Illinois Official Reports

Appellate Court

People v. Johnson, 2020 IL App (1st) 162332

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

HENRY JOHNSON, Defendant-Appellant.

District & No. First District, Fourth Division 

No. 1-16-2332

Filed

Rehearing denied

January 16, 2020

February 13, 2020

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 2012-CR-12138; 

the Hon. Domenica Stephenson, Judge, presiding.

Judgment Affirmed and cause remanded with directions.

Counsel on

Appeal

James E. Chadd, Patricia Mysza, and Ann B. McLennan, of State 

Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg 

and Mary L. Boland, Assistant State’s Attorneys, of counsel), for the 

People.

Panel JUSTICE BURKE delivered the judgment of the court, with opinion.

Justices Lampkin and Reyes concurred in the judgment and opinion. 
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OPINION

¶ 1 Following a jury trial, defendant, Henry Johnson, was found guilty of armed robbery, 

aggravated kidnapping, and two counts of aggravated criminal sexual assault. The evidence 

presented at trial showed that defendant forced the victim, A.B.,1 into his van at knife point, 

where he sexually assaulted her. A.B. was able to escape the van and alert a security guard at 

a nearby senior citizen home. At trial, the State presented other-crimes evidence showing that 

defendant had been involved in a similar incident two weeks later and was eventually arrested. 

On appeal, defendant contends that he was denied a fair trial where the court improperly 

allowed excessive other-crimes evidence regarding the separate sexual assault incident that 

occurred weeks after the incident at bar. Defendant further contends that the court denied 

defendant his constitutional right to present a defense where it prevented him from questioning 

the victim and the State’s DNA expert about two unidentified male DNA profiles, which did 

not match defendant, found on the victim’s vaginal swab. Defendant also contends that the 

court erred in refusing to allow defendant to inquire into the specific nature of the victim’s 

pending disorderly conduct charge. Defendant further contends that his 46-year sentence is 

excessive given the mitigating factors presented. Finally, defendant contends that he is entitled 

to two additional days of presentence custody credit. For the reasons stated, we affirm 

defendant’s convictions and sentence and remand the cause to the circuit court so that 

defendant can file a motion pursuant to Illinois Supreme Court Rule 472(e) (eff. May 17, 2019). 

¶ 2 I. BACKGROUND

¶ 3 A. Pretrial Motions

¶ 4 1. Other-Crimes Evidence

¶ 5 Prior to trial, the State filed a motion to allow evidence of other crimes. In its motion, the 

State outlined the facts of a sexual assault it contended that defendant committed about two 

weeks after the events in the case at bar. The State asserted that the circumstances in that case 

were factually substantially similar to the incident at bar and occurred only two weeks later. 

The State asserted that, in the other case, defendant forced a woman, J.G., into his van at knife 

point, where he attempted to rape her. J.G. was able to escape from the van and eventually 

contacted police after receiving assistance from a witness. The events led to defendant’s arrest. 

The State sought to admit the evidence to prove defendant’s propensity, identity, and motive 

and to refute any claim of consent. In response, defendant contended that the other-crimes 

evidence should not be admitted because the evidence was more prejudicial than probative. 

¶ 6 The court ruled that the incident involving J.G. was relevant in the case at bar on the issue 

of consent. The court also found that there was “great similarity” between the two incidents 

with regard to the location, vehicle, and method. The court therefore found that the othercrimes evidence could be admitted to show “identification and identity.” The court further 

found that the evidence could be admitted to show propensity “[a]s specified in the statute 

which deals with these types of sexual assault cases.” 

1

It is the practice of Illinois courts to refer to victims of sex offenses by initials so as to protect their 

privacy. People v. Munoz-Salgado, 2016 IL App (2d) 140325, ¶ 1 n.1. 
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¶ 7 The State subsequently filed a supplemental motion to admit other-crimes evidence seeking 

to admit the evidence for the additional basis of establishing the circumstances of the arrest. 

The State contended that the circumstances of defendant’s arrest in the incident with J.G. 

demonstrated how the police were led to the crime defendant committed with regard to A.B. 

The State sought to have a witness who identified defendant’s van testify. 

¶ 8 At a hearing on the State’s motion, the court found that the other-crimes evidence was 

appropriate to show the circumstances of the arrest, but it expressed concern regarding how 

much of the evidence it would admit. The court noted that the more evidence it admitted, the 

more prejudicial the evidence became. The court determined that it would need to balance how 

much evidence it would admit against the possibility of unfair prejudice. The court stated that 

it would revisit that question before trial. 

¶ 9 Defendant filed a motion to reconsider the court’s ruling on the State’s other-crimes

evidence motions, contending that the State could not prove that defendant committed a crime 

without the testimony of J.G., who the State did not have present as a witness. Defendant 

asserted that, therefore, evidence of the other crime could not be admitted. The court denied 

defendant’s motion, but the court indicated that, prior to the presentation of the other-crimes 

evidence, it would give a limiting instruction to the jury instructing the jury that it should 

consider the other-crimes evidence only for identification and to explain the steps in the 

investigation.

¶ 10 2. Rape Shield Motion in Limine

¶ 11 Prior to trial, the State also filed a motion in limine pursuant to section 115-7 of the Code 

of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7 (West 2012)), commonly known as 

the rape shield statute, seeking to prohibit defendant from eliciting evidence regarding A.B.’s 

prior sexual activity or reputation. Specifically, the State sought to bar evidence that the vaginal 

swab collected from A.B. showed two male DNA profiles, neither of which matched the DNA 

profile of defendant. Defendant opposed this motion, contending that the exclusion of the DNA 

evidence would hinder his defense. Defendant asserted that the DNA evidence would support 

his defense that A.B. “is possibly confusing the defendant with someone else whom she had 

sex with her [sic] at a time close in proximity to the encounter between her and the defendant.” 

Defendant maintained that this evidence would thus support his contention that A.B. was 

mistaken in her identification of defendant. Defendant also contended that the prohibition of 

this evidence would violate defendant’s constitutional right to present a defense. The court 

granted the State’s motion in limine, finding that it would not inhibit defendant’s ability to 

present a defense.

¶ 12 B. Trial Testimony 

¶ 13 1. State’s Case-in-Chief

¶ 14 At trial, A.B. testified that in May 2012 she was homeless, living in a shelter for battered 

women. She would also occasionally stay with friends or relatives and had a cell phone 

provided by the shelter. In 2008, A.B. pled guilty to a misdemeanor charge of attempted 

possession of an illegal prescription. She also testified that she currently had a pending case 

for felony disorderly conduct but confirmed that the State had not made her any promises with 

regard to that case. On May 28, 2012, she spent the night at a friend’s house while her children 

were at her aunt’s house. She left the friend’s house around 3 a.m. on May 29 because she had 
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to get her children ready for school. On her way to her aunt’s home, she stopped at the 

intersection of Kilpatrick Avenue and Madison Street to wait for a bus. While she was looking 

to see if the bus was coming, defendant approached her from behind with a butcher knife and 

instructed her to get into his van. A.B. did not see the knife but could feel something sharp 

being pressed into her side. Defendant told her to get into his van or he would kill her. 

¶ 15 A.B. got into the front passenger seat of defendant’s van, and defendant climbed over her 

into the driver’s seat. Defendant told A.B. that he was going to rape her, rob her, and kill her. 

A.B. had a purse that contained her identification, cell phone, and pictures of her children. 

Defendant drove away with A.B. in the van and parked it on Kilpatrick Avenue and Van Buren 

Street. Defendant instructed A.B. to get into the backseat of the van. Defendant then climbed 

into the backseat with A.B. and told her to take off her shirt. When A.B. removed her shirt and 

bra, some money fell out. Defendant picked up the money, put it in his pocket, and then told 

her to put her shirt and bra back on.

¶ 16 Defendant then told A.B. to perform oral sex on him. A.B. complied, but defendant did not 

ejaculate. Defendant then told A.B. to lie down on her back and take off her pants so that he 

could have vaginal sex with her. A.B. again complied, but only took one leg out of her pants. 

Defendant had vaginal sex with A.B. for about a minute and then stopped, but defendant did 

not ejaculate. A.B. told defendant that she was pregnant and had kids, but he told her that it 

did not matter because she was not going to live. Defendant then told A.B. to turn around so 

that he could have anal sex with her. 

¶ 17 A.B. testified that at that point she started to look for an “escape route” because she knew 

“it was almost over with.” A.B. was able to open the lock on the rear driver’s side door and 

then jumped out of the van onto her knees. A.B. left her cell phone, purse, and shoes in 

defendant’s van. A.B. ran away from the van but was able to see part of the license plate 

number for the van: 38 N. A.B. also observed that defendant had an Edward Hines Jr. VA 

Hospital (Hines VA) identification badge and thought he was an employee. A.B. ran to a 

nearby senior citizen home and started running around the building and knocking on the 

windows and doors looking for help. A security guard at the senior citizen home called the 

police for A.B. Then, A.B. called the friend she had stayed with the night before. A.B. first 

went to see her children, and then she went to the hospital later that evening. At the hospital, 

the staff performed tests on her and took evidence from her, including conducting a vaginal 

swab. 

¶ 18 Twelve days later, on June 10, 2012, A.B. went to the police station to view a lineup. A.B. 

identified defendant in the lineup as the man who raped her. The State then published security

camera footage from the senior citizen home to the jury. The footage depicted A.B. 

approaching the senior citizen home and seeking help by knocking on the doors and windows 

of the building. The video also showed A.B. speaking with the security guard at the building 

and the police. 

¶ 19 On cross-examination, A.B. testified that, after the incident, she returned to her friend’s 

house to retrieve some shoes because she had left her shoes in defendant’s van. She then went 

to her aunt’s house to see her children. At the hospital, the doctors swabbed her mouth and her 

vagina, and they also looked for DNA under her fingernails. The doctors did not treat her for 

any trauma but did give her medication in case she had an infection. On June 10, 2012, A.B. 

learned that the police were looking for her because they believed they had found the person 

who had sexually assaulted her. A.B. eventually spoke with a detective at the police station. 
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A.B. denied approaching defendant’s van before defendant accosted her, denied working as a 

prostitute, and denied entering the van willingly. A.B. also denied negotiating pricing for 

sexual acts with defendant, denied using crack cocaine, and denied directing defendant where 

to drive the van after she was inside it. 

¶ 20 Robert Ward testified that he was a security guard at the Eloise McCoy senior citizen home 

on West Van Buren Street in Chicago, Illinois. Ward testified that during his shift on May 29, 

2012, at around 5 a.m., a “young lady [came] running through the doors hollering.” Ward 

testified that A.B. was “hysterical” and was crying. A.B. told Ward that she had been raped. 

Ward called the police and allowed A.B. to use his cell phone to make a phone call. Outside 

the building, A.B. showed Ward where the vehicle she escaped from had been parked, and 

Ward waited with A.B. until the police arrived. On cross-examination, Ward testified that he 

took a cigarette break from around 4:45 a.m. to 4:50 a.m., less than 10 minutes before A.B. 

approached the building. While he was outside smoking the cigarette, Ward did not hear any 

screaming and did not recall seeing a van. 

¶ 21 Erik Ozolins testified that he was a nurse in the emergency room at Loretto Hospital. He 

testified that he examined A.B. in the emergency room on the night of the incident. He 

described her as “anxious, tearful, scared.” A.B. told Ozolins that, at around 5 a.m. that 

morning, she was pulled into a van by a male wearing an employee badge for the Hines VA 

and raped at knife point. A.B. told Ozolins that the male raped her orally and vaginally and 

attempted to rape her anally. A.B. complained of scalp, back, and abdominal pain. A.B. 

indicated that she wanted to speak with a crisis worker at the hospital. Ozolins noted that A.B. 

was “very tearful, very upset.” On cross-examination, Ozolins testified that A.B. told him she 

was raped for over 30 minutes and that she was forced to snort cocaine. She also told Ozolins 

that she was five months pregnant. Another nurse at Loretto Hospital testified that she collected 

a sexual assault evidence collection kit from A.B. that included oral, vaginal, and anal swabs 

and a collection from beneath A.B.’s fingernails. 

¶ 22 Forensic science experts from the Illinois State Police testified that they tested the sexual 

assault evidence collection kit collected by the hospital staff on the night of the incident and 

compared the results with the DNA collected from defendant’s buccal swab. The forensic 

scientists did not find defendant’s DNA on A.B.’s vaginal swab but did find a DNA profile 

that was consistent with defendant’s DNA profile in A.B.’s fingernail scrapings.

¶ 23 2. Other-Crimes Evidence

¶ 24 The State also introduced testimony from two witnesses in support of its pretrial othercrimes evidence motion. Prior to that testimony, the court instructed the jury that it should 

consider the testimony on the issues of defendant’s identification and to explain the 

circumstances of defendant’s arrest. The court instructed the jury that it was for them to 

determine whether defendant was involved in the conduct and, if so, “what weight should be 

given to this evidence on the issues of identification and to explain the circumstances of 

arrest.”2

2 Although the court initially admitted the other-crimes evidence on the issues of consent, 

propensity, identification, and the circumstances of the arrest, it appears from the record that, by the 

start of trial, the evidence was admitted only on the issues of identification and circumstances of the 

arrest. 
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¶ 25 Jerry Atwater testified that at around midnight on June 10, 2012, he was on Kilpatrick 

Avenue and Madison Street on the west side of Chicago at a car show. The police arrived to 

break up the car show around 2 a.m., and Atwater began driving his vehicle south down 

Kilpatrick Avenue. Atwater turned left onto Van Buren Street, passing the Eloise McCoy 

senior citizen home. As he was waiting for the vehicle in front of him to move, Atwater heard 

very loud screaming and yelling. He then saw a “young lady” appear from the driver’s side of 

a van that was sitting nearby. The woman was screaming, and Atwater observed that her skirt 

or dress had been pulled up. Atwater later learned the woman’s name was J.G. Atwater told 

J.G. to get into the backseat of his truck. After J.G. got into his vehicle, Atwater called police. 

The van started to drive away, and Atwater followed it while he was on the phone with the 911 

operator. While he was following the van, Atwater observed that it had a temporary license 

plate number of 382N698. Atwater followed the van for about 10 minutes until the 911 operator 

told him to stop following it. After Atwater stopped following the van, he observed a police 

vehicle and flagged it down. Atwater told the officers about the situation, and the officers also 

spoke to J.G. J.G. got into the police vehicle with the officers, and Atwater left the scene. 

Atwater could not identify the driver of the van but described the driver as a bald male. On 

cross-examination, Atwater testified that there is a lot of crime, a lot of drug sales, and 

prostitution in the area where he encountered J.G. 

¶ 26 Chicago police officer Pablo Aguirre testified that at 2:30 a.m. on the morning of June 10, 

2012, he was on patrol in the area of Chicago Avenue and Pulaski Road when he received an 

assignment to find J.G. Aguirre testified that he spoke with J.G. after being waved down by 

Atwater. J.G. gave Officer Aguirre a description of a black male and a vehicle. The vehicle 

was a green van with a temporary license plate 382N698. After about 40 minutes of searching 

the area, Officer Aguirre located the van in front of a residence on West Adams Street. 

Defendant was in the driver’s seat of the van and matched the description given by J.G. 

Defendant was brought to the police station for processing. Among his possessions were two 

cell phones, $97 in cash, a wallet, and an Illinois driver’s license belonging to A.B. Officer 

Aguirre learned that A.B. had reported a criminal sexual assault 12 days earlier. Evidence 

technicians recovered paint scrapers, a retractable box cutter, three putty knives, and A.B.’s 

cell phone from defendant’s van.

¶ 27 3. Defendant’s Testimony

¶ 28 Defendant testified that on May 28, 2012, he was employed as a janitor at the Loyola 

Medical Center (Loyola). Loyola issued him certain tools for his job, including putty knives, 

pliers, and “scrapers.” He kept these tools in his van. He testified that he left work around 2:30 

a.m. on the morning of May 29, 2012, and then he “did something stupid.” He drove to a 

“particular area” where “the prostitutes be at [sic].” Defendant drove to the corner of Monroe 

Street and Kenton Avenue, where he was approached by A.B. A.B. walked up to the driver’s 

side door of defendant’s vehicle and asked him if he was dating, which defendant testified 

meant that she was asking him if he wanted to “buy some sex.” Defendant told her that he was 

dating. 

¶ 29 A.B. walked around to the passenger side of his van and voluntarily entered the vehicle. 

A.B. then told defendant the pricing for various sexual acts. Defendant drove away, and the 

two negotiated $30 for “straight sex,” despite A.B. initially telling him that “straight sex” 

would cost $40. A.B. directed defendant where to drive, and he ended up on Van Buren Street. 
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When defendant stopped the vehicle, A.B. pulled out a bag of crack cocaine. A.B. asked 

defendant if she could smoke the crack cocaine, but defendant asked her to wait until they 

finished “taking care of business.” A.B. then put the crack cocaine and her identification in a 

small compartment on the van’s dashboard. A.B. then climbed into the backseat of the van, 

and defendant locked the doors of the van.

¶ 30 A.B. told defendant she was ready, and defendant joined her in the backseat. Defendant 

started to remove his belt, but A.B. stuck out her hand and said “money first.” Defendant 

handed her the money, and A.B. counted it, then stuck it in her bra. Defendant then asked A.B. 

for a condom, but A.B. told him she did not have one. Defendant got back into the driver’s seat 

of the van and told A.B. that he was going to buy a condom at a nearby gas station. A.B. told 

defendant that there was no need for him to do that because she was “clean.” Defendant told 

her that it would only take a minute, but A.B. told him she did not have time and needed to get 

back to her spot. Defendant told her to “forget it” and asked for his money back. A.B. told him 

that she would not give him his money back, and defendant returned to confront her in the back 

seat. A.B. unlocked the driver’s side rear door and left the van. Defendant got back into the 

driver’s seat and drove away.

¶ 31 After he drove away, defendant realized A.B. had left her purse in his van. Defendant threw 

her purse out of his window. After defendant arrived home, he discovered that A.B. had also 

left her identification and the crack cocaine in his van. Defendant threw the crack cocaine out 

of his vehicle and put A.B.’s identification in his back pocket. Defendant also found A.B.’s 

cell phone in his van. He decided to keep the phone because A.B. did not refund him his $30. 

Defendant testified that on the night he was arrested he still had A.B.’s cell phone because he 

was using it in an attempt to get some of his money back. He also still had A.B.’s identification 

in his wallet because he did not want his wife to find it and he forgot to throw it away. 

Defendant denied having a butcher’s knife that night, kidnapping A.B., threatening her, or 

raping her. Defendant further denied having even consensual sex with A.B. 

¶ 32 On cross-examination, defendant testified that after he was arrested he did not tell the 

detectives the whole story about his encounter with A.B. because he was embarrassed. When 

the detectives asked him why he had A.B.’s identification, he told the detectives that a woman 

left it in his van after he gave her a ride. Similarly, when the detectives asked him about the 

cell phone that A.B. left in the van, defendant told the detectives that a friend gave it to him.

¶ 33 4. Jury Verdict and Sentencing

¶ 34 Following closing argument, the jury found defendant guilty of armed robbery, aggravated 

kidnapping, and two counts of aggravated criminal sexual assault. At defendant’s subsequent 

sentencing hearing, the State argued in aggravation that the court should also consider the 

incident with J.G. in determining the sentence. The State noted that the minimum sentence was 

38 years and asked for a sentence closer to the maximum rather than the minimum. In 

mitigation, defense counsel presented letters from family and friends on defendant’s behalf 

and also noted defendant’s lack of criminal history, his educational background, and his work 

history. Defendant spoke in allocution, professing his innocence and asking the court for 

leniency. The court stated that it considered all of the factors in aggravation and mitigation, 

and defendant’s statements in allocution, in determining a sentence of 46 years. The court 

denied defendant’s motion to reconsider his sentence, noting that it took all of the statutory 

factors into account and that the 46-year sentence was close to the minimum of 38 years. 
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Defendant now appeals.

¶ 35 II. ANALYSIS

¶ 36 On appeal, defendant contends that the court erred in allowing excessive other-crimes 

evidence where the crime at issue occurred after the incident at bar, the witnesses gave 

excessive detail unnecessary for purposes of proving identity or showing the circumstances of 

the arrest, and J.G. was unavailable to testify. Defendant also contends that the court denied 

him his right to present a defense where the court precluded him from questioning A.B. and 

the State’s DNA experts regarding two unidentified male DNA profiles that did not match 

defendant that were present on A.B.’s vaginal swab. Defendant further asserts that the court 

erred in precluding him from inquiring into the specific nature of A.B.’s pending charge for 

disorderly conduct where that charge involved A.B. filing a false police report and was 

evidence of her motive to testify falsely. Defendant also contends that his 46-year sentence is 

excessive in light of the mitigating circumstances presented. Finally, defendant asserts that the 

court incorrectly calculated the number of days he spent in presentence custody and that he is 

entitled to two additional days of presentence custody credit.

¶ 37 A. Other-Crimes Evidence

¶ 38 We first address defendant’s claims with regard to the State’s other-crimes evidence. Prior 

to trial, the State filed two motions outlining other-crimes evidence it intended to present at 

trial. The other crime occurred two weeks after the incident with A.B. and involved similar 

factual circumstances. The State sought to introduce the evidence to prove defendant’s identity 

and the circumstances of the arrest. Defendant contends that the court erred in admitting this 

evidence because the incident with J.G. occurred after the incident with A.B. Defendant further 

contends that identity was not an issue at trial because defendant did not deny that he was in 

the van with A.B. Defendant also asserts that the evidence was not admissible because J.G. 

was unavailable to testify and thus the State could not prove that a crime occurred. Defendant 

further contends that the evidence presented went far beyond what was necessary to show the 

circumstances of the arrest, where Atwater testified that J.G. said she had been raped and 

Officer Aguirre referred to J.G. as a “victim.” Defendant maintains that these errors were not 

harmless and that the court erred in admitting the other-crimes evidence.

¶ 39 1. Section 115-7.3

¶ 40 Section 115-7.3 of the Code permits the introduction of certain evidence in cases where 

defendant is charged with, inter alia, aggravated criminal sexual assault. 725 ILCS 5/115-

7.3(a)(1) (West 2012). In determining whether such evidence is admissible, the court should 

weigh the probative value of the evidence against the undue prejudice that could result from 

the introduction of the evidence in consideration of the proximity in time to the charged 

offense, the degree of factual similarity between the charged offense, and any other relevant 

facts and circumstances. Id. § 115-7.3(c). Evidence of other crimes is admissible if it is relevant 

for any purpose other than to show the defendant’s propensity to commit crimes. People v. 

Wilson, 214 Ill. 2d 127, 135 (2005). Other-crimes evidence may be admitted to show 

modus operandi, intent, motive, identity, or the absence of mistake. People v. Pikes, 2013 IL 

115171, ¶ 11; see also Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). Even other-acts evidence that is 

relevant for a proper purpose will be excluded if its probative value is substantially outweighed 
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by the danger of unfair prejudice. Pikes, 2013 IL 115171, ¶ 11. We will not reverse the decision 

of a trial court to admit evidence of other crimes absent an abuse of discretion. People v. 

Donoho, 204 Ill. 2d 159, 182 (2003). An abuse of discretion occurs where the trial court’s 

decision is arbitrary, fanciful, or unreasonable or when no reasonable person would take the 

position adopted by the trial court. Id.

¶ 41 2. Identity

¶ 42 Here, the State offered other-crimes evidence through the testimony of Atwater and Officer 

Aguirre. Prior to trial, the State filed two motions with regard to the other-crimes evidence it 

intended to offer. First, it sought to introduce the evidence for the purpose of proving 

defendant’s identity and to show lack of consent. Later, the State filed a supplemental motion 

to also use the evidence to prove the circumstances of defendant’s arrest. The court granted 

both of the State’s motions with regard to the other-crimes evidence and denied defendant’s 

motion to reconsider those rulings, stating that it would give a limiting instruction to the jury. 

As the trial court noted, the incident with J.G. was factually similar to the incident at issue in 

this case, and the incidents occurred within 12 days of each other; thus the proximity factor of 

the statute was clearly satisfied.

¶ 43 Defendant contends, however, that the court erred in admitting the evidence on the issue 

of identity where identity was not an issue at trial and because the incident with J.G. occurred 

after the incident in this case. Defendant maintains that he never contested the fact that he was 

in the van with A.B. but instead challenged her assertion that he sexually assaulted her. He also 

asserts that evidence of other crimes committed after the charged offense is irrelevant to prove 

the identity of the perpetrator of the charged offense. 

¶ 44 We agree with defendant that identity was not at issue in this case. Identity is at issue 

whenever defendant denies he was the offender. People v. Boyd, 366 Ill. App. 3d 84, 92 (2006). 

Here, defendant did not assert that he was not the offender but argued that the interaction 

between him and A.B. was consensual in that A.B. was a prostitute who willingly entered his 

vehicle and he did not engage in any sexual intercourse with her, consensual or otherwise.3

Thus, identity was not at issue here. See id. (“Here, where the defense theory was consent, the 

identity of the offender was not at issue.”); see also People v. Dupree, 339 Ill. App. 3d 512, 

520 (2003) (identity was not an issue where defendant “did not deny he took the victim’s 

money,” he “only claimed that he did not take the money under a deception as charged by the 

State”).

¶ 45 We observe, however, that defendant did initially raise an issue of identity in his pretrial 

motions. Defendant asserted in his motion in opposition to the State’s motion in limine to 

exclude evidence under section 115-7 of the Code (725 ILCS 5/115-7 (West 2012)) that A.B. 

“is possibly confusing the defendant with someone else whom she had sex with her [sic] at a 

time close in proximity to the encounter between her and the defendant.” Defendant 

acknowledges this argument in his reply brief but asserts that he dropped his contentions with 

regard to identity prior to trial. 

3

Although defendant did not raise the issue of consent in any of his pretrial pleadings, including his 

answer to discovery, defense counsel did argue in his opening statement that the interaction between 

defendant and A.B. was consensual. 
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¶ 46 Despite defendant’s assertions, however, the record shows that defendant never challenged 

the admission of the other evidence to prove identity in the trial court. Indeed, as noted, in his 

pretrial motion, defendant explicitly contended that he was challenging A.B.’s identification. 

In contesting the State’s motions, defendant contended that there was “no showing that the 

evidence being presented will contain any fact that would either strengthen or weaken the 

complaining witness’s identification.” Indeed, even after the court ruled that the other-crimes 

evidence would be admitted for the purpose of proving defendant’s identity, defense counsel 

stated, in arguing on the motion to preclude evidence under section 115-7, that “[i]n this case 

*** there might be an issue of identification.” Defense counsel continued in response to the 

court’s questioning that “[t]here is going to be an issue of identification because there is 

evidence that this witness was under the influence of crack cocaine.” Indeed, at no point in the 

record does defendant contend that the proposed other-crimes evidence should be excluded 

because there is no issue of identification, as defendant contends before this court. Instead, as 

outlined, defendant repeatedly indicated that defendant’s identity was going to be an issue at 

trial. The fact that defendant evidently elected not to pursue this defense at trial does not 

retroactively render the trial court’s ruling erroneous where defendant never brought the 

claimed error to the trial court’s attention. Indeed, even in defendant’s lengthy posttrial motions 

for a judgment notwithstanding the verdict and for a new trial, defendant broadly contended 

that the court erred in granting the State’s motions to admit evidence of other crimes but did 

not contend that the court erred in admitting the evidence on the issue of identity because 

identity was not an issue at trial. 

¶ 47 As such, we find that defendant invited this error. Under the doctrine of invited error, 

defendant may not proceed in one manner in the trial court and then later contend on appeal 

that the course of action was in error. People v. Carter, 208 Ill. 2d 309, 319 (2003) (citing 

People v. Villarreal, 198 Ill. 2d 209, 227-28 (2001)). That is precisely what defendant did in 

this case where defendant indicated before trial that identification was going to be an issue, 

opposed the State’s motions on that basis, and then, after the court ruled on the motions, 

evidently dropped that potential defense and never brought the change to the attention of the 

trial court so that it could correct the error. Accordingly, we find that defendant may not now 

object to that ruling on appeal.4 See id. (citing Villarreal, 198 Ill. 2d at 227-28).

¶ 48 However, defendant did contend before the trial court, as he does on appeal, that the othercrimes evidence was not relevant to prove identity because the incident with J.G. occurred after 

the incident with A.B. Defendant asserts that evidence of other crimes committed after the 

charged offense is irrelevant to prove the identity of the perpetrator of the charged offense. 

Despite defendant’s protestations, however, there is no requirement that the other incident 

being offered in the other-crimes evidence occur prior to the charged offense. See People v. 

Wilson, 2015 IL App (4th) 130512, ¶ 79. Rather, the statute focuses on the 

incidents’ “proximity in time.” 725 ILCS 5/115-7.3(c)(1) (West 2012). As this court has 

recognized, “there is no language within section 115-7.3 or surrounding sections that indicate 

the term ‘proximity in time’ is intended to apply to only past offenses.” Wilson, 2015 IL App 

4

Although defendant’s failure to preserve this error by objecting in the trial court may give rise to 

plain error review, an argument that defendant does not make in his briefs before this court, we observe 

that “[p]lain error review is forfeited, *** when the defendant invites the error.” (Internal quotation 

marks omitted.) People v. Cox, 2017 IL App (1st) 151536, ¶ 87. 
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(4th) 130512, ¶ 79; see also People v. Spyres, 359 Ill. App. 3d 1108, 1112 (2005) (“The term 

‘other-crimes evidence’ encompasses misconduct or criminal acts that occurred either before 

or after the allegedly criminal conduct for which the defendant is standing trial.”). Indeed, in 

response to the trial court’s questioning of defense counsel at a hearing on the State’s othercrimes motions, defense counsel acknowledged that there is case law that indicates that it is 

appropriate for other-crimes evidence to include acts that occurred after the date of the charged 

offense. 

¶ 49 We further find defendant’s reliance on People v. Rosado, 2017 IL App (1st) 143741, 

unpersuasive. Defendant relies on this case for the broad proposition that “evidence of other 

crimes committed after the charged offense is categorically irrelevant to prove the identity of 

the perpetrator of the charged offense.” In Rosado, this court found that evidence of an incident 

that occurred after the charged offense was not relevant to prove the defendant’s identity where 

the witnesses did not explain how their ability to recognize the defendant (and distinguish him 

from his similar-looking brother) six days earlier was bolstered by seeing the defendant at the 

later incident. Id. ¶¶ 25-26. Here, there is no argument that A.B.’s identification of defendant 

was bolstered by the later incident with J.G., and thus, the reasoning in Rosado is not relevant 

to the case at bar. At any rate, the holding in Rosado certainly does not suggest that evidence 

of other crimes that occurred after the charged offense is “categorically irrelevant” to prove 

identity, as defendant suggests. The court merely held that, under the circumstances in that 

case, the evidence was not relevant to bolster the identification of that witness. As discussed, 

this court has found that evidence of other crimes committed after the charged offense are 

admissible on the issue of identity. Wilson, 2015 IL App (4th) 130512, ¶ 80; Spyres, 359 Ill. 

App. 3d at 1112. The Rosado court also found that the proffered other-crimes evidence should 

not be admitted because it had no other relevance. Rosado, 2017 IL App (1st) 143741, ¶ 26. 

As discussed below, however, the other-crimes evidence offered by the State in this case was 

also relevant to show the circumstances of the arrest.

¶ 50 3. Proof of Other Crime

¶ 51 Defendant next contends that the court erred in admitting the other-crimes evidence 

because J.G. was not available to testify at trial and thus the State could not prove that a crime 

occurred. Defendant contends that, when the State seeks to introduce evidence of other crimes, 

it must first show that a crime took place and that defendant committed it. He maintains that, 

without testimony from J.G., there was no way for the jury to determine whether a crime 

occurred and the State instead relied on “innuendo testimony” about the incident. 

¶ 52 We first observe that our supreme court has held that the State does not need to prove 

defendant’s involvement in other crimes beyond a reasonable doubt but instead such proof 

must be “more than a mere suspicion.” People v. Thingvold, 145 Ill. 2d 441, 456 (1991). Here, 

Atwater testified that, at around 2 a.m., he saw J.G. appear, screaming from defendant’s van 

with her skirt or dress pulled up. Atwater followed the van with J.G. in his vehicle until police 

arrived. Officer Aguirre testified that he received a description of a vehicle with a license plate 

number and a description of a suspect and arrested defendant in his van based on that 

information. In the van, police found A.B.’s belongings, and the van’s license plate number 

was consistent with the partial license plate A.B. testified she saw. This raised more than a 

mere suspicion that defendant committed the other crime. It was unnecessary for the State to 

present additional evidence, and, indeed, limiting the evidence regarding the incident with J.G. 
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was necessary because, even though the evidence was relevant, other-crimes evidence “must 

not become the focal point of the trial.” People v. Hale, 2012 IL App (1st) 103537, ¶ 24. “The 

trial court should prevent a mini-trial of a collateral offense.” (Internal quotation marks 

omitted.) Id. (citing People v. Boand, 362 Ill. App. 3d 106, 125 (2005)). Here, the State 

presented sufficient evidence to raise more than a mere suspicion that defendant committed a 

crime, and the court correctly exercised its discretion to limit the evidence introduced so that 

the incident with J.G. did not become the focal point of the trial.

¶ 53 4. Confrontation Clause

¶ 54 We next address defendant’s contentions that his constitutional right to confront the 

witnesses against him was violated, where J.G. did not testify. Defendant points out that, during 

Atwater’s testimony, he testified that J.G. told him that she had been “raped.” Defendant 

contends that the confrontation clause bars this testimonial statement, where the witness was 

unavailable to testify and defendant did not have a prior opportunity to cross-examine her. 

¶ 55 While cross-examining Atwater regarding his involvement in the incident with J.G., 

defense counsel asked Atwater a series of questions regarding what he told detectives in regard 

to J.G.’s appearance. Atwater responded that he knew “for certain that I told—that I said that 

the woman was screaming and that she had been raped.” Following this testimony, defense 

counsel objected, and the court ruled, “Sustained. Stricken. Disregard.” Following Atwater’s 

testimony, defense counsel made a motion for a mistrial based on Atwater’s testimony that 

J.G. said she had been raped. The court denied the motion, noting that it immediately struck 

the testimony and ordered the jury to disregard it. The court found that, even though it did not 

admit the testimony, it could have admitted it as an “excited utterance.” The court found that 

there was thus no error and that any alleged error was harmless because the jury was instructed 

to disregard the testimony and the jury is presumed to follow the court’s instructions. 

¶ 56 We find that there is no confrontation clause issue where the court struck the testimony and 

ordered the jury to disregard it. The confrontation clause of the sixth amendment requires that, 

“[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the 

witnesses against him.” U.S. Const., amends. VI, XIV; see also Ill. Const. 1970, art. I, § 8; 

People v. Tracewski, 399 Ill. App. 3d 1160, 1165 (2010). Because Atwater’s testimony 

regarding what J.G. told him was struck, there are no out-of-court statements from J.G. present 

in the record, and J.G. did not otherwise testify. Thus, she was not a witness against defendant. 

Further, as defendant correctly notes, the confrontation clause applies only to testimonial 

evidence. People v. Barner, 2015 IL 116949, ¶ 41 (citing Crawford v. Washington, 541 U.S. 

36, 68-69 (2004)). The United States Supreme Court distinguished between testimonial and 

nontestimonial statements in Davis v. Washington, 547 U.S. 813 (2006). There, the Court 

explained: 

“Statements are nontestimonial when made in the course of police interrogation under 

circumstances objectively indicating that the primary purpose of the interrogation is to 

enable police assistance to meet an ongoing emergency. They are testimonial when the 

circumstances objectively indicate that there is no such ongoing emergency, and that 

the primary purpose of the interrogation is to establish or prove past events potentially 

relevant to later criminal prosecution.” Id. at 822. 

Thus, Atwater’s statement to detectives that J.G. told him that she was raped could fairly be 

considered nontestimonial where J.G. made the statement to Atwater, which Atwater then 
- 13 -

relayed to detectives for the primary purpose of assisting the police in an ongoing emergency 

and would not be subject to confrontation clause concerns. Accordingly, there can be no 

confrontation clause issue where the testimony was never admitted, the statement was 

nontestimonial, and J.G. did not otherwise not testify.

¶ 57 5. Excessiveness

¶ 58 Finally, defendant contends that the other-crimes evidence admitted went well beyond 

what was necessary to show identity or steps in the investigation. Defendant points out that 

during Atwater’s testimony, he stated that J.G. said she had been “raped” and Officer Aguirre 

referred to J.G. as a “victim” during his testimony. Defendant asserts that this testimony was 

not relevant to show the circumstances of the arrest or identity and was highly prejudicial. 

¶ 59 The record shows that, throughout trial, the court was concerned with limiting the othercrimes testimony so as to not introduce evidence that was prejudicial to defendant. After 

granting the State’s motion to allow evidence of other crimes, the court stated that “[t]he 

question then becomes how much evidence am I going—of this other incident am I going to 

allow in.” The court noted that, although the evidence was probative, it was concerned about 

its prejudicial nature. The court noted that it would have to strike a balance to determine how 

much of the evidence to admit. Prior to the introduction of the other-crimes evidence at trial, 

the court admonished the jury that it should consider the testimony only on the issues of 

defendant’s identification and to explain the circumstances of defendant’s arrest. The record 

thus shows that the trial court properly limited evidence of other crimes “to that evidence which 

is relevant to the purpose for which the other crime is admitted.” (Internal quotation marks 

omitted.) Boyd, 366 Ill. App. 3d at 90. 

¶ 60 Defendant maintains, however, that the only relevant testimony was that defendant was 

arrested on an unrelated matter and police recovered A.B.’s identification and cell phone from 

his van. Defendant asserts that it was unnecessary for the State to elicit testimony regarding 

the incident with J.G. and it was also unnecessary for the State to show Atwater and A.B. a 

picture of J.G. “Although the State possibly could have proved its case without this evidence, 

there is no rule that requires the State to present a watered-down version of events simply 

because otherwise highly probative evidence is unflattering to defendant.” People v. Rutledge,

409 Ill. App. 3d 22, 26 (2011). Here, it was necessary for the State to elicit testimony regarding 

the incident with J.G. to show the circumstances of defendant’s arrest, and this is an appropriate 

use of other-crimes evidence. See People v. Jones, 105 Ill. 2d 342, 358-59 (1985); see also 

People v. McKibbins, 96 Ill. 2d 176, 183 (1983) (“It would be difficult to explain or describe 

circumstances surrounding the defendant’s arrest without introducing a substantial amount of 

the evidence concerning the jewelry robbery.”). 

¶ 61 Moreover, the degree of similarity between the charged offense and the other-crimes 

evidence is one of the key factors for the court to consider in determining whether to admit the 

other-crimes evidence. 725 ILCS 5/115-7.3(c)(2) (West 2012); Donoho, 204 Ill. 2d at 184 (“As 

factual similarities increase, so does the relevance, or probative value, of the other-crimes 

evidence.”). It was thus necessary for the State to elicit testimony demonstrating the similarities 

between the two incidents, which it properly did through Atwater’s and Officer Aguirre’s 

testimony. Although defendant once again takes issue with Atwater’s testimony that J.G. told 

him she was raped, as noted, the court immediately struck that testimony and instructed the 

jury to disregard it. As the trial court noted, we presume the jury follows the trial court’s 
- 14 -

instructions. People v. Mims, 403 Ill. App. 3d 884, 897 (2010) (citing People v. Taylor, 166 

Ill. 2d 414, 438 (1995)). Similarly, the court sustained defendant’s objection after Officer 

Aguirre referred to J.G. as “the victim.” Defendant has thus failed to show that he was 

prejudiced by this “excessive” evidence. 

¶ 62 For the same reasons, we find that it was not prejudicial for the State to show both A.B. 

and Atwater a photograph of J.G. A.B. testified that she did not recognize J.G., and Atwater 

identified J.G. as the woman he saw exit defendant’s van. Even assuming the court erroneously 

admitted some of the other-crimes evidence to the point where it became “excessive” as 

defendant suggests, reversal is not warranted if it is unlikely the error influenced the jury. 

People v. Hall, 194 Ill. 2d 305, 339 (2000). As noted, the trial court carefully limited the 

amount of other-crimes evidence the State was permitted to present and instructed the jury 

regarding the purpose of the other-crimes evidence. Based on the evidence presented by the 

State from A.B., Ward, medical professionals, and police personnel, we cannot say that it is 

likely that any claimed error in the court’s admission of the other-crimes evidence influenced 

the jury. Accordingly, we find that the court did not err in admitting the other-crimes evidence, 

and to the extent that it did err, we find that defendant invited such error and that such error 

was, nonetheless, not prejudicial.

¶ 63 B. Unidentified Male DNA Profiles

¶ 64 We next address defendant’s contention that the court denied him his constitutional right 

to present a defense, where the court precluded him from questioning A.B. and the State’s 

DNA experts regarding the two unidentified male DNA profiles that were found on A.B.’s 

vaginal swab. Defendant asserts that, even though the rape shield statute generally bars 

evidence of a sexual assault victim’s past sexual conduct, such evidence was constitutionally 

required in this case where the exclusion of the evidence prevented defendant from adequately 

presenting his theory of the case. Defendant sought to establish that A.B. was a prostitute who 

approached defendant in his van, and defendant asserts that the two male DNA profiles were 

a critical aspect of his defense.

¶ 65 1. Rape Shield

¶ 66 Section 115-7 of the Code, the Illinois rape shield statute, provides that in prosecutions for, 

inter alia, aggravated criminal sexual assault and criminal sexual assault 

“the prior sexual activity or the reputation of the alleged victim or corroborating witness 

*** is inadmissible except (1) as evidence concerning the past sexual conduct of the 

alleged victim or corroborating witness under Section 115-7.3 of this Code with the 

accused when this evidence is offered by the accused upon the issue of whether the 

alleged victim or corroborating witness under Section 115-7.3 of this Code consented 

to the sexual conduct with respect to which the offense is alleged; or (2) when 

constitutionally required to be admitted.” 725 ILCS 5/115-7(a) (West 2012). 

Thus, under an exception written into section 115-7, prior sexual activity of the alleged victim 

is admissible if the admission of such evidence is “ ‘constitutionally required.’ ” People v. 

Maxwell, 2011 IL App (4th) 100434, ¶ 74 (quoting 725 ILCS 5/115-7(a) (West 2010)). The 

due process clause of the fourteenth amendment (U.S. Const., amend. XIV) and the 

confrontation clauses of the federal and state constitutions (U.S. Const., amend. VI; Ill. Const. 

1970, art. I, § 8) guarantee criminal defendants “a meaningful opportunity to present a 
- 15 -

complete defense.” (Internal quotation marks omitted.) People v. Santos, 211 Ill. 2d 395, 412

(2004) (McMorrow, C.J., dissenting). Here, defendant contends that the court’s exclusion of 

the evidence that two male DNA profiles that did not match defendant were found on A.B.’s 

vaginal swab violated his constitutional right to present a defense.

¶ 67 2. The State’s Motion in Limine

¶ 68 In its motion pursuant to section 115-7, the State sought to exclude evidence that the DNA 

evidence collected from A.B.’s vaginal swab contained “[a] major human male DNA profile 

*** that [did] not match the defendant and a minor human DNA profile *** from which the 

defendant and the victim can be excluded.” The State asserted that this evidence was not 

relevant to the issue of whether defendant committed the offense of criminal sexual assault and 

would only serve to show that A.B. was sexually active at the time of the offense. 

¶ 69 In response, defendant contended that he sought to introduce the evidence of the two male 

DNA profiles to attack the reliability of A.B.’s identification of defendant. Defendant asserted 

that section 115-7 excludes evidence of a victim’s prior sexual activity, but defendant asserted 

that the evidence he sought to admit was of A.B.’s “contemporaneous” sexual activity, which 

defendant asserted was not excluded by the statute. Defendant also contended that the 

justification for section 115-7 no longer existed because the State did not have a legitimate 

interest that outweighed defendant’s interest in presenting a complete defense.

¶ 70 In granting the State’s motion, the court noted that defendant was not raising a particular 

defense but merely suggested that A.B. may have misidentified defendant. The court stated 

that the DNA evidence would not be relevant unless defendant was arguing that there were 

other potential offenders in the van with defendant and A.B. The court therefore barred any

testimony regarding the other DNA evidence that was found on A.B.’s vaginal swab. We 

review evidentiary rulings made pursuant to section 115-7 for an abuse of discretion. Id. at 

401.

¶ 71 3. Evidence of A.B.’s Sexual History 

Would Not Make a Meaningful Contribution 

to the Fact-Finding Enterprise

¶ 72 As noted with regard to defendant’s contention that the court erred in admitting othercrimes evidence on the issue of identification where identification was not an issue at trial, 

defendant’s arguments before this court are contradictory to his arguments before the circuit 

court. In opposing the State’s motion pursuant to section 115-7, the thrust of defendant’s 

contentions before the trial court centered on the defense that A.B. misidentified the defendant. 

Before this court, however, defendant contends that he should have been permitted to introduce 

the DNA evidence because it would have supported his theory that A.B. was a prostitute who 

willingly entered his van but that defendant did not have sexual intercourse with her. In the 

trial court, defendant broadly contended that the application of section 115-7 would violate his 

right to adequately present a defense, which is essentially the same as his arguments before 

this court despite the fact that the specific defense defendant sought to pursue was different. 

Moreover, defendant raised a similar argument in his posttrial motions. Accordingly, we find 

no issues of forfeiture, waiver, or invited error. 
- 16 -

¶ 73 Nonetheless, we find defendant’s arguments unpersuasive. “The policy underlying the rape 

shield statute is to prevent the defendant from harassing and humiliating the complaining 

witness with evidence of either her reputation for chastity or unchastity, or specific acts of 

sexual conduct with persons other than defendant, since such evidence has no bearing on 

whether she consented to sexual relations with the defendant.” People v. Lewis, 2017 IL App 

(1st) 150070, ¶ 20 (citing Santos, 211 Ill. 2d at 414 (McMorrow, C.J., dissenting)). The “when 

constitutionally required” exception that defendant relies on here “requires that a defendant be 

permitted to offer certain evidence which [is] directly relevant to matters at issue in the case, 

notwithstanding that it concern[s] the victim’s prior sexual activity.” (Emphasis in original and 

internal quotation marks omitted.) People v. Johnson, 2014 IL App (2d) 121004, ¶ 42. Thus, 

“the determination of whether the details of the sexual activity were admissible remain[s] 

subject to standards of relevancy.” People v. Schuldt, 217 Ill. App. 3d 534, 541 (1991). A 

victim’s sexual history “ ‘is not constitutionally required to be admitted unless it would make 

a meaningful contribution to the fact-finding enterprise.’ ” (Internal quotation marks omitted.) 

Johnson, 2014 IL App (2d) 121004, ¶ 42 (quoting Maxwell, 2011 IL App (4th) 100434 ¶ 76). 

¶ 74 We find this court’s decision in People v. Bates, 2018 IL App (4th) 160255, aff’d as 

modified, 2019 IL 124143, instructive. In that case, as here, the State filed a pretrial motion 

in limine pursuant to section 115-7 to exclude evidence of the victim’s past sexual conduct. Id.

¶ 13. In response, the defendant argued that the court should not exclude the evidence that there 

was semen from an unidentified male found on the victim’s vaginal swab. Id. ¶ 14. The court 

granted the State’s motion, finding that the “evidence is coming in solely to show prior sexual 

history and that is clearly *** prohibited by the Rape Shield Statute.” (Internal quotation marks 

omitted.) Id. ¶ 15. On appeal, defendant contended that the court’s ruling violated his 

constitutional rights to confront the victim and the State’s DNA expert witness. Id. ¶ 55. This 

court rejected that argument, finding that the unidentified semen found on the victim’s vaginal 

swab was not constitutionally required to be admitted. Id. ¶ 63. The court observed that the 

evidence would not make a meaningful contribution to the fact-finding enterprise and, at best, 

would be marginally relevant. Id. ¶¶ 63-64 (citing Maxwell, 2011 IL App (4th) 100434, ¶ 76,

and Johnson, 2014 IL App (2d) 121004, ¶ 42). The court further found that the evidence would 

“pose an undue risk of harassment, prejudice, and confusing of the issues.” Id. ¶ 64. The court 

concluded that, “assuming the unidentified semen was from a consensual partner, such 

evidence would have ‘no bearing on whether [the victim] consented to sexual relations with 

the defendant.’ ” Id. (quoting People v. Summers, 353 Ill. App. 3d 367, 373 (2004)).

¶ 75 The court further found that the trial court’s ruling did not prevent defendant from 

presenting his theory of the case. Id. ¶ 65. The court noted that defendant was permitted to 

cross-examine the State’s witnesses and elicit testimony supporting his theory. Id. The court 

concluded:

“Further, this is not a case where a defendant contends that he had consensual sex with 

a victim but argues that another unknown individual subsequently raped the victim. 

Instead, defendant’s theory was that he had never had sex with [the victim]. If the jury 

would have believed this argument, defendant would not have been found guilty of 

criminal sexual assault. Accordingly, under the facts of this case, the trial court did not 

abuse its discretion in denying the introduction of this evidence.” Id.

¶ 76 As in Bates, we find that the trial court here did not err in granting the State’s motion and 

excluding this evidence where the evidence would have been, at best, only marginally relevant 
- 17 -

and would not have made a meaningful contribution to the fact-finding enterprise. Assuming 

the two unidentified male DNA profiles present on A.B.’s vaginal swab were from consensual 

partners, such evidence would have “ ‘no bearing on whether [A.B.] consented to sexual 

relations with the defendant.’ ” Id. ¶ 64 (quoting Summers, 353 Ill. App. 3d at 373). As such, 

the evidence was not relevant. See Schuldt, 217 Ill. App. 3d at 541. Moreover, defendant was 

presented with a meaningful opportunity to confront the State’s witnesses through crossexamination and was also able to present his defense through his own testimony. In fact, on 

cross-examination, defense counsel asked A.B. if she was a prostitute and whether she got into 

defendant’s van willingly. Further, as in Bates, defendant’s theory here was that he never had 

sex with A.B. “If the jury would have believed this argument, defendant would not have been

found guilty of criminal sexual assault.” Bates, 2018 IL App (4th) 160255, ¶ 65. 

¶ 77 We further find defendant’s reliance on People v. Starks, 365 Ill. App. 3d 592 (2006), 

unpersuasive. In Starks, a postconviction appeal, defendant filed a postconviction petition 

alleging, inter alia, that a postconviction DNA test had excluded him as the source of the semen 

that had been found on the victim’s underwear and attributed to defendant at trial. Id. at 596. 

Based on this new DNA test, defendant’s counsel discovered that the State’s serology test 

results in the original action were contrary to the trial testimony of the State’s expert serologist. 

Id. The serology results actually excluded defendant as the source of the semen from the 

victim’s vaginal swab and underwear. Id. The State argued that the semen found on the victim’s 

underwear was not materially relevant to the defendant’s claim of innocence and testimony on 

defendant’s behalf was inadmissible pursuant to the rape shield statute. Id. at 600. The court 

disagreed, finding that the State improperly used the rape shield statute to bar testimony on 

defendant’s behalf despite the fact that the victim had been impeached by her admission that 

she had not been sexually assaulted and the State’s own expert had provided untruthful or 

incorrect testimony regarding the serology results. Id. “In effect, the State has improperly 

turned the rape shield statute on its head and made it a sword to thwart defendant’s 

constitutional rights of confrontation (rather than a shield to protect the victim’s past sexual 

history).” Id. The court found that all of these circumstances, taken together, resulted in a 

violation of the defendant’s constitutional rights and were an adequate basis to reverse the 

circuit court’s denial of defendant’s postconviction petition. Id.

¶ 78 We find that the circumstances in the case at bar are substantially distinct from those 

present in Starks. As noted, A.B.’s prior sexual history was irrelevant to the issue of whether 

she consented to sexual activity with defendant. Evidence of A.B.’s prior sexual history would 

have been only collateral to the underlying issues raised at trial, rather than going to a direct 

issue in the case as in Starks. Further, the State did not present untruthful or misleading DNA 

expert testimony. As such, we find Starks distinguishable from the case at bar. Accordingly, 

we find that the trial court did not err in granting the State’s motion in limine pursuant to section 

115-7 and precluding defendant from introducing evidence regarding the unidentified male 

DNA samples present on A.B.’s vaginal swab.

¶ 79 C. A.B.’s Disorderly Conduct Charge

¶ 80 Defendant next contends that the trial court erred in precluding him from inquiring into the 

specific nature of A.B.’s pending disorderly conduct charge at trial. Defendant asserts that, 

where the charge was for filing a false police report, the jury could have drawn a reasonable 
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inference concerning A.B.’s bias and motive to testify falsely. Defendant maintains that A.B.’s 

credibility was an essential component of the case and he should have been permitted to 

introduce this evidence in order to impeach A.B. and challenge her credibility.

¶ 81 1. Confrontation Clause

¶ 82 As discussed, the confrontation clause guarantees defendant the right to confront witnesses 

against him. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. This right includes a 

defendant’s right to cross-examine a witness for the purpose of showing any interest, bias, 

prejudice, or motive to testify falsely. People v. Averhart, 311 Ill. App. 3d 492, 496-97 (1999) 

(citing U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8). Further, any permissible 

matter that affects the witness’s credibility may be developed on cross-examination. People v. 

Kliner, 185 Ill. 2d 81, 130 (1998). However, a defendant’s rights under the confrontation clause 

are not absolute. People v. Desantiago, 365 Ill. App. 3d 855, 868 (2006). “ ‘[T]he 

Confrontation Clause guarantees an opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever extent, the defense might 

wish.’ ” (Emphasis in original.) People v. Jones, 156 Ill. 2d 225, 243-44 (1993) (quoting 

Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). A trial court’s limitation of cross-examination 

is reviewed for abuse of discretion. Kliner, 185 Ill. 2d at 130.

¶ 83 2. Defendant’s Contention Is Forfeited,

and Any Error Is Harmless

¶ 84 Prior to trial, the State filed a motion in limine stating that A.B. had recently been arrested 

for disorderly conduct and charged with a Class 4 felony. The State provided that it would 

present that fact to the jury but sought to exclude any specific facts about the charge, including 

the fact that the charge was for filing a false police report. During A.B.’s direct examination, 

the State asked her about the pending felony charge for disorderly conduct. A.B. confirmed 

the pending charge but testified that she had not had any conversations with the State regarding 

the facts of the case and the State had not made her any promises in regards to the disorderly 

conduct case. In his motion for a new trial, defendant contended that the court had erred in 

limiting defense counsel from eliciting testimony from A.B. that the pending disorderly 

conduct charge was for filing a false police report. 

¶ 85 The record shows, however, that defendant never raised this issue prior to his motion for a 

new trial. In fact, as both parties acknowledge, there is no discussion of this motion anywhere 

in the record. The only indication that this motion was considered before trial is a handwritten 

notation on the motion itself noting that the motion was “Granted.” The parties argued 

extensively regarding the State’s motion to present evidence of other crimes and the State’s 

motion pursuant to section 115-7, but there is no argument regarding this motion anywhere in 

the record. This is critical because, in order for a defendant to preserve an alleged error for 

review, a defendant must both specifically object at trial and raise the specific issue again in a 

posttrial motion. People v. Woods, 214 Ill. 2d 455, 470 (2005). Defendant acknowledges his 

failure to object to the issue at trial or pretrial but contends that the issue is nonetheless 

preserved because the State raised it in its pretrial motion in limine and defendant raised it in 

his posttrial motion for a new trial. 

¶ 86 Although there is an exception to the general rule that a defendant must object at trial in 

order to preserve an alleged issue for review that applies when an issue is raised in a motion 
- 19 -

in limine, this exception applies only where the defendant raises the issue in the motion 

in limine. See People v. Hudson, 157 Ill. 2d 401, 434-35 (1993); People v. Boclair, 129 Ill. 2d 

458, 476 (1989); People v. Maldonado, 398 Ill. App. 3d 401, 415 (2010). The defendant’s 

failure to object at trial or otherwise raise the issue prior to his filing of posttrial motions 

deprives the trial court of the opportunity to correct the error. People v. Davis, 378 Ill. App. 3d 

1, 10-11 (2007). As such, we find that defendant has forfeited this issue for review by failing 

to object at trial or raise the issue in a motion in limine. 

¶ 87 Even assuming defendant properly preserved this issue and that the court erred in excluding 

the specific nature of A.B.’s pending charge, we would nonetheless conclude that such error 

was harmless beyond a reasonable doubt given the overwhelming evidence of defendant’s guilt 

and where defendant was permitted a full cross-examination of A.B. in all other respects. See 

People v. Davis, 185 Ill. 2d 317, 340 (1998). The restriction placed on defendant’s crossexamination of A.B. by the circuit court was minor in the context of this case. See id. (“Indeed, 

upon our review of the entire record, we are certain that defendant would have been adjudged 

guilty of the same crimes had the circuit court permitted him to mention the name or nature of 

the charge pending against [the witness] in Washington.”). Accordingly, we find the court did 

not violate defendant’s rights under the confrontation clause.

¶ 88 D. Excessive Sentence

¶ 89 Defendant next contends that the trial court’s 46-year sentence was excessive where 

defendant had no prior felony convictions, a solid work history, and family support. Defendant 

also asserts that his sentence is excessive given his potential for rehabilitation, as demonstrated 

by the friends and family who spoke on his behalf in mitigation. Defendant further contends 

that the State improperly relied on the incident with J.G. in aggravation despite the fact that 

defendant had not been convicted of that offense and maintained his innocence.

¶ 90 1. Standard of Review

¶ 91 A reviewing court will not alter a defendant’s sentence absent an abuse of discretion by the 

trial court. People v. Alexander, 239 Ill. 2d 205, 212 (2010). A trial court abuses its discretion 

in determining a sentence where the sentence is greatly at variance with the spirit and purpose 

of the law or if it is manifestly disproportionate to the nature of the offense. Id. The trial court 

is afforded such deference because it is in a better position than the reviewing court to weigh 

the relevant sentencing factors such as “ ‘defendant’s credibility, demeanor, general moral 

character, mentality, social environment, habits, and age.’ ” People v. Stevens, 324 Ill. App. 3d 

1084, 1093-94 (2001) (quoting People v. Streit, 142 Ill. 2d 13, 19 (1991)). In the absence of 

evidence to the contrary, we presume that the sentencing court considered all mitigating 

evidence presented. People v. Gordon, 2016 IL App (1st) 134004, ¶ 51 (citing People v. 

Burton, 184 Ill. 2d 1, 34 (1998)).

¶ 92 2. Defendant’s Sentence

¶ 93 Here, defendant was found guilty of aggravated kidnapping (720 ILCS 5/10-2(a)(5) (West 

2012)), two counts of aggravated criminal sexual assault (id. § 11-1.30(a)(1)), and armed 

robbery (id. § 18-2(a)(1)). Each of these convictions are Class X felonies, which carry a 

sentencing range of 6 to 30 years’ imprisonment. 730 ILCS 5/5-4.5-25(a) (West 2014). A 

sentence for aggravated criminal sexual assault has a mandatory 10-year enhancement when 
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the offender displays, threatens to use, or uses a dangerous weapon other than a firearm. 720 

ILCS 5/11-1.30(d)(1) (West 2012). Pursuant to section 5-8-4(d)(2) of the Unified Code of 

Corrections (730 ILCS 5/5-8-4(d)(2) (West 2014)), defendant’s two convictions for aggravated 

criminal sexual assault must be served consecutively. Also under that section, either the 

aggravated kidnapping or the armed robbery conviction would have to be served consecutively 

to the two aggravated criminal sexual assault counts. Id. Accordingly, the minimum sentence 

defendant could serve was 38 years.

¶ 94 At sentencing, the court stated that it had read and considered the letters presented by 

defendant’s family and friends and read the presentence investigation report. The court also 

took into account defendant’s statement in allocution. The court further stated it considered all 

of the statutory factors in mitigation and aggravation. The court then sentenced defendant to a 

term of 10 years, plus an additional 10 years for the mandatory enhancement, on both counts 

of aggravated criminal sexual assault and a term of 6 years for both the aggravated kidnapping 

and armed robbery convictions, for a total term of imprisonment of 46 years. 5 Thus, the 

sentence imposed by the court fell within the prescribed statutory range and was only eight 

years more than the minimum sentence.

¶ 95 Defendant contends, however, that the court abused its discretion in determining his 

sentence by failing to consider all of the evidence presented in mitigation. The record shows, 

however, that the court stated that it had considered “all the statutory factors for aggravation, 

mitigation,” and also considered the letters defendant presented in mitigation. The record 

shows that, during the sentencing hearing, defense counsel identified the same mitigating 

factors defendant brings to our attention on appeal, including defendant’s work history, 

rehabilitative potential, and lack of criminal background. It is not our function to independently 

reweigh these factors and substitute our judgment for that of the trial court. Alexander, 239 Ill. 

2d at 214-15 (citing Streit, 142 Ill. 2d at 19). Although the trial court did not specifically 

identify which factors it considered in determining defendant’s sentence, we observe that a 

trial court is not required to specify on the record the reasons for the sentence imposed (People 

v. Acevedo, 275 Ill. App. 3d 420, 426 (1995)), nor is it required to recite and assign value to 

each factor presented at the sentencing hearing (People v. Baker, 241 Ill. App. 3d 495, 499 

(1993)). Rather, it is presumed that the trial court properly considered all mitigating factors 

and rehabilitative potential before it, and the burden is on defendant to affirmatively show the 

contrary. People v. Brazziel, 406 Ill. App. 3d 412, 434 (2010). Here, defendant has failed to do 

so. In addition, although the State alluded to the incident with J.G. in its argument in 

aggravation, there is no indication in the record that the court improperly relied on that incident 

in determining defendant’s sentence. Accordingly, we find no abuse of discretion where the 

sentence imposed was within the prescribed statutory range, does not greatly vary from the 

purpose of the law, was entered after the trial court’s consideration of all of the factors 

presented in mitigation, and is not manifestly disproportionate to the nature of the offense. Id.

at 433-34 (citing People v. Stacey, 193 Ill. 2d 203, 210 (2000)). 

5

The two 20-year terms of imprisonment on each count of aggravated criminal sexual assault and 

the 6-year term of imprisonment for aggravated kidnapping are to be served consecutively. The 6-year 

sentence for armed robbery was concurrent to defendant’s 46-year term of imprisonment. 
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¶ 96 E. Presentence Custody Credit

¶ 97 Defendant finally contends that he is entitled to two additional days of presentence custody 

credit. Defendant asserts that the mittimus reflects that defendant spent 1507 days in 

presentence custody, but defendant in fact spent 1509 days in presentence custody. The State 

concedes that the mittimus erroneously reflects the incorrect number of days and that defendant 

is entitled to 1509 days of presentence custody credit. We agree. The record shows that 

defendant was arrested on June 10, 2012, and sentenced on July 28, 2016. Defendant spent the 

entire duration in presentence custody and was thus in custody for 1509 days. 

¶ 98 Previously, this court had the authority to order the clerk of the circuit court to correct a 

defendant’s mittimus without need for remand. See, e.g., People v. Magee, 374 Ill. App. 3d 

1024, 1035-36 (2007). Recently, however, our supreme court adopted Illinois Supreme Court 

Rule 472(a)(3) (eff. Mar. 1, 2019), which provides that the circuit court retains jurisdiction to 

correct certain errors in sentencing, including errors in the calculation of presentence custody 

credit. The rule further provides that the circuit court retains this jurisdiction even during the 

pendency of an appeal. Ill. S. Ct. R. 472(a) (eff. Mar. 1, 2019). The rule was recently amended 

to provide that: “In all criminal cases pending on appeal as of March 1, 2019, or appeals filed 

thereafter in which a party has attempted to raise sentencing errors covered by this rule for the 

first time on appeal, the reviewing court shall remand to the circuit court to allow the party to 

file a motion pursuant to this rule.” Ill. S. Ct. R. 472(e) (eff. May 17, 2019). Here, defendant 

raised this issue concerning the calculation of his presentence custody credit for the first time 

on appeal and his case was pending on appeal as of March 1, 2019. As such, pursuant to Rule 

472, we remand the issue of defendant’s presentence custody credit to the circuit court so that 

defendant may be allowed to file a motion pursuant to that rule.

¶ 99 III. CONCLUSION

¶ 100 For the reasons stated, we affirm the judgment of the circuit court of Cook County and 

remand the cause in accordance with Illinois Supreme Court Rule 472(e) (eff. May 17, 2019). 

¶ 101 Affirmed and cause remanded with directions.