People v. Johnson

FIRST DIVISION

December 20, 2010

No. 1-07-0715

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County.

)

v. )

)

LORELL JOHNSON, ) Honorable

) Stanley J. Sacks,

Defendant-Appellant. ) Judge Presiding.

JUSTICE LAMPKIN1 delivered the opinion of the court:

Faced with overwhelming DNA evidence, the defense in this

sexual assault and aggravated kidnapping case attempted to

persuade the jury the State could not prove the defendant’s

sexual contact with the alleged victim was forcible. The defense

did not succeed. Defendant Lorell Johnson was convicted of two

counts of aggravated criminal sexual assault and one count of

1

This opinion was originally authored by Justice Warren

Wolfson. Justice Lampkin was appointed to the Illinois Appellate

Court by the Illinois Supreme Court on September 25, 2009,

replacing Justice Wolfson, retired, as a member on the panel

assigned to review this case. Justice Lampkin, along with the

other members of the panel, has reconsidered this case pursuant

to a supreme court supervisory order. People v. Johnson, 237

Ill. 2d 574, 934 N.E.2d 1005 (2010).

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aggravated kidnapping. He was sentenced to two consecutive 25-

year prison terms.

On appeal, defendant contends: (1) the trial court erred in

admitting the inculpatory DNA evidence because sufficient

foundation was not established for the forensic scientist’s

opinion testimony on the matter; (2) the forensic scientist’s

opinion testimony violated the defendant’s sixth amendment

confrontation rights; and (3) the trial court erred in allowing

the State to present evidence of an uncharged sexual assault,

under section 115-7.3 of the Code of Criminal Procedure (Code)

(725 ILCS 5/115-7.3(c) (West 2006)), to prove defendant had a

propensity to commit sexual offenses. We affirm defendant’s

convictions and sentences.

FACTS

At trial, the victim, T.W., testified she was walking past

an alley at around 9:30 p.m. on March 2, 2002, when defendant

grabbed her and said “if you do what I say, you won’t get hurt.”

T.W. said defendant did not have a weapon. Defendant then led

T.W. through an alley to a large abandoned building, dragged her

into an L-shaped corridor, and pushed her down some stairs. T.W.

said defendant threatened to kill her if she did not do what he

said.

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T.W. said defendant told her to “suck his dick.” After T.W.

pulled defendant’s penis out of her mouth and told him she was so

scared that she might bite him, defendant pressed her against a

brick wall, placed a finger in her vagina, and then put his penis

inside her vagina. Once finished, defendant hopped over a fence

and fled. T.W. was not anally penetrated.

T.W. went back to the street, flagged down a police officer,

and told him that she had been raped. After T.W. led the police

back to the abandoned building, she was taken to St. Bernard’s

Hospital, where she provided a blood sample and vaginal and oral

swabs for a sexual assault evidence collection kit. The oral and

vaginal swabs were sent to the Illinois State Police Forensic

Science Center in Chicago. After the vaginal swabs tested

positive for the presence of semen, they were sent to Orchid

Cellmark, a private lab in Maryland, for DNA testing.

Cellmark prepared a male DNA profile from the vaginal swabs.

Cellmark also prepared a DNA profile for the victim. The male

DNA profile was entered into the Illinois State Police DNA

database. In June 2004, the database reported an association

between the male DNA profile prepared by Cellmark and defendant’s

DNA profile.

After defendant was arrested, T.W. identified him as her

attacker in a lineup on January 25, 2005.

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Following a jury trial, defendant was found guilty of two

counts of aggravated criminal sexual assault and one count of

aggravated kidnapping. The trial court sentenced defendant to

two consecutive 25-year prison terms.

DECISION

I. Other-Crimes Evidence

Defendant contends evidence of his involvement in an

uncharged sexual assault was inadmissible to prove his propensity

to commit sexual offenses under section 115-7.3 of the Code.

Specifically, defendant contends the unfairly prejudicial effect

of the other-crimes evidence clearly outweighed its probative

value in this case because the charged and uncharged offenses

were not substantially similar.

Before trial, the State filed a motion to allow other-crimes

evidence to show defendant’s propensity pursuant to section 115-

7.3 of the Code, defendant’s intent, and lack of consent.

Specifically, the State sought to introduce evidence of three

uncharged sexual assaults involving defendant–-the sexual assault

of F.F. on January 12, 2003; the sexual assault of C.V. on

November 9, 2003; and the sexual assault of O.W. on January 19,

2005.

Following a hearing, the trial court, over defense counsel’s

objection, granted the State’s motion. In reaching its ruling,

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the court said:

“THE COURT: There’s evidence to show

propensity on the part of Lorell Johnson to

commit sexual crimes, and I’m not sure how

you’d word the limiting instruction, they

might even say that, if there’s admission to

show propensity. That could be argued out as

far as the wording itself, but the case law

indicates they’re admissible for that

purpose, propensity. *** And I think the

cases sort of suggest or even say that

they’re admissible to show the likelihood or

lack or likelihood that more than one woman

would have consent to having sex under the

same circumstances months to years or

different times apart. So I’m not a big fan

of the statute, but the law requires me to

follow it. And I think under the

circumstances of these cases, the evidence of

other sexual assaults alleged to be committed

by Lorell Johnson are admissible in the

[T.W.] case March of 2002, which show what

the statute refers to in the case law is

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[sic] propensity in sexual assault. *** The

facts are sufficient enough to show arguably

a propensity to commit sex crimes by Lorell

Johnson, so those crimes will be admitted

with a limiting instruction.

At trial, C.V., the witness in the uncharged sexual assault,

testified that around 5 p.m. on November 10, 2003, she was

walking home from the grocery store when a car pulled into an

alleyway and blocked her path. A man, whom C.V. identified as

defendant in open court, got out of the passenger side of the car

and asked C.V. for directions. Defendant then pulled C.V. into

the backseat of the car and started removing her clothes. When

C.V. tried to get out of the car, defendant hit her on the temple

and said “don’t scream or else I’m going to kill you.” The car

then started to drive down the alley.

Defendant and the black male driver pulled C.V. from the

car, dragged her inside a dark abandoned building, and closed the

door. After defendant removed C.V.’s clothes, the driver put his

penis inside C.V.’s mouth while defendant put his penis inside

her anus. Defendant orally, anally, and vaginally penetrated

C.V. during the assault. At some point during the assault C.V.

had an asthma attack and blacked out. When she awoke, she was

alone in the abandoned building. C.V. returned home and called

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the police. C.V. was then taken to a hospital where the staff

collected biological samples. C.V. admitted she told police

defendant had blown cocaine in her face and given her alcohol

during the assault.

On January 25, 2005, while C.V. was in the hospital

receiving treatment for an unrelated medical problem, Detective

Hagan showed C.V. four photographs and asked if she could

identify her attacker. C.V. testified she immediately identified

defendant as the attacker from the photographs.

The State did not present evidence at trial regarding

defendant’s involvement in the uncharged sexual assaults of F.F.

on January 12, 2003, or of O.W. on January 19, 2005.

Following closing arguments, the jury was given the

following instruction regarding other-crimes evidence:

“Evidence has been received that the

defendant has been involved in an offense

other than that charged in the indictment.

This evidence has been received on the issue

of the defendant’s propensity to commit

criminal sexual assault and may be considered

by you only for that limited purpose. It’s

for you to determine whether the defendant

was involved in that offense, and if so, what

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weight should be given to this evidence on

the issue of propensity to commit criminal

sexual assault.”

A trial court’s decision to admit other-crimes evidence will

not be reversed absent an abuse of discretion. People v. Donoho,

204 Ill. 2d 159, 182, 788 N.E.2d 707 (2003); People v. Childress,

338 Ill. App. 3d 540, 552, 789 N.E.2d 330 (2003). We will find

an abuse of discretion if the trial court’s evaluation is

unreasonable, arbitrary, or fanciful, or where no reasonable

person would adopt the trial court’s view. Donoho, 204 Ill. 2d

at 182.

Under the common law, other-crimes evidence normally is

inadmissible if offered only to demonstrate the defendant’s

propensity to commit the charged crime. Donoho, 204 Ill. 2d at

169; People v. Manning, 182 Ill. 2d 193, 213, 695 N.E.2d 423

(1998). Evidence regarding other crimes generally is admissible

only if offered to prove intent, modus operandi, identity,

motive, absence of mistake, or any relevant fact other than

propensity. Donoho, 204 Ill. 2d at 170; People v. Illgen, 145

Ill. 2d 353, 364-65, 583 N.E.2d 515 (1991).

However, section 115-7.3 of the Code provides an exception

to the general rule in criminal cases, where, as here, a

defendant is accused of criminal sexual assault. 725 ILCS 5/115-

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7.3(a)(1) (West 2006). In such cases, “evidence of the

defendant’s commission of another offense or offenses set forth

in paragraph (1), (2), or (3) of subsection (a), or evidence to

rebut that proof or an inference of that proof, may be admissible

(if that evidence is otherwise admissible under the rules of

evidence) and may be considered for its bearing on any matter to

which it is relevant.” 725 ILCS 5/115-7.3(b) (West 2006).

In Donoho, our supreme court held the legislature enacted

section 115-7.3 of the Code to “enable courts to admit evidence

of other crimes to show defendant’s propensity to commit sex

offenses if the requirements of section 115-7.3 are met.”

Donoho, 204 Ill. 2d at 176.

Where other-crimes evidence meets the preliminary statutory

requirements, the evidence is admissible if it is relevant and if

its probative value is not substantially outweighed by its

prejudicial effect. Donoho, 204 Ill. 2d at 182-83. “The key to

balancing the probative value of other crimes evidence to prove

propensity against its possible prejudicial effect is to avoid

admitting evidence that entices a jury to find defendant guilty

‘only because it feels he is a bad person deserving

punishment.’ ” (Emphasis in original.) People v. Holmes, 383

Ill. App. 3d 506, 515, 890 N.E.2d 1045 (2008), quoting Childress,

338 Ill. App. 3d at 548.

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In weighing the probative value of the evidence against the

undue prejudice to the defendant, a court may consider:

“(1) the proximity in time to the

charged or predicate offense;

(2) the degree of factual similarity to

the charged or predicate offense; or

(3) other relevant facts and

circumstances.” 725 ILCS 5/115-7.3(c) (West

2006).

Donoho, 204 Ill. 2d at 182-83.

Looking at the other side of the scale, undue prejudice

“speaks to the capacity of some concededly relevant evidence to

lure the factfinder into declaring guilt on a ground different

from proof specific to the offense charged.” Old Chief v. United

States, 519 U.S. 172, 180, 136 L. Ed. 2d 574, 588, 117 S. Ct.

644, 650 (1997); People v. Boyd, 366 Ill. App. 3d 84, 94, 851

N.E.2d 827 (2006). Other-crimes evidence, when relevant, must

not become a focal point of the trial. Boyd, 366 Ill. App. 3d at

94. “That is, the trial court should not permit a ‘mini-trial’

of the other, uncharged offense, but should allow only that which

is necessary to ‘illuminate the issue for which the other crime

was introduced.’ ” People v. Bedoya, 325 Ill. App. 3d 926, 938,

758 N.E.2d 366 (2001), quoting People v. Nunley, 271 Ill. App. 3d

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427, 432, 648 N.E.2d 1015 (1995).

The record reflects defendant raised a no-force defense at

trial. During opening statements, defense counsel said: “The

evidence you will hear will show that there was sexual conduct

between [T.W.] and [defendant]. The evidence will show you that

this conduct was mutual conduct and it was consensual.” Defense

counsel returned to the no-force defense during closing argument:

“It’s not a rape. I don’t care how much everyone gets up and

tells you rape, rape, rape. It’s not a rape. *** But the

reality is there has been no evidence of force.”

The State specifically asked the trial court to allow the

other-crimes evidence to “show intent and lack of consent,” as

well as defendant’s propensity. Although the trial court never

ruled on whether the other-crimes evidence was relevant to prove

lack of consent, we find defendant’s no-force defense at trial

increased the probative value of C.V.’s other-crime testimony.

In Boyd, we recognized that in cases where a defendant

claims the victim consented to the sexual assault, “courts have

found other-crime evidence relevant to prove defendant’s criminal

intent or lack of an innocent frame of mind.” Boyd, 366 Ill.

App. 3d at 91-92, citing People v. Luczak, 306 Ill. App. 3d 319,

324-25, 714 N.E.2d 995 (1999) (other-crimes evidence relevant to

show defendant’s intent was to sexually assault the victim);

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People v. Harris, 297 Ill. App. 3d 1073, 1086, 697 N.E.2d 850

(1998) (evidence admissible to establish lack of innocent intent

where defendant claimed consent). We saw no reason why

“propensity evidence could not be used to meet the defendant’s

consent defense” under section 115-7.3 of the Code. Boyd, 366

Ill. App. 3d at 93.

Moreover, although the trial court in this case found all

three uncharged sexual assaults were relevant to establish

defendant’s propensity, the State limited the other-crimes

evidence at trial to C.V.’s uncharged sexual assault. In

addition, the State made only one passing reference to propensity

evidence in each of its two final arguments. The State’s

decision to limit the amount of other-crimes evidence reduced the

possible prejudicial effect of such evidence at defendant’s

trial. See People v. Cardamone, 381 Ill. App. 3d 462, 497-98,

885 N.E.2d 1159 (2008) (Although “perhaps a few instances of

uncharged conduct” would have been relevant to show propensity

under section 115-7.3, “the volume of the other-crimes evidence

was overwhelming and undoubtedly more prejudicial than

probative”).

C.V.’s uncharged assault also bore a number of general

factual similarities to T.W.’s assault allegations against

defendant. At the same time, there are some distinct differences

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between the two assaults.

Other-crimes evidence must have “ ‘some threshold similarity

to the crime charged’ ” to be admissible. Donoho, 204 Ill. 2d at

184, quoting People v. Bartall, 98 Ill. 2d 294, 310, 456 N.E.2d

59 (1983). As factual similarities increase, so does the

relevance, or probative value, of the other-crimes evidence.

Donoho, 204 Ill. 2d at 184, citing Bartall, 98 Ill. 2d at 310.

Conversely, as the number of dissimilarities increase, so does

the prejudicial effect of the other-crimes evidence.

The general similarities between T.W.’s assault and C.V.’s

assault: (1) both victims were abducted while walking past

alleys; (2) both victims were taken to an abandoned building

before being assaulted; (3) the assailant used physical force and

threatened to kill both victims if they did not comply with his

demands; (4) defendant vaginally and orally penetrated both

victims with his penis; and (5) both victims were adults when the

assaults occurred–-C.V. was 42 and T.W. was 33.

Although defendant contends the similarities between the

assaults were insufficient because they are generic and common to

many sexual crimes, our supreme court has held “where such

evidence is not being offered under the modus operandi exception,

‘mere general areas of similarity will suffice’ to support

admissibility.” Donoho, 98 Ill. 2d at 184, quoting Illgen, 145

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Ill. 2d at 372-73. The existence of some differences between the

offenses does not defeat admissibility, however, “because no two

independent crimes are identical.” Donoho, 204 Ill. 2d at 185,

citing Illgen, 145 Ill. 2d at 373.

One of the most telling differences between the two assaults

was the number of perpetrators involved in each instance. C.V.

testified she was sexually assaulted by defendant and an

unidentified black male. T.W., on the other hand, testified

defendant was the only attacker during her assault. C.V.

testified defendant used a car during the assault, blew cocaine

in her face and gave her alcohol during the assault, and anally

penetrated her--three circumstances that differ from T.W.’s

assault testimony. Neither victim testified at trial to seeing a

weapon.

In Holmes, this court held the trial court properly excluded

evidence regarding the defendant’s 1996 conviction for attempted

forcible rape because the details of that assault were not

similar enough to the charged offense. Holmes, 383 Ill. App. 3d

at 518-19. Unlike the charged assault, during the 1996 assault:

there was a second person present when the victim was attacked;

the victim went into the defendant’s bedroom voluntarily and

engaged in some level of intimacy; defendant did not threaten the

victim with a weapon; the victim escaped from defendant; and

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there was no actual penetration. The court held the attacks did

not share enough general similarities to make the 1996 conviction

sufficiently probative to prove propensity under section 115-7.3.

Holmes, 383 Ill. App. 3d at 518-19.

There is another problem with the propensity evidence here:

the trial judge analyzed only the probative value of the other-

crimes evidence during the pretrial hearing on the State’s motion

to admit. The record reflects the trial court never considered

the other side of the scale referred to in Bedoya--whether the

risk of unfair prejudice substantially outweighed the probative

value of the evidence. See Bedoya, 325 Ill. App. 3d at 938. Our

supreme court has urged trial courts “to be cautious in

considering the admissibility of other-crimes evidence to show

propensity by engaging in a meaningful assessment.” Donoho, 204

Ill. 2d at 186. Here, there was no assessment at all.

The existence of significant dissimilarities between the two

assaults, combined with the trial court’s failure to conduct any

sort of “meaningful” analysis of the prejudicial effect of the

other-crimes evidence, leads us to say the trial court erred in

admitting the other-crimes evidence to establish defendant’s

propensity to commit sexual offenses. See Donoho, 204 Ill. 2d at

186; Holmes, 383 Ill. App. 3d at 518-19.

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A trial court’s failure to conduct a “meaningful assessment”

may be considered harmless, however, if it is unlikely the error

influenced the jury. Boyd, 366 Ill. App. 3d at 95, citing People

v. Nieves, 193 Ill. 2d 513, 530, 739 N.E.2d 1277 (2000) (improper

admission of other-crimes evidence is harmless error when a

defendant is neither prejudiced nor denied the right to a fair

trial). To determine whether the trial court’s error was

harmless in this case, we must first address defendant’s

contention that the DNA evidence linking him to T.W.’s alleged

assault was improperly admitted at trial.

II. DNA Evidence

Defendant contends evidence regarding the male DNA profile

prepared by Cellmark amounted to testimonial hearsay, in

violation of defendant’s constitutional right to confrontation,

because none of the analysts who actually prepared the profile

were presented for cross-examination. Defendant also contends

the trial court erred in admitting the DNA evidence produced by

Cellmark because a sufficient foundation was not established to

demonstrate the equipment used was adequately calibrated and

functioning properly.

At trial, Alissa Ginglesberger, a forensic scientist

employed by Orchid Cellmark (Cellmark), testified as a DNA

analysis expert regarding the procedures Cellmark used to analyze

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the DNA on T.W.’s vaginal swabs. Ginglesberger testified

Cellmark was an American Society of Crime Laboratory Directors’

accredited laboratory, which requires a laboratory to “follow

specific procedures and undergo specific training and proficiency

testing to abide by their guidelines.”

Ginglesberger admitted she did not examine or perform any

physical testing of the samples herself; instead, she based her

opinion on her review of the records of other Cellmark employees’

testing of the vaginal swabs. Ginglesberger testified her role

in this case was to serve as a “technical reviewer,” which meant:

“Once I receive the records and I receive all

of the paper work generated from the work

that was done in the case, I then did an

independent technical review of the work to

make sure all of the procedures were followed

correctly and the correct conclusions were

drawn. I also generated my own opinions and

my own interpretations of the data that was

present in the records and therefore I’m

going to testify to the conclusions based on

my review.”

Defendant objected to Ginglesberger’s testimony, arguing:

“The objection is foundational with regard to

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this witness. She’s a reviewer, basically

just reviewing the records of Cellmark. She

did not personally perform analysis in this

case. I object to the foundation and

hearsay.”

Overruling defendant’s objection, the court found:

“She can testify to the tests as an expert in

the field of DNA analysis. Ask her if those

records are commonly used by people in the

field. If she says yes she can testify and

use the records, if necessary.”

After Ginglesberger testified the records she reviewed were

kept in the ordinary course of business by Cellmark, she was

allowed to use the records while testifying. Defendant did not

object to the remainder of Ginglesberger’s testimony.

Ginglesberger testified Cellmark received T.W.’s blood

standard and vaginal swabs from the Illinois State Police crime

laboratory for analysis on May 21, 2002. The goal was to obtain

a male DNA profile from the swabs. Cellmark obtained a sperm

fraction from the swabs that generated a full male DNA profile at

13 locations. Cellmark used the polymerase chain reaction

procedure, which Ginglesberger testified is commonly accepted in

the scientific community to identify the DNA profile. After

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generating a male DNA profile, Cellmark wrote a report based on

its conclusions and interpretations of the data and sent the

report back to the Illinois State Police for use in criminal

litigation. Ginglesberger said approximately 10 Cellmark

analysts were involved in the laboratory work in this case and

that all of their methods, conclusions, and results were to a

reasonable degree of scientific certainty.

Nicholas Richert, a forensic scientist employed by the

Illinois State Police, testified he received the results of

Cellmark’s analysis of T.W.’s vaginal swabs. Richert said the

male DNA profile Cellmark generated from the swabs was entered

into the DNA database in May 2002. In June 2004, Richert

received information from the database that the male DNA profile

from T.W.’s vaginal swab matched defendant’s DNA profile.

Richert admitted a DNA match does not indicate whether consensual

or nonconsensual contact occurred. Defendant did not object to

Richert’s testimony.

After defendant was arrested, he consented to the collection

of a bucal swab to obtain his DNA profile. Brian Schoon, a

forensic scientist employed by the Illinois State Police,

testified he obtained a full DNA profile from defendant’s buccal

swab. He compared defendant’s DNA profile obtained from the

buccal swab to the male profile generated by Cellmark from T.W.’s

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vaginal swabs. Schoon concluded, to a reasonable degree of

medical certainty, that the DNA profiles matched. Schoon

conducted a statistical analysis of the DNA match and concluded

the DNA profile was likely to occur in approximately 1 in 710

quadrillion black, 1 in 550 quadrillion white, and 1 in 430

quadrillion Hispanic unrelated individuals. Defendant did not

object to Schoon’s testimony.

A. Forfeiture

The State contends defendant forfeited any right to

challenge the DNA evidence on sixth amendment confrontation or

lack of foundation grounds by failing to properly object at trial

or raise the issues in his posttrial motion.

In order to properly preserve any alleged error for

appellate review, “a defendant must both specifically object at

trial and raise the issue again in a posttrial motion.” People

v. Woods, 214 Ill. 2d 455, 470, 828 N.E.2d 247 (2005); People v.

Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988).

Defendant raised a general hearsay and foundation objection

to Ginglesberger’s testimony regarding the Cellmark DNA profile

at trial and in his amended posttrial motion. However, the

objections raised below were clearly based on theories different

than those defendant presents here. Defendant never challenged

the admission of Ginglesberger’s testimony as a confrontation

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clause violation in the trial court; nor did he make a foundation

objection to the Cellmark DNA profile on the ground that there

was no proof the equipment used to generate the profile was

adequately calibrated and functioning properly. He raises those

issues for the first time on appeal.

Defendant forfeited the confrontation and lack of foundation

issues raised here. See People v. Woods, 214 Ill. 2d 455, 470,

828 N.E.2d 247 (2005) (“This rule is particularly appropriate

when a defendant argues that the State failed to lay the proper

technical foundation for the admission of evidence, and a

defendant’s lack of a timely and specific objection deprives the

State of the opportunity to correct any deficiency in the

foundational proof at the trial level”); People v. Eastling, 386

Ill. App. 3d 884, 887-88, 897 N.E.2d 340, 344 (2008) (defendant

waived confrontation clause challenge by failing to object at

trial or raise the issue in his posttrial motion).

Defendant contends the issues should be reviewed for plain

error. The plain-error doctrine allows a reviewing court to

reach a forfeited error when either (1) the evidence in the case

is closely balanced, regardless of the seriousness of the error,

or (2) the error is so serious that the defendant was denied a

substantial right, regardless of the closeness of the evidence.

People v. Herron, 215 Ill. 2d 167, 178-79, 830 N.E.2d 467 (2005).

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The first step in conducting a plain-error analysis is to

determine whether an error occurred at all. People v. Hudson,

228 Ill. 2d 181, 191, 886 N.E.2d 964 (2008).

B. Foundation

In Wilson v. Clark, 84 Ill. 2d 186, 417 N.E.2d 1322 (1981),

our supreme court adopted the then-existing Federal Rule of

Evidence 703, holding that an expert may offer an opinion based

upon facts not in evidence if those facts are “of a type

reasonably relied upon by experts in the particular field.”

People v. Raney, 324 Ill. App. 3d 703, 706, 756 N.E.2d 338

(2001), citing Wilson, 84 Ill. 2d at 193. Where expert testimony

is based upon an electronic or mechanical device, however, the

expert must provide some foundational proof that the device is

functioning properly at the time it was used. Raney, 324 Ill.

App. 3d at 706 (proper foundation was lacking where expert failed

to provide any testimony that the machine used was calibrated and

working properly or how she knew the results were accurate).

Raney recognized, however, that it may not be feasible to require

an expert to personally test the instrument relied on for making

relevant determinations. Raney, 324 Ill. App. 3d at 710.

Recently, in People v. Williams, 238 Ill. 2d 125 (2010), the

Illinois Supreme Court held that despite the DNA analyst’s

inability to testify to the precise conditions of the equipment

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and testing used to analyze the DNA samples, the analyst provided

a sufficient foundation for her testimony. The analyst “did not

merely regurgitate results generated by a machine, as the witness

in Raney did. [The analyst] conducted an independent evaluation

of data related to samples of genetic material, including items

processed at both Cellmark and the ISP Crime Lab.” Williams, 238

Ill. 2d at 140. The supreme court further distinguished Raney

because the analyst repeatedly testified that Cellmark, the

testing facility, was an accredited laboratory required to follow

specified guidelines in order to perform DNA analysis. The State

laid a proper foundation to show that the analyst also testified

that Cellmark’s testing and analysis methods were generally

accepted in the scientific community. The analyst was qualified,

without objection, as an expert in forensic DNA analysis.

Although she admitted she had not performed the actual tests on

the evidence, the analyst used her own expertise to determine

that, upon examination, the blood and semen samples indicated a

DNA match with the defendant. Williams, 238 Ill. 2d at 140.

The supreme court further noted that it was the defendant’s

burden to “elicit facts underlying the expert opinion.”

Williams, 238 Ill. 2d at 140, citing Wilson, 84 Ill. 2d at 194.

The record demonstrated “substantial cross-examination” of the

analyst’s opinion regarding the genetic match between the DNA

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samples. The supreme court ultimately concluded that “the issue

of [the analyst’s] reliance on Cellmark’s report went to the

weight of her opinion and not its admissibility.” Williams, 238

Ill. 2d at 140-41.

The foundational grounds presented in this case are stronger

than the grounds presented in Williams.

Ginglesberger--an employee of the laboratory that generated

the DNA profile--was qualified as an expert in DNA analysis,

without objection. She specifically testified Cellmark was an

American Society of Crime Laboratory Directors’ accredited

laboratory, which required the laboratory to “follow specific

procedures and undergo specific training and proficiency

testing.” Ginglesberger explained Cellmark used the polymerase

chain reaction procedure, which is commonly accepted in the

scientific community, to identify the DNA profile. Although

Ginglesberger admitted she did not perform any physical testing

herself, she said she conducted an “independent technical review

of the work to make sure all of the procedures were followed

correctly and the correct conclusions were drawn.”

Based on this court’s holding in Williams, Ginglesberger

provided a sufficient foundation upon which to partially base her

assessment and conclusion. There is no foundational error to

review in this case.

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C. Confrontation Clause

The sixth amendment’s confrontation clause provides that,

“[i]n all criminal prosecutions, the accused shall enjoy the

right *** to be confronted with the witnesses against him.” U.S.

Const., amend. VI. In Crawford v. Washington, 541 U.S. 36, 68,

158 L. Ed. 2d 177, 203, 124 S. Ct. 1354, 1374 (2004), the Supreme

Court held the confrontation clause bars the admission of

testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had a

prior opportunity for cross-examination. The Court declined to

specifically define what constitutes a “testimonial” statement.

The Court did say, however, “the [confrontation] clause also does

not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.” Crawford, 541

U.S. at 59 n.9, 158 L. Ed. 2d at 191 n.9, 124 S. Ct. at 1369 n.9.

In Williams, the supreme court considered whether a DNA

analyst’s expert testimony, which referred to a report of the

results of a laboratory’s DNA testing and analysis, violated the

defendant’s constitutional right to confrontation where no

representative of Cellmark, the testing laboratory that generated

the report, was presented for cross-examination regarding the

report. The court held determination of the issue depended, in

part, on whether the report was testimonial in nature. Williams,

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238 Ill. 2d at 141.

The supreme court recognized that although the rule against

hearsay generally prohibits the introduction of an out-of-court

statement offered to prove the truth of the matter asserted,

“[u]nderlying facts and data, however, may be disclosed by an

expert, not for the truth of the matter asserted, but for the

purpose of explaining the basis for his opinion.” Williams, 238

Ill. 2d at 143, citing People v. Lovejoy, 235 Ill. 2d 97, 143,

919 N.E.2d 843 (2009). Moreover, the court noted “it is well

established that an expert may testify about the findings and

conclusions of a nontestifying expert that he used in forming his

opinions.”2 Williams, 238 Ill. 2d at 143, citing Lovejoy, 235

Ill. 2d at 143.

2

This “well established” principle is based on our supreme

court’s adoption of Federal Rule of Evidence 703 in Wilson, 84

Ill. 2d at 192-93. We note Federal Rule 703 was amended in 2000,

however, to provide “[f]acts or data that are otherwise

inadmissible shall not be disclosed to the jury by the proponent

of the opinion or inference unless the court determines that

their probative value in assisting the jury to evaluate the

expert’s opinion substantially outweighs their prejudicial

effect.” Fed. R. Evid. 703 (amended 2000). The advisory

committee notes reflect the 2000 amendment “provides a

presumption against disclosure to the jury of information used as

the basis of an expert’s opinion and not admissible for any

substantive purpose, when the information is offered by the

proponent of the expert.” Fed. R. Evid. 703, Advisory

Committee’s Note. The amended version of Federal Rule 703 has

not been adopted in Illinois.

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The Illinois Supreme Court held the Cellmark report was not

offered for the truth of the matter asserted. “The State

introduced this testimony, rather, to show the underlying facts

and data [the analyst] used before rendering an expert opinion in

this case.” Williams, 238 Ill. 2d at 145. The court noted the

analyst “testified to her conclusion based upon her own

subjective judgment about the comparison of the Cellmark report

with the existing ISP profile.” Williams, 238 Ill. 2d at 145.

Moreover, the supreme court emphasized the Cellmark report was

not admitted into evidence at all. The court further

distinguished the case from the U.S. Supreme Court opinion in

Melendez-Diaz v. Massachusetts, 557 U.S. __, 174 L. Ed. 2d 314,

129 S. Ct. 2527 (2009) because the analyst’s opinion was based on

her own statistical analysis and not just a “bare bones”

regurgitation of Cellmark’s report. Williams, 238 Ill. 2d at

149. Because the report was not offered to prove the truth of

Cellmark’s findings, the supreme court concluded the

Confrontation Clause was not violated. Williams, 238 Ill. 2d at

149.

Here, as in Williams, the report was not offered to prove

the truth of Cellmark’s findings; instead, Ginglesberger

testified regarding the report to provide a basis for her own

opinion.

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Moreover, Ginglesberger--unlike the DNA expert in Williams--

was an actual Cellmark representative, subject to cross-

examination by defense counsel. Accepting defendant’s

contentions as true in this case would require each and every

individual involved in the testing and analysis of DNA to testify

at trial.

Because the report was not offered to prove the truth of

Cellmark’s findings, the confrontation clause was not violated.

See Williams, 238 Ill. 2d at 149. There is no Crawford error to

review here.

III. Harmless Error

We now turn to the issue of whether the trial court’s

improper admission of the other-crimes evidence in this case

amounted to harmless error. “[I]mproper introduction of other-

crimes evidence is harmless error when a defendant is neither

prejudiced nor denied a fair trial based upon its admission.”

Nieves, 193 Ill. 2d at 530.

Here, T.W.’s testimony at trial that defendant grabbed her

while walking past an alley, dragged her into the corridor of an

abandoned building, and sexually assaulted her was not attacked

or challenged, except in statements by defense counsel. T.W.’s

identification of defendant as her attacker in a lineup and in

court went unchallenged. After T.W. flagged down a police

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officer and reported the rape, she was taken to an emergency room

for treatment. Dr. Joseph Knight testified that when he

interviewed and examined T.W. in the emergency room, she told him

that she had been sexually assaulted orally and vaginally in a

vacant building. Dr. Knight noted a thin white discharge around

T.W.’s vagina during a pelvic exam. He administered a sexual

assault evidence collection kit, which obtained miscellaneous

debris, oral swabs, vaginal swabs, pubic hair combings, head hair

combings, and a blood standard from T.W. The scientific evidence

collected from T.W.’s vaginal swabs after the assault provided a

male DNA profile that matched defendant’s DNA profile. Based on

T.W.’s testimony, combined with the medical evidence, a rational

trier of fact easily could have found the sexual intercourse took

place by force and against T.W.’s will. See People v. Le, 346

Ill. App. 3d 41, 50-51, 803 N.E.2d 552 (2004), citing People v.

Morrow, 104 Ill. App. 3d 995, 433 N.E.2d 985 (1982) (unequivocal

testimony of complainants was sufficient to sustain conviction in

rape prosecution, even without physical evidence to corroborate

their assertion with respect to the defendant’s use of force).

Given the strength of the evidence presented against

defendant, mixed with the fact that the State did not put undue

emphasis on the other-crimes evidence during its opening or

closing arguments, we cannot say the outcome of his trial would

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have been different had C.V.’s testimony regarding defendant’s

involvement in her assault been excluded. See People v.

Gonzalez, 379 Ill. App. 3d 941, 952, 884 N.E.2d 228 (2008). The

error in admitting C.V.’s testimony to establish defendant’s

propensity to commit sexual assault was harmless. See Nieves,

193 Ill. 2d at 530-31; Gonzalez, 379 Ill. App. 3d at 952.

CONCLUSION

We affirm defendant’s conviction and sentences.

Affirmed.

HALL, P.J., and R. GORDON, J., concur.

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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

LORELL JOHNSON,

Defendant-Appellant.

No. 1-07-0715

Appellate Court of Illinois

First District, FIRST DIVISION

December 20, 2010

Justice Bertina E. Lampkin authored the opinion of the court:

Presiding Justice Hall and Justice R. Gordon concur.

Appeal from the Circuit Court of Cook County.

The Hon. Stanley J. Sacks, Judge Presiding.

COUNSEL FOR APPELLANT

Michael J. Pelletier, State Appellate Defender, Chicago, IL 60601

Patricia Unsinn, Deputy Defender

OF COUNSEL: Brian E. Koch

COUNSEL FOR APPELLEE

Anita Alvarez, Cook County State’s Attorney, Chicago, IL 60602

OF COUNSEL: James E. Fitzgerald, Alan J. Spellberg

and Amy Watroba Kern

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