THIRD DI VISI ON May 26, 2010

No. 1-07-2148

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 03 CR 14913 ) LEROY HARDI

NG, ) Honorab le ) Ke rr y M. Ke nn ed y, Defend ant-App ellant. ) Judge Presi ding.

JUSTICE COLEM AN delive

red the o pinion of t

he court : After a jury

trial, Leroy

Harding was convicted of three counts of child abduction and sentenced to six-year

terms of imprisonment for each conviction, with two of the terms to be served consecutively . The trial court permitted the prosecution to prove that Harding possessed a culpable mental sta

te by the introd

uction of prior cr ime evide nce to show his prop ensity to commit sex offenses. We find that this admission of evidence of other crimes was improper and accord ingly revers e Hardin

g's c onviction s and remand for a new tria l. S. testified that she was nine ye ars old on June 2, 2003, and that she was riding her bicy cle to a f riend' s home at a

bout 4 p.m. on that dat

e when a van pulle d up beside

her. She said that the van's passenger lea ned out of the window, said hello, and asked if she wanted a ride . She refused, then rode as quickly as she could to the home of her friend, J. S. recounted the incident to J.'s mother, who concluded that the van's occupants wer e neighborhood teens play ing a prank. She allowed J., also nine years old, to g o outside to play with S. S. testified that the van she had1-07-2148

2

seen earlier approached the m shortly thereaf

ter and that its passenger asked the girls if they wanted a ride. S. shouted that she was going to g et the van's license plate number, then hea rd an expletive f

rom one of

the men in

the van a nd saw it sp eed off

. S. and J. re

ported th e incide

nt to J.'s mothe r and the n to S.'s mo ther. S. to ld police that the v an was a

rusted wh

ite vehic le with black rear doors, and that she had seen more than one person in the van. Two days later, police asked her to look at a van and she identified it as the vehicle that c arried the man who had offere d her a r

ide. S. co uld not ide

ntify the pers on who spok

e to her or any

one else she saw in the van. J. also testified at trial. Unlike S., she only saw one individual in the van. Her description of the van's approach to the two g irls otherwise matched S.'s account. J. identified the van's color, rust, and black rear doors, and also confirmed that a van shown to her by police two days afte

r the incident was the vehicle that she and S. had encounter ed. Like S., J. was unable to identify the per son who spoke to them from the van. Paul Riley, a Cook County sheriff's officer, testified that he ha d received a bulletin that descri bed th e girls ' encou nter an d the v an. Tw o days aft er the e ncoun ter, h e was co nduct ing surveillance near an elementary school in the area of the incident and saw a van ma tching the characteristics described in the bulletin. He stopped the van a nd identified the driver as Ler oy Harding. S. and J. were called to the scene a nd identified the van there as the one that had appro ached t hem tw o days earl ier. R iley then arrest ed Hard ing. A second Cook County sheriff' s officer, James Davis, testified that he took custody of Harding at the sc ene of th e arre st, drove him to his uni

t's hea dquarte rs, rea d him his Miranda rights, then questioned him. Davis testified that Harding volunteere d to memorialize his account1-07-2148

3

of the incident and that he transcribed Harding 's statement. Davis was permitted to read the statement in open court. According to the statement, Har ding admitted driving the white van, seeing a young g irl, offe

ring he r a ride , then mak

ing the s ame off

er to the girl an d a secon d girl a few minutes later. In the stateme nt, Harding admitted that he did not know the girls, did not know thei r paren ts, and ha d not rec eived pe

rmission f

rom their parents to give t hem a rid e in his

van. Harding was charg ed with three counts of child abduction under section 10-5(b)(10) of the Criminal Code of 1961 (720 IL CS 5/10-5(b)(10) (West 2002)), which provided that the offense is committed when a person "[i]ntentionally lures or attempts to lure a child under the age of 16 into a motor vehicle, building, housetrailer , or dwelling place without the consent of the pare nt or lawf ul custodi an of the

child for other tha n a lawfu l purpose ." The statute al so provided that "the luring or attempted luring of a child under the age of 16 into a motor vehicle, building, housetrailer, or dwelling place without the conse nt of the parent or lawful custodian of the child shall be prima faci e evidence of other than a lawful purpose." 720 IL CS 5/10-5(b)(10) (West 2002). The prosecution sought to introduce evidence of H arding's convictions of prior offe nses. In 1990, Harding ha

d been charged with two counts of attempted a ggravated criminal sexual assault a nd one co unt of atte

mpted cr iminal sexua

l assault. In e ach of th e 1990 inc idents, Harding allegedly

followed adult women on foot as they left bars late at night and attacked them. Harding pled guilty

to each of the charges a

nd served concurrent prison terms for the cha rges until paro led in 1996 . The pro secution asserte d that Har

ding' s 1990 cri

mes should

be admitte d to prove that he attempted to lure S. and J. into his van to sexually assault them. I n February

2006,1-07-2148

4

the trial court denied the prosecution's motion to introduce the 1990 crimes, c ommenting that "the other cases *** would be a g reat stretch to be used in this case." In October 2006, our supre me court issued its opinion in People v. Woodrum , 223 Ill. 2d 286 (2006), and held unconstitutional the portion of the child abduction statute that based a prima faci

e presumpt

ion of unla

wful inte nt on the a

ccused' s luring

or attemp ted luring

of a chil d without the consent of a parent or guardian. Shortly thereafter, the prosecution filed a motion seeking the trial court's rec onsideration of its prohibition of evidence of Harding' s earlier crimes. The pros ecution a sserted

that "g iven the nature of

the offe nse, the f act that t he Defe ndant wa s a stran ger to b oth Vi ctim s and t he Defe ndant 's sex ually dev iant b ackgrou nd, ** * Defen dant's unlawful purpose was to kidnap and/or sexually assault or abuse the Victims in this case." The trial court granted the prosec ution's motion. It ruled that Harding 's convictions would be allowed "in order to show the defenda nt's intent, absence of mistake, accident or innocent frame o f mind and

unlawfu l purpose ." The c ourt fur ther stat ed: "Eve n though these cases can possibly

be reviewed as remote in time from the instant case, I believe them to be more probativ e than pr

ejudicia l, partic ularly in light o f the ruli

ng by the I llinois Supr

eme Court

in People versus Robert Woodrum in which the mandatory presumption language is found to be unconstitutional." Harding's prior convictions wer e admitted, the jury convicted him of three counts of child abduction, and this appeal followed. Harding's initial contention in this court is that his convictions violate section 8-5 of the Criminal Code, which provides that "[n]o person shall be convicted of both the inchoate and the principal offense." 720 I

LCS 5/8-5 (West 2002). We are unpersuaded by this contention. The explicit language of section 8-5 prohibits only a combination of convictions: a conviction for a1-07-2148

5

complete d offens e in addit ion to a conviction f

or an att empt or c onspirac

y to commit tha

t same offense. Harding's c onvictions in the instant case were based upon his alleged a ttempts to lure S. and J. into hi s van; none

were ba sed upon the completion of an y of those atte

mpts. His convictions thus do not violate the plain language of section 8-5. Harding has cite d no prec edent exte nding the statute' s prohibiti ons bey ond its explic it language and our re search has revealed none. I nstead, Illinois courts have limited the reac h of section 8-5 to its language in holding that prosec utions for both inchoate and completed offenses may proce ed as long as convictions are not entered in both. People v. Agrie sti , 191 Ill. App. 3d 419, 422-23 (1989). We therefore reject Ha rding's contention that section 8-5 requires r eversal of his con victions. Harding also contends that his convictions violate the proportionate penalties c lause of the Illinois Constitution (Ill. Const. 1970, art. I , § 11) and the "rule of lenity ," which requires that statutory ambigui ties be re solved in f

avor of a criminal defenda nt ( People v. Jones , 223 Ill. 2d 569, 581 ( 2006)). H arding correctly n

otes that t he propo rtionate

penaltie s clause

require s that a defenda nt be sent enced u nder the less seve re provi sion when

his conduc

t violates two applic able criminal statutes consisting of identical elements. People v. Hauschi ld , 226 Ill. 2d 63, 83 (2007). He further notes

that the c hild abduc

tion statut

e punishe s his attem

pt to lure a

child as a

Class 4 felony, while the g eneral attempt statute, which provides that a person commits an attempt "when, with intent to commit a specific offense, he does a ny act which c onstitutes a substantial step towa rd the co mmission of

that offe nse," c ategor

izes the sa

me conduc

t as a Clas s A misdemeanor. 720 IL CS 5/8-4(a) (West 2002). Harding contends that the child abduction statute's punishment of his conduct is disproportionately severe in comparison to the genera l1-07-2148

6

attempt pr

ovision' s punishme

nt of iden tical acts and tha

t both the proportio nate penalties cl ause and the rule of lenity

prohibit his conviction and sentence under the more severe pr ovision. These a rgumen ts are ba sed upon the premise that the g eneral

attempt st

atute ap plies to his conduct. This premise, along with arguments similar to those asser ted by Harding , have been definitively rejec

ted by this court. I

n People v. Patten , 230 Ill. App. 3d 922 (1992), this court held that our leg islature 's inclu sion of at tempts to lu

re child ren withi n its defin

ition of the

child abduction offens e display ed an inte ntion to pr

eclude a pplication of the g eneral

attempt st

atute to acts such as those committed by H arding. 230 Ill. App. 3d at 931. The court held that the inapplicability of the g eneral attempt statute "eliminated any proportion problem" and that the child abd uction sta tute's p unishment

of attemp ted luring

violated neither the proportionate penalties clause nor the due process clause of our constitution. 230 Ill. App. 3d at 931. Harding contends that Patten is inconsistent with the supreme court's decision in People v. Wallace , 57 Ill. 2d 285 (1974), and that it must according ly be disreg arded. In Wallace , the supreme court construed a

bribery statute w hich pena lized "pr omises" made with i

ntent to influence public officials, and held that its applicability to uncompleted bribe efforts did not preclude prosecutions for attempted bribery under the general attempt statute. 57 I ll. 2d at 291- 92. Hard ing con strues Wallace to stand for the principle that application of the gener al attempt statute is never precluded by the inclusion of an inchoate crime in the definition of a more specific offense. This argument ha s also been rejected by the appellate court. In People v. Wishard , 396 I ll. App. 3d 283, 287- 88 (2009) , the cour t explained

that the g eneral

attempt st

atute is inapplic able whe

re the le gislatu

re intended the more spec ific off ense to c over inchoate cr

imes, and that such legislative intent is shown by the inclusion of explicit "attempt" language in the1-07-2148

7

definition of the specific offense. As the Wishard court observed, no such languag e was present in the bribery statute r

eviewed in Wallace . 396 I ll. App. 3d at 287-88 . Beca

use "at tempt" language is included in the child abduction statute, we conclude that it demonstrates the legislative intent to preclude application of the ge neral attempt statute to Harding's actions and that it distinguishes the child abduction provision from the bribery statute at issue in Wallace

. We adhere to the Patten court's analy sis, and hold that the inapplicability of the g eneral attempt

st at ut e i n t he in st an t c as e d ef ea ts Ha rd in g's ar gu me nt s r eg ar di ng it s c om pa ra ti ve se ve ri ty. Harding next asserts that the trial court improperly admitted evidence of his three convicti ons for a

ttempted s exual assa

ult. He co

ntends tha

t this evide

nce ser ved only to demonstr ate to the jury his prope nsity to commit crime, and that this u se requi res rev ersal of

his conviction. We agree. Evidenc e of cri

mes other than the o ffense

for whic h the def endant f aces pr osecution is inadmissible to show his general criminal propensity , but may be admitted if re levant for other purposes, including proof of intent. People v. Illgen , 145 Ill. 2d 353, 364-65 (1991). I n the instant ca se, the Sta

te conte nds that Ha

rding' s prior crimes we

re introd uced only to prove h

is intent, and it notes that the jury was instructed tha t the prior crimes evidence was offer ed only for consideration in deciding that issue. The State sugg ests that this limitation on the offering and use of the prior crimes evidence establishes that Har ding's prior crimes were pr operly admitted. We do not believe that the propriety of other crimes evidence is determined by the prosecution's statement of its purpose in seeking its admission or by the instructions given to the jury for its use. I

n People v. Placek , 184 Ill. 2d 370 (1998), the court reviewed a contention that proof of other cr imes was a

dmissible u

nder ano ther exce

ption to the

gener al rule a gainst1-07-2148

8

propensity evidenc e: as rebuttal to the defendant's claim of entr apment. In Placek , the supr eme court re cognize d this use o f other c rimes as a well-es tablished

exception

to the rule

agains t propensity evidenc e and the prosecution argued that the e vidence at issue had been offered f or that purpose. Placek , 184 Ill. 2d at 384-85. As in the case at ba r, the Placek

jury was instructed that the other crimes evidence was admitted only for a limited purpose. 184 Ill. 2d at 389. These facts did not establish that the evidence of the defe ndant's prior crimes was admissible. The Placek

court held that the prosecution was required to demonstrate the r elevance of the prior crimes to the offense at issue. "To hold other wise would allow the entrapment exception to swallow

the general ru

le prohib iting the

admission o f other- crimes e vidence , as it would allow the entr

y of other-c rimes evi dence me

rely to establi sh the def

endant' s propens ity t

o commit crime in general. This would create the ve ry dang er that the prohibition on other-crimes evidenc e is intend

ed to pre vent, namely , that a ju

ry might convict the

defenda nt merely because it feels that the defendant is a bad person who dese rves punishment." 184 Ill. 2d at 386. The cour t held that some of th e other c

rimes evi dence w as insuff iciently related to the cha

rged o ffense

to permit its admission, and reversed the defendant's convic tion. 184 Ill. 2d at 389. It is th us appar ent that e ven wher e the pro secution

sugge sts that oth er crime s evidenc e is offere d for a pu

rpose oth er than t

o prove propensit

y a nd the jur y is so instructed, the c ourt must still assess the relevance of the prior crimes to the curr ent charges. I llinois courts have consistently held that a showing of a relationship between the prior crime and the c harged offense is necessary . "Because of the potential pre judicial effect of other crimes evidence , the prosecution must identify similarities between the othe r crime and the crime charg ed to ensure that the ot her crimes evi dence is not offered merely to show propensit y." People v. Luczak , 3061-07-2148

9

Ill. App. 3d 319, 324 (1999). I n Luczak , the defendant was charge d with sexual assault; evidence of prior crimes was held admissible because both victims were wa lking when the defendant approached them with an offer of a r ide in his car, both were driven to the same secluded a rea, both wer e subjec ted to the

same thre ats and ve

rbal abu se, and b oth were assaulte d in the sa

me manner. 306 Ill. App. 3d at 325. Other Illinois precedents have conducted similar comparisons between prior crimes and the charged offense. I

n People v. Wilson , 214 Ill. 2d 127, 141 (2005), the court held that evidence of prior sexual assaults was relevant to the char ged assault because the defe ndant, a high school official, allegedly committed all of the offenses against students at his place of employment, all in the same manner , and all within a one-ye ar period. In People v. Harris , 297 Ill. App. 3d 1073, 1086 (1998), a prior incident wa s held admissible in a sexual assault trial because both victims were attacked on the stree t at gunpoint in the same area of Chicag o, were driven to isolated locations in the same kind of car, were questioned on the sa me subjects, and were returned after the a ssaults to the locations where they had been apprehended. In the instant case, the prosec ution's written motion for admission of Harding's prior crimes did not suggest similarities between those crimes and the alleged child abduction offense. As noted above, the trial court, in deny ing the prosecution's initial motion to admit the earlier crimes, c ommented

that they "would b e a gre at stretc

h to be use d in this ca se," an d did not not

e any similarities between the crimes. The record is also devoid of any indication that the trial court found even minimal similarity between Ha

rding's prior crimes and the cha rged child abduction offense in g ranting the prosecution's motion for reconsideration. I nstead, the court suggested that it chang ed its view of1-07-2148

10

the admissibility of Harding' s prior crimes because of the supreme cour t's decision in People v. Woodrum , 223 I ll. 2d 286 ( 2006), wh ich inval idated th e portion of the ch ild abduc tion statut

e that created a presumption of unlawful intent when a def endant abducted or attempted to lure a child without the permission of the child's guardian. But while Woodrum established that a defendant's unlawful intent must be proved rather than presumed, it did not suggest that the standards for the admission of evidence to prove intent had bee n eliminated. We hold that Woodrum did not relieve the prosecution of the burden of establishing similarity between Harding's prior crimes and his alleg ed child abduction before the earlier c rimes could be admitted to prove h

is intent. Even in view of the principle that only "general are as of similarity" be tween the charged crime and prior crimes are require d for admission of other crimes evidence to prove intent ( People v. Illgen , 145 Ill. 2d 353, 373 (1991)), we do not believe tha t the necessary

showing could have been made in the instant case. Harding 's prior crimes involved attacks made by force upon adul t women he

followed from bars late at n

ight. Th ey

offer no insight

on his inte

ntions in offerin g rides to elemen

tary school g irls from

his car in broad da ylig ht other than to show

his propensity to commit sex crimes. I ndeed, the prosecution's focus on Harding 's propensity was demonstrated at trial by its re consideration motion's invocation of his "sexually deviant backgro und." In this court , the S tate a rgues t hat th e simi larit ies ju stif ying admi ssio n of Har ding's prior crimes are that all of the victims were strang ers to him and that all were female. We are aware of no authority

permitting the admission of prior crimes on the basis of such broad gener alities. Illinois jurisprudence permits the use of such e vidence to prove propensity in a trial for c ertain specifically enumerated sexual offenses. 725 I LCS 5/115-7.31-07-2148

11

(West 2002) . Whi le the inst ant cas e, in o ur vie w, pres ents a clear a rgumen t for t he legi slatu re's consider ation of the additio n of child abduction to the list

of offe nses for which se x crime propensi ty e vidence is admissib le, it is not

one of the

crimes c urrently enumera ted, and t he State does not argue that the propensity statute authorizes the admission of Harding's prior crimes. F or the fore going

reasons , we conc lude that Harding 's ear

lier cri mes were not suffic iently

similar to the child abduction charges to permit those crimes to establish his intent other than by demonstrating his propensity to c ommit sexual offenses. We hold that the admission of the earlier crimes was error. " The erroneous admission of evidence of ot her crimes carri es a high risk o f prejudice an d ordinaril y calls for reversal." People v. Lindgren , 79 Ill. 2d 129, 140 (1980). A conviction will be upheld in spite of the err oneous admission of such evidence "only if the record affirmatively shows that the error was not prejudicial . [Citat ions.]" Lindgren , 79 Ill. 2d at 141. Where the evidence is ambiguous as to the prejudicial effect of the errone ous admission of other crimes, the required showing has not been made, and the conviction must be reversed. Lindgren , 79 I ll. 2d at 14 1. We acc ordingl y r everse Harding 's convictions an

d remand for a ne w trial. Reversed and remanded. STEELE, J., conc

urs. MURPHY, P.J., dissents.1-07-2148

12

PRES IDING JUST ICE MURP HY, di ssent ing: I respectfully

dissent from the majority opinion. I concur with the majority tha t the instant case presents a strong arg ument for the addition of child abduction to the list of offenses for whic h evidenc e to prove

propensi ty is allowed. 725 I LCS 5/1 15-7.3 (We st 2002). I also agree with the majority

that the instant matter presents a difficult question. However, I cannot conclude that the prejudic ial effe ct of the other cr imes evide

nce subst antially outweig hs its probative value such that the trial court's conclusion wa s a clear abused of its discretion. People v. Placek , 184 Ill. 2d 370, 385 (1998). The majority points to Placek for the proposition

that the prosecut

ion was re quired to prove the other-crimes evidence wa s related to the charged offe nse and that the State's statement of purpose or jury

instructions cannot overcome a failure of this proof. Placek , 184 Ill. 2d at 386-89. I t finds tha t it failed to meet ev en the min

imal stand

ard fro m People v. Illgen , 145 Ill. 2d 353, 373 (1991), that there must be "gener al areas of similarity " between the charg ed crime and prior crimes. The majority also points to cases that allowed other crimes evidence bec ause the allega tions involv ed the sa

me manne

r of atta ck and sim

ilar vict im ( People v. Luczak

, 306 I ll. App. 3d 31 9, 324-25 (1999); People v. Wilson , 214 I ll. 2d 127, 1 41 (2005) ; People v . Harris , 297 Ill. App. 3d 1073, 1086 (1998)) and ag rees with defendant that his prior attacks are not similar enough to provide probative value. I t concludes that defendant's attacks on adult women by force offer little or no insight on his intent in this case and there is no authority permitting other-crimes evidenc e based on such bro ad generalitie s. While we are unable to find clear prece dent to permit the evidence based on the similarities here, I also have be en unable to find clear precedent to re verse the trial court's finding1-07-2148

13

that evidence of extensive sexual deviancy may be used to prove

intent. Defendant's prior offenses involved attacks on adult women at night and the instant matter involves c hildren during daytime; however , I believe the State' s argument that defendant's ba ckground of extensive sexual deviancy c ounters his claim that his intent was simply to give the g irls, whom he did not know, a ride. Certainly, this evidenc e could be used to prove propensity to commit this crime and the potentia l prejudic ial effe ct was g

reat, bu t the prob ative va

lue of pr oving de fendant's inten

t is also great. The trial court obviously g ave this issue great consideration. I t concluded that the convictions would be allowed to show "intent, absence of mistake, ac cident or innocent frame of mind and unlawful purpose." The trial court admitted that the convictions could be c onsidered remote, but opined that the probative value outweighed the pr ejudicial effect. Considering the evidenc e prese

nted to the

trial cou rt, I believe that the tr

ial cour t did not cle arly

abuse its discretion. Ultimately, the probative va lue of the other crimes evidence to defenda nt's intent and absence of mistake was not substantially outweighed by

the prejudicial effect of introducing that evidenc e and I

would af firm def endant' s convict

ions.