Find Legal Information

FOURTH DIVISION
SEPTEMBER 30, 2003

1-00-2755

Following a jury trial, defendant, Abel Colin, was convicted on two countsof aggravated criminal sexual assault (720 ILCS 5/12-14(A)(2) (West 1994)) andsentenced to two consecutive 60-year terms in custody of the Illinois Departmentof Corrections. Defendant appeals, arguing (1) the circuit court erred inadmitting other-crimes evidence involving him in a prior sexual assault; and (2)his sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147L. Ed. 2d 435, 120 S. Ct. 2348 (2000) (Apprendi). Defendant's conviction andsentencing are affirmed.

Prior to trial, the State moved in limine to present evidence of othercrimes to establish defendant's modus operandi,⁽¹⁾ claiming sufficientsimilarities between the assaults of H.R., a previous victim, and S.F., thecomplainant in this case, which made the other-crimes evidence admissible. TheState argued that in both cases, the victims were young, vulnerable females, whoknew defendant and his wife, Stephanie Colin (Stephanie), as neighbors. TheState emphasized that defendant and Stephanie were a husband and wife team thatworked together to get their victims alone. Once alone, Stephanie restrained thevictims while defendant sexually assaulted them, and threatened them withphysical harm. Both victims complained about being sexually violated.

The defense responded that evidence of the sexual assault of H.R. could notbe admitted as other-crimes evidence because: (1) although defendant was chargedonly with sexual assault he pled guilty and was convicted of aggravatedkidnapping with respect to H.R.; (2) the other-crimes evidence could notestablish defendant's modus operandi because the two crimes were not sufficientlyunique; and (3) the prejudicial effect of this evidence outweighed its probativevalue.

The circuit court admitted the other-crimes evidence, noting "the facts ofthe two cases are stunningly similar to each other," and ruled that its probativevalue outweighed its prejudicial effect. The court did not limit the evidenceto defendant's plea of guilty to aggravated kidnapping, but found the entire caseinvolving H.R. admissible.

There was evidence that between 1993 and 1995, S.F., who was then six toeight-years-old, was orally assaulted and vaginally raped, sodomized and torturedby defendant on a daily basis with the aid and abetment of his wife, Stephanie. S.F., 13-years-old at the time of trial, testified she was six-years-old in 1993and began kindergarten. Defendant and Stephanie lived two houses away and werefriendly with S.F.'s family, her father having been godfather to one ofdefendant's five children. S.F.'s mother began work at 6:00 a.m. and her fatherworked nights. Stephanie began babysitting for S.F. She and defendant routinelydrove S.F. to school in their van.

S.F. testified she dressed herself before school each morning. Stephaniearrived at S.F.'s home and brought her back to the Colins' home, where Stephanietook S.F. to defendant's bedroom, or the basement, which the Colins fixed up witha bed, toys and an Easy-Bake oven. Before going to the bedroom, Stephanie tookS.F. to the second-floor bathroom, removed S.F.'s clothing and "cleaned" hervagina using a hose attached to the bathroom sink. Once "clean," Stephanie tookS.F., who was naked, into the bedroom where defendant was waiting; sometimesbeing naked himself. Defendant would tell S.F. to get on the bed, and he wouldfold a large pillow, placing it behind S.F.'s back for her to lie on. She wouldopen her legs and defendant would put his penis in her vagina and "move up anddown" until a "white thing," sperm, came out, which defendant referred to as"milk." He used various slang terms for penis and vagina that S.F. never hadheard before. Defendant taught her the words. Afterwards, defendant would makeS.F. suck on his penis and drink his ejaculate. Sometimes S.F. would attempt toresist and bite defendant's penis. Defendant at times used a "fake penis" inS.F.'s mouth to make her mouth bigger so she would not bite his penis.

At times defendant wanted S.F. brought to the basement and, on these days,Stephanie would not "clean" her vagina. Defendant would tell S.F. to take herclothes off. Occasionally she would resist by untying and retying her shoes, sodefendant would have less time to be with her, but these attempts never worked. Defendant did the same things to S.F. in the basement as he did in his bedroom. Defendant kept a baseball bat and a knife next to a makeshift bed in the basementand told S.F. if she screamed, which she once tried to do, he would stick the batinto her vagina or cut her. Defendant told her he could hurt her or her familyand, since her parents were going through a divorce at the time, he threatenedthat she would have to live with the Colins. After defendant's attacks uponS.F., he and Stephanie would drive her to school. Then, in the afternoon, theywould pick her up from school, and the violations would again take place. Onsome afternoons, defendant would urinate in a plastic pink cup he kept in anearby drawer and force S.F. to drink his urine.

S.F. testified that, occasionally, defendant would bring her into thebedroom of his teenage son, Anthony. There, Anthony would put his penis in hervagina while defendant put his penis in her mouth. Sometimes, defendant andAnthony swapped positions. "Milk" would come out of Anthony's penis. Later inthe course of the sexual assaults, defendant would put his penis in her anus. After he first started doing this, he did it everyday. As time went on, S.F.spent more and more time at the Colins' house. It was Stephanie's idea for S.F.to eat dinner there, visit on weekends and sleep overnight. Stephanie would goto S.F.'s house to bring S.F. to her home, but when her family wanted her to stayhome, Stephanie would beg the family, telling them that she wanted S.F. to playwith her daughters. Stephanie would also wash S.F.'s clothes and not returnthem.

S.F. testified that Stephanie's role in helping defendant grew during thecourse of the sexual assaults. Early on, Stephanie would remain in the room toclean or put things away, and would watch defendant sexually assault S.F. Later,she would aid defendant by grabbing S.F.'s legs while defendant put his penis inher vagina. Stephanie would also untie S.F.'s shoes when S.F. tried to stall asshe was getting undressed.

S.F. stated that in October of 1994, defendant made tape recordingsinvolving S.F., where he would tell her exactly what to say: that she went outlate at night to see "gangbangers," who put their penises in her vagina. On thetape, S.F. also stated she had sex with a man named Martin and other fictitiouspeople. S.F. denied having sex with "gangbangers" and made the tape only byreason of defendant's force.

Defendant sexually assaulted S.F. for the last time on February 6, 1995. Two days later, S.F. went to the hospital accompanied by her mother andStephanie, with defendant driving them. Stephanie, who was carrying a pair ofS.F.'s underwear in a bag, told a nurse that a man named Martin, a "gangbanger,"had touched S.F. and cut her vagina with a knife. S.F. relayed the same storyto a female police officer. S.F. was examined by a physician, to whom Stephanietold the fabricated story. S.F. did not remember whether her mother was presentduring the various conversations at the hospital, or not.

When S.F. and her mother were in the privacy of their own home, S.F.'smother asked S.F. to tell the truth about who really touched her, and S.F.replied it was defendant.

On cross-examination, S.F. testified that during the entire time she wassexually assaulted, she never told her teachers, sisters, brothers or herparents. She admitted that she told various stories of how she had been abusedto hospital personnel, but could not remember any of the details she told thenurse. She did not remember the stories she told to the examining doctor, thedetective or the social worker. S.F. stated she was made to drink defendant'surine between 5 to 10 times and, afterwards, she would try to vomit.

S.F.'s older sister, N.F., testified that Stephanie came to their housealmost every morning to pick up S.F., but S.F. never went to the Colins' home onher own. N.F. stated that her other younger sister, whose initials are alsoN.F., was supposed to pick up S.F. from school, but at some point Stephanie beganpicking up S.F. before her sister would arrive. As time when on, S.F. wasspending an increasing amount of time with the Colins, but their daughters wouldnever go to S.F.'s house to ask for her. N.F. stated there were occasions whenshe knew the Colins were home and would go to their house looking for S.F. andno one would answer the door, but she would see Anthony look out the window. Other times, the Colins would answer the door, but say S.F. was not there. N.F.also testified that she would frequently notice a smell about S.F. when shearrived home; her clothes were "stinky" and her mouth smelled. N.F. denied thatS.F. would sneak out at night.

S.F.'s mother, P.F., testified through an interpreter and reiterated howdefendant and Stephanie became involved with S.F. On February 8, 1995, P.F. wentto the Colins' house and found Stephanie there with S.F. Stephanie told P.F.that there was blood in S.F.'s underwear and that Martin had violated her, whichprompted P.F. to take her daughter to the hospital. Stephanie said, "[n]o. No.I will go with you." Stephanie spoke to the nurse at the hospital and translatedfor P.F. Once P.F. learned what had actually happened from S.F., she went to thepolice station and made a report.

Stephanie, defendant's wife and co-defendant, also testified for theprosecution. She admitted she plead guilty to aggravated criminal sexual assaultfor her involvement in the assaults of S.F. and was currently serving a 23-yearsentence. Stephanie testified she, defendant and their five children wereneighbors of S.F. She confirmed the details of how she became involved withS.F., stating that she would bring S.F. over to play with her daughters. Whenquestioned about defendant's assault of S.F., she denied ever witnessing theassaults and any knowledge thereof.

Stephanie was confronted with a statement she had given on February 10,1995, written out by Assistant State's Attorney Laura Forrester. AlthoughStephanie admitted she signed the statement numerous times, she denied almostevery assertion in her statement including: (1) she saw defendant "make love" toS.F.; (2) defendant told her to bring S.F. to him or he would leave her; (4) whenS.F. came over in the morning before school, Stephanie would bring S.F. todefendant so he could have sex with her; (5) she helped S.F. get undressed anddressed; (6) defendant would have sex with S.F. in the afternoon; (7) sometimesshe would help defendant by holding S.F.'s legs apart; and (8) defendant made upthe story that "gangbangers" sexually assaulted her and cut her vagina with aknife. As to the tape recording, Stephanie testified it was S.F.'s idea to makeit so her mother would believe the "gangbanger" story and that S.F. told her that"gangbangers" called her downstairs, cut her vagina with a knife and had sex withher.

Detective Edmund Mook testified that on February 8, 1995, he was assignedto investigate the sexual assault of S.F. Mook spoke with defendant at thepolice station later that night and defendant denied sexually assaulting S.F. Defendant, however, told Mook about his prior conviction in a previous similarincident. Defendant explained he had been arrested in 1987 for the sexualassault of a 13-year-old girl.

In establishing defendant's modus operandi, the State introduced other-crimes evidence through the following testimony: H.R., the victim of a 1987sexual assault involving defendant; Detective Robert Collins; Assistant State'sAttorney (ASA) Demetrios Kottaras; and Stephanie Colin. The State also usedStephanie's 1987 handwritten statement and a statement taken from defendant atthe time of that arrest.

H.R., who was 26 at the time of trial, testified that in 1987 she wassexually assaulted by defendant when she was 13 years-old. She has a learningdisability and attended slow learning disability classes. The Colins were herneighbors and she played with their children. H.R. recounted that on January 24,1987, H.R. was at a laundromat by herself doing the family's laundry. The Colinsasked her to take a ride. H.R. refused. The Colins begged her to go with them,which she eventually did because she was scared. H.R. got inside the Colins' vanwhich they drove to an alley behind a building where they stopped the van. Stephanie gave her a pill that made her drowsy, and told H.R. to lie down on thebed. The next thing she knew, Stephanie was holding her arms down as defendantraped her vaginally. They told her to get dressed and dropped her off at thelaundromat. Almost a week later on February 2, 1987, she told her teacher, whonotified her mother and the police.

Detective Collins testified as to Stephanie's statement taken subsequentto her arrest in February of 1987, in connection with the assault of H.R. Stephanie told him she had known H.R. for about four years and that she anddefendant picked up H.R. at the laundromat and were driving around in the vanwith her until they stopped on a side street. They went to the back of the vanwhere there was a bed and H.R. took her clothes off. Stephanie said she gaveH.R. a birth control pill and sat next to H.R. as defendant had vaginalintercourse with her.

Detective Collins also testified regarding defendant's statement to him. Defendant stated H.R. called him and asked him to pick her up from thelaundromat. Once in the van, H.R. told defendant she wanted to have sex withhim, so Stephanie gave H.R. a birth control pill. H.R. then reached intodefendant's pants and pulled out his penis, after which defendant took off herunderwear. Defendant had sex with H.R. and then dropped her off at thelaundromat.

ASA Kottaras testified that Stephanie gave a statement to him about theincident with H.R. Through Kottaras, Stephanie's statement was published to thejury, wherein Stephanie gave a similar account of the events she had given toCollins. Stephanie's statement read, in part:

"They [defendant and H.R.] made love without any forceby Abel or Stephanie. [H.R.] and Abel have made lovebefore in the van just like on Saturday, January 24. They would usually meet [H.R.] at the laundromat. Onthis particular day[,] as well as others times[,] Mrs.Colin would give [H.R.] a birth control pill before herhusband and [H.R.] would make love. Mrs. Colin told[H.R.] the pill was so that [H.R.] would not getpregnant. After the two made love they [defendant andStephanie] dropped [H.R.] off at the laundromat." (Emphasis added.)

At the conclusion of evidence, a jury found defendant guilty of two countsof aggravated criminal sexual assault. After hearing aggravation and mitigationevidence, the circuit court sentenced defendant to two consecutive terms of 60years in custody of the Illinois Department of Corrections.

Defendant first contends that the circuit court erred in admitting evidenceof defendant's prior sexual assault of H.R. because of insufficient similaritiesbetween the two offenses.

Generally, evidence of other crimes is not admissible for the purpose ofshowing defendant's disposition or propensity to commit crime. People v. Illgen,145 Ill. 2d 353, 364-65, 583 N.E.2d 515 (1991) (Illgen), but is admissible toprove modus operandi, intent, identity, motive or absence of mistake.⁽²⁾ Peoplev. McKibbins, 96 Ill. 2d 176, 182, 449 N.E.2d 821 (1983). Modus operandi or"method of working," refers to a pattern of criminal behavior so distinct thatseparate crimes are recognized as the work of the same person. People v.Kimbrough, 138 Ill. App. 3d 481, 486-87, 485 N.E.2d 1292 (1985). If evidence ofother crimes is offered to prove modus operandi, there must be some clearconnection which creates a logical inference that if defendant committed theformer crime, he may have committed the crime charged. Kimbrough, 138 Ill. App.3d at 486. Accordingly, there must be distinctive features that are not commonto most offenses of that type. People v. Dickerson, 119 Ill. App. 3d 568, 574,456 N.E.2d 920 (1983) (Dickerson).

Although there must be a "strong and persuasive showing" of similaritybetween the crimes, "it is not necessary that the crimes be identical" for theother crime to be admitted into evidence to prove modus operandi. People v.Williams, 185 Ill. App. 3d 840, 853, 541 N.E.2d 1175 (1989) (Williams). Wherecommon features may be insufficient to raise the inference of modus operandi onan individual basis, the combination of such features may reveal a distinctivecombination so as to suggest the work of the same person. People v. Smith, 236Ill. App. 3d 1060, 1063, 602 N.E.2d 1388 (1992) (Smith). The test is not one ofexact, rigorous identity, as some dissimilarity will always exist betweenindependent crimes (People v. Phillips, 127 Ill. 2d 499, 521, 538 N.E.2d 500(1989)); rather, it is the similarity of the conduct as a whole, not theuniqueness of any single factor, which is the key to establishing modus operandi. Smith, 236 Ill. App. 3d at 1063. The determination as to the admissibility ofother crimes evidence rests within the sound discretion of the circuit court andwill not be disturbed absent its abuse. People v. Robinson, 167 Ill. 2d 53, 63,656 N.E.2d 1090 (1995) (Robinson).

In People v. Bayer, 160 Ill. App. 3d 218, 513 N.E.2d 457 (1987) defendantwas charged with sexually assaulting his stepdaughter between the ages of 9 and12. Evidence of defendant's prior sexual assault of a different young girl washeld properly admitted to prove modus operandi because both girls were about thesame age, they performed similar acts of oral sex on defendant, defendant tookphotographs of both girls, and he made threats to prevent disclosure of theassaults. Bayer, 160 Ill. App. 3d at 221.

Similarly, in People v. Uzelac, 179 Ill. App. 3d 395, 534 N.E.2d 1250(1988) defendant argued that the circuit court improperly admitted evidence ofa prior attempted rape under the modus operandi exception because of the manydifferences between the two crimes. The court held that the circuit courtproperly admitted evidence of the prior offense despite some differences because"the differences were inconsequential in comparison to the similarities commonto both crimes." In so ruling, the court noted particularly that defendant waspositively identified in court as the assailant in both attacks. Uzelac, 179Ill. App. 3d at 406.

Finally, in Smith, the court held that the circuit court abused itsdiscretion by excluding evidence of defendant's prior sexual assaults on thebasis that the prior attacks did not possess any distinctive features uncommonto most offenses of that nature. Smith, 236 Ill. App. 3d at 1061. There, in thecrime charged, defendant had not even sexually assaulted the victim but had doneso during the prior attacks. In reversing the circuit court, the Smith courtacknowledged the differences in the cases but stated, "[s]uch dissimilaritiescould not justify excluding evidence of the other two offenses." Smith, 236 Ill.App. 3d at 1064.

In the case at bar, sufficient similarities existed between the offensecharged and the prior offense involving H.R. to warrant the circuit court'sadmission of other crimes evidence. When the facts of these cases are consideredtogether and in their entireties, the similarities between defendant's conducttoward S.F. and his crime against H.R. plainly outweigh the differences. SeeWilliams, 185 Ill. App. 3d at 855.

In both cases, defendant selected his victims using virtually identicalcriteria. The victims, S.F. and H.R., were vulnerable, young girls. S.F. wasvulnerable to attack since she was so young, and H.R. had a "slow" learningdisability. They each knew and were neighbors of the Colins. The families ofeach victim were friends of the Colins. They each allowed their daughtersostensibly to play with the Colins's children at their home.

Defendant's strategy in seducing the victims was strikingly similar in eachcase. Defendant's technique was to act in concert with his wife, Stephanie, toprocure the young girls for him. In both cases, Stephanie exploited her positionof trust as a neighbor and mother to lure the victims into perilous situations. Stephanie's role, however, did not end there.

In each case, Stephanie not only viewed, but participated in defendant'ssexual assaults. In the case of H.R., Stephanie "prepared" H.R. to be sexuallyassaulted by first giving her a pill that made her drowsy. Then, she subduedH.R. by holding down H.R.'s arms while defendant removed her clothes and put hispenis inside her vagina. Stephanie was present and observed as defendantsexually assaulted H.R. Here, Stephanie "prepared" S.F. by first washing hervagina with water, and then bringing her to defendant so he could violate her. She would hold S.F.'s legs open while defendant put his penis inside her vagina.⁽³⁾ Again, Stephanie was present and observed as defendant sexually assaulted S.F. Finally, in describing each instance Stephanie referred to the sexual assaultsas defendant and the victim "making love."

The overall similarities between the sexual assaults of H.R. and S.F.support the propriety of the circuit court's admission into evidence ofdefendant's prior sexual assaults. The similarities sufficiently justified theinference that both victims were sexually assaulted by defendant. See Robinson,167 Ill. 2d at 65. Significantly, because defendant used his wife in procuringboth victims, "preparing" them and in physically aiding him in accomplishing theassaults, the two crimes contain distinctive features not common in most offensesof that nature. See Dickerson, 119 Ill. App. 3d at 568. Inevitableincongruities may exist among the two offenses; however, these differences areinconsequential when the similitudes of defendant's conduct are considered as awhole. See Smith, 236 Ill. App. 3d at 1063. The finding of the circuit court,"that the facts of the two cases are stunningly sufficiently similar to eachother" and are admissible to establish defendant's modus operandi, is wellsupported by the evidence. The court did not abuse its discretion in admittingthe other crimes evidence.

Defendant's argument, that even if the circuit court properly admittedother crimes evidence to establish modus operandi, the prejudicial impact of theevidence outweighed its probative value, therefore depriving him of a fair trial,also lacks sufficient evidentiary support.⁽⁴⁾

The circuit court must weigh the relevance of the evidence to establish thepurpose for which it is offered against the potential undue prejudice. Peoplev. Thingvold, 145 Ill. 2d 441, 452, 584 N.E.2d 89 (1991) (Thingvold). Whetherthe probative value of the evidence is outweighed by its undue prejudicial effectis within the sound discretion of the circuit court which will not be reversedabsent its clear abuse. Illgen, 145 Ill. 2d at 375.

Defendant argues that evidence of other crimes ran rampant throughout histrial and "[t]he State exploited this other crimes evidence excessively." Hepoints to possible instances of error where other-crimes evidence pervaded thetrial, namely through the in-court testimony of: H.R., who testified thatdefendant sexually assaulted her in 1987; Detective Collins, who testified thatStephanie confessed in 1987 to defendant's assault of H.R.; ASA Kottaras, throughwhose testimony Stephanie's 1987 handwritten statement was published to the jury;and Detective Mook, to whom defendant admitted sexually assaulting H.R. in 1987when he was arrested for the assault of S.F. Defendant further complains theassault of H.R. was "predominantly" mentioned during closing argument, leavingthe jurors with the impression that defendant's assault of H.R. was "part andparcel" of S.F.'s assault. Allegedly, the result of the continuous focus onH.R.'s assault, defendant contends, developed into a "mini-trial" and the detailspresented to the jury exceeded that which was necessary to show defendant's modusoperandi.

Ordinarily, the admission of other-crimes evidence, although relevant, doesnot justify a "mini-trial" of a collateral offense. People v. Aleman, 313 Ill.App. 3d 51, 65, 729 N.E.2d 20 (2000). The evidentiary details should be limitedto those necessary to illuminate the issue for which the other crime wasintroduced. People v. Bartall, 98 Ill. 2d 294, 315, 456 N.E.2d 59 (1983). Where an explanation or description of circumstances surrounding defendant'sother crimes becomes difficult without introducing evidence concerning the othercrimes, however, then relevant, detailed evidence of the other crimes isadmissible to the extent necessary to fulfill the purpose for which the evidenceis being admitted. Kimbrough, 138 Ill. App. 3d at 489. Here, evidence ofdefendant's prior sexual assault of H.R., although prejudicial, clearly wasprobative and relevant, and detailed only to the extent necessary to demonstratedefendant's modus operandi. The record demonstrates that the circuit courtbalanced the other-crimes evidence and found it more probative than prejudicial:"[t]he court finds that the probative value outweighs the prejudice to defendant. So this evidence will be allowed. It will not be limited only to the plea ofguilty on the kidnapping[,] but will be allowed on the entire action involvingthe victim in the case from 1987."

In her opening statement, the prosecutor told the jury that evidencerelating to H.R.'s assault was important to show that defendant and his wife wereguilty in this case since "they have a certain modus operandi." She stated thesimilarities between the two crimes were "a virtual fingerprint of guilt." TheState called Stephanie Colin and briefly questioned her about her role in H.R.'sassault. Stephanie admitted pleading guilty to aggravated kidnapping inconnection with H.R.'s case, but could not recall a statement she gave to ASAKottaras in 1987, denied giving the statement, and denied the veracity of itssubstance.

Of 12 witnesses called by the State, only three offered testimony toestablish exclusively defendant's prior assault of H.R. One witness was H.R.,who identified defendant and testified in abbreviated detail about defendant'ssexual assault of her in 1987. Next, testimony given by Detective Collins andASA Kottaras, both involved in H.R.'s case, was required to impeach Stephanie'sin-court denial and failure to recall defendant's sexual assault of H.R. Throughthis evidence, Stephanie's statement was published to the jury to prove herknowledge of and involvement in H.R.'s assault. Despite defendant's assertionthat the assault of H.R. differed from that of S.F. because it was a one-timeincident, Stephanie's 1987 statement, previously quoted above, contradictsdefendant and reveals his multiple sexual violations of her.⁽⁵⁾ Furthermore,because modus operandi was at issue in this matter and defendant plead guilty tokidnapping H.R. but not her sexual assaults with which he was charged, the Statenecessarily had to delve in sufficient detail of H.R.'s assaults to establish thesimilarities to the present charged offense. See People v. Bragg, 277 Ill. App.3d 468, 477, 659 N.E.2d 1378 (1995).

Defendant maintains that Detective Mook's testimony was excessive and non-probative. Prior to Mook's testimony, the circuit court pre-instructed the juryabout other-crimes evidence, stating that such evidence was only to be consideredfor the limited purpose of showing modus operandi. Mook recounted defendant'sadmission that he sexually assaulted H.R. when he was arrested for the assaultof S.F. Considering the highly limited detail of the testimony and the narrowpurpose for which it was offered, the court did not abuse its discretion inallowing this testimony.

Lastly, defendant takes issue with the prosecutor's comments during closingargument where she referred to the similarities between defendant's assault ofH.R. and S.F., the prosecutor stating, "[l]et's look at [H.R.] for a minute. Theonly reason you are able to hear evidence about her is to explain some issues,and Laura [an assistant state's attorney] told you about them in openingstatement, modus operandi. It's a virtual fingerprint, their method ofoperation, how they do things. *** And was this the same method of operation? Absolutely." The prosecutor described H.R.'s assault, highlighted thesimilarities between H.R. and S.F. as victims, and emphasized Stephanie'sintegral role in procuring both victims for defendant. The prosecutor alsoargued that defendant and Stephanie learned from H.R.'s assault to be moresuccessful in the future sexual assaults.

In rebuttal closing argument, the prosecutor reiterated the facts of H.R.'sassault and characterized the girls as very similar victims. The prosecutortempered the prejudicial nature of the comparisons by stating, "[t]he evidence[of H.R.'s assault] was introduced because those cases are so remarkably similarthat it is his [defendant's] fingerprint of guilt, as if there was a fingerprinton this case."

The record demonstrates that the circuit court and prosecution madeconsiderable efforts to ensure that the jury was aware of the limited purpose forintroducing evidence of defendant's prior sexual assault. The prosecutorsconsistently told the jury in what respect defendant's assault of H.R. wasrelevant, and the judge specifically instructed the jury that the evidenceregarding H.R.'s assault could be considered for the sole and limited purpose ofestablishing defendant's modus operandi.⁽⁶⁾ Although the State's somewhatrepetitious references to H.R.'s assault in closing argument cannot be approved,and is discouraged, it was not of such magnitude as to warrant reversal. SeePeople v. Cortes, 181 Ill. 2d 249, 285, 692 N.E.2d 1129 (1998). The State'srepeated pronouncement of the modus operandi exception along with the court'slimiting instruction substantially reduced any undue prejudicial impact which mayhave resulted by virtue of the admission of such evidence. See People v.Wolfbrandt, 27 Ill. App. 3d 836, 846, 469 N.E.2d 305 (1984). Faith in theability of a properly instructed jury to separate issues and reach a correctresult is the cornerstone of the jury system. Illgen, 145 Ill. 2d at 376.⁽⁷⁾

Under all the circumstances in this case, especially as they relate todefendant's modus operandi, the probative value of H.R.'s assault was notoutweighed by undue prejudice. Any untoward mention of H.R.'s assault in theState's closing argument cannot be said to have been a material factor indefendant's conviction.

Defendant's final argument on appeal is that his two consecutive extendedterm 60-year sentences are unconstitutional under the holding of Apprendi. Defendant argues the circuit court's findings supporting the extended termsentences were not alleged in the indictment, nor were the issues submitted andconsidered by the jury.

In imposing defendant's extended term sentences, the circuit courtspecifically found that "the behavior of defendant was exceptionally brutal orheinous indicative of wanton cruelty." See 730 ILCS 5/5-3.2(b)(2)(West 2000). The court also found that more than one offender participated in the sexualassaults; defendant's wife, Stephanie, participated in the planning and executionof the acts, and defendant's son, Anthony, was also a participant. See 730 ILCS5/5-5-3.2(b)(5) (West 2000). The circuit court did not specify which of the twogrounds upon which it was imposing the extended term sentences.⁽⁸⁾

The State correctly asserts that defendant has waived review of this issue,not having objected at the sentencing hearing (People v. Smith, 257 Ill. App. 3d252, 254, 628 N.E.2d 960 (1993)), nor did he specifically allege such error inhis post-sentencing motion. People v. Kluxdal, 225 Ill. App. 3d 217, 229, 586N.E.2d 701 (1991). Defendant had the opportunity, which he chose not toexercise, to raise his Apprendi challenge before the circuit court. Defendantwas sentenced and filed a motion for new trial on June 6, 2000, prior toApprendi, which was decided on June 26, 2000. Defendant, however, moved toreduce his sentence on July 10, 2000, after Apprendi, but failed to include hisApprendi challenge in that motion. Therefore, defendant has waived this issue. Nevertheless, we elect to address the merits of defendant's claim of error underApprendi.

The issue becomes whether the Apprendi violation constitutes plain error. In People v. Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117 (2003) (Crespo) theIllinois Supreme Court determined that defendant's extended term sentence,imposed on the basis of the "brutal or heinous" nature of the offense, violatedApprendi. The court held, however, that the error did not amount to plain errorbecause there was "no doubt that a jury, presented with these facts, would havefound that the crime was committed in a brutal and heinous manner." Crespo, 203Ill. 2d at 348-9.

In the case sub judice, no doubt the jury would have found that defendant'songoing two-year sexual ravaging of an infant such as S.F. was brutal andheinous. As we recently stated in People v. Gholston:

"[I]t is contrary to human experience and reason thatthe conduct involved in this case should be placed intothe technical reservoir of requiring a new sentencinghearing solely for the purpose of attaching a label of'brutal and heinous' to the conclusion earlier reachedby the factfinder. Surely these facts would berecognized by any rational and reasonable person asrequiring an enhanced sentence." People v. Gholston,332 Ill. App. 3d 179, 772 N.E.2d 880 (2002) (Gholston).

On the record before us, there is no basis for concluding that any errorseriously affected the fairness, integrity or public reputation of the judicialproceedings. Crespo, 203 Ill. 2d at 348; Gholston, 332 Ill. App. 3d at 188,citing United States v. Cotton, 535 U.S. 625, 632-3,152 L. Ed 2d 860, 122 S. Ct.1781 (2002).

Accordingly, for the reasons set forth above, the judgment of the circuitcourt of Cook County is affirmed and defendant's extended term sentences areaffirmed.

Affirmed.

HARTMAN, J., with GREIMAN and KARNEZIS, JJ., concurring

1. The State argued other-crimes evidence was relevant and admissible toprove identity, and common design or scheme at trial, later focusing on theevidence under the modus operandi exception, which the State argues also onappeal.

2. "Other-crimes" evidence does not pertain solely to prior convictions; theterm encompasses prior bad acts (Illgen, 145 Ill. 2d at 365) as well assubsequent acts (People v. Bartall, 98 Ill. 2d 294, 312-13, 456 N.E.2d 59 (1983)(Bartall)), where the standard for admissibility of such evidence is more thanmere suspicion, but less than beyond a reasonable doubt. Wernowsky v. EconomyFire & Casualty Co., 106 Ill. 2d 49, 55 (1985), Huddleston v. United States, 485U.S. 681, 689, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988).

3. In addition to vaginal intercourse, at various times between 1993 and 1995defendant also forced S.F. to engage in sodomy and fellatio. In People v.Bullock, modus operandi was established although defendant engaged in analintercourse with one victim and vaginal intercourse with the other. People v.Bullock, 154 Ill. App. 3d 266, 507 N.E.2d 44 (1987).

4. At the outset we note that defendant did not specifically include thisclaim in his post-trial motion. People v. Lindsey, 201 Ill. 2d 45, 772 N.E.2d1268 (2002). The failure to raise an issue in a written motion for a new trialresults in a waiver of that issue on appeal. People v. Enoch, 122 Ill. 2d 176,186, 522 N.E.2d 1124 (1988). Waiver, however, limits the parties' ability toraise an argument, not this court's right to entertain an argument. People v.Kliner, 185 Ill. 2d 81, 127, 705 N.E.2d 850 (1998). For this reason, the meritsof defendants' claim will be addressed.

5. During the pre-trial hearing on the State's motion to admit evidence ofH.R.'s sexual assault, the court asked whether H.R. had been assaulted more thanonce. The State twice informed the court that defendant sexually assaulted H.R."on numerous occasions."

6. The court instructed the jury specifically: "Evidence has been receivedthat the defendant has been involved in an offense other than those charged inthe indictment. This evidence has been received on the issues of the defendant'sintent, motive, design, knowledge, modus operandi, and absence of innocent stateof mind and may be considered by you only for that limited purpose. It is foryou to determine whether the defendant was involved in that offense, and if sowhat weight should be given to this evidence on the issues of intent, motive,design, knowledge, modus operandi, and absence of innocent state of mind."

7. Nonetheless, as previously suggested, prosecutors must be more circumspectin sensitive situations of other-crimes evidence. Where such evidence isproperly admitted for the limited purpose of demonstrating defendant's modusoperandi, there is no need for the prosecution to belabor details of other crimeswhen sufficient evidence of the prior offense has been revealed to the juryadequately.

8. Defendant's sentencing can be affirmed by mandate of statute alone. Thecircuit court did not, but could have based defendant's extended term sentencessolely on the fact that defendant was convicted of aggravated criminal sexualassault of a child under 18-years-old. See 730 ILCS 5/5-5-3.2 (West 2000)("[t]he court may impose an extended term sentence *** upon any offender who wasconvicted of aggravated criminal sexual assault *** where the victim was under18 years of age at the time of the commission of the offense"). We note thatApprendi would have no bearing on an extended term sentence based on thepreceding statutory authority.