he knowingly placed D.B.'shand on his penis for the purpose of his sexual arousal.

Prior to the trial the State filed a motion seeking to admitevidence of prior sexual offenses pursuant to Section 115--7.3 ofthe Code of Criminal Procedure of 1963 (725 ILCS 5/115--7.3 (West2000)). Specifically, the State sought to admit evidence that in1983 the defendant pled guilty to indecent liberties with achild. In his signed confession from the 1983 incident, thedefendant admitted to inappropriate sexual contact with a 7 year-old girl and an 11 year-old boy. After a hearing on the State'smotion, the court ruled that the evidence regarding the 1983 pleaof guilty would be admitted.

At the trial, both K.B. and D.B. testified regarding theallegations against the defendant. Specifically, K.B. testifiedthat beginning around Christmas in 1995, and continuing untilNovember of 1998, the defendant had committed several acts ofsexual misconduct against her. She stated that he had, onseveral occasions, asked her to pull down her pants and hadtouched her vaginal area. In addition, on one occasion he hadkissed her vaginal area. Finally, the defendant, on severaloccasions, had asked her to touch or rub his penis. On one suchoccasion, "yellowish white stuff" came out of his penis.

D.B. testified that the defendant also committed acts ofsexual misconduct against him. Specifically, D.B. testified thaton one occasion the defendant touched his "pee pee" behind a treenear the house. D.B. also testified that on one occasion whilehe was riding with the defendant in the car, the defendanttouched his "pee pee" and made D.B. touch the defendant's "peepee." Finally, D.B. testified that on one occasion when he wasshowering with the defendant at the latter's mother's house, thedefendant made him touch the defendant's "pee pee."

K.B. testified that she did not tell her mother about theseincidents until April of 1999. She had spoken with a girl atschool, who had told her about her sister who had been molested. After hearing about her friend's sister, K.B. told her friendwhat had happened to her. Her friend encouraged her to tell hermother. That day, K.B. went home and talked to her brother. They then told their mother about the defendant together.

Lori Donoho, K.B. and D.B.'s mother, testified at trial thatshe did not have any indication that the defendant was sexuallyabusing or assaulting the children prior to April of 1999. Bythat time, the defendant had moved out of the house and had filedfor divorce. After the children told her about the incidents,she contacted the police and the children gave a statement. Shetestified that, in retrospect, she should have noticed that thechildren, over time, developed an aversion to being alone withthe defendant.

Terry Marchetti testified that he was involved in theinvestigation of the 1983 incident. In their originaldiscussion, the defendant had only admitted to touching the younggirl. However, after being told by the investigators that hisstatement was not consistent with that of the children, he didadmit to both touching the girl and having the boy touch him.

Officer Michael Imhof and the Department of Children andFamily Services investigator, Dave Albert, testified that theyinvestigated the allegations in this case. They spoke with thedefendant after learning of the children's claims and informedhim that there were serious allegations of sexual abuse againsthim. They specifically stated that they did not tell thedefendant who had made the allegations.

They testified that at first the defendant was very angryabout the allegations. After some periods of silence, headmitted that he had fondled K.B. while giving her a bath. Afteranother period of silence, they told the defendant that that wasnot the only allegation of sexual abuse against him. Thedefendant then admitted that D.B. once grabbed his penis whenthey took a shower together.

After a few more moments of silence, the defendant,according to Imhof and Albert's testimony, broke down andindicated that his life was "f---ed up" and that he had been"haunted" for the past 27 years. The defendant told them aboutthe prior incident, falsely indicating that it had been amisunderstanding involving a girl almost 13 years old. He nevertold them that the earlier incident actually involved a 7 year-old girl and an 11 year-old boy. The defendant also told Imhofand Albert that he had been molested as a child.

Following the presentation of the State's case the defendantmoved for a directed verdict. That motion was denied, and thedefendant testified on his own behalf. He stated that he filedfor divorce from Lori Donoho on November 30, 1998. At the timeof the trial, the divorce was still pending and they had acustody issue over their minor daughter. The defendant deniedthe allegations by the stepchildren, saying that they were "alllies." The defendant also denied telling Imhof and Albert thathe had touched the children or that the children had touched him. He did, however, admit to telling them that his life was "f---edup."

The defendant presented no other evidence relating to thefactual allegations at issue in the case. He did have his pastortestify regarding his reputation for morality and chastity in thechurch community. The defendant's mother also testified that thedefendant got along well with K.B. and D.B.

The jury found the defendant guilty of all five charges. Defendant filed a motion for a new trial claiming error in theadmission of evidence of the 1983 incident. The court denied themotion, and a sentencing hearing was set.

At the sentencing hearing, the State presented a certifiedcopy of the defendant's prior conviction for indecent libertieswith a child. The State argued that the prior plea of guiltyenhanced the offense for aggravated criminal sexual assault froma Class I to a Class X felony. Defense counsel agreed that theenhancement was applicable. As a Class I felony, aggravatedsexual assault carried a penalty range of 4 to 15 years. However, as a Class X felony, the penalty range would increase to6 to 30 years.

The court sentenced the defendant to 14 years on theaggravated criminal sexual assault. The court then sentenced thedefendant to concurrent terms of seven years for each of the fourconvictions for criminal sexual abuse. Following the sentencing,the defendant filed a motion to reconsider the sentence; however,it did not contain any argument that the enhancement wasinappropriate. Rather, the defendant simply argued for a lessersentence. That motion was denied, and defendant appeals hissentences and convictions.

ISSUES

Defendant raises two issues on appeal: (1) whether he wasdenied a right to a fair trial before the jury where the trialcourt admitted evidence of his 1983 conviction for indecentliberties with a child; and (2) whether his conviction for sexualassault was appropriately enhanced to a Class X felony on theground that he had previously pled guilty to taking indecentliberties with a child.

ANALYSIS

Admission of Prior Conviction

Defendant argues that he was denied his right to a fairtrial because the trial court erroneously admitted evidence ofhis 1983 conviction for indecent liberties with a child. Basically, he argues that the 1983 conviction was more than 15years old, was not factually similar to the instant offenses, andserved only to show criminal propensity and thereby bolster thecredibility of the complainants. He emphasizes that theprejudicial effect of the 1983 conviction overwhelminglyoutweighed any probative value that the 12- to 15- year-oldconviction had with regard to the current allegations madeagainst him.

This first issue relates to the admission of evidence beforethe jury. It is well settled that is it within the sounddiscretion of the trial judge to determine whether evidence ofother crimes is relevant to a material issue and whether theprobative value of such evidence outweighs its prejudicialimpact. A determination with regard to the admission of othercrimes evidence will not be overturned absent a clear abuse ofdiscretion. People v. Heard, 187 Ill. 2d 36, 718 N.E.2d 58(1999). Such an abuse will be found by our court only when thetrial judge's decision is adjudicated to have been "arbitrary,fanciful, or unreasonable, or where no reasonable man would takethe view adopted by the trial court." People v. Illgen, 145 Ill.2d 353, 583 N.E.2d 515 (1991).

The State sought to admit the evidence of the 1983conviction under section 115--7.3 of the Code of CriminalProcedure of 1963 (725 ILCS 5/115--7.3(West 2000))(the Code),which provides as follows:

"