## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Fields , 2013 IL App (3d) 080829-B

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. AL BERT L . FI EL DS, Defe ndant-Appe llant.

District & N o. Third District Docke t No. 3-08-0829

Opinion filed Modified upon denial
of re hearing August 22, 2013

October 28, 2013

Held (Note : This s

yl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) A postconviction petition is the appropriate vehicle to raise the issue of whe t h er defe ndant’s conviction should be reve rsed and rema nded for a

new trial when his conviction in a separ ate case was admitted as propensity evidenc e, not for purposes of i mpeac hment, and that conviction was reve rsed afte r defe ndant’s trial, since the reve rsal would constitute “newevidenc e” that arose a fter defe ndant’s convic tion in the

case at issue.

Dec ision Under Review Appea l from the Circuit Court of Henr y County
, No. 07-CF- 37; the Hon. L arr y S. Vander snick, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Mark D. Fisher
, o f S t at e Appellate Def ender ’s Offic e, of Ottawa, for appellant.

Tere nce M

. Patton, State’s Attorney
, of Cambridg e (Stephen E. Norris and Patrick D. Da ly
, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE McDAD E delivere d the j udgment of the court, with opinion.
J ustice Ly

tton specia ll y concur

red, with opinion, joined by J ustice Schmidt.

OP INION

¶ 1 Def

endan t , Albert L

. Fields, was convicted of two counts of predatory criminal sexual assault of a

child (720 I L CS 5/12-14.1(a) (1) (West 2006)), three counts of criminal sexual assault (720 I L CS 5/12-13(a) (1), (a) (3) (West 2006)), and two counts of ag g ravated criminal sexual abuse (720 I L CS 5/ 12-16(b) (West 2006)). ¶ 2 Defendant appea led his convictions. We reve rsed and rema nded for a new trial o n t h e sole g round that def

endant wa s denied effe ctive assistanc e of c ounsel bec ause his attorne y

was laboring under a per se conflict of interest. We did not rea ch defe ndant’s re m ai ning issues on appea l. People v . Fields , 409 I ll. App. 3d 398 (2011). ¶ 3 T h er ea ft er, the supreme court reverse d our decision and directed us to consider “ those issues previously raised but left u n re s o l v ed owing to [our] dispositi on.” People v. Fields
, 2012 I L 112438, ¶ 43. Upon subsequent revie w, we af fi rmed the trial court’s decision. Def endant has now fil ed a petitio n for rehea ring

. The petiti on is denied but this opinion is modified to addre ss its i ssues.

¶ 4 FACTS ¶ 5 On J anuar

y 5, 2007, defe ndant was charg ed by information alleg ing that betwee n 1999 and October 27, 2004, defe ndant, ag e 17 or older, did, on two separ ate occa sions, place his penis in K.N.J.’s mout h when she was y oung er than 13 (counts I and I Ipreda tory criminal sexual a ssault of a child); betwee n 1999 and Fe bruar y 2006, did place his pe nis in K.N.J.’s mouth by the use or threat of forc e (count I I I criminal s ex u al as s au lt); betwee n 1999 and Fe bruar y 2006, did, on two separ ate occa sions, plac e his penis in K.N.J.’s mouth when she
was y ou n ger t h an 1 8 and he was her s tepfa ther (counts IV and V criminal sexual assault); and betwee n 2001 and Fe bruar y 2006, did fondle K.N.J.’s brea sts and vag ina and made her fondle his penis for his sexual arousa l or g ratification when she was young er than 18 and he

-2-was he r stepfather (c ounts VIand VI Iag gravated cr iminal sex ual abuse ).

¶ 6 Prior to trial, the circ uit court grante d t h e S t at e’ s m o t ion to introduce othe r-c rimes evidenc e pursuant to section 115-7.3 of the Code of Criminal Procedur e of 1963 (the Code) (725 I L CS 5/115-7.3 (West 2008)). Specifica lly
, the court al l o we d evidence reg arding an incident of ag g ravated criminal sexual abuse which formed the basis for a conviction in Rock I sland County

. The parties disput ed th e fo rm in which that evidenc e would be prese nted. Def endant arg

ued that testimony about the prior incident would b e ap p ro p ri ate but not a

cer tified copy of conviction. The State co ntended, and the circ uit court agree d, that the
prosec ution cou l d prese nt both. Ultimately
, the court held that the State could prese nt the

cer tified copy

of convic tion as well as testimony

. ¶ 7 During trial, the S tate tende re d People’s Ex hibit No. 8, a certified copy of def endant’ s conviction of ag g ravated criminal sexual abuse in Rock I sland County

. T h e ci rcuit court admitted the exhibi t and told the jurors it was admitted on the issue of defe ndant’s propensity
to commit the offe nses with which he was char ged i n this case , and it was up to them to deter mine how much weight it should be g iven. The court expressly ruled, howeve r, that the conviction could not be use d to impeach de fenda nt’s cre dibilit y

if he c hose to testify

. ¶ 8 The State also ca l l ed C

. S

. t o o ff er t estimony conce rning defe ndant’s conviction of
ag g ravated criminal sexual abuse in Rock I sland County

. C.S. testified that she was born on September 12, 1996. She lived in Moline with her mothe r an d d ef endant. One morning
, defe ndant g ave her a book containing photogr aphs of naked women and told her to put it on his weight set in the baseme nt. He then followed C.S. downstairs, put her hand on his “we e

wee ” and made her rub it. Def endant also put his hand down C.S.’s pants and stuck his fing er inside her. C.S. was nine y ear s old at the time. Def endant told C.S. that he would spank her if she t old anyone. C .S. eventua lly told her mother afte r d efendant had kicked them out of the house. ¶ 9 K.N.J. testified that she l i v ed wi t h her mother, brother, two sisters, and her mother ’s boy friend, defe ndant. At s o m e point, defe ndant and K.N.J.’s mother marrie d. K.N.J. 1
tes t i fi ed t o a series of sexual incidents involving her and defe ndant. On one occa sion, defe ndant asked K.N.J. t o lift her shirt and he r bra . She did so and defenda nt stared at her. He said it was punishment beca use she had been mean to her mother. On s ub s eq u en t

occa sions, defenda

nt would ask her to lift her shirt and bra and de fenda nt would touch her brea sts. Sometimes, defe ndant would touch her brea sts with one hand and masturbate with the other. K.N .J . also rec alled other incidents in which defe ndant made her touch his pe nis with her hand and put his penis in her mouth. She also rec alled h i m touching her “private

are a.” All these incidents happene d at home and when ever yone else living in the home was ei t h er aslee p or not around. K.N.J. could not reme mber how many times these thi n gs happene d, nor could she r eca ll all the particular s of ea ch incident. ¶ 10 K.N.J. further testified that defe ndant moved out fo r go o d af t er a woman from DCF S

came to the home to speak with her and other members of her family

. When K.N.J. was told the woman wanted to talk to her, defe ndant made a g esture to K.N.J. as if to tell her to keep

Def end antre si dedwit h bo th C.S. a nd K .N.J . atdi ff er entti m es. 1

-3-her lips “zipped.” The woman subsequently asked if defe ndant had ever touched K.N.J

.

K.N.J. responde d no and stated she would tell her mother if anyone had inappropriate contac t with her. At this point, DCFS had not rec eived any complaints about defe ndant abusing K.N.J. The visit to K.N.J.’s home resulted from C.S.’s complaints ag ainst defe ndant. K.N.J.
eventua lly informed her mother of defe ndant’s alleg ed abuse. K.N.J.’s mother subsequently
contac ted the author ities. ¶ 11 Offic er R i ch ar d T u rl ey testified that he interviewe d defe ndant. Def endant denied he abused K.N.J. He stated that K.N.J.’s mother must have put her up to it afte r lear ning he had an af fair w ith another woma

n (C.S.’s mother). ¶ 12 Def

endant testified that he and his daughter, Ashley
, moved in with K.N.J. and K.N.J.’s family in 2000. Def

endant denied ever having sexual contac t with K.N.J

. He also denied having sexual contac t with C.S. Def endant admitted having an aff air wi th C

. S

. ’s mother. Whil e incar cer ated in jail awa iting trial on the charg es brought by C.S., defe ndant rec eived

a letter from K.N.J.’s mother stating she was not sur e she could continue to be a g ood wife beca use she would want to g et even with him for cheating on her. In rebuttal, the State called K.N.J.’s mother. She admitted writing defe ndant while he was in jail but denied threa tening
reta liation based on his aff air with C.S.’s mother. ¶ 13 Following deliberations, in the instant case , the jury found defe ndant guilty on all seven
counts

. At the conclusion of defe ndant’s sentenc ing hearing, the court vacated the three criminal sex ual assault convictions (c o u n t s I I I
, IV, and V) on one-a ct, one-crime gr ounds, and imp o s ed co n secutive sentenc es of 18 y ear s’ imprisonment for eac h conviction of predatory criminal sexual assault of a child (counts I and I I ), and concur rent sentenc es of 6
y ear s’ imprisonment for eac h conviction of ag g rava ted criminal sexual abuse (counts VI and VI I ). ¶ 14 On September 30, 2009, subsequent to defe ndant’s conviction and sentenc e in the instant

case , a differ ent panel of this court reve rsed defe ndant’s Rock I sland County conviction (her einaf ter, Rock I sland) (cha

rg es involving C.S.) on the basis that his trial counsel, having previously repr esente d C.S., was laboring under a per se conflict of interest. People v. Fields
, No. 3-07-0305 (S ept. 30, 2009) (unpublished order under Supreme Court Rule 23). The panel r emande d the matter f or a ne w trial. ¶ 15 On rema

nd (April 15, 2010), the State filed a motion to dismiss the Rock I sland cha rg es (abuse of C.S.) with leave to reinstate. The circ uit court grante d the State’s motion. The Rock I sland County ’s docket sheet illust rate s that the State neve r re filed the charg es ag ainst defe ndant. Thus, at the prese nt time, no conviction or charg es exis t with reg ard to any alleg ed sexual conduct defe ndant had with C.S.

¶ 16 ANALYSI S ¶ 17 Def

endant’ s issues o n ap p ea l ar e: (1 ) the circ uit court err ed in allowing the State to introduce a cer

tified copy of defe ndant’s Rock I sland conviction, and (2) his conviction must be reve rsed and the cause rema nded for a new trial beca use defe ndant’s R o ck I s l and conviction was subse quently reve rsed by

our cour t. ¶ 18 In examining defe ndant’s f ir s t a rg u ment, w e n o te th at defe ndant’s Rock I sland conviction

-4-was in g ood standing at the time the circ uit court was called on to deter mine its admissibili ty

. It w as not until afte r defe ndant was convicted and sentenc ed on the instant c harg es that his
separ ate Rock I sland conviction was reve rsed by this court. Def endant’ s first argument must there fore be conside red w ith this context in m ind. ¶ 19 Evid en ce re gar d i n g a defe ndant’s other crimes is normally inadmissible if offe red to demonstrate the defe ndant’s bad char acte r or his propensity t o co mmit crime. People v. Evans
, 373 I ll. App. 3d 948, 958 (2007). Howeve r, section 115-7.3 of the Code provides an exception to the rule ag ainst other-c rimes evidenc e: “(a ) This Section applies to cr iminal cases in which: (1) the defe ndant is acc used of predatory cr i minal sexual assault of a child,
ag g ravated criminal sexua l as sault, criminal sexual assault, ag g ravated criminal sexual abuse, cr iminal sex ual abuse , *** or cr iminal transmission of HI V; * * * (b ) I f t h e defe ndant is acc used of an offe nse set forth in para g raph (1) or (2 ) o f subsection (a) or the defe ndant is tried or retrie d for any of the offe nses set for t h i n para g raph (3) of subsection (a)
, evidenc e of the defe ndant’s commission of another offe nse or offe nses set forth in para g raph (1), (2), or (3) of subsection (a)
, or evidenc e to rebut that proof or an inferenc e from that proof, may be admissi ble (if that evidence is otherwise admissible under the rules of evidenc e) and may be considere d for its bearing
on any matter to which it is rele vant. (c) In weighing the proba t i ve value of the evidenc e ag ainst undue prejudice to the defe ndant, the cour

t may consider: (1) the pr ox imity

in time to the charg ed or pr edica te offe nse; (2) the de g ree of fa ctual similarity to the charg ed or pr edica te offe nse; or (3) other rele vant fac ts and circ umstances.” 725 I L CS 5/115-7.3(a) (1), (b), (c) (1) to (c)( 3) (West 2010). ¶ 20 L ooking at defe ndant’s first argument on appea l, de fenda nt ha s not c halleng ed the trial court’s de cision to allow C.S. t o testify in reg ard to his Rock I sland conviction. Rather , he only claims err or in the admission of the cer tified conviction on what appea r to us to be two g rounds. His first contenti o n is that the document does not constitute “evide nce” as identified in section 115-7.3(b)

. He contends that beca use resolution of this issue require s construction 2

o f the statute and that the trial court was laboring under a misint erpr etation, our revie w should be de novo

. He has also, howeve r, argued, as a second ground, that allowing the jury
to see the document was “so prejudicia l as to deny Mr. Fields a fair trial.” The deter mination

I n dis cus si ng thi s is sue , bot h par t i e s c it e Peop le v. Donoh o , 204 I ll

. 2d 159 (20 03)

. I n 2 Donoh o , a wri tt en versi on of def end ant ’s admissi ons wa s t e n d e r e d. Wh il e the tr ia l cou rt al lowe d
te st imony abo ut the st at ement and the convic ti on, it did not al low the doc um ent to be publ is hed to the j ury or to go to the j ury roo m

. At sen te nci ng, a doc um ent ary cer ti fi ed con victi on was admitt ed, wit hout obj ect ion
, for purpos es of enh anc ement of sen te nce

. T he sup re m e c o u r t d i d n o t have

occ asi on t o de te rmine t he s pec if ic que st ion ra is ed b y defe nda nt in thi s c ase

.

-5-of whether the prejudicia l eff ec t of evidence substantially outweighs its probative value i s left to the discretion of the trial court and our standard of revie w for this sec ond contention is abuse of discr etion. ¶ 21 Reviewing defe ndant’s first contention de novo , we reje ct h i s cl ai m th at a ce rt ified conviction does not constitute “evide nce” as ref ere nced in section 115-7.3 and cannot be admitted at trial. Def

endant appar ently rea ds section 115-7.3 to allow only the admission of testimonial evidenc e, adding the limit ing term “testimonial” into section 115-7.3. Not only does the plain languag e of section 115-7.3 n o t support defe ndant’s narr ow interpre tation, I llinois ’ long -standingdefinition of “e vidence ” re futes it. ¶ 22 “Evidenc e” includes all o f t h e means by which alleg ed fac ts are proved or disproved. People v. Foss
, 201 I ll. App. 3d 91, 94-95 (1990). It can be rea l or documenta ry

. People v. Victors
, 353 I ll. App. 3d 801, 811 (2004). It encompa sses testimony delivere d by witnesses and rec ords, documents, objects, stipulations, and fac ts judicially noticed or presumed. Foss
, 201 I ll. App. 3d at 95. “Releva nt evidenc e,” which is the onl y evidenc e admissible in our courts, is define d in Rule 401 of the Fe dera l Rules of Evidence as: “evide nce having any tendenc y to make the exis tence of any fac t that is on conseque nce to the deter

m i n at i on of the action more probable or less probable than it would be without the evidence .” That definition has been adopted for I llinois and conti n u es i n use. See Voyk in v. Estate of DeBoe r , 192 I ll. 2d 49, 57 (2000). ¶ 23 There is no require ment in the statute that defe ndant has been charg ed with or convicted of the “other crimes” soug ht to be admitted. Sometimes the only evidenc e of such crimes is the testimony

of the victim and other appropriate witnesses or evidence of the def endant’ s admission that he committed t h e act( s). Where, as here
, defe ndant has actua lly been convicted of the “other crime,” a cer tified copy of the conviction is cer tainly evidenc e of its commission. We note section 115-7.3(b) expressly ref ere nces “commissio n of another offe nse.” 725 I L CS 5/115-7.3(b) (West 2010)

. A cer tified conviction constitutes some fac t that shows defe ndant has b een proven to the satisfac tion of a jury to have committed “anothe r offe nse.” Thus, we believe section 115-7.3 contemplates and authorizes admission of ce rtified convic tions as “evidenc e.” ¶ 24 We find nothing in the definition of “evide nce” or the languag e of the statute to suppor t defe ndant’s restric tive interpre tation of the term “evidence” as used in section 115-7.3. Be cause our interpre tation of the statute appea rs the same as that of the trial court, we do not find its decision t o allow t he admissi on of defendant’s cer tified conviction t o be the result of statutory

misint erpr etation. ¶ 25 Turning to defe ndant’s second g round for excluding the cer tifie d co n v i ct i o n , we a lso reje ct his asser

tion that i t s ad m i s s i o n in this case was unduly prejudicia l. Evidence of the commi s s ion of prior offe nses will alway s be prejudicia l to some extent. We emphasize, howeve r, that the test is not whether evidenc e of the prior offe nse results mere ly in prejudice

. Instead, the test is whether the prejudicia l eff ect of the evidenc e so substantially outweighs its probative value that its impact become s unfair or improper

–it become s unduly prejudicia l. Donoho
, 204 I l l

. 2d at 182. In making this deter mination a circ uit court must look to the

-6-proxi mity in time betwee n the offe nses, the degre e o f factual simil arity and any other

rele vant fa cts. 725 I L CS 5/ 115-7.3(c )(1) to (c)( 3) (West 2010). ¶ 26 Acc ording to the charg ing instrument, the acts with which defe ndant was charg ed in the instant case took p l ac e betwee n 1999 and 2006. Def endant’ s Rock I sland conviction was enter ed in 2007 and involv ed co n duct that took place in 2005. There fore
, this is not a situatio n l i k e t h e o n e in Donoho
, wher e the other crime occur red many y ear s prior to the conduct at issue in this case

. Both incidents occur red within the same time frame. Moreove r, there are cer

tainly simil arities betwee n the fac ts of the Rock I sland conviction and the prese nt

case

. Both incidents occur red within a family -ty

pe relationship and involved children in the

same ag e rang e (C.S. wa s born in 1996, K.N.J. wa s born in 1991). Both incidents involved fema le children of women with whom defe ndant wa s curr ently living. Both incidents involved defe ndant either inserting his fing er in or touching the g irl’s vag ina. Both incidents involved defe ndant forc ing the g irls to touch his penis. ¶ 27 Her e, we find that t h e t ri al co u rt ’s ev al u at i o n wa s not “so ‘ar bitrary
, fanc iful or

unrea sonable’ [citation] as to constitute an abuse of discretion.” Donoho
, 204 I ll. 2d at 186. Nonethele ss, we emphasize the supreme court’s caution that trial jud ges s h o u l d car efully consider the admissibili ty of other-c rimes evidence t o s h o w propensity by eng ag ing in a meaning ful assessment of the probative value versus the prejudicia l impact of the evidenc e. See Donoho , 204 I ll. 2d at 186. ¶ 28 W e now turn to defe ndant’s second argument on appea l. Def endant contends that hi s conviction must be reve rsed and the cause rema nded for a new trial beca

use the Rock I sland conviction, admitted to show propensity
, was subsequently reve rsed by our court. Ag ain, we note t hat t he S tate voluntarily dismiss ed the Rock I sland charg es on rema nd. The result of these subsequent proce eding s/developments is that the jury in the instant c ase was allowed
to hear evidenc e of defe ndant’s commission o f “a nother offe nse” that has now been
overturne d. Thus, defe ndant no longe r stands guilty of the offe nse admitted u n d er s ection 115-7.3. While admission of the Rock I sland conviction at the tim e of the instant trial was
not an abuse of discretion for the rea sons discussed above, our later reve rsal of the Rock I sland conviction in defe ndant’s other appea l cre ates a new questio n. The new issue is whether subseq u en t re v ersa l of a conviction that was previously admitted as propensity evidenc e (nonimpeac hment) in a separ ate case en t i t l es defe ndant to a new trial in said
separ ate case

. Be cause our reve rsal of defen d ant’s Rock I sland conviction in defe ndant’s other appea l was based on a constitutional infirmity (attorne y conflict of interest) and, in

essenc e, constitutes “new evidenc e” tha t d e v e lo p e d a

ft e r d e f e n d a nt’ s c o nv ic ti o n a

nd sentenc e in the prese nt case , we hold defe ndant’s argu m en t can only appropriately be brought in a postconviction petition. ¶ 29 In the petition for rehe aring
, defe ndant disputes that conclusion, arguing that beca use the issue was raised i n this direct appe al and the appeal had not been decided before the R ock I sland conviction was reve rsed, and beca use the issue p re s en t s no question of fac t or

cre dibilit y

to be ruled on by the trial judg e, we should answer the new que stion withi n this
appea l. There are two essential reasons wh y we believe that we cannot. First, the l imits of

our revie wing authority extend only to matters that wer e prese nted i n t h e t ri al court. This fundame ntal restric tion u n d erlies the concepts of waiver and forf eiture, which bar our

-7-consideration of issues that wer e n o t prese nted in the trial court or properly prese rved for

revie w. We are solely a revie wing court. We can corr ect err ors that the trial court may have made in its considera

tion of issues befor e it; we cannot “re view” issues it has had no opportunity to hear and decide

. We note that People v. Martin-Trigona
, 129 I ll. App. 3d 212 (1984), on which defe ndant relies, was, in fac t, an appea l from the denial of a postconviction petition and properly befor e the appellate court. Sec ond, we lac k the supervisory authority which would allow us to step outside of the limit ations of the supreme court rules g overning
appea ls and act independe ntly of our responsibilities. See I ll. Const. 1970, art. VI
, § 16 (the Constitution vests the supre me c o u r t w it h supervisory authority over all courts). The supreme court ha s made ve ry

clea r that this supervisory

authority resides only

with it:
“As this court has repe atedly stated, and as the appellate maj o ri t y co rr ectly held, the appellate and circ uit courts of this state must enfor ce and abide by the rules of this court. The appellate court’s power ‘at t aches only upon compliance with the rules g overning
appea ls.’ People v . Flowers 208 I ll. 2d 291, 308 (2003). ***

***
*** [A] lthough the appellate court must abide by this co urt’s rules, this court possesses super

visory authority over the I llinois court sy stem. In oral a rgument on this

case , the State corr ectly acknow ledg ed that this court could reinstate petitioner’s appea l pursuant to our supervisory authority if we wer e so inclined.” People v. Lyles
, 217 I ll. 2d 210, 216-17 (2005)

. ¶ 30 In comingto this conclusion and in light of judicial e conomy , we note that the State in addre ssing defe ndant’s second ar gu m en t has cited case s for the proposition that “whe re a prior conviction used as impeachme n t i s n o t void at the time of its introduction into evid en ce , it will not be considere d reve rsible err or if that conviction was subsequently

reve rsed on appea l.” This line of authority is not specifi ca l l y relevant in the instant case

. Def endant’ s Rock I sland conviction was admitted on the issue of defe ndant’s propensity to commit the offe nses with which he was charg ed in the instant c ase. It w as not a dmitted f or impeachme nt purposes. In fac t, the circ uit court here expressly held that the conviction could
not be used to impeach defe ndant if he decide d to testify

. The ans we r to defe ndant’s new question could clea

rly benef it from additional briefingand argument.

¶ 31 CONCLUSI ON ¶ 32 For the fore g oing rea sons, we aff irm defe ndant’s conviction. The appropr iate vehicle for seekingrevie w of the e ffe ct, i f any
, of the re versa l of his Rock I sland conviction would be a postconviction petition.

¶ 33 Affir

med.

¶ 34 J USTI CE LYTTON, spe cially concur ring

. ¶ 35 Iconcur

with the result in the majority opinion. ¶ 36 J ustice Schmidt joins i n this special conc urre nce.

-8-