NO. 4-99-0491

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

	Plaintiff-Appellant,

	v.

TERRY L. WASSELL,

	Defendant-Appellee.	)

)

)

)

)

)

)

)	Appeal from

Circuit Court of

Pike County

No. 98CF51

Honorable

Richard D. Greenlief,

Judge Presiding.

_________________________________________________________________

	PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

	In May 1998, the State charged defendant, Terry L.

Wassell, with predatory criminal sexual assault of a child (720

ILCS 5/12-14.1(a)(1) (West Supp. 1997)).  In September 1998, the

State filed a petition to proceed under the Sexually Dangerous

Persons Act (Act) (725 ILCS 205/0.01 through 12 (West 1998)).  In

May 1999, the State filed notice of its intent to call four

witnesses at trial who would testify that defendant sexually

assaulted them on prior occasions, pursuant to section 115-7.3 of

the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3

(West 1998)).  In June 1999, defendant filed a motion in limine seeking to prohibit that testimony, which the trial court

granted.  The State filed an interlocutory appeal from that

order, and this court later dismissed the appeal for lack of

jurisdiction (People v. Wassell, 312 Ill. App. 3d 506, 509, 512, 727 N.E.2d 413, 415, 417 (2000), vacated, 193 Ill. 2d 598, 741 N.E.2d 988 (2001)).  

	In February 2000, the Supreme Court of Illinois entered

a supervisory order vacating this court's judgment and reinstat

ing the State's appeal for reconsideration in light of its

decision in People v. Drum, 194 Ill. 2d 485, 743 N.E.2d 44 (2000).  We affirm.

	I. BACKGROUND

	Pursuant to the May 1998 indictment, the State charged

defendant with predatory criminal sexual assault of a child, in

that on or about September 27, 1997, he committed an act of

sexual penetration with P.S.W. (his three-year-old granddaughter)

by placing his finger in her vagina.

	In September 1998, the State filed a petition to have

defendant adjudicated a sexually dangerous person under the Act

(725 ILCS 205/3 (West 1998)).  In November and December 1998, the

State filed amended petitions to proceed under the Act, and in

May 1999, the State filed a notice of intent to offer into

evidence at defendant's trial the testimony of four witnesses,

including L.M. and J.R.  The State expected the four witnesses to

testify that defendant had sexually assaulted them when they were

minors.  (The State appeals only the trial court's ruling to bar

the testimony of L.M. and J.R.) 

	Pursuant to the State's second-amended petition to proceed under the Act, L.M. and J.R. would testify as follows. 

L.M. would testify that she is defendant's niece and defendant

sexually assaulted her on numerous occasions between the years

1972 and 19781, when she was between the ages of 4 and 15.  The

alleged assaults occurred when she was a visitor in defendant's

home.  Defendant would enter the room where L.M. slept, lift her

nightgown, and fondle her breasts and vagina.  On five occasions,

defendant inserted his finger in her vagina.  When L.M. was 11

years old, defendant inserted his penis into her mouth.  The

incidents ceased between 1981 and 1983, but, in 1984, L.M. awoke

to find defendant sitting on the edge of her bed, masturbating.

	J.R. would testify that between 1972 and 1976, when she

was between the ages of 13 and 17, she frequently baby-sat at

defendant's home.  While driving her home, defendant would make

sexually suggestive comments.  On one occasion, defendant pulled

off the road and forced J.R. to masturbate him.  One night when

she was sleeping at defendant's home, she awoke to find defendant

kissing her, fondling her breasts, and rubbing his penis against

her vaginal area. 

	In June 1999, defendant filed a motion in limine, seeking to bar L.M. and J.R.'s testimony, arguing that (1) the

testimony was not "otherwise admissible," as is required by

section 115-7.3 of the Code (725 ILCS 5/115-7.3 (West 1998)); and

(2) its prejudicial effect outweighed its probative value.  Defendant further asserted that the likely prejudicial effect was

particularly aggravated by the following facts:  (1) the inci

dents involving L.M. purportedly occurred over 15 years earlier,

and the incidents involving J.R. purportedly occurred over 23

years earlier; and (2) none of the incidents were reported,

charged, or otherwise corroborated prior to this case.

	The trial court later granted defendant's motion in limine, finding that L.M. and J.R.'s testimony was not admissible under section 115-7.3 of the Code nor "generally admissible."  On

June 7, 1999, the State filed a certificate of impairment and a

notice of appeal.  

	II. ANALYSIS

	The State argues that the trial court erred by barring

L.M. and J.R.'s testimony because that evidence was admissible to

establish defendant's modus operandi.  We disagree.

	Section 115-7.3 of the Code provides that if a defen

dant is accused of predatory criminal sexual assault of a child,

evidence that the defendant committed predatory criminal sexual

assault of a child, aggravated criminal sexual assault, criminal

sexual assault, aggravated criminal sexual abuse, or criminal

sexual abuse on other occasions may be admissible if that evi

dence is otherwise admissible under the rules of evidence.  725

ILCS 5/115-7.3(b) (West 1998).  When weighing the probative value

of the evidence against the undue prejudice to the defendant, the trial court may consider the following factors:  (1) the proxim

ity in time to the charged or predicate offense, (2) the factual

similarity to the charged or predicate offense, and (3) other

relevant facts and circumstances.  725 ILCS 5/115-7.3(c)(1)

through (c)(3) (West 1998).  Determinations of evidentiary value

lie within the trial court's sound discretion.  See People v. Buss, 187 Ill. 2d 144, 219, 718 N.E.2d 1, 42 (1999) (trial court did not abuse its discretion in finding that the probative value

of the testimony outweighed its prejudicial effect).     

	Evidence of a defendant's commission of other crimes is

generally admissible when it is relevant to prove a material

question other than the defendant's propensity to commit the

crime charged, such as modus operandi, intent, identity, motive, or absence of mistake.  People v. Kliner, 185 Ill. 2d 81, 146, 705 N.E.2d 850, 883 (1998).  A trial court's ruling on the

admissibility of other-crimes evidence will not be reversed

absent a clear abuse of discretion.  Kliner, 185 Ill. 2d at 146, 705 N.E.2d at 883.  

	In People v. Denny, 241 Ill. App. 3d 345, 608 N.E.2d 1313 (1993), this court discussed modus operandi evidence as follows: 

	"'Modus operandi refers to a pattern of crim inal behavior so distinct that separate

crimes are recognized as the work of the same person.  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

those acts, he may have committed the act at

issue.  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.'"  Denny, 241 Ill. App. 3d  at345, 358, 608 N.E.2d 1313,at 1322 (1993),

quoting People v. Rose, 198 Ill. App. 3d 1, 6, 555 N.E.2d 414, 417-18 (1990).

	The State contends that sufficient similarity exists

between L.M. and J.R.'s testimony and the alleged sexual assault

of P.S.W. to establish defendant's modus operandi.  Specifically, the State cites the following:  (1) L.M. and J.R. were

significantly younger than defendant when the assaults occurred;

(2) defendant had close relationships with both L.M. (his niece)

and J.R. (his children's baby-sitter for four years), just as he

did with P.S.W. (his granddaughter); and (3) all of the assaults

involved vaginal contact and penetration.  

	We agree with defendant that these similarities are not

the type of distinct similarities that establish modus operandi.  Rather, they are the type of similarities that are common to

most, if not all, charges of predatory criminal sexual assault. 

In fact, two of the similarities that the State argues establish

modus operandi are actual elements of the offense--namely, (1) the age difference between the alleged victims and defendant and

(2) vaginal penetration.  720 ILCS 5/12-14.1 (West Supp. 1997). 

Finally, the fact that the alleged victims had "close

relationships" with defendant supports the inference that

defendant chose victims to which he had access.  To establish

modus operandi, the incidents must share some distinctive features that are not common to most offenses of the type

charged.  Here, the State's asserted similarities do not

establish that the three crimes were so nearly identical in

method as to earmark them as the handiwork of defendant.  See Denny, 241 Ill. App. 3d at 358, 608 N.E.2d at 1322.  Given (1) the general nature of the similarities between the alleged

assaults and (2) the number of years that had passed between the

alleged assaults, we hold that the trial court did not abuse its

discretion by barring L.M. and J.R.'s testimony.

	III. CONCLUSION

	For the reasons stated, we affirm the trial court's

judgment.

	Affirmed.

	KNECHT and COOK, JJ., concur.