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Docket No. 92988-Agenda 2-November 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 
SHANNON DONOHO, Appellee.

Opinion filed April 3, 2003.

Defendant, Shannon Donoho, was tried for one count ofcriminal sexual assault (720 ILCS 5/12-13(a)(3) (West 1998)) andfour counts of aggravated criminal sexual abuse (720 ILCS5/12-16(b) (West 1998)) based on incidents that occurred betweenNovember 1, 1995, and November 29, 1998, involving defendantand his two step-children, K.B. and D.B. Pursuant to section115-7.3 of the Code of Criminal Procedure of 1963 (the Code)(725 ILCS 5/115-7.3 (West 1998)), the trial court allowed theadmission of evidence about defendant's 1983 conviction forindecent liberties with a child arising from a single incident witha 7-year-old girl and an 11-year-old boy. The jury found defendantguilty of all five charges.

The trial court sentenced defendant to a 14-year prison termfor criminal sexual assault and to concurrent 7-year terms for eachof the four counts of aggravated criminal sexual abuse. The trialcourt entered the 14-year sentence pursuant to sentenceenhancement under section 12-13(b)(4) of the Criminal Code of1961 (Criminal Code) (720 ILCS 5/12-13(b)(4) (West 1998))because of defendant's prior conviction for indecent liberties witha child. The appellate court vacated defendant's convictions,remanded for a new trial, and found the trial court erred inenhancing defendant's sentence. 326 Ill. App. 3d 403, 411, 413.We granted the State's petition for leave to appeal (177 Ill. 2d Rs.315, 612(b)) to address two issues: (1) whether evidence regardingdefendant's 1983 conviction for indecent liberties with a child wasproperly admitted into evidence pursuant to section 115-7.3 of theCode, and (2) whether defendant's conviction for criminal sexualassault was properly enhanced from a Class 1 felony to a Class Xfelony for sentencing under section 12-13(b)(4) of the CriminalCode based upon his conviction for indecent liberties with a child.

BACKGROUND

Defendant married Lori Donoho on June 10, 1995. Lori hadtwo children from a previous marriage. Her daughter, K.B., wasborn July 25, 1987; her son, D.B., was born June 9, 1990.Defendant and Lori had a daughter together, A.D., on March 28,1995.

On April 20, 1999, the State filed an information in WillCounty against defendant; the subsequent bill of indictmentalleged the same six counts, five of which were presented at trial.Count II charged defendant with criminal sexual assault, in thatdefendant knowingly committed an act of sexual penetration onK.B. by putting his mouth upon her vagina. Count III alleged thatdefendant committed aggravated criminal sexual abuse because heknowingly touched K.B.'s vaginal area. Count IV stated thatdefendant committed aggravated criminal sexual abuse byknowingly making K.B. touch his penis. Count V chargeddefendant with aggravated criminal sexual abuse, in that defendantknowingly touched D.B.'s penis. Finally, count VI alleged thatdefendant committed aggravated criminal sexual abuse, in thatdefendant knowingly made D.B. touch defendant's penis. TheState filed a superceding bill of indictment on November 24, 1999,to amend count II by classifying it as a Class X felony, enhancedfrom a Class 1 felony, because of defendant's conviction forindecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par.11-4(a)(3)) in Grundy County in 1983 pursuant to section12-13(b)(4) of the Criminal Code (720 ILCS 5/12-13(b)(4) (West1998)).

Defendant's jury trial was conducted May 3 through 5, 2000.Terry Marketti, the detective from the Grundy County sheriff'sdepartment who worked on defendant's 1983 case, testified for theState. That case involved two children, T.Q., a 7-year-old girl, andM.Q., an 11-year-old boy. Defendant was 18 years old when theincident took place. Marketti testified that at first defendant'sstatement did not match the children's explanation of the incident.When confronted with this inconsistency, defendant admitted thathe put his finger in T.Q.'s vagina. Marketti witnessed defendantsign a two-page statement detailing the incident.

At this point in the testimony, the State requested jurors begiven written copies of the statement, to utilize an exhibit thatdisplayed the statement blown up to a larger size, and/or to readthe statement aloud, citing section 115-7.3 of the Code. After asidebar discussion, the trial court sustained the defense objectionto publishing the statement to the jury. Marketti then testified thatdefendant admitted to having both a boy and a girl touch his peniswhile riding in a car with no one else present.

Lori Donoho testified that in December 1998, she anddefendant separated and defendant moved out of the house. AfterK.B. and D.B. told her about incidents of sexual abuse bydefendant, she immediately filed a police report on April 12, 1999.

D.B. testified that he was nine years old and in fourth grade.He demonstrated that he knew the difference between the truth anda lie. D.B. described four incidents of abuse. The first twoincidents occurred during the summer before second grade. First,when he and defendant were by a tree in the side yard of the house,defendant touched D.B. "in the pee pee." Second, defendanttouched D.B.'s penis while they were alone in the living room.Third, the following summer, they were visiting defendant'sparents. Defendant and D.B. were in the shower together, anddefendant touched D.B.'s penis. Finally, defendant and D.B. weredriving to Farmer City for the Buffalo Festival. Defendant touchedD.B.'s penis and made D.B. touch defendant's penis. D.B.explained he never told anyone because defendant told him hewould be grounded if he did. One day his sister K.B. came homecrying, and they talked about defendant's conduct. They decidedto tell their mother about the sexual abuse together. On cross-examination and redirect, D.B. said no one told him what to say;everything that he said really happened.

K.B. testified that she was 12 years old and in sixth grade.More than 10 times, when she and defendant were alone in aroom, he told her to pull down her pants and underpants,defendant pulled his pants down, and defendant touched "aroundmy crotch." Sometimes, defendant also made her touch his penis.K.B. testified about four specific instances of these acts of abuse,including while she was playing Nintendo in the bedroom, in theliving room (where defendant kissed her crotch), by a pond whenthey stopped during a drive home from Midway Airport, and intheir backyard pool. She did not tell anyone because defendanttold her she would be grounded if she did. K.B. finally decided totell during the spring of the previous year after talking to a friendat school, who encouraged her to tell her mother. She alsoconfirmed that she had not been told what to say and that theseevents actually happened.

Defendant denied all of the allegations made by D.B. Henoted that he and D.B. had showered together once to save hotwater, but he did not touch D.B. and D.B. did not touch him.Defendant also denied all of K.B.'s allegations. Although he didgive K.B. a bath to remove lice from her hair, he never touchedher.

He explained that when he moved out, he took A.D. with him.Lori had threatened to use his "past" if he did not give up custodyof A.D. Since the current charges were filed, he has not seen A.D.There had been no other charges against him after those in 1983;he received counseling as part of his 1983 guilty plea andsentence.

On cross-examination, defendant was questioned about the1983 incident. Defendant said it happened while he and twochildren drove to church. He did not remember anythinghappening on the return trip, but it happened 18 years ago. Hedrove the car into a ditch during the return trip because he hit apatch of ice on the road. During a sidebar discussion, the attorneysand the judge discussed how the State could use defendant's 1983statement to impeach this testimony. The court ruled that the Statecould not quote the confession, but counsel could show it todefendant to refresh his memory. Before the jury, the defendantadmitted that his statement said that sexual contact also hadoccurred during the return trip, including when he lost control ofthe car.

The trial court admitted the 1983 statement into evidence butdid not allow it to go back to the jury during deliberations. Thestatement was made on May 13, 1983, approximately two monthsafter the incident took place. According to the statement,defendant got permission from their parents to take T.Q. and M.Q.with him to church in Coal City. He wanted to take them so thatthey could play a game in the car involving touching each other.T.Q. sat in the middle next to defendant, and M.Q. sat closest tothe passenger door. Defendant had them both take their pantsdown, and several times he put his finger in T.Q.'s vagina. Hemade both children touch defendant's penis several times. On theway home, he again put his finger in T.Q.'s vagina and had M.Q.touch his penis, during which he lost control of his car and droveit into a ditch. He had planned to make it a game, but after a while,he was mostly ordering them around. The statement also specifiedthat after he had been told that the children's story was differentfrom his initial statement, defendant made this voluntary statementof the complete truth.

The jury found defendant guilty on all five counts. The courtdenied the defense motion for a new trial that cited errors as to theother-crimes evidence presented. At the sentencing hearing, theState offered without objection a certified copy of the priorconviction to show enhancement of the criminal sexual assault toa Class X felony for sentencing. The court noted that this priorconviction was for a Class 1 felony offense that existed only in aprior version of the Criminal Code. The court asked defensecounsel whether section 12-13(b)(4) of the Criminal Codeenhanced the penalty to Class X sentencing levels because he wasconvicted of a Class 1 felony, the indecent liberties with a child;defense counsel agreed. The trial court sentenced defendant to 14years for the Class X felony of criminal sexual assault, withconcurrent sentences of 7 years for each of the four convictions foraggravated criminal sexual abuse. Defense counsel filed a motionto reconsider the sentence but did not challenge the sentenceenhancement.

The appellate court found that the trial court abused itsdiscretion in admitting the evidence of the prior convictionbecause of the significant time lapse and noteworthy factualdifferences between the 1983 incident and the present case. The"obvious prejudicial effect" of this evidence was not outweighedby the "discernible probative value." Even though the court foundthe children in this case gave credible testimony, it was impossibleto tell how the evidence of the other crime influenced the jury.Thus, the admission of this evidence was not harmless error. Thecourt vacated the convictions and remanded the cause for a newtrial. 326 Ill. App. 3d at 411.

The appellate court also found that the trial court erred inenhancing the criminal sexual assault conviction to a Class Xfelony for sentencing. Although the defense conceded theenhancement during sentencing and did not raise the issue in itsposttrial motion challenging the sentence, the court addressed theissue under the plain error doctrine because the evidence wasclosely balanced. 326 Ill. App. 3d at 412-13. The court comparedthe elements of criminal sexual assault and indecent liberties witha child. Although both crimes were Class 1 felonies at the timesthey were charged, criminal sexual assault requires proof of theelement of penetration, whereas indecent liberties with a childdoes not. As a result, the prior offense is lesser than, notsubstantially equivalent to, criminal sexual assault, as requiredunder section 12-13(b)(4). 326 Ill. App. 3d at 413.

The State, as petitioner, raises two issues before this court: (1)whether the evidence related to defendant's 1983 conviction forindecent liberties with a child was properly admitted into evidenceat trial pursuant to section 115-7.3 of the Code (725 ILCS5/115-7.3 (West 1998)); and (2) whether defendant's convictionfor criminal sexual assault was properly enhanced from a Class 1to a Class X felony due to his prior conviction for indecentliberties with a child pursuant to section 12-13(b)(4) of theCriminal Code (720 ILCS 5/12-13(b)(4) (West 1998)).

ANALYSIS

I. Other-Crimes Evidence Under Section 115-7.3

The State argues that section 115-7.3 of the Code allows thecourt to admit evidence of other sexual offenses to establish adefendant's propensity to commit the charged sexual offense.Defendant contends this argument is waived because it was notincluded in the State's petition for leave to appeal nor was itpresented to the appellate court.

Under Supreme Court Rules 341(e)(7) and 315(g), a partymust raise its arguments and provide citation to legal authority orto the record in its petition for leave to appeal to avoid waiver. 177Ill. 2d R. 315(g); 188 Ill. 2d R. 341(e)(7); see also People v.Patterson, 154 Ill. 2d 414, 454-55 (1992). Rule 341(e)(7)admonishes the parties, but it does not limit the jurisdiction of thereviewing court. People v. Pecor, 153 Ill. 2d 109, 116 (1992).Waiver limits the parties' ability to raise an issue, not this court'sability to consider an issue. People v. Kliner, 185 Ill. 2d 81, 127(1998).

In addition, the State was the appellee before the appellatecourt, so waiver will not apply on this basis. " 'Where the trialcourt is reversed by the Appellate Court and the appellee in thatcourt brings the case here for further review, he may raise anyquestion properly presented by the record to sustain the judgmentof the trial court, even though those questions were not raised orargued in the Appellate Court.' " People v. Schott, 145 Ill. 2d 188,201 (1991), quoting Mueller v. Elm Park Hotel Co., 391 Ill. 391,399 (1945). Therefore, we will address the merits of the State'sargument.

A. Interpretation of Section 115-7.3

Evidence regarding other crimes is generally inadmissible todemonstrate propensity to commit the charged crime (propensity).Such evidence is not considered irrelevant; instead, it isobjectionable because such evidence has "too much" probativevalue. People v. Manning, 182 Ill. 2d 193, 213 (1998). Courtsgenerally prohibit the admission of this evidence to protect againstthe jury convicting a defendant because he or she is a bad persondeserving punishment. Manning, 182 Ill. 2d at 213-14. Defendantis entitled to have his guilt or innocence evaluated solely on thebasis of the charged crime. People v. Lampkin, 98 Ill. 2d 418, 430(1983).

Other-crimes evidence is admissible, however, to proveintent, modus operandi, identity, motive, absence of mistake, andany material fact other than propensity that is relevant to the case(exceptions). People v. Illgen, 145 Ill. 2d 353, 364-65 (1991).Even if other-crimes evidence falls under one of these exceptions,the court still can exclude it if the prejudicial effect of the evidencesubstantially outweighs its probative value. Illgen, 145 Ill. 2d at365.

The State argues that section 115-7.3 allows the admission ofother-crimes evidence to show defendant's propensity if itinvolves one of the specified sex offenses. The State furthercontends that the provision is constitutional. In contrast, thedefense argues that the statute only allows the admission of other-crimes evidence under the exceptions. In addition, defendantasserts that the trial court's admission of evidence of defendant'sprior conviction for indecent liberties with a child was an abuse ofits discretion because it did not fall within an exception and itsprejudicial effect outweighed its probative value.

Section 115-7.3 states in pertinent part:

"(a) This Section applies to criminal cases in which:

(1) the defendant is accused of predatory criminalsexual assault of a child, aggravated criminal sexualassault, criminal sexual assault, aggravated criminalsexual abuse, criminal sexual abuse, or criminaltransmission of HIV;

(2) the defendant is accused of battery or aggravatedbattery when the commission of the offense involvessexual penetration or sexual conduct as defined inSection 12-12 of the Criminal Code of 1961; or

(3) the defendant is tried or retried for any of theoffenses formerly known as rape, deviate sexualassault, indecent liberties with a child, or aggravatedindecent liberties with a child.

(b) If the defendant is accused of an offense set forth inparagraph (1) or (2) of subsection (a) or the defendant istried or retried for any of the offenses set forth inparagraph (3) of subsection (a), evidence of thedefendant's commission of another offense or offenses setforth in paragraph (1), (2), or (3) of subsection (a), orevidence to rebut that proof or an inference from thatproof, may be admissible (if that evidence is otherwiseadmissible under the rules of evidence) and may beconsidered for its bearing on any matter to which it isrelevant.

(c) In weighing the probative value of the evidenceagainst undue prejudice to the defendant, the court mayconsider:

(1) the proximity in time to the charged or predicateoffense;

(2) the degree of factual similarity to the charged orpredicate offense; or

(3) other relevant facts and circumstances."(Emphasis added.) 725 ILCS 5/115-7.3 (West 1998).

Several principles of statutory interpretation are relevant tothis case. The primary rule of statutory construction is to ascertainand give effect to the intent of the legislature. Paris v. Feder, 179Ill. 2d 173, 177 (1997). The best evidence of legislative intent isthe statutory language. When possible, the court should interpretthe statute according to the plain and ordinary meaning of thelanguage. Paris, 179 Ill. 2d at 177. In giving effect to legislativeintent, the court should consider, in addition to the statutorylanguage, the reason for the law, the problems to be remedied, andthe objects and purposes sought. People v. Haywood, 118 Ill. 2d263, 271 (1987). A statute is ambiguous if it is subject to two ormore reasonable interpretations. People v. Holloway, 177 Ill. 2d 1,8 (1997). The court can consult interpretive aids when construingan ambiguous statute. People v. Whitney, 188 Ill. 2d 91, 97-98(1999). The interpretation of a statute is reviewed de novo. Paris,179 Ill. 2d at 177-78.

In evaluating whether section 115-7.3 allows the trial court toadmit other-crimes evidence to show defendant's propensity tocommit certain sex offenses, we focus our inquiry on languagefrom subsection (b): "evidence of the defendant's commission ofanother offense *** may be admissible (if that evidence isotherwise admissible under the rules of evidence) and may beconsidered for its bearing on any matter to which it is relevant."725 ILCS 5/115-7.3(b) (West 1998).

Other-crimes evidence is admissible "(if that evidence isotherwise admissible under the rules of evidence)." 725 ILCS5/115-7.3(b) (West 1998). This first phrase seems to reaffirm theapplication of established evidence rules, including the commonlaw prohibition of other-crimes evidence subject to the exceptions.Other-crimes evidence "may be considered for its bearing on anymatter to which it is relevant." 725 ILCS 5/115-7.3(b) (West1998). This second phrase, in contrast, seems to allowconsideration of other-crimes evidence for any matter, includingpropensity, so long as the evidence is relevant.

Attempts to read these two phrases together generates severalreasonable interpretations. One would permit admission of other-crimes evidence subject to the traditional rules and would view thelatter phrase simply as reemphasizing that evidence must beconsidered only about relevant issues. Another would allowadmission of other-crimes evidence beyond the exceptions,including to show propensity, so long as the evidence is relevant.This interpretation would view the former phrase as confirmingthe applicability of other-evidence rules such as the hearsay rule.A third would approve admission of other-crimes evidence underthe exceptions, but once admitted, would allow the evidence to beconsidered for any relevant matter, including propensity. Becausethis statutory language is subject to more than one reasonableinterpretation, it is ambiguous. See Holloway, 177 Ill. 2d at 8.

We turn to legislative history as an aid in interpreting thisambiguous provision. See Whitney, 188 Ill. 2d at 97-98. Bothparties quote statements from the legislative debates to justify theirinterpretations of section 115-7.3. We acknowledge that certainportions of the debates support both positions, but we concludethat the legislative history more strongly favors the State'sinterpretation. See Illinois-Indiana Cable Television Ass'n v.Illinois Commerce Comm'n, 55 Ill. 2d 205, 219 (1973); Dennis v.Old Republic Insurance Co., 218 Ill. App. 3d 637, 644 (1991).

Senator Radogno, the initial sponsor of Senate Bill 5, whichincluded section 115-7.3, stated:

"[The bill] would allow the introduction of evidence ofprior sex crimes into a trial of any of the sex offenseswhich are enumerated in the bill. It allows the court todetermine exactly what evidence is admissible. Thislegislation, which is unique to sex offenders, recognizesthe propensity of sex offenders to repeat their crimes, andit allows the court to use this evidence in order to helpprotect society. It's patterned after the federal rules ofevidence." 90th Ill. Gen. Assem., Senate Proceedings,March 19, 1997, at 56-57 (statements of SenatorRadogno).

Several portions of this statement are instructive. First, SenatorRadogno emphasized that this legislation is unique to sexoffenders, which undercuts defendant's argument that the statutemerely codifies the common law. Instead, this supports theinterpretation that section 115-7.3 implemented a change to thecommon law rule specifically in sex offense cases. SenatorRadogno also explained that courts can use other-crimes evidenceto protect society against sex offenders who have a propensity torepeat their crimes. This acknowledgment of recidivism by sexoffenders explains why the legislature chose to change thecommon law rule in this narrow class of crimes. The problems tobe remedied by legislation is a factor the court should consider indetermining legislative intent. Haywood, 118 Ill. 2d at 271. Thisis not the first time the legislature acknowledged and responded toincreases in sexual assault and sexual abuse cases throughlegislation. People v. Adams, 144 Ill. 2d 381, 387 (1991)(discussing legislative history when evaluating theconstitutionality of the Sex Offender Registration Act (Ill. Rev.Stat. 1987, ch. 38, par. 221 through 230, now codified at 730 ILCS150/1 through 10 (West 2000))).

Second, Senator Radogno specified that the statute ispatterned after the Federal Rules of Evidence. The Federal Rulesof Evidence also generally prohibit admission of other-crimesevidence to demonstrate propensity and allow its admission toshow motive, opportunity, intent, preparation, plan, knowledge,identity, or absence of mistake or accident. Fed. R. Evid. 404(b).Effective July 10, 1995, Congress enacted Federal Rules ofEvidence 413, "Evidence of Similar Crimes in Sexual AssaultCases," and 414, "Evidence of Similar Crimes in ChildMolestation Cases." Fed. Rs. Evid. 413, 414. These rules havebeen interpreted by the federal courts to permit the introduction ofother-crimes evidence to show defendant's propensity to commitsexual assault or child molestation. See, e.g., United States v.LeMay, 260 F.3d 1018, 1028-29 (9th Cir. 2001); United States v.McHorse, 179 F.3d 889, 896 (10th Cir. 1999). Therefore, SenatorRadogno was explaining that section 115-7.3 is modeled afterFederal Evidence Rules 413 and 414, which allow admission ofother-crimes evidence to establish defendant's propensity tocommit sex offenses.

Many commentators have criticized Federal Evidence Rules413 and 414 because of the longstanding prohibition on admittingother-crimes evidence to show propensity. S. Scott, Fairness to theVictim: Federal Rules of Evidence 413 and 414 Admit PropensityEvidence in Sexual Offender Trials, 35 Hous. L. Rev. 1729, 1735(1999). In addition, only four states have added a propensityexception in sexual offense cases by statute or court rule. AlaskaR. Evid. 404(b); Ariz. R. Evid. 404(c); Cal. Evid. Code