## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . William s , 2013 IL App (1st) 112583

Appellate Court Caption THE PEOPL E OF T HE STATE OF I L L I NOI S, Plaintiff-Appellee
, v. SANDY WI L L IAMS, Defe ndant-Appe llant.

District & N o. First District, Third Division
Docke t No. 1-11-2583

Filed
Rehea ringdenied November 20, 2013
Dec ember

20, 2013

Held (Note : This s

yl lab us

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

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

o r t h e

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

f t h e

rea der

. ) Def endant’ s convictions for ag gravated criminal sexual assault and
ag gravated kidnapping wer e upheld wher e the trial court did not abuse its discretion in admitting other-c rimes evidenc e afte r duly weighing the probative value of t h e evidenc e ag ainst any possible prejudice and in reje cting defe ndant’s reque st to prese nt evidenc e of another male’s DNA profile in the victim’s sexual assault kit in order to rebut the other-c rimes

ev i d ence ; howeve r, defe ndant’s sentenc es wer e modified to run

consec utively
, even though he was sentenc ed to natura l life for
ag gravated criminal sexual assault, since section 5-8-4( a) (i i) of the Unified Code of Correc tions re quires consec utive sentenc es when multipl e sentenc es are imposed and defe ndant is convicted of ag gravated criminal sexual assault.

Dec ision Under Review Appea l from the Circuit Court o f Cook County
, No. 01-CR-14985; the Hon. Evely

n B. Clay , J udg e, pre siding.

J udg ment Affir med as modified.Counsel on

Appea l Michae l J

. Pelletier and Brian W. Carrol, both of State Appellate Def ender ’s Off

ice, of Chicag o, for a

ppellant.

Anita M. Alvare z, State’s At t o rney , of Chicag o (Mar y L

. Bola nd and Amy W. Watroba, Assistant State’s Attorney s, of counsel ), for the People.

Panel PRES IDI NG J US T I C E HYMAN delivere d the judgme nt of the court, with opinion.
J ustices Neville a

nd Pucinski concurr ed in the judgment and opinion.

OP INION

¶ 1 A jury convicted defe ndant Sandy Wil liams of ag gravated crimi n al sexual assault and
ag gravated kidnaping of E.B. and acquitted him of arme d robber y

. Wil liams was sentenc ed
to concur rent terms of natura l life for the ag gravated criminal sexual assault conviction and 20 year s in prison for the a g gravated kidnapingconviction. ¶ 2 Wil liams had previously been convicted, on August 23
, 1 9 8 5
, fo r aggravated criminal sexual assault and sentenc ed to 25 year s in prison. He was parole d on Februar y 4, 1997, and

on August 3, 2000, arr ested and charg ed with aggr av at ed crimi nal sexual assault of a 16-
year -old Afric an-America n g irl, N.H. L ater , DNA extracted from semen on oral swabs taken from N.H. matched Wil liams’ DNA. Wil liams’ DNA also matched evidenc e rec overe d from the ag gravated criminal sex ual assaults of f our other w omen, A.M., S.R., L .J ., and E.B

. ¶ 3 On J une 13, 2001, Wil liams was arr ested and charg ed for the assault of E.B. The matter
proce eded to jury trial. Wil liams asser ted a consent defe nse and, in response , the State
prese nted testimony re garding Wil liams’ prior criminal sexual assault of N.H. Wil liams
argues that (1) the trial court abused its discretion in admitting other-c rimes evidenc e of N.H.’s assault beca

use its prejudicia l eff

ect outweighed its probative value; and (2) the trial
court committed reve rsible err or by not allowing him to prese nt DNA evidenc e from N.H.’s

s ex u al as s au lt kit to rebut the other-c rimes evidence that was offere d by the S tate to show propensity

in this case. ¶ 4 We aff

irm Wil liams’ convictions finding
, fi rs t , th at t h e trial court did not abuse its discretion by

admitting testimony

of Will iams’ prior a g gravated criminal sexual assault of N.H., where W illiams asser ted a consent de fe n s e an d the evidence was presented to show propensity
, and wher e its probative value outweighed its prejudicia l eff ect. We find, second, that Wil liams did not properly prese rve his claim that he should have been allowed to prese nt

-2-DNA evidenc e from the assault of N.H. to rebut the evidenc e of his assault on N.H. Fur ther,

we fi n d that the trial court’s denial of Wil liams’ reque st to prese nt evidenc e relating to another male DNA profile in N .H.’s sexual a ssault kit was not a n abuse of

discretion. This evidenc e was not rele vant to the issue of whether N.H. consente d to sexual intercour se with Wil liams. F inally
, we modify Wil liams’ sentenc e for ag gravated criminal sex ual assault to

run conse cutively

rathe r than c oncurr ently

to the sentenc e for

ag gravated kidnaping

.

¶ 5 BA CKGROUND ¶ 6 Motion to Admi t Other-Crimes Evide nce ¶ 7 In Fe bruar

y 2009, befor e trial, the State filed a motion to admit evidenc e of other crimes under section 115-7.3 of the Code of Criminal Procedur e of 1963 (Code) (725 I L CS 5/115- 7.3 (West 2008)). Specifica lly
, the motion reque sted that the trial court al l o w ev i d ence of other sex ual assaults ag ainst A.M. and N.H. T h e S t at e asser ted that the close proxi mity in time betwee n the assaults of E.B. (De cembe r 1, 1998), A.M. (May 26, 1 999), and N.H. (August 3, 2000) weighed in favor o f allowing the other-c rimes evidenc e. The State also
argued that (1) each of the s exual assaults occur red in s i m ilar areas and was carried out in

a simil ar manner , (2) many fac tual simil arities exis ted wh er e ea ch of the victims was an Afric an-America

n young woman, was much small e r th a n Wi ll ia ms, lived near the South Side of Chicag o, and wa s alone and vulnera ble when assaulted, a

nd (3) the a ssaults occurr ed in close g eographic proxi mity to eac h other and near Wil liams’ residenc e. The State maintained that the other-c ri m es ev i d ence was rele vant to rebut any claim by Wil liams that E.B.
consente d. Finally
, the State argued that the probative value of the other-c rimes evidenc e was not substantially

outweighed by

the possible prejudicia l effe ct of the e vidence

. ¶ 8 Wil liams filed a written response to the State’s motion, arguing that the probative value of the other-c rimes evidenc e was outweighed by the prejudicia l eff ect of t h e evidenc e. Wil liams argued that the time periods betwee n the assaults wer e long and there wer e many fac tual dissimi larities among the assaults. He al so asser ted that the other-c rimes evidenc e should not be admitted wher e the pr obative value was outwe ighe d by the unfair prejudice

. Wil liams noted that if the trial court grante d the State’s m o tion to admit other-c rimes evidenc e, Wil liams should be allowed to prese nt evidenc e that there was a mix ture of DNA profiles identified f

rom the vag inal and ana l swabs taken f rom N.H.’s se x ual assault kit. ¶ 9 The trial court conducte d a hearing on the State’s motion to admit the evidenc e. The trial
court allowed the State’s motion, finding (1) the probative value of the evidenc e outweighed
any prejudicia l eff

ect, (2) the other-c rimes evidenc e was not remote in time, (3) the evidenc e

was fac tually simil ar, and (4) Wil liams asser ted a consent defe nse. Acc ording l y , t h e trial
court conclude d that the other-c rimes evidenc e perta ining to A.M. and N.H. was allowed on the issue of prope nsity . The trial c ourt denied Williams’ moti on to rec onsider the r uling.

¶ 10 Evidence at Trial ¶ 11 At trial, E.B . testified that on Dec ember 1, 1998, she was 16 year s old and about 4 fe et 9 inches tall. On that evening
, E.B. was visiti ng her boyfriend, Mario J ohnson, at his
apar tment at 64th Street and L owe Ave nue in Chicag o. E.B. te stified that she and Johnson

-3-kissed and he g ave her a “hicke y” on her neck. J ohnson wanted to e ng ag e in f urther sexual activity , but they

did not becauseE.B. w as menstrua ting. ¶ 12 At about 9:45 p.m., E.B. walked to the bus stop next to the Aldi groce ry s t o re at 63rd Street and L owe Avenue to take the bus home. J ohnson walked E.B. half way to the bus stop, then she walked the rest of the way alone. When E.B. arrived, Wil liams was also waiting at the bus stop. After a lo n g wa i t fo r the bus, E.B. decide d to walk to a friend’ s house a few blocks awa

y , on 59th Street, to call her mother for a ride home. E.B. walked through the Aldi parking lot, toward 59th Street. When she looked behind her, she saw that Wil liams was also walking through the parking lot. Wil liams then “ang led off” and started to walk in a differ ent direc tion so that itno longe r appe are d that he wa s following he r. ¶ 13 E.B. te stified that as she continued to walk toward her friend’s house, she saw a nother shadow run up to he r. Wil liams grabbe d her by the neck from behind, place d a knife to her neck, a nd said, “B itch, don’t you holler, don’t you scre am, don’t you say shit or I ’m g oing
to cut you.” E.B. beg an to panic and cry

. Wil liams asked her if she had any money and wher e she lived. He then place d his arm around E.B.’ s shoulder and walked along -side her, cre ating the appea ranc e that they wer e a couple. Wil liams held the knife presse d to E.B.’ s neck as he looked for a plac e to take he r. E.B . testified that Will iams seeme d like “a g iant” to he r and she was afr aid he would cut her. Wil liams instructed her to stop cry ing and that once he cut the vein in her

throat, E.B . would bleed to dea th. ¶ 14 E

. B. t ri ed t o get aw ay , but Wil liams grabbe d her jacke t and she g ot caught in th e draw string. Wil liams hit E.B. in the fac e and said, “[B]itch, I ’m not playing with you.” Wil liams then drag g ed E.B . toward a dark a rea on the side of the A ldi where the s hopping

car ts wer e st ored. E.B . grabbe d a ra iling to try to stop him from drag g ing her int o the dark

are a, but Wil liams beat her fing ers then tried to cut her fing ers with the knife. E.B. let g o of the railing so that her fing ers would not be cut, and Wil liams drag g ed her beh i n d the shopping car

ts, wher e he ripped off her s h i rt an d pulled down her pants. Wil liams pinned E.B.’ s thighs down with his leg s and inserted his penis into her vag ina. After he ejac ulated, Wil liams pulled up his pants and ran a way

. ¶ 15 E.B. testified that she put her clothes back on, but could not find her underw ear

. She ran back to J ohnson’s apar

tment. On the way , she saw J ohnson’s brother and t old him what happene d. E.B. then told J ohnson what happene d and the police arrived at his apar tment. E.B. describe d the assault to the police and was taken to the hos pital, wher e she described the assault to the doctor and nurse. E.B. had pain in her jaw from wher e Wil liams hit her, pain in her neck from wher e the knife was presse d into her, and pain in her vag ina from the
rape . E.B. ha d a pelvic e x am per formed a nd was g iven medicine f

or her pain. ¶ 16 On J une 13, 2001, E.B. viewed a lineup at the police station and identified Wil liams as the indivi du al wh o assaulted her. After visually identifying Wil liams, E.B. asked the detec tives if she could hear the lineup participa nts speak. E.B. testified that when she hear d Wil liams’ voice, it immediately confirme d that he wa s the person who rape d her. ¶ 17 Mario J ohnson testified, that on t h e d at e in question, he was E.B.’ s boyfriend. On the evening of Dec ember 1, 1998, J ohnson and E.B. wer e talking and kissing in the hallway of his apar tment. J ohnson testified that he was “a very bad guy” back then and made E.B. leave

-4-beca use she was menstruating and unable to have sex with him that night. J ohnson testified that he g ave E.B. a hickey on her neck beca use he was cheating on her with another g irl and wanted to make E.B. feel better

. J o h n son testified that he walked E.B. half way to the bus stop beca use he w anted to g et bac k home to the other g irl. ¶ 18 J ohnson testified that later that evening
, his brother brought E.B. back to his apartment. E

. B. was cry

ing, her clothing was torn off. E.B. told him that she had been rape d an d described her as s ai l an t. J ohnson’s brother g ave E.B. a shirt to wea r, and J ohnson and his brother left to look for E.B.’ s assailant. J ohnson’s mother called him back to the apar tment and he acc ompanied E.B. to the hospital. J ohnson also testified that an investigator from the Cook Count S tate’s Attorne y ’s offic e took a swa b of his mouth, pursuant to his consent. ¶ 19 J ane Malaluan, testified that she was the nurse who treated E.B. in the emerg ency room that night. Malaluan observed that E.B. had human bite marks on her n eck and tenderness in her vag inal are a. Malaluan was prese nt when a sexual assault kit was perf ormed on E.B., which included sw abs of he r vag ina and ne ck, and a blood sample. ¶ 20 Two fore nsic biologists from the I llinois State Police crime lab testified reg ar d ing the
vag inal swabs from E.B.’ s sexua l as s au lt kit. The biol og ists testified that the swabs tested positive for the prese nce of semen, though at the lowest possible level. The kit also contained swabs that tested neg ative for semen but positive for saliva. The amount of DNA extracted from the vag inal swabs wa s too small for the ty pe of D NA ana ly sis perf

ormed at that time by the I llinois State Police crime la b, so the samples we re store d for f uture a naly sis. ¶ 21 In 2001, the I llinois State Police lab sent the vag inal swabs from E.B.’ s sexual assault kit
to Cellmark Diagnostics for further DNA analy sis. Dr. Robbi n Cotton testified, as a DNA expert from Cellmark, that analy sis of the semen from t h e s wab s produce d a male DNA profile. But, Cellmark did not have a known male samp l e t o co mp are to that profile. Dr. Cotton t estified that ther e wa s a cle ar primary male donor in the s perm frac tion, as well as three small signa ls that could have been either a second male d o n o r or m achine -g ener ated artifa cts. ¶ 22 A bl ood sample was taken from Wi lliams in August 2000, while he was in custody on

a differ ent matter. Sandra L ambatos, a DNA expert, testified that the major male profile deduce d by Cel l m ark fo r E.B.’ s vag inal swab matched the DNA profile derive d from Wil liam’s blood sample. ¶ 23 The parties stipulated that the male DNA profile found on the swab of E.B.’ s bite mark matched the DNA pr ofile fr om J ohnson’s bucc al swab.

¶ 24 Other- Crimes Evidence ¶ 25 The State c alled Eddie Kimble to testify reg ardingthe assault of N .H. Kimble testified that at about 9 p.m., on August 3, 2000, he and his two sons wer e walking their dog in a park

near 75th Street and J eff

rey Boule vard. Kimble saw a man on top of a woma n in the grass

a few fee t from the sidewalk. Kimble testified that it appea red that the man and woman wer e having sex. Kimbl e d i d n o t think much of it beca use it was not uncommon to see such activity in the park. But, as Kimble walked past, he noticed that the man had his ha nd over the woman’s fac e. Kimble asked if ever y thing was alright, and the woman scre amed “He lp

-5-me” and “He rape d me and he is try i n g t o k i l l m e. ” The woman was scre aming and hy sterica l. Kimble asked the man to g et off the woman, an d t h e m an, whom Kimble identified as Wil liams, told Kimble to leave and mind his own business. Wil liams also told Kimble that the woman was his g irlfriend and that ever y thing was okay

. Kimble testified that the woman sounde d desper ate a nd was try

ing to se parate her self fr om Wi lliams. ¶ 26 Kimble told his sons to run t o the gas station to call police, then Kimble dialed 911 on his cell phone. Wil liams stood up and pulled up his pants. Kimble was talking to the police

on his cell phone and told Wil liams to let the woman g o. The woman b ro k e free from Wil liams and ran to Kimble. Kimble saw that her eyes and fac e were s wo l l en and bloody

. She was also missing som e ar t i cles of clothing. The woman asked Kimble not to leave beca use if he did, she thought Wil liams w ould kill her. Wi lliams moved towa rd Kimble in

a manner that led him to believe that Wil liams was g oing to hit him. Kimble testified that he decide d to stay with the wo man and defe nd himself. Kimble hear d sirens near by and then Wil liams walked awa

y

. Kimble testified that he subsequently identified Wil liams in a lineup at the police station. ¶ 27 Offic er Tamar a Matthews testif i ed t h at , o n Au gu s t 3
, 2 0 0 0
, she and her pa rtner responde d to a call of criminal sexual assault and met Kimble and N.H. at the scene

. Offic er Matthews noticed that N.H.’s fa ce w as swollen and covered in blood a nd her c lothing wa s d is h e v e le d

. Kim

b le p rovided Offic er Matthews with a description of N.H.’s assailant. O f f ic e r Matthews drove around the are a and, within minutes, saw Wil liams about three blocks from the park. Wil liams matched Kimble’s description and he had blood dripping from his hands and on his clothing. Offic er Matthews place d Wil liams in custody

. Offic e r M a tt h e w s te s ti f

ied that upon returning to the park, she observe d a pair of women’ s underwe ar, a sock, a shoe,

a set of key s, and a shirt at the scene

. Offic er Matthews called for an evidenc e technicia n and turned the c ase ove r to detec tives. ¶ 28 Wil liams chose not to testify and the de fense rested w ithout presentingevidenc e. ¶ 29 During closing arguments, the defe nse did not challeng e the fac t that Wil liams had sex with E.B., but, ra t her, asser ted that the encounte r was consensua l. The defe nse pointed to inconsistencies betwee n E.B.’ s testimony and other trial evidenc e, and noted that the DNA evidenc e raised some possibili ty of the prese nce of semen from someone other than Wil liams. The defe nse arg ued that the jury s h ould disreg ard the other-c rimes evidenc e beca use Kimble did not witness the actua l a ssault a nd N.H. did not testify in this case

. The State argued that E.B. provided cre dible testim o n y ab out the sexual assault, which was

corr oborate d by the DNA evidenc e and testimony from J ohnson. The State responde d in rebuttal that, just as in the case of N.H., the sexual encounte r betwee n Wil liams and E.B. was not consensual. ¶ 30 The jury found Wil liams guilty o f aggr av at ed criminal sexual assault and ag gravated kidnaping
, and acquitted him of arme d robber y

. The trial court denied Wil liams’ motion for

a new tr ial and sentenc ed him to concur rent terms of natura l life in prison and 20 year s in prison. ¶ 31 Wil liams tim ely appea ls.

-6-¶ 32 ANALYSI S

¶ 33 Propriety of the Othe r-Crimes Evidenc e ¶ 34 Wil liams first contends that the trial court abused its discretion in admitting evidenc e of the prior criminal sex ual assault of N.H. W i lliams argues that the prejudicial eff ect of this other-c rimes evidenc e outweighed any probative value wher e: (1) the assault s we re not particula rly close in time, (2) the assaults wer e not fa ctually simil ar, a nd (3) other

rele vant fac tors weighed ag ainst admission. ¶ 35 A decision to admit evidenc e of a prior criminal offe nse rests within the sound discretion

o f th e t ri al co urt, and we will not reve rse its decision unless there was a clea r abuse o f discretion. People v. W

ilson
, 214 I ll. 2d 127, 136 (2005). We will find an abuse of discretion only when a trial court’s deci s i on is “ar bitrary
, fanc iful or unrea sonable” or “whe re no

rea sonable man would take the view adopted by the trial court.” (Interna l quotation marks omitted.) People v . Donoho , 204 I ll. 2d 159, 182 (2003). ¶ 36 Section 115-7.3 o f the C ode (725 I L CS 5/115-7.3 (West 2008)) provides an exception
to the common law bar ag ainst the use of other-c rimes evidenc e to show propensity in case s, wher e, as here
, a d ef

endant is acc used of criminal sexual assault. Under this section, evidenc e of another criminal sexual assault “may be admissible (if that evidenc e is otherwise admissible under the rules of evidenc e) and may be considere d for its bearing on any matter to which it is rele vant.” 725 I L CS 5/115-7.3(b) (West 2008). Our supreme court has held that under this statute, rele vant matters include allowing eviden ce of other-c rimes to show a defe ndant’s propensity to commit sex offe nses. Donoho
, 2 0 4 I l l

. 2d at 176. Under this interpre tation, other-c rimes evidenc e is probative to rebut a defe ndant’s claim of consent. People v. Johnson
, 389 I ll. App. 3d 618 (2009); see also People v. Boyd
, 366 I ll. App. 3d 84, 93 (2006). ¶ 37 Where the other-c rimes evidenc e meets the threshold statutory require ment of re levanc e and contains probative value, it is presumed to be admissible if its probative value is not substantially outweighed by its prejudicia l eff ect. Donoho
, 204 I ll. 2d at 182-83. The statute provides:
“In weighing the probative value of the evidenc e ag ainst undue p re j u d i ce to the defe ndant, the cour

t may consider: (1) the pr ox imity

in time to the charg ed or pr edica te offe nse; (2) the de gree of fa ctual similarity to the charg ed or pr edica te offe nse; or (3) other rele vant fac ts and circ umstances.” 725 I L CS 5/115-7.3(c) (West 2008).
Wil liams does not dispute that the other-c rimes evidenc e satisfied the statutory require ments for admissibili ty under section 115-7.3. Wil liams additionally does not contest the rele vance of other-c rimes evidenc e to the consent defe nse, nor that it contains probative value. Rather, Wil liams claims that the t rial court err ed in its application o f the balancing test presc ribed by section 115-7.3( c). A ccor dingly , the question for us on appea l is whether the trial cour t abused its discretion when it deter mined that the prejudicia l eff ect of the evidenc e of Wil liams ’ p ri o r o ffe nse was not substantial ly greater than its probative value. 725 I L CS 5/115-7.3(c) (West 2008).

-7-¶ 38 The rec ord shows that the trial court properly conducte d an analysis of the three fac tors

listed in the statute for weighing the probative value of the other-c rimes evidenc e ag ainst the dang er of unfair pr ejudice. At the pretria l hearing, thetrial court noted: “[I ] find that every

prongof Donoho has been met. And the court will admit that these
matters wer e not remote in time. They wer e fac tually simil ar. And the third prong is met that there is a consent defe nse. The court finds that it is very rele vant. So ever y prong has been met of t h e Do n oho case and the statute, and the court finds that on the issue of propensity , these other

prior matter s will come in.”
The trial court further explained, “[A]fter weighing the probative and rele vant nature of these prior cases aga inst the undue prejudice
, the court finds that it is very much re levant, and it outweighs the undue, any prejudice that would come about by having these other case s come into play here .” ¶ 39 Nonethele ss, Wil liams contends that the trial court err ed wher e (1) the proxi mity in time, (2) fac tual dissimi larities, and (3) other rele van t fac tors prec luded the trial court from
properly admitting the other -crimes evidenc e.

¶ 40 Proximity in Time Betwee n Charged Offense
and Other-Crimes Ev idence ¶ 41 Wit h respe ct to the time differ ence betwee n the other-c rimes evidenc e and the charg ed offe nse, our supre me cour t held in Donoho : “ ‘[The] admissibili ty of other-c rimes evidenc e should not, an d i ndeed cannot, be controlled solely by the number of year s that have elapse d betwee n the prior offe nse and the crime charg ed.’ [C itation.] Instead, courts should evaluate this issue on a case -by

case basis. [C itation.] There fore
, we decline to adopt a bright-line rule about when prior convictions are per se too old to be admitted under section 115-7.3. Instead, it is a fac tor to consider when evaluating its probative value.” Donoho
, 204 I ll. 2d at 183-84 (quoting People v . Illgen , 145 I ll. 2d 353, 370 (1991)). The Donoho court then held that a 12- to 15- year time g ap betwee n offe nses, by itself, was insufficient to re nder the admission of a prior of fense an abuseof discre tion. Donoho
, 204 I ll. 2d at 184. The appe llate cour t has upheld other- crimes e vidence that was more than 20
year s old. People v . Davis , 260 I ll. App. 3d 176, 192 (1994). ¶ 42 In the prese nt case , the cha rge d o ff en s e occur

red 20 months befor e the sexual assault
aga i n s t N. H. This is a relatively short g ap in time betwee n crimes, which the trial court properly deter mined weighed in fa

vor of a dmissibi lity

.

¶ 43 Degre e of Factual Similarity ¶ 44 Other- crimes evidenc e must have “ ‘some threshold simil arity to the crime charg ed’ ” to be admissible. Donoho
, 204 I ll. 2d at 1 8 4 (q u o t ing People v. Bartall
, 98 I ll. 2d 294, 310 (1983))

. As fac tual simil arities incr ease , so does the rele vance , or probative value, of the other-c rimes evidenc e. Donoho , 204 I ll. 2d at 184. ¶ 45 We find that the fac ts of the 1998 assault ag ainst E.B. are sufficie ntly simil ar to the fa cts

-8-of the 2000 assault ag ainst N.H. The sexual assaults ag ainst E.B. and N.H. wer e in the same

are a of the city , within mil es of e ach othe r on the south side of Chicag o. The victim s wer e Afric an-America

n and 16 year s old at the time of the assaults. Fur ther, the assaults occur

red at ni ght when both victim s found themselves a lone and vulner able. The victims wer e both penetr ated va g inally

by their assa ilant. ¶ 46 W i l l i am s co n t en d s t hat there are “substantial fac tual differ ence s” betwee n the two assaults; for ex ample, while there was a knife in the cur rent c ase, no knife was used in the assault of N.H. Also, N.H. was sever ely beate n in the fac e and sexually assaulted in an open

are a of a park, while E.B. was not sever ely beate n and was brought to a hidden are a of a parking lot. In addition, N.H.’s assailant asked her a question befor e attacking her, while E.B.’ s assailant silently approa ched her. Whil e Wil liams highlights thes e fac tual differ ence s,

our supreme court has instructed that “ ‘m er e g ener al are as of simil arity will suffice ’ to support admissibili ty” wher e the evidenc e is not being offe red under the modus operandi

ex ce p t i o n

. Donoho
, 204 I ll. 2d at 184 (quoting Illgen
, 145 I ll. 2d at 372-73). So m e differ ence s bet ween the offenses do not defe at admis sibili ty “bec ause no two independe nt crimes are identical.” Donoho
, 204 I ll. 2d at 185. As this co urt has previously conclude d, “ ‘Even though defe ndant corr ectly observe s these fac tual discrepa ncies, we fi nd that he
exagg erates their signific ance in light of the stated compelling simil arities.’ ” People v. Ross
, 39 5 I l l

. Ap p

. 3 d 660, 676 (2009) (quoting People v. Taylor
, 383 I ll. App. 3d 591, 596 (2008))

. ¶ 47 Wil li am s ar gu es t hat we should follow People v. Johnson
, wher e this court held that “significant dissimilarities” betwe en the two assaults, along with the trial court’s failure to conduct a meaning ful assessment of the other-c rimes evidenc e’s prejudicia l eff ect, led to the conclusion that the trial court err ed in admitting other-c rimes evidenc e to establish the defe ndant’s prope nsity to c ommit sexual of fense

. People v . Johnson , 406 I ll. App. 3d 805, 812 (2010). Unlike Johnson
, the trial court car efully weighed the probative value ag ainst the prejudicia l nature of the other-c rimes evidenc e. In addition, Johns o n re s t s on fac tual circ umstances not prese nt in Wil liams’ case

. In Johnson
, the victim in the prior offe nse was assaulted by the defe ndant and another perpe trator, while the cha rg ed off ense involved the defe ndant alone wi t h the victim. Johnson
, 406 I ll. App. 3d at 811. The testimony in the

earlier case also showed that the defe ndant forc ed coca ine and alcohol on the previous victim and anally penetr ated her, which was conduct absent from the charg ed offe nse. Johnson
, 406 I ll. App. 3d at 808, 811

. T h e d i fferenc es both in the number of perpe trators and in the defe ndant’s conduct during the assaults weighed ag ainst the rele vance of the prior assault to the cha rg ed off ense in that c ase. Johnson , 406 I ll. App. 3d at 811-12. ¶ 48 In contra st, the prior crime contains only min o r f a c tual dissimi larities. The assault ag ainst N.H. occur

red at night in a park while the assault ag ainst E.B. happene d at night in a parking lot. The assault ag ainst E.B. involved the use of a knife a nd the assailant using his body to hold the victim down to penetr ate her vag inally
, while the assault ag ainst N.H. involved beating her and then the assailant lying on top of her to penetr ate her vag inally

. In one case , the assailant asked a question befor e the attack while in the other case , the assailant was silent befor e attacking his victim. We find that these dissimi larities are not en o u gh t o disqualify the other-c rimes evidenc e. The simil arities as noted above, include: both victims

-9-wer e 16 year s old; both victims wer e Afric an-America n; the victims wer e both alone at night; the assaults occur

red in close g eographic proxi mity to eac h other; they both involved vag inal penetr ation; and the assailant held the victims down with his body weight. These simil arities

are enough to fall within the requisit e “ge n er al are as of simil arity” as articulated by our supreme c ourt. (Interna l quotation marks omitted.) Donoho , 204 I ll. 2d at 184. We find no

err or in the trial cour

t’s consideration of the fac tual dissimi larities.

¶ 49 Other Rele vant Factors ¶ 50 In the presen t ca s e, t h e o t h er -c ri m es evidenc e was used to meet Wil liams’ consent defe nse. This court has previously noted that a defe ndant’s “no-f orce ” defe nse at trial incre ased the probative value of the other-c rimes evidenc e. Ross
, 395 I ll. App. 3d at 674-75. In addition, although the trial court found both se x ual assaults ag ainst A.M. and N.H. wer e rele vant and admissible, the State only prese nted evidenc e as to the assault ag ainst N.H. The Stat e ’ s d e c ision to limit the amount of other-c rimes evidenc e reduc ed the possible prejudicia l eff ect of the evidenc e at defe ndant’s trial. See People v. Johnson
, 406 I ll. App. 3d 805, 810 (2010). ¶ 51 In sum, we find that t h e t ri al co u rt properly weighed the probative value of the othercrimes evidenc e ag ainst the prejudice to W i l l iams and did not abuse its discretion in admitting such e vidence

.

¶ 52 Rebuttal of Other -Crimes Evidenc e ¶ 53 W i l l i am s al s o co ntends that the trial court err ed in denying his reque st t o p re s en t eviden ce that N.H.’s sex ual assault kit showed mi x ed DNA profiles. W illiams argues that he should have been allowed to introduce evidenc e that an unknown male DNA profile was found on N.H.’ s vag inal and re ctal swa bs to rebut the other -crimes evidenc e. ¶ 54 Initially
, the S tate argues that Will iams waived this argument by not filing a motion to admit this evidenc e, or making an offe r of proof to the trial court reg arding the DNA results from N.H.’s sexual assault kit. The rec ord shows that Wil liams filed a response to the State’s motion to admit the other-c rimes evidenc e, in which Wil liams argu ed : “Should this Honora ble Court sustain the State’s motion to allow proof of other crimes
, M r. Wil liams would reque st th at t his Honora ble Court ensure that the DNA evidentiar y issues from the

case involving [N.H.] also come to light. There was a mix ture of DNA profi l es i d en t i fi ed from the vag inal swabs [ and] *** rec tal swabs ***. Given the considera tion that someone else’s DNA was found in he r vag ina and rec tum, this information must be included should this Honora

ble Court grant the State’s motion, as any thing else would be misleading
, biased, and incomplete.” At the hearing on the State’s motion, Wil liams also argued that the swabs from N.H.’s sexual assault kit indicated “the proba b il it y o f a dditional source s of human DNA both in the anal and the vag inal swabs.” In response , the State objected to Wil liams’ reque st and argued that the admission of the DNA results would result in a “mini tr i al
, ” which I llinois courts have cautioned a g ainst. There fore , the re cord indicated that Will iams raised this argument befor e the tria l court. ¶ 55 But, Wil liams failed to include his argument with resp ec t t o the DNA evidenc e in his

-10-motion for a n ew trial. “It is well settled that, to prese rve an issue on appea l, a defe ndant

must object to the purported err or at trial and include i t i n h i s wr i t ten posttrial motion.” Peopl e v. Gl a sper , 234 I ll. 2d 173, 203 (2009). Otherw ise, the argument is forf eited on appea l. Id. Wil liams did not raise the issue in his posttrial motion. Acc ording ly
, the issue is forf eited. Wil liams, nonetheless, contends that the issue is revie wable under plain err or analy sis. ¶ 56 The plain err or doctrine allows us to consider a forf eited err or when either (1) a clea r or obvious err or occur s and the evidenc e is so closely balanc ed that the error alone threa tens to t i p t h e scales of justice ag ainst the defendant, reg ardle ss of the seriousness of the error, o r (2) a clea r or obvious err or occur s and that err or is so serious that it aff ects the fairne ss of the defe ndant’s trial and challeng es the integrity of the judicial proce ss, reg ardle ss of the closene ss of t h e evidenc e. People v. Piatkowski
, 225 I ll. 2d 551, 565 (2007). Under both
prong s of the plain err or analy sis, the burden of persua sion r emains with the defe ndant. Id. Ultimately
, befor e a plain err or analy sis may be undertaken, the defe ndant must show that

an error occur

red, for, absent err or, there can be no plain err or. See People v. McGee , 398 I ll. App. 3d 789, 794 (2010) ( citing People v . Herron , 215 I ll. 2d 167, 187 (2005)). ¶ 57 He re , W i l l i am s ar gues that the trial court abused its discretion by prec lud i n g t h e admission of evidenc e that N.H.’s sexual assault kit contained another male DNA profile to rebut the evidenc e of N.H. ’s s ex u al assault. Wil liams asser ts that the DNA evidenc e was highly probative beca

use it rela

ted to the cre dibility of the o t her- crimes evidenc e and its exclusion was highly prejudicia l beca use without the DNA evidenc e, the jury was prese nted with an “incomplete , misleading , and highly inflammatory

version of the story .” ¶ 58 We n o t e that rebuttal of other-c rimes evidenc e is contemplated by the plain statutory languag e of section 115-7.3, which permits admi ssion of both evidenc e of “def endant’ s commission of another [enumerated] offe nse or offe nses” and “evide nce to rebut that proof

or an i n fer ence from that proof.” 725 I L CS 5/115-7.3(b) (West 2008); see also People v. W ard
, 2011 I L 108690, ¶ 27. Under this section, evidenc e of another criminal sexual assault or, with respe ct t o this argument, evidenc e to rebut that proof, “m ay b e ad m i ssible (if that evidenc e is otherwise admissible under the rules of evidenc e) and may be considere d for its bearing on a

ny matter to which it is rele vant.” 725 IL CS 5/ 115-7.3(b) (West 2008). ¶ 59 W i l l i am s cl ai m s t h at h e s h o u l d have been permitted to cross-e x amine Kimble’s testimony that h e o b serve d Wil liams sexually assaulting N.H. with evidenc e that showed another male DNAprofile in N.H.’s sexual assault ki t. In this appea l, Wil liams relies on a lab repor t from the I llinois State Poli ce , Di v i s i on of For ensic Service s. The lab repor t indicated that se men from the or al swab from N.H.’s sexual a ssault kit matche d Wil liams’ DNA, but semen from the vag inal and anal swabs matche d an unidentified male DNA profile. Williams asserts that he should have be en per mitted to pre sent this DNA evidenc e to challeng e the oth er -crimes evidenc e prese nted and Kimble’s testimony that Wil liams
eng ag ed in vag inal sex with N.H. The State argues that Wil liams is prec luded from relying

on the l ab report where it was not a doc ument enter ed into the re cord be fore the trial cour t and this court is not permitted to take judicial notice of it. As previously explained, howeve r, the rec ord shows that the parties prese nted arguments b ef o re t h e trial court on the admissibili ty of evidenc e perta ining to the prese nce of another male DNA profile in N.H.’s

-11-sexual assault kit. The results of the DNA testing perf ormed on N.H.’s sexual assau l t kit

wer e ref err ed to throughout the trial rec ord. There fore
, we will addre ss Wil liams’ argument in this respect. ¶ 60 Whil e sec tion 115-7.3(b) permits evidenc e to re but other-c rimes evidenc e, the r ebuttal evidenc e must pass the threshold statutory require ments of admissibili ty and rele vance

. 725 I L CS 5/115-7.3(b) (West 2008); Donoho
, 204 I ll. 2d at 182-83. The I llinois rape shield law
preve nts a defe ndant from introducing cer tain evidenc e perta ining to a complainant’s prior sexual activity . Section 115-7(a) of the Code provides: “[ T ] he prior sexual activity or the reputation of the alleg ed victim or corroboratin g witness under Secti o n 1 1 5 -7 .3 of this Code is inadmissible except (1) as evidenc e

conce rning the past sexual conduct of the alleg ed victim or corr oborating witness under Section 115-7.3 of this Code with the acc used when this ev i d en ce is offe red by the

acc used upon the issue of whether the alleg ed victim o r co rr o borating witness under Section 115-7.3 of this Code consente d to the sexual conduct with respe ct to which the offe nse is alleg ed; or ( 2 ) when constitutionally require d to be admitted.” 725 I L CS 5/115- 7(a) (West 2008).
Her e, neither exception applies. N.H. did not have a prior sexual relationship with Wil liams. In People v . Cornes , the cour t expl ained:
“De fenda nt’s right of confr ontation ne cessa rily includes the right to cross-examine witnesses, but that right does notextend to matters which are irrele vant and have litt le

or no probative value. Complainant’s past sexual conduct has no bearing on whether she has consente d to sexual relations with defe ndant. The leg islature rec ognized this fac t and chose to exclude evidenc e of complainant’s reputation for chastity as well as specific acts of sexual conduct with third persons in case s of rape and sexual deviate assault. *** The leg islature was acting well within its power s in enac ting rea sonable leg islation intended
to eliminate the crue l and abu s i v e t re atment of the victim at trial by prec luding the admission of prejudicia l and irrele vant materia l and to promote the lawful administration of the c riminal justice sy stem.” People v . Cornes , 80 I ll. App. 3d 166, 175-76 (1980).
In People v. Sandoval
, our supreme court deter mined that, under the I llinois rape shield law, the defe ndant in a rape trial was not entitled to prese nt evidenc e rebutting the victim’s direc t testimony that she had never had anal sex wi th a m an o t her than defe ndant. The court explained that the victim’s prior sexual encounte rs with a third par ty had no impact on the issue of consent and wer e no t re levant to the victim’s bias, prejudice or motive to testify falsely in charg ing the defe ndant. People v. Sandoval
, 135 I ll. 2d 159, 176 (1990). The court noted that t h e d ef

en d an t was not preve nted from prese nting his theory of the case by exclusion of this evidenc e. Id. at 180-81. ¶ 61 The evidence reg arding th e p re sence of another unknown male DNA profile in N.H.’s sexual assault kit had no bearing on whether N.H. consente d to sexual intercour se with W i lliams. Rape shield statues, howeve r, do not preve nt a defe ndant from introdu ci n g evidenc e of the victim’s past sexual conduct when it is rele vant to establish bias, motive, or prejudice

. Sandoval
, 135 I ll. 2d at 174-75. The introduction of DNA evidenc e indicating that N.H. eng ag ed in sexual activity with an individual other than Wil liams would not have shed

-12-light on any motive or bias that N.H. might have ha d ag ainst Wi lliams. Theref ore, w e find the trial court’s exclusion of evidenc e relating to the DNA profiles in N.H.’s sexual assault kit to rebut the evidenc e of N .H.’s sex ual assault was not an abuse of di scre tion. Since we find no err or, we decline to r eview Williams’s contention under the pla in error analy sis. ¶ 62 Wil liam s re l i es o n o u r supreme court’s deter mination in W

ard
, 2011 I L 108690, to support his argument that he shou l d h av e been permitted to rebut the evidenc e of N.H.’s

sexu al assault with the DNA evidenc e contained in her sexual assault kit. In W ard
, our supreme court held that the trial court abused its discretion by ref using to admit evidenc e of the defe ndant’s acquittal of a criminal sexual assault wher e that criminal sexual assault had been prese nted as other-c rimes evidenc e. The W ard defe ndant was charg ed with the criminal sexual assault of M.M., and the trial c ourt admitted evidenc e, under section 115-7.3 of the Code, that the defe ndant had also been involved in the criminal sexu al as s ault of another
woman, L .S. When the defe ndant sought to have evidenc e admitted of his acquittal in L .S.’s

case , the trial court reje cted his reque st. Id. ¶ 1. Our supreme court held that “the acquittal evidenc e that the defe ndant sought to admit would h av e ai d ed in rebutting the infere nce

cre ated by L .S.’s testimony that h e had a propensity to commit sex offe nses, making it admissible under section 115-7.3.” Id. ¶ 27. The court found that the acquittal evidenc e was rele vant and the probative value of the evidenc e was not outweighed by undue prejudice

. Id. ¶¶ 38, 41. The court c oncluded that the acquittal evidenc e was ne cessa ry to provide “a

full
context for the other-c rimes t estimony ” an d
, th erefore
, the barring of the admissi on of the acquittal evide nce w as an a buse of the trial court’s discr etion. Id. ¶¶ 46, 48. ¶ 63 We f

ind W ard distinguishable from the pr esent c ase. I n W ard, the court considere d the admission of acquittal evide nce to r ebut the other -crimes evidenc e introduce d in that case

. In contra st, the evidenc e here involved the v i ct i m’s alleg ed sexual conduct with a third
person. The court in W

ard found that the acquittal evid en ce was rele vant to rebut the infere nce that the defe ndant had a propensity to commit sex offe nses. Unlike W ard
, the evidenc e reg arding the prese nce of another male DNA profile is not rele vant to the issue of whether N.H. co n s ented to sexual intercour se with Wil liams. Nor is the DNA evidenc e relating to another male donor profile rele vant to rebut the infere nce that Wil liams h ad a propensity to commit sex offe nses. Fur ther, as explained above, the I llinois rape shield law restric ts the admission of such evidenc e as it relates to N.H.’ s alleg ed sexual conduct with

a third person. The trial court’s denial of Wil li am s’ reque st to prese nt the DNA evidenc e from N.H.’ s sexual assault kit was not an abuse of discretion.

¶ 64 Sentencing ¶ 65 In its brief, the State reque sts that we modify Wil liams’ sentenc e for ag gravated criminal sexual assault to run consec utively to the sentenc e for ag gravated kidnaping . Wil liams did not respond to this contention. ¶ 66 Section 5-8-4( a)( ii) of the Unified Code of Corre ctions (730 I L CS 5/ 5-8-4( a)( ii) (West 2008) (now 730 I L CS 5/5-8-4(d) (2) (West 2010))) require s that co n s ec utive sentenc es be imposed wher e multipl e sentenc es are imposed and the defen d an t was convicted of
ag gravated crimin al s ex u al assault. A sentenc e that does not confor m to a statutory

-13-require ment is void, and we may corr ect a void sentenc e at any time. People v. Arna
, 168 I ll.

2d 107, 113 (1995). ¶ 67 Be cause Wil liams w as convicted of ag gravated criminal sexual assault, he is subject to

consec utive sentenc es even though he was sentenc ed to natura l life. See People v. Petrenk o , 237 I ll. 2d 490, 506-07 (2010) (natura l life sentenc es are subject to c onsecutive sentenc ing mandates of section 5-8-4( a))

. In People v. W illiams
, 238 I l l

. 2 d 125, 151 (2010), the supreme court, citi ng Petrenk o , held that a 60- year

sentenc e for ag gravated ki dnaping was properly order ed to be serve d consec utively to two concur rent natural life sentenc es for
ag gravated criminal sexual assault. Simi larly
, in the prese nt case , the 20-year prison term for
ag gravated kidnaping must be serve d consec utively to the natura l life senten c e f o r a g gr a v a ted criminal sexual assault and we modify the sentenc e ac cording ly

.

¶ 68 CONCLUSI ON ¶ 69 W e fi nd that the trial court properly weighed the probative value of the other- crimes evidenc e ag ainst the prejudice to Wil liams and did not abuse its discretion in admitting such evidenc e. Nor did t h e t ri al co urt abuse its discretion in denying Wil liams’ reque st to introduce e vidence perta ining to the presence of another male DNA profile in the vic tim’s sexual assault kit to rebut the other-c rimes evidenc e. There fore
, we aff irm Wil liams’ convictions but modify

his sentence s to run consec utively

.

¶ 70 Affir

med as modified.

-14-