{ "id": 3505706, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD PARTIN, Defendant-Appellant", "name_abbreviation": "People v. Partin", "decision_date": "1987-05-29", "docket_number": "No. 85\u20143124", "first_page": "365", "last_page": "394", "citations": [ { "type": "official", "cite": "156 Ill. App. 3d 365" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "474 N.E.2d 1330", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 758", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3495130 ], "pin_cites": [ { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0758-01" ] }, { "cite": "431 N.E.2d 344", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "88 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082585 ], "year": 1985, "pin_cites": [ { "page": "492-93" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0482-01" ] }, { "cite": "451 N.E.2d 607", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 125", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3520187 ], "weight": 2, "pin_cites": [ { "page": "127-28" }, { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0125-01" ] }, { "cite": "483 N.E.2d 606", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "136 Ill. 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App. 3d 678", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3644548 ], "weight": 3, "pin_cites": [ { "page": "684-85" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/148/0678-01" ] }, { "cite": "498 N.E.2d 621", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "147 Ill. App. 3d 891", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3604708 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/147/0891-01" ] }, { "cite": "228 N.E.2d 215", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "84 Ill. App. 2d 73", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2554218 ], "pin_cites": [ { "page": "79" } ], "opinion_index": 1, "case_paths": [ "/ill-app-2d/84/0073-01" ] }, { "cite": "131 N.E.2d 474", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 1 }, { "cite": "7 Ill. 2d 527", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2713789 ], "year": 1967, "pin_cites": [ { "page": "536" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/7/0527-01" ] }, { "cite": "485 N.E.2d 403", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "137 Ill. App. 3d 870", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3640281 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/137/0870-01" ] }, { "cite": "424 N.E.2d 367", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "98 Ill. App. 3d 720", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499833 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/98/0720-01" ] }, { "cite": "429 N.E.2d 470", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 1 }, { "cite": "87 Ill. 2d 134", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3030472 ], "weight": 3, "pin_cites": [ { "page": "142-43" }, { "page": "141" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/87/0134-01" ] }, { "cite": "436 N.E.2d 667", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "opinion_index": 1 }, { "cite": "106 Ill. App. 3d 993", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3030849 ], "weight": 6, "pin_cites": [ { "page": "1000" }, { "page": "1001" }, { "page": "999-1000" }, { "page": "999-1000" }, { "page": "1000" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/106/0993-01" ] }, { "cite": "392 N.E.2d 251", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "74 Ill. App. 3d 58", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3267304 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/74/0058-01" ] }, { "cite": "454 N.E.2d 334", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "117 Ill. App. 3d 1026", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3482133 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/117/1026-01" ] }, { "cite": "485 N.E.2d 1292", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "138 Ill. App. 3d 481", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499200 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/138/0481-01" ] } ], "analysis": { "cardinality": 1695, "char_count": 71237, "ocr_confidence": 0.75, "pagerank": { "raw": 4.0411541462112554e-07, "percentile": 0.9073953732437683 }, "sha256": "23feef081c7b2c55d58c0de0876fa726fd42bb9eb30b86c56ac022480a08e08e", "simhash": "1:4262346c7beb50a3", "word_count": 12083 }, "last_updated": "2023-07-14T21:00:40.510932+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD PARTIN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE MURRAY\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Cook County, defendant, Richard Partin, was found guilty of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11\u20144(a)(2)) and child pornography (Ill. Rev. Stat. 1981, ch. 38, par. 11\u201420(a)) and sentenced to a term of 15 years\u2019 imprisonment in the Illinois Department of Corrections. He now appeals, contending that the trial court erroneously allowed testimony of other crimes into evidence and that the sentence imposed was excessive. For the reasons set forth below, we affirm.\nAt trial, complainant testified that he met defendant in the fall of 1979 at the John Maloney Funeral Home in Chicago where he was seeking a job. Defendant hired him to perform general maintenance work during the evening, such as mopping floors and dusting, and paid him $10 to $15 per job. Complainant continued working for defendant through 1982 and, in July 1982, when he was 14 years old, he visited defendant in his apartment, located on the second floor of the funeral home. He asked defendant what he could do to build up his body and defendant replied that if he ate the right food and exercised he could build himself up. Defendant offered to help him and took his photograph with a Polaroid camera while complainant was fully clothed and seated in a chair.\nDefendant then instructed complainant to take his clothes off and stand by the bed. Complainant testified that he agreed to do so because defendant often told him that he had the power to execute people, and he was afraid of defendant. After complainant had undressed, defendant used a cloth tape measure to measure parts of his body and then wrote these measurements on a legal pad. After measuring complainant\u2019s arm, leg and chest, defendant began to rub complainant\u2019s penis for two to three minutes until complainant sustained an erection; defendant then measured complainant\u2019s penis and recorded this measurement. Defendant also photographed complainant while he was naked and told him how and where to pose. These three photographs, as well as the one taken while complainant was fully clothed, were later introduced into evidence.\nAfter he had been photographed, complainant dressed, and defendant told him not to tell anyone what had occurred. Complainant testified that he was frightened of defendant and did not inform his parents or the police of what had happened at that time. He continued working at the funeral home for a short time thereafter and never spoke to any of the other employees there about defendant.\nThe State also called S.B. as a witness. After defense counsel moved to prevent his testimony, the trial court allowed him to testify. S.B. stated that in August 1982, when he was 14 years old, complainant introduced him to defendant and defendant hired him to take over complainant\u2019s job after complainant quit. Defendant told S.B. that he was to clean up after wakes and to dust and vacuum once a week after John Maloney left the funeral home.\nDefendant later informed S.B. that he was preparing a study on adolescents and would be taking measurements of S.B.\u2019s body for the study. Although S.B. initially refused, in September or October 1982 S.B. agreed to go to defendant\u2019s room in the funeral home for the measurements. Defendant asked S.B. to undress and then measured S.B.\u2019s erect and nonerect penis. At a subsequent visit, defendant measured S.B.\u2019s nonerect penis and then, after they \u201cmasturbated each other,\u201d measured S.B.\u2019s erect penis. S.B. continued to work for defendant at the funeral home until May 1983 and had sexual contact with him about once a week until leaving the job. During two of S.B.\u2019s visits to defendant\u2019s apartment, defendant showed him the photographs he had taken of complainant while he was naked.\nJ.C., another State witness who also testified over defendant\u2019s objections, stated that his mother had worked at the Maloney Funeral Home and that he obtained a job there working for defendant. He was paid by defendant and never received a check from John Maloney. During the summer of 1982, when he was 14 years old, J.C. visited defendant\u2019s apartment at the funeral home to talk to defendant. Defendant rubbed J.C.\u2019s penis with his hand. J.C. continued to have these encounters with defendant once a week until January 1984, when he left his job at the home. During his employment, he was shown the pictures defendant had taken of complainant, which defendant kept in an urn on his desk, and noticed that defendant had an Instamatic camera.\nThe final witness, Samuel Christian, a youth officer for the Chicago police department, testified that on March 27, 1984, he and his partner, Brian Killacky, executed a search warrant for defendant\u2019s apartment at the Maloney Funeral Home. The warrant was obtained as a result of an investigation which involved another youth, E.B. The officers seized several items from defendant\u2019s apartment, including a Polaroid camera and pictures of naked youths \u2014 the four photographs of complainant among them \u2014 and took defendant into custody. They brought defendant to the station, processed him, and, after advising him of his Miranda rights, questioned him about several photographs they had found. Defendant told the officers that some of the photographs were of complainant and that he had taken them. He stated that he touched the boy\u2019s penis to cause an erection. Defendant later repeated these statements to an assistant State\u2019s Attorney who prepared a written statement.\nAfter closing arguments, the jury found defendant guilty of indecent liberties with a child and child pornography. Defendant\u2019s motion for a new trial was denied, and he was sentenced to a term of 15 years\u2019 imprisonment. After sentence was imposed, defendant pleaded guilty to indecent liberties with a child for offenses committed with S.B. and J.C. and was sentenced to two 10-year terms of imprisonment to run concurrently with the 15-year term he received in the case at bar.\nDefendant now contends that the trial court committed reversible error when it allowed testimony of other offenses by defendant into evidence. The State asserts that defendant waived this issue by failing to include it in his motion for a new trial. Alternatively, the State argues that even if defendant had not waived the issue, the trial court did not err in allowing the testimony of S.B. and J.C., who were victims of crimes similar to the crime of which complainant was a victim; i.e., their testimony was admissible as evidence of a common scheme or design or modus operandi.\nWe first observe that the general rule is that failure by a defendant to raise an issue in a written motion for a new trial waives that issue and it cannot constitute grounds for reversal on review. (People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.) A reviewing court, however, may notice plain errors or defects affecting substantial rights of a defendant even if they are not brought to the attention of the trial court. (54 Ill. 2d 280, 282, 296 N.E.2d 856.) In the instant case, we find no reason to depart from the general rule and note that even if defendant had not waived the issue of whether the contested testimony was properly admitted into evidence, the trial court\u2019s admission of this testimony into evidence would be upheld.\nMoreover, evidence of other crimes is admissible if it is relevant for any purpose other than to show the defendant\u2019s character or propensity to commit crime. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 484, 485 N.E.2d 1292.) If the evidence is relevant to prove modus operandi, knowledge, intent, lack of mistake, or that the crime charged was part of a common design, scheme or plan of the defendant, it is admissible. (138 Ill. App. 3d 481, 484-85, 485 N.E.2d 1292.) It is within the discretion of the trial court to decide whether evidence of other crimes is relevant to a material issue in the case and whether the probative value of the evidence outweighs its prejudicial effect; a reviewing court will overturn the trial court\u2019s decision to admit such evidence only if there has been a clear abuse of discretion. People v. Fuller (1983), 117 Ill. App. 3d 1026, 1036, 454 N.E.2d 334.\nIn the case at bar, the trial court admitted into evidence the testimony of S.B. and J.C. under the common design or scheme and modus operandi exceptions to the general rule requiring exclusion of evidence of other offenses. Many courts, like the trial court here, use the terms \u201ccommon design or scheme\u201d interchangeably with \u201cmodus operandi\u201d (see People v. Fuller (1983), 117 Ill. App. 3d 1026, 454 N.E.2d 334; People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251), but the terms have separate and distinct meanings. \u201cCommon design\u201d refers to a larger criminal scheme of which the crime charged is only a portion and is often relevant to show the motive for the crime charged. (People v. Barbour (1982), 106 Ill. App. 3d 993, 999-1000, 436 N.E.2d 667.) \u201cModus operandi\u201d means method of working and refers to a pattern of criminal behavior that is so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer; it is useful in showing that the accused is the perpetrator of the crime charged. (106 Ill. App. 3d 993, 999-1000, 436 N.E.2d 667.) Here, defendant contends that the testimony of S.B. and J.C. did not fall within either the common design or modus operandi exceptions, while the State asserts that the evidence falls under both exceptions.\nEvidence of a separate offense is found to be relevant and admissible as proof of modus operandi only upon a strong and persuasive showing of similarity of the crime charged and the separate offense; there must be a substantial and meaningful link between the offenses being compared. (People v. Tate (1981), 87 Ill. 2d 134, 141, 143, 429 N.E.2d 470.) Although the similarities of the offenses being compared need not be unique, some distinctive feature not common to most offenses of that type must be present to show modus operandi. (87 Ill. 2d 134, 142-43, 429 N.E.2d 470.) The State must prove that another offense did take place and was committed by defendant, but the proof need not be beyond a reasonable doubt. People v. Fuller (1983), 117 Ill. App. 3d 1026, 1036, 454 N.E.2d 334.\nIn the case at bar, the testimony of S.B. and J.C. established that they were victims of lewd fondling committed by defendant. We find that their testimony was admissible as evidence of defendant\u2019s modus operandi. All of defendant\u2019s victims were adolescent males, 14 or 15 years of age, whom he had hired to work for him at the funeral home to do general maintenance or custodial duties. He would fondle their genitals until they obtained an erection and, for two of the victims, he measured their erect penises. He always committed these offenses in his room at the funeral home, usually in the evening, and the incidents occurred during the summer and autumn of 1982. Defendant took several photographs of complainant, who was naked, showed them to the other two boys, and requested them to pose for him. We find the offenses against complainant, S.B., and J.C. are so substantially similar that they show a common method of procedure and are relevant to prove defendant\u2019s modus operandi. People v. Burgin (1979), 74 Ill. App. 3d 58, 69, 392 N.E.2d 251.\nDefendant also contends that the testimony of S.B. and J.C. was not admissible to show his modus operandi for the offense of child pornography against them. While defendant may not have committed the offense of child pornography against these two victims, we find that their testimony was admissible as evidence of defendant\u2019s modus operandi for the offense of indecent liberties with a child; defendant\u2019s failure to photograph S.B. and J.C. did not weaken the link of similarities between the offenses committed against them and the offense committed against complainant. Exact identity of the offenses is not required to admit evidence of other crimes. (People v. Fuller (1983), 117 Ill. App. 3d 1026, 1035, 454 N.E.2d 334.) In People v. Anderson (1982), 108 Ill. App. 3d 563, 439 N.E.2d 65, for example, the reviewing court upheld the trial court\u2019s admission of evidence that defendant committed similar attacks against women other than the complainant in affirming defendant\u2019s convictions for attempted murder, armed robbery, and aggravated battery even though he had not shot either of the other two victims and only one of the victims had been raped.\nWe further find that the testimony of S.B. and J.C. was properly admitted as evidence of a common design or scheme. Clearly, defendant planned to hire male adolescents to work directly for him, not the owner of Maloney\u2019s Funeral Home, and to lure them to his room to engage in lewd acts. Although he only photographed complainant, he requested the other two boys to be photographed and showed them his camera as well as the pictures of complainant.\nDefendant next contends that even if the contested testimony was admissible as evidence of a common design or modus operandi, it is irrelevant and that any probative value it might have was outweighed by its prejudicial effect. In Illinois, any evidence which tends to prove a fact in issue is relevant. (People v. Burgin (1979), 74 Ill. App. 3d 58, 69, 392 N.E.2d 251.) Defendant placed in issue whether a crime was committed and who committed it. We find that the testimony of S.B. and J.C. was probative and relevant as to those issues and that its probative value was not outweighed by any prejudice it may have created in the jury against defendant. The trial court carefully limited the testimony to offenses which occurred around the same time period in which the offense occurred against complainant and instructed the jury to consider the testimony only for the limited purpose for which it was admitted, thereby alleviating any potential prejudice. (See People v. Carter (1981), 98 Ill. App. 3d 720, 724, 424 N.E.2d 367.) The trial court must be afforded some latitude in assessing the relevance of testimony to be admitted (People v. Matthews (1985), 137 Ill. App. 3d 870, 875, 485 N.E.2d 403), and we find that the trial court here did not abuse its discretion when it found the contested testimony to be relevant and admitted it into evidence. Finally, although the dissent herein concludes that the evidence of other crimes was unfair and unnecessary, we note that the issue in this appeal is not the fairness of the evidence or its necessity but rather its admissibility under settled rules of evidence.\nDefendant also contends that the sentence imposed by the trial court was excessive and that the court failed to properly weigh the factors favoring mitigation of his sentence. The State asserts that the trial court properly considered the seriousness of the offense of which defendant was found guilty with all mitigating factors and correctly imposed the maximum sentence.\nDefendant was convicted of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11\u20144(a)(2)) and child pornography (Ill. Rev. Stat. 1981, ch. 38, par. 11\u201420(a)), offenses punishable by a sentence of not less than four years or more than 15 years (Ill. Rev. Stat. 1983, ch. 38, par. 1005\u20148\u20141(a)(4)). After a sentencing hearing during which two -witnesses testified for the State, the trial court sentenced defendant to a term of 15 years\u2019 imprisonment.\nAt the hearing, the mother of a fourth boy, E.B., identified pictures of her son taken by defendant. Youth officer Samuel Christian testified that those photographs, which showed E.B. in various states of undress and sexual arousal, were recovered from defendant\u2019s room at the funeral home on March 28, 1984. Defendant admitted to the officer that he took the photographs and performed sexual activities on E.B. However, defense counsel requested that the trial court consider defendant\u2019s presentence investigation report which showed that defendant was married, had no criminal record, was steadily employed, was a graduate of the University of Chicago, and had heart trouble for which he took medication. Counsel also stated that there was no evidence that any of defendant\u2019s victims were permanently injured by his acts or that defendant had any record of violence and requested that defendant receive the minimum sentence. After hearing the parties\u2019 arguments, the trial court imposed a sentence of 15 years\u2019 imprisonment based on its consideration of the nature of the offenses against defendant and the presentence investigation report.\nDefendant contends that the trial court did not weigh the factors in aggravation or mitigation of his sentence but instead disregarded any mitigating factors because they failed to absolve defendant of the crime charged. Although the Illinois Constitution requires the trial court to determine all penalties both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship (Ill. Const. 1970, art. I, sec. 11), a trial court is not required to give greater weight to the possibility of rehabilitation than to the seriousness of the offense. (People v. Green (1985), 136 Ill. App. 3d 361, 368, 483 N.E.2d 606.) There is a strong presumption that a trial court\u2019s sentencing decision is based upon proper legal reasoning, and the court will be presumed to have considered any evidence of mitigation which is before it. (People v. Goodman (1983), 116 Ill. App. 3d 125, 127-28, 451 N.E.2d 607.) The court has no obligation to recite and give value to each fact presented at the sentencing hearing. (116 Ill. App. 3d 125, 128, 451 N.E.2d 607.) The trial court is the proper forum in which to determine a suitable sentence, and the trial court\u2019s decision regarding sentencing is entitled to great deference and weight. (People v. LaPointe (1982), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344.) This decision will be modified by a reviewing court only if there has been an abuse of discretion. People v. Williams (1985), 130 Ill. App. 3d 758, 762, 474 N.E.2d 1330.\nWe find defendant\u2019s contention that the trial court failed to weigh the aggravating and mitigating factors to be without merit and find no abuse of the trial court\u2019s discretion. While at one point the court stated that \u201c[t]he only thing I am concerned with is the nature of the charges you are accused of,\u201d the court\u2019s next statement involved the consideration of defendant\u2019s health condition. The court also stated that the presentence investigation report was considered in making its determination. Clearly, the court considered all the aggravating and mitigating factors before it in the sentencing hearing and determined that defendant\u2019s behavior justified the imposition of the maximum penalty for the offenses of which he was found guilty. Because this penalty is within the statutory limits and the trial court did not abuse its discretion in imposing the term of imprisonment, we find no reason to vacate or reduce defendant\u2019s sentence.\nAccordingly, the judgment of the circuit court is affirmed. As part of our judgment, we grant the State\u2019s request that defendant be assessed $50 as costs for this appeal.\nAffirmed.\nLORENZ, J., concurs.", "type": "majority", "author": "JUSTICE MURRAY" }, { "text": "JUSTICE PINCHAM,\ndissenting:\nI dissent. Although I am of the opinion that the 15-year imprisonment sentence was not excessive but was appropriate for the dastardly sex offenses the defendant committed upon E.B., minor No. 1, for which the defendant was on trial, I am also of the opinion that the admission of the evidence of the defendant\u2019s commission of other sex offenses upon S.B. and J.C., minors Nos. 2 and 3, for which the defendant was not on trial, circumvented the letter and spirit of the defendant\u2019s constitutional rights to be informed of and tried on the accusation alleged in the indictment, against being twice placed in jeopardy for the same offense, to due process, to fundamental fairness, and to a fair trial. The defendant\u2019s conviction should therefore be reversed and the cause should be remanded for a new trial.\nThe State presented adequate and unrebutted evidence to establish the defendant\u2019s guilt beyond a reasonable doubt of the commission of the sex offenses upon E.B., minor No. 1. That evidence was the testimony of E.B., the pornographic pictures of E.B. which were recovered from the defendant\u2019s possession and corroborated E.B.\u2019s testimony, and the defendant\u2019s confession. But there is not one set of evidentiary rules for the guilty and another set of rules for the innocent. A defendant, guilty or innocent, is entitled to a fair, orderly, and impartial trial in accordance with the law of the land. The defendant in this case did not receive such trial. People v. Galloway (1956), 7 Ill. 2d 527, 536, 131 N.E.2d 474; People v. Savage (1967), 84 Ill. App. 2d 73, 79, 228 N.E.2d 215.\nThe law does not fluctuate in order to more certainly reach a guilty finding. The prejudicial and inadmissible evidence of the defendant\u2019s commission of other sex offenses upon S.B. and J.C., minors Nos. 2 and 3, might be appropriately characterized as the prosecutor\u2019s attempt to gild the lily, overtry his case, and overkill in the adversarial proceedings. The greater portion of the trial evidence was about the defendant\u2019s commission of the sex offenses upon S.B. and J.C., minors Nos. 2 and 3.\nCount I of the indictment No. 84-4395 in the case at bar alleged, \u201c[o]n or about July 1, 1982 and continuing on through July 31, 1982 at and within the County of Cook, Richard Partin a male person of the age of seventeen years and upwards committed the offense of indecent liberties with a child in that he, with the intent to arouse and \u2019 satisfy his sexual desires, lewdly fondled and touched E.B., [minor No. 1], a child under the age of sixteen years, in violation of Chapter 38, Section 11 \u2014 4\u2014A(2) of the Illinois Revised Statutes 1983 ***.\u201d\nCount II of the indictment alleged that on the aforesaid dates and place, \u201cRichard Partin committed the offense of child pornography in that he photographed child pornography, to wit: he photographed E.B., [minor No. 1], a child under the age of sixteen, while he was nude, in violation of Chapter 38, Section 11 \u2014 20\u2014A\u2014B(2) of the Illinois Revised Statutes 1983 ***.\u201d\nIn another indictment, No. 84-4410, the defendant was charged with the offense of indecent liberties with S.B., minor No. 2, on or about February 9, 1983. A third indictment, No. 84-4397, charged the defendant with indecent liberties with J.C., minor No. 3, on September 7,1983.\nPrior to the jury selection, the following colloquy occurred:\n\u201c[Assistant State\u2019s Attorney]: [T]he State plans on calling all victims involved in the cases before you, besides the victim in the elected case, to show \u2014 scheme and pattern.\n* * *\n[Defendant\u2019s attorney]: That, of course, your Honor, I would object to.\nTHE COURT: [Y]ou can show correlation between the activity involved with these other individuals; point of time, and in\u2014 of the changes before this Court, and common scheme, plan or design it is constantly been held that it is admissible and I will not restrict the State with reference to that *** other knowledge of that kind can only be used for purposes of showing common scheme, plan or design.\u201d (Emphasis added.)\nThe State acknowledged in its brief before this court that the trial court\u2019s basis for admitting evidence of the defendant\u2019s commission of the other sex offenses for which the defendant was not on trial was to show common scheme, plan, or design. Then, apparently recognizing that common scheme, plan or design is legally an unsound basis for admitting evidence of the defendant\u2019s commission of the other sex offenses, the State abandoned the common scheme, plan, and design basis in its brief and shifted to a modus operandi basis to justify the admission of the evidence of the commission of the other sex offenses by the defendant.\nThe State was not authorized to join the different alleged sex offenses upon the three minors in the same indictment because the offenses were not based on the same act or on two or more acts which were part of the same comprehensive transaction, which is a prerequisite for a joinder of offenses under section 111 \u2014 4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 111\u20144(a)). See People v. Harris (1986), 147 Ill. App. 3d 891, 498 N.E.2d 621 (Pinchara, J., dissenting).\nSection 114 \u2014 7 of the Code of Criminal Procedure (Ill. Rev. Stat. 1985, ch. 38, par. 114\u20147) provides: \u201cThe court may order 2 or more charges to be tried together if the offenses and the defendants could have been joined in a single charge.\u201d The trial court was not authorized in the case at bar to order the alleged offenses against the three minors to be tried together under section 114 \u2014 7. The different alleged offenses against the three minors could not have been joined in a single charge because they were not part of the same comprehensive transaction, which is a prerequisite under section 111 \u2014 4(a). Because the alleged offenses against the three minors were not and could not have been joined in a single indictment, the defendant could not make a motion for a severance based on a prejudicial joinder of the offenses under section 114 \u2014 8. (Ill. Rev. Stat. 1985, ch. 38, par. 114\u20148.) That section provides: \u201cIf it appears that a defendant or the State is prejudiced by a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require.\u201d\nAt trial, the State\u2019s first witness was the mother of E.B., minor No. 1, who testified as to E.B.\u2019s birthdate. E.B. then testified that in the fall of 1979, when he was 10 years old, the defendant hired him to work in general maintenance at the funeral home where the defendant was employed and lived. E.B. worked there from 1979 to the second week in July 1982, at which time E.B. went to the defendant\u2019s room and talked to him about body building. The defendant told E.B. if he ate the right food and exercised he would be able to build his body up. The defendant took a picture of E.B., who was clothed. The defendant told E.B. to take his clothes off and E.B. did. The defendant measured various parts of E.B.\u2019s body with a cloth tape measure and recorded the measurements on a yellow pad. The defendant then rubbed E.B.\u2019s penis and genitals and told E.B. he was doing that to measure his penis. The defendant measured E.B.\u2019s erect penis and recorded the measurements on the pad. While E.B. was nude, the defendant directed E.B. to pose and the defendant took pictures of him. E.B. identified the pictures that the defendant took of him as State\u2019s exhibit No. 1, a picture of E.B. while dressed, and Nos. 2, 3 and 4 which were nude pictures of E.B. The defendant told E.B. not to tell anyone about the pictures or measurements. E.B. testified that July 1982 was three months before his 15th birthday and that he had not finished the eighth grade.\nE.B.\u2019s direct-examination testimony constituted 18 pages of the trial record and his cross-examination testimony constituted 11 pages.\nAt the conclusion of E.B.\u2019s testimony, the defendant\u2019s attorney again objected to the testimony of other \u201csupposed victims of Mr. Partin. * * * My objection is that they cannot be brought in on this case, despite the Court\u2019s ruling on common scheme, pattern, and design. *** The State is going to inflame the jury and mislead them ***. It shows that if somebody ten times [sic], they are bound to be guilty at least once. I see no other purpose than that is what the State is trying to do.\u201d (Emphasis added.)\nThe assistant State\u2019s Attorney then gave a litany of grounds for the admission of evidence of the defendant\u2019s commission of the offenses against S.B. and J.C., minors Nos. 2 and 3. The assistant State\u2019s Attorney stated:\n\u201cThe ability for [1] more than one witness to identify this defendant, [2] more than one witness to place this defendant in a certain location, [3] one or more witness to be able to identify the pictures that have been introduced at least for the purpose of identification before this witness, and later presumably to the jury itself.\nIf there is [4] a scheme [5] in which other young men of similar age, [6] same location, [7] at a similar time, Your Honor, which the People intend to produce with these other witnesses, counsel has known about them. I think it falls within common scheme, [8] modus operandi, Your Honor.\n* * *\nThe next witness is S.B., [minor No. 2] Your Honor. He is of similar age as the victim in this cause that has already testified.\nHe would also testify that he took the job that the victim had with [the] funeral home, same duties, same arrangements, and Your Honor, he was [9] molested in the same fashion.\n* * *\nTHE COURT: [T]he court is well aware of the limitations heretofore imposed whereby a court would allow other incidents to be used for purposes of establishing common scheme, plan, or design. It does not require that any victim or person testifying with reference to this had in fact been convicted of the charges.\nThe only thing is for the purpose of showing the jury that in fact there is conduct taken by the defendant involved herein which can be shown to have occurred in other situations, which were common in nature and could be predicated upon that, ***.\nIt has been allowed to be presented with reference to matters similar in nature, *** if in fact it could be established that it is in close proximity of time, the nature of the incidents that occurred herein. *** I will note your objections, [and] overrule them.\u201d\nG.B. was then called as a State\u2019s witness. She testified that she was the mother of S.B., minor No. 2, and that S.B. was born on November 23,1967.\nNext, S.B. was called as a State\u2019s witness. The trial court did not inform the jury on the supposed limited purpose of S.B.\u2019s testimony.\nS.B. testified that he and E.B., minor No. 1, were high school classmates, that he was introduced to the defendant by E.B. in August 1982 when he was 14 years old, and that at the end, of 1982 he took over E.B.\u2019s job with the defendant at the funeral home.\nAt a sidebar conference out of the hearing of the jury, the assistant State\u2019s Attorney, over the defendant\u2019s objection, was allowed to ask S.B. leading questions. In the jury\u2019s presence, S.B. testified:\n\u201c[Assistant State\u2019s Attorney] Q. During 1982, did you have any sexual contact with Richard Partin?\nA. Yes.\n* * *\nQ. Did Mr. Partin ever talk to you about measurements?\nA. Yes.\nQ. And what year was that when Mr. Partin talked to you about measurements?\nA. That was at the end of 1982.\nQ. And could you elaborate to the ladies and gentlemen of the jury what Richard Partin said to you regarding measurements?\nA. He told me that he was doing a study on adolescence, and that he would be taking measurements of my body for the study.\nQ. Did Mr. Partin tell you what part of your body that he wanted to measure? |\nA. Yes.\nQ. What part was that?\nA. The \u2014 all parts of the body, including the genitals.\u201d\nS.B. testified that he did not comply with the defendant\u2019s first request but that he complied with the second and that while his pants and underwear were off the defendant took measurements of his flaccid and erect penis in his room in the funeral home around the end of 1982. S.B. further testified:\n\u201c[Assistant State\u2019s Attorney] Q. What did Mr. Partin do in the last incident regard to measurements?\nA. In the last incident, he measured my non-erect penis and then we masturbated each other, and then he measured my erect penis.\nQ. Now, did Mr. Partin take any notes at any time he did any measurements with you and write them down?\nA. I didn\u2019t see him do that.\nQ. Did Mr. Partin have physical contact with his hands on your penis after 1982?\nA. Yes.\n* * *\nQ. Up until the time of May 1983, that you left employment with Mr. Partin, did you continue to have sexual contact with Mr. Partin where he would place his hands on your penis?\nA. Yes.\nQ. Wkat frequency was that sir?\nA. Approximately once a week.\u201d\nS.B. then testified that after he saw the defendant in May 1983, he next saw the defendant that summer. Wflien asked by the assistant State\u2019s Attorney where he saw the defendant, the defendant\u2019s attorney objected. The following colloquy occurred out of the presence and hearing of the jury:\n\u201cTHE COURT: Wfliat is your offer of proof with reference to that aspect?\n[Assistant State\u2019s Attorney]: Your Honor he was re-employed in the Summer of \u201883, and that the same type of touching occurred in his sixteenth birthday.\n* * *\n[Defense attorney]: To allow this witness to testify about similar events, he has already done so. He has done it for two specific incidents, probably more. We are getting into more and that will mislead the jury.\nTHE COURT: I don\u2019t think it is necessary to go into it any further. I think they have been sufficiently advised there has been a common scheme and design, and I think you are going a little bit much with reference to this matter.\u201d\nS.B. resumed his testimony before the jury and further testified that the defendant had a camera and asked him to take nude pictures and that he refused. The defendant showed him State\u2019s exhibits Nos. 1 through 4, which were nude pictures of E.B., minor No. 1, with an erect and flaccid penis.\nS.B. was then cross-examined. S.B.\u2019s direct-examination constitutes 19 pages of the trial record and his cross-examination constitutes 12 pages. The trial court did not instruct the jury on the limited purpose for which S.B.\u2019s testimony was offered or on the limited purpose for which it could be considered by the jury.\nBefore the next witness was called, the assistant State\u2019s Attorney argued that the testimony of J.G., minor No. 3, should be admitted not to establish design, plan, scheme, or modus operandi, but to identify the defendant. The assistant State\u2019s Attorney urged:\n\u201cThe People anticipate the next witness will testify that there were measurements the year before, in the Summer of 1981, and that there was rubbing of the penis in the Summer of 1982, similar to the victim, and that the measurements were \u2014 also in the same location by the same person, that the measurements were so unique that it helps to identify this defendant. The fact again the witness also had the rubbing of the penis during the same time as the victim. We ask that it be allowed in.\n* * *\nIt is so unique that it goes to the identification of this defendant.\u201d (Emphasis added.)\nIn People v. Barbour (1982), 106 Ill. App. 3d 993, 1000, 436 N.E.2d 667, the State contended that evidence of two prior rapes by the defendant established the defendant\u2019s identity in the third rape for which he was on trial and was convicted. This court stated: \u201cThis claim is preposterous.\u201d (Emphasis added.) The identification of the defendant in the case at bar, as in Barbour, was not an issue. Each minor, E.B., S.B., and J.C., was well acquainted with the defendant. Each knew where the defendant lived and worked and each had worked for him over an extended period of time. The assistant State\u2019s Attorney did not explain to the trial court how evidence of the defendant\u2019s commission of the sex offenses with J.C., minor No. 3, would establish the defendant\u2019s identity as the alleged offender with E.B., minor No. 1.\nIn response to the assistant State\u2019s Attorney\u2019s request to admit testimony of J.C., minor No. 3, to \u201cidentify this defendant,\u201d the trial court stated:\n\u201c[T]o overtry this matter does not accomplish anything except bring in certain matters that I don\u2019t want the jury to consider with reference to this case.\nI will advise you both that I am going to indicate to the jury that the matters that are presented are not matters of litigation involved here, but presented for the limited purpose and should only be considered for a limited purpose.\u201d\nThe trial court did not then or at any other time properly instruct the jury on the limited purpose for which this evidence was admitted or the limited purpose for which the jury could consider it.\nThe next witness called by the assistant State\u2019s Attorney was M.C., who testified that she was the mother of J.C., minor No. 3, and that he was bom October 4,1967.\nThe State\u2019s next witness was J.C., minor No. 3, who testified that he did odd jobs for the defendant during the summer of 1982 at the funeral home where the defendant worked and lived. He had sexual contact with the defendant at least once a week. The defendant would mb J.C.\u2019s penis with his hands in the defendant\u2019s upstairs bedroom. J.C. knew and attended school with E.B., minor No. 1. The defendant showed J.C. the nude pictures of E.B., State\u2019s exhibits Nos. 2 through 4.\nThe direct and cross-examination of J.C. constitutes nine and eight pages, respectively, of the trial record.\nChicago police department youth Officer Samuel Christian was the next State\u2019s witness. He testified, \u201c[W]e investigate major crimes, sex crimes against children, [and the] exploitation of children in the city of Chicago and surrounding areas.\u201d On March 27, 1984, Officer Christian and his partner executed a search warrant in the defendant\u2019s presence at his residence in the funeral home and \u201crecovered a camera, a number of photographs of naked youths, personal papers, diary, some books, [and] some magazine articles.\u201d (Emphasis added.) State\u2019s exhibits Nos. 1 through 4 (of E.B., minor No. 1) were among the photographs that were recovered. The State\u2019s group exhibits 5A through I were copies of State\u2019s exhibits Nos. 1 through 4 and, Officer Christian testified, were \u201cfound inside a white box inside a book called Confession of Saint Augustine.\u201d Officer Christian also recovered a Polaroid camera from the defendant\u2019s residence, State\u2019s exhibit No. 6. The defendant identified the pictures of E.B., minor No. 1, to Officer Christian and stated to him that he had taken the pictures two years previously when E.B. was in the eighth grade and that he touched E.B.\u2019s penis to cause it to erect.\nThe State rested.\nOf the seven witnesses called by the State, only two, E.B., minor No. 1, and his mother, testified in support of the alleged E.B. offenses for which the defendant was on trial. Four witnesses, S.B., minor No. 2, and his mother, and J.C., minor No. 3, and his mother, testified about offenses committed by the defendant upon S.B. and J.C. for which the defendant was not on trial. The seventh witness, Officer Christian, testified about the seizure of the camera and E.B.\u2019s pictures, State\u2019s exhibits Nos. 1 through 4, in the defendant\u2019s apartment and the defendant\u2019s arrest and confession. Of the 110 pages of trial testimony presented by the State, only 30 pages were in support of the alleged offenses against E.B., minor No. 1, for which the defendant was on trial. The remaining 80 pages of trial testimony were of the defendant\u2019s commission of offenses upon S.B. and J.C., minors Nos. 2 and 3, for which the defendant was not on trial. The greater portion of the trial testimony presented by the State was devoted to proving commission of offenses by the defendant for which he was not on trial.\nThe majority is mistaken when it states, \u201cthe trial court carefully limited the testimony to offenses which occurred around the same time period in which the offense occurred against the complainant [E.B., minor No. 1].\u201d (156 Ill. App. 3d at 372.) The indictment alleged that the offenses were committed upon E.B., \u201con or about July 1, 1982 and continuing through July 31, 1982.\u201d E.B. testified that it was the second week in July 1982 that the defendant committed the various acts upon him. S.B., minor No. 2, testified, however, that he took over E.B.\u2019s job with the defendant at the funeral home at the end of 1982 and that approximately once a week from the end of 1982 to May 1983 he and the defendant masturbated each other. J.C., minor No. 3, testified that he had sexual contact with the defendant at least once a week during the summer of 1982. Thus, the S.B. offense, which occurred from the end of 1982 to May 1983, and the J.C. offenses, which occurred during the summer of 1982, were far removed from the mid-July 1982 E.B. offenses.\nThe sixth amendment to the Constitution of the United States provides, \u201cIn all criminal prosecutions, the accused shall enjoy the right *** to be informed of the nature and cause of the accusation ***.\u201d (U.S. Const., amend. VI.) The due process clause of the fourteenth amendment to the Constitution of the United States, which makes the sixth amendment binding upon the States, provides \u201c[N]or shall any State deprive any person of life, liberty or property, without due process of law ***.\u201d (U.S. Const., amend. XIV.) It is provided in article 1, section 8 of the Illinois Constitution, \u201cIn criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation and have a copy thereof ***.\u201d (Ill. Const. 1970, art. I, sec. 8.)\nA fundamental purpose of the constitutional right of a defendant to be informed of and to demand the nature and cause of the accusation against him is to enable the defendant to prepare and present a defense and to limit and confine the lines of battle at trial. This constitutional protection is circumvented when the State is allowed to expand the boundaries of the trial combat zone by presenting evidence of the defendant\u2019s commission of other offenses for which the defendant is not on trial, under the pretense of establishing the defendant\u2019s common scheme, plan, identification, design or modus operandi. The nature and cause of the accusation for which the defendant was on trial in the case at bar and the only alleged offenses the defendant was called upon by the indictment to defend against were the alleged offenses upon E.B., minor No. 1. In my judgment, the defendant\u2019s constitutional right to be informed of and tried on the accusation against him as alleged in the indictment should not have been thwarted by requiring the defendant to simultaneously defend against evidence of his alleged offenses upon S.B. and J.C., minors Nos. 2 and 3.\nThe assistant State\u2019s Attorney resorted to practically every conceivable basis, i.e., plan, design, common scheme, modus operandi and identification of the defendant, for the admission of the evidence of the defendant\u2019s commission of the alleged sex offenses upon S.B. and J.C., minors No. 2 and 3. If there was any question about his true motive for the admission of this evidence, the question was resolved by the assistant State\u2019s Attorney\u2019s opening and closing arguments. After telling the jury, \u201c[T]he charges before you are indecent liberties with a child and child pornography. They are two separate charges and you may consider as such,\u201d the assistant State\u2019s Attorney then recapitulated the testimony of E.B., minor No. 1, to the jury. Immediately thereafter the assistant State\u2019s Attorney argued:\n\u201cLadies and gentlemen, you also heard from two other young witnesses in this case, S.B. and J.C. [minors Nos. 1 and 2].\n4^ 4\u00bb 4*\n[TJheir testimony is significant, and you may consider it in one very important respect. It shows a common scheme, pattern and design on the part of the defendant, Richard Partin, to take advantage of these young people.\nAnd, let\u2019s consider the elements of the common scheme, pattern and design, with all three. Mr. Partin hired them to do odd jobs, unbeknown to Mr. Maloney, the owner of the funeral home.\nWith all three, Mr. Partin, would have them come over late in the evening, to the funeral home. With all three, Mr. Partin would have them come up to his apartment; with all three, Mr. Partin wanted to take their physical measurements.\nAnd, with all three, Mr. Partin, engaged in a pattern of sexual conduct. That, ladies and gentlemen, is scheme, pattern and design.\n4e 4< 4i\nWhat we are talking about is a protected class of people; people under the age of 16 years. And, [in] Illinois [they] are a protected class, both under the indecent liberties statutes, and again under the child pornography statute.\n4t 4t 4s\n[W]hen you are younger, when you are fifteen, fourteen, thirteen, on down the line, their experience is shown that we don\u2019t always exercise the best judgment; and at that time, we\u2014\n4s 4s 4s\nWe, as a community, at that time, ladies and gentlemen, have a vested interest in protecting people who may not use the best judgment [sic]; and let there be no mistake, E.B., [minor No. 1], and the other individuals [minors Nos. 2 and 3] who testified, did not use very good judgement [sic].\nIt was very poor judgement [sic]; but that\u2019s why we have these laws, to protect these individuals from sexual exploitation. 1\nThese boys should have known better, but they didn\u2019t, and that\u2019s why we protect them, ladies and gentlemen.\u201d (Emphasis added.)\nIt is clear from the assistant State\u2019s Attorney\u2019s argument, particularly that the testimony of the three minors \u201cshows a common scheme, pattern and design on the part of the defendant, Richard Partin, to take advantage of these young people,\u201d was an attempt to disguise an improper propensity argument, i.e., that the defendant must have committed the offenses upon minor No. 1 because he also committed the offenses upon minors Nos. 2 and 3.\nIn People v. Grabbe (1986), 148 Ill. App. 3d 678, 499 N.E.2d 499, a State\u2019s witness to the defendant\u2019s murder of his wife was the defendant\u2019s paramour. The witness testified that the defendant confessed to her his commission of three other murders. The State contended that these confessions were admissible for the limited purpose of explaining why the witness failed for several years to come forward and tell law enforcement authorities about the defendant\u2019s murder of his wife. Unlike in the case at bar, in Grabbe no evidence other than the defendant\u2019s confession was presented to establish, commission of the other murders. In the case at bar, S.B. and J.C. testified that the defendant committed sex offenses upon them. Reversing the defendant\u2019s conviction, the supreme court stated in Grabbe:\n\u201cEvidence that an accused has committed other crimes is inadmissible to show a propensity to commit crime. Its probative value in that respect is far outweighed because it \u2018overper-suades the jury\u2019 that the accused is a bad person. [Citations.] The prejudicial effect of this type of evidence is strong where, as here, the accused is charged with murder, and the collateral offenses are murders.\n* * *\nDefendant\u2019s admission of prior murders had no relevance to either his intent or motive in regard to the crime with which he was charged.\nThe evidence *** merely had the purpose of \u2018overpersuading\u2019 the jury that defendant was a very bad person.\u201d (Emphasis added.) 148 Ill. App. 3d 678, 684-85, 499 N.E.2d 499.\nIt is noteworthy that in the case at bar the accused was charged with sex offenses upon a minor and that the \u201ccollateral offenses\u201d were also sex offenses upon minors.\nIn People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667, this court condemned the admission of evidence of other crimes by the defendant under the pretext of modus operandi, stating:\n\u201c \u2018The law distrusts the inferences that because a man has committed other crimes he is more likely to have committed the current crime.\u2019 (People v. Lehman (1955), 5 Ill. 2d 337, 342, 125 N.E.2d 506.) Where testimony has no value beyond the inferences that the defendant has a propensity for the crime charged, the testimony is excluded.\u201d 106 Ill. App. 3d 993, 1001, 436 N.E.2d 667.\nIn Barbour, the defendant was charged with the rape of the victim, who was on her first date with the defendant. The State called two additional alleged rape victims who testified that on their first date with the defendant he also raped them. The State argued that the earlier rapes showed \u201ca common design or modus operandi.\u201d The exhaustive and informative language of this court in reversing the defendant\u2019s conviction in Barbour is most applicable to the case at bar. In Barbour this court stated:\n\u201cThe State (and, indeed, some of the authorities) have used \u2018common design\u2019 and \u2018modus operandi\u2019 interchangeably but the concepts are quite distinguishable. A common design refers to a larger criminal scheme of which the crime charged is only a portion. Modus operandi means, literally, \u2018method of working,\u2019 and refers to a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer. (See generally McCormick, Evidence sec. 190, at 448-49 (2d ed. 1972).) A common design is frequently relevant to show the motive for the crime charged. Modus operandi is most useful in showing that the accused is the perpetrator of the crime charged.\nThere is no reason to believe that the alleged rapes are part of a common scheme. In arguing that the rapes share a modus operandi, the State lists approximately 19 similarities among the crimes. Some of the purported similarities are irrelevant coincidences (e.g., none of the women drank heavily) and others are merely descriptive of the crime of rape (e.g., force was used in all three attacks). While a showing of modus operandi does not require that the similarities be unique to the offenses being compared, there must be \u2018some distinctive features that are not common to most offenses of that type.\u2019 (People v. Tate (1981), 87 Ill. 2d 134, 142-43, 429 N.E.2d 470.) In the case at bar, the State has simply failed to make the \u2018strong and persuasive showing of similarity\u2019 required to demonstrate modus operandi. (People v. Tate (1981), 87 Ill. 2d 134, 141.) The State\u2019s lengthy list of purported similarities does not establish'that the three alleged rapes were \u2018so nearly identical in method as to earmark them as the handiwork of the accused.\u2019 McCormick, Evidence sec. 190, at 449 (2d ed. 1972).\nEven if the State had shown a distinctive pattern of criminal behavior, the evidence would still be inadmissible. The State appears to assume that when a clear modus operandi has been shown, evidence of other crimes employing the same modus is automatically admissible. This assumption is incorrect and ignores a fundamental rule of evidence: \u2018Whatever is relevant is admissible.\u2019 (Emphasis added.) (People v. Gray (1911), 251 Ill. 431, 439, 96 N.E. 268.) To be relevant, a given fact must tend to make a proposition at issue either more or less probable. (See People v. Gray (1911), 251 Ill. 431, 439.) Relevance is the touchstone of admissibility and defendant\u2019s other crimes, even those sharing a common modus operandi, are inadmissible unless the State shows that the evidence is probative of a proposition at issue.\u201d (Emphasis added.) 106 Ill. App. 3d 993, 999-1000, 436 N.E.2d 667.\nThe cases relied on by the majority in the case at bar as authority for the admission of evidence of the defendant\u2019s commission of the S.B. and J.C. offenses are not analogous to the case at bar. People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251, involved the issues of consent and identification in a rape prosecution. In People v. Matthews (1985), 137 Ill. App. 3d 870, 485 N.E.2d 403, the evidence of another crime was admitted to establish the defendant\u2019s identity. Matthews is not analogous because in the case at bar the defendant\u2019s identity was not an issue. E.B., minor No. 1, had known the defendant for a number of years and was well familiar with him. The evidence of the defendant\u2019s commission of the offenses upon S.B. and J.C., minors Nos. 2 and 3, who also had known the defendant over an extended period, was not admissible to establish the defendant\u2019s identity as the perpetrator of the alleged offenses upon E.B., minor No. 1, under a modus operandi theory. Modus operandi was an inappropriate basis for showing that the defendant was the perpetrator of the crime charged.\nIn People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292, also relied on by the majority, the question was whether the victim and the defendant met by mutual consent or only by threat of force. All three victims in the case at bar were minors. Their consent was not an issue and there was no evidence of force or a threat of force against them. The majority\u2019s reliance on Kimbrough is misplaced.\nIn People v. Fuller (1983), 117 Ill. App. 3d 1026, 454 N.E.2d 334, another case the majority cites, the defense to the charge of unlawful restraint and attempted deviate sexual assault was consent. The appellate court stated that the striking similarity of the other sexual assaults was relevant to the issue of whether a crime was actually committed. Because the victims were minors, consent was not and could not have been a defense in the case at bar. Thus, evidence of the offenses against the other two minors, S.B. and J.C., was not admissible to establish a lack of consent.\nIn People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470, the defendant argued on review that the evidence of a defense witness\u2019 robbery was similar to the robbery with which the defendant was charged and that the defense witness\u2019 modus operandi was evidence that the defendant\u2019s crime was committed by the defense witness and was admissible to exonerate the defendant. The supreme court disagreed and held the witness\u2019 modus operandi evidence was inadmissible. Tate is not on point.\nIn People v. Carter (1981), 98 Ill. App. 3d 720, 424 N.E.2d 367, the defendant was found guilty of indecent liberties with his 11-year-old stepdaughter. At trial the defendant\u2019s natural daughter testified, without objection from the defendant, that she also engaged in several acts of sexual intercourse with the defendant. The court held the error of the admission of the testimony of the defendant\u2019s natural daughter was waived. Carter also is not on point.\nIn the case at bar, there was no distinctive pattern of criminal behavior by the defendant involving the three minors. Their testimony established a few similarities but their testimony established many dissimilarities in the defendant\u2019s conduct as well. E.B., minor No. 1, testified that he went to the defendant and asked the defendant how to build up his body. The defendant told him to eat and exercise properly. The defendant measured various parts of E.B.\u2019s body with a cloth tape measure and recorded the measurements in a yellow pad. The defendant photographed E.B. while E.B. was clothed and while E.B. was nude. The defendant rubbed E.B.\u2019s penis and genitals and photographed and measured E.B.\u2019s erected penis.\nEven after S.B., minor No. 2, was being asked leading questions by the assistant State\u2019s Attorney, S.B.\u2019s testimony about the defendant\u2019s conduct was different than that of E.B.\u2019s, minor No. l\u2019s, testimony about the defendant\u2019s conduct. S.B. testified that the defendant told him that he was doing a study of adolescence which involved measuring parts of S.B.\u2019s body, including his genitals. S.B. initially refused but later allowed the defendant to measure his penis and, S.B. testified, \u201cthen we masturbated each other.\u201d E.B., minor No. 1, did not testify to such conduct. S.B., minor No. 2, testified further that he did not see the defendant record any measurements. This was contrary to E.B.\u2019s testimony that the defendant recorded the measurements. S.B. refused the defendant\u2019s request to pose nude for pictures.\nThe assistant State\u2019s Attorney urged that the testimony of J.C., minor No. 3, was admissible to establish the defendant\u2019s identity. J.C. testified that during the summer of 1982 he had sexual contact with the defendant at least once a week and that the defendant would rub his penis with his hands. The testimony of J.C., minor No. 3, was appreciably different from the testimony of E.B. and S.B., minors Nos. 1 and 2. Contrary to the majority\u2019s statement, J.C. did not testify that the defendant measured or photographed any parts of his body while he was clothed or nude or that the defendant requested to do so. S.B., minor No. 2, testified that he and the defendant masturbated each other. Neither E.B. nor J.C., minors Nos. 1 and 3, testified to such conduct by the defendant. Thus, the purported modus operandi in the case at bar did not establish the defendant\u2019s identity or a pattern of criminal behavior so distinctive that the separate crimes were recognizable as the handiwork of the same wrongdoer. (People v. Barbour (1983), 106 Ill. App. 3d 993, 999-1000, 436 N.E.2d 667.) The evidence of the defendant's commission of the sex offenses upon S.B. and J.C., minors Nos. 2 and 3, was prejudicial error and inadmissible and, as in Barbour and People v. Grabbe (1986), 148 Ill. App. 3d 678, 499 N.E.2d 499, its admission requires reversal and a new trial.\nIf any doubt yet remained concerning the assistant State\u2019s Attorney\u2019s purpose in presenting to the jury evidence of the defendant\u2019s commission of the offenses upon minors Nos. 2 and 3, that doubt was laid to rest by the assistant State\u2019s Attorney\u2019s following final closing argument:\n\u201cThose children, when they were fourteen years old did not experience what they had gone through two years ago. ***.\nFortunately for you, you have just heard that testimony; fortunately, we don\u2019t have to have those children come back and tell that humiliating experience they have gone through and they didn\u2019t want to tell their parents. They didn\u2019t want to tell the police officers ***.\n[Yjesterday, we heard a complete pattern of a man who would become friends with certain children of fourteen and fifteen years of age. He\u2019d get them some form of work. Remember, he\u2019s only the clerk, some sort of clerk at the funeral home, yet, he was hiring these fifteen year olds. He\u2019s keeping that knowledge away from his boss.\nThese boys were not paid by Maloney, but they were paid by Partin. They did not appear at the funeral home when Maloney was there; obviously so Maloney went \u2014 wouldn\u2019t know about it.\nThey came after wakes, so that would be in the evening, when Maloney was not there, and they said they had work, and then they\u2019d go upstairs with him. And, when they went upstairs, they were by themselves.\nRemember at least with two of the boys, they said they had known this man for at least one year and known this man for about six or seven years. They had grown up to know the man; they were alone, they were in the surrounding aroma of a funeral parlor; these are eighth graders, fourteen and fifteen years old.\nThey were overwhelmed by the surrounding that they used poor judgment, yes, but they were encouraged, brought in, lured by this dirty old man to do what they have testified they have done.\n[Defense Counsel]: Objection.\nTHE COURT: Objection noted.\n[Assistant State\u2019s Attorney]: Make your own determination what he was. Now, in this society, fortunately, [eighth] graders have the right, when they do something wrong, not being penalized for the circumstances of it. E.B., S.B., and J.C. [minors Nos. 1, 2 and 3] are not on trial in this thing. I am sure they had better things to do than come here and tell them what happened to them two or three years ago. I am sure they have better things to do.\n* * *\nThey have no reason to lie.\n* * *\nIt was a humiliating experience to come here and testify. It was a humiliating experience, then because it is such \u2014 because I am sure they don\u2019t want to go out and brag about it, they didn\u2019t tell their mothers, they didn\u2019t tell the police. You can accept that what E.B. said was the truth, and when you can accept what J.C. said was the truth, and as for S.B., remember how he said how many times he had been up there, how many times he had been up there and had sexual contact occurred between 1982 and when he left in May of 1983.\n* * *\nI believe the fact that he used these pictures to show other fourteen and fifteen year olds, also comes in when you deliberate this case.\nAnd, I am asking you that you put an end to this. It already is too late, ladies and gentlemen. It is already too late for those children; that you find this man guilty; that you sign the forms finding this man guilty, both indecent liberties, and child pornography and stop this child exploiter. Thank you.\u201d (Emphasis added.)\nThe assistant State\u2019s Attorney\u2019s final closing argument constituted five pages, the above four pages of which were devoted to the evidence of the offenses upon S.B. and J.C., minors Nos. 2 and 3. The assistant State\u2019s Attorney did not argue to the jury that the evidence of the defendant\u2019s commission of the offenses upon S.B. and J.C., minors Nos. 2 and 3, established a common scheme, motive, plan, design or the defendant\u2019s identification. Nor did the assistant State\u2019s Attorney argue that the evidence involving minors Nos. 2 and 3 established modus operandi. Instead, the assistant State\u2019s Attorney argued to the jury that the evidence of the offenses upon minors Nos. 2 and 3 established the defendant\u2019s guilt of the offense upon minor No. 1. It was highly improper for the assistant State\u2019s Attorney to have so argued. This evidence was not and could not have been admitted for that purpose. The assistant State\u2019s Attorney impermissibly accomplished indirectly what the law prohibited him from accomplishing directly. The assistant State\u2019s Attorney improperly presented to the jury evidence of other crimes for which the defendant was not on trial to prove the defendant\u2019s propensity to commit the crime for which he was on trial.\nThe majority states, \u201c \u2018Modus operandi\u2019 means method of working and refers to a pattern of criminal behavior that is so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer; it is useful in showing that the accused is the perpetrator of the crime charged,\u201d that, \u201cthere must be a substantial and meaningful link between the offenses being compared,\u201d and, \u201csome distinctive feature not common to most offenses of that type must be present to show modus operandi.\u201d (156 Ill. App. 3d at 370.) But evidence of modus operandi is not admissible simply because it may prove defendant\u2019s modus operandi. Relevance is the touchstone of admissibility, and defendant\u2019s other crimes, even those sharing a common modus operandi, are inadmissible unless the State shows that the evidence is probative of a proposition at issue. People v. Barbour (1983), 106 Ill. App. 3d 993, 1000, 436 N.E.2d 667.\nThe majority erroneously concludes, \u201cWe find the offenses against the complainants, S.B. and J.C. [minors Nos. 2 and 3] are so substantially similar that they show a common method of procedure and are relevant to prove defendant\u2019s modus operandi.\u201d (156 Ill. App. 3d at 371.) The majority further erroneously concludes that \u201c[defendant placed in issue whether a crime was committed and who committed it. We find that the testimony of S.B. and J.C. was probative and relevant as to those issues ***.\u201d (156 Ill. App. 3d at 372.) This latter statement adopts the propensity contention, i.e., that the testimony of S.B. and J.C. was probative to prove that a crime was committed upon E.B. and that the defendant committed it. The majority thereby acknowledges modus operandi as an acceptable legal euphemism for propensity to commit crime.\nIn People v. Davis (1984), 130 Ill. App. 3d 41, 473 N.E.2d 387, the robbery victim testified that during the robbery the defendant told her that he had just robbed another man.\nThis court reversed, stating:\n\u201cUnder the concepts of a fair and impartial criminal trial, it is fundamental that a defendant, no matter how reprehensible or how great his history of past crimes, is entitled to have his guilt or innocence determined solely with reference to the crime with which he is charged. (People v. Gregory (1961), 22 Ill. 2d 601, 603, 177 N.E.2d 120, 122.) Thus, evidence of separate or unrelated crimes for which the defendant is not on trial is inadmissible if relevant merely to establish propensity to commit criminal acts. (People v. Romero (1977), 66 Ill. 2d 325, 362 N.E.2d 288.) Such evidence overpersuades the trier of fact, which is likely to convict defendant merely because of feelings he is a bad person deserving punishment rather than on the basis of facts related to the offense for which he is on trial. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) Thus, such evidence carries a high risk of prejudice for the criminal defendant.\u201d 130 Ill. App. 3d 41, 50, 473 N.E.2d 387.\nThe majority is also mistaken when it states that the trial court \u201cinstructed the jury to consider the testimony only for the limited purpose for which it was admitted, thereby alleviating any potential prejudice.\u201d (156 Ill. App. 3d at 372.) The trial court did not so instruct the jury.\nThe only instruction given by the trial court on the evidence of the S.B. and J.C. offenses was Illinois Pattern Jury Instruction, Criminal, No. 3.14 (2d ed. 1981) (hereinafter IPI Criminal 2d), as follows:\n\u201cEvidence has been received that the defendant has been involved in offenses other than that charged in the indictment. This evidence has been received solely on the issue of the defendant\u2019s motive, design and knowledge. This evidence may be considered by you only for the limited purpose for which it was conceived.\u201d\nIt was improper for the trial court to give IPI No. 3.14. That instruction told the jury that the evidence of the defendant\u2019s commission of the offenses upon S.B. and J.C., minors Nos. 2 and 3, was \u201creceived solely on the issue of the defendant\u2019s motive, design and knowledge.\u201d\nThe majority states, \u201c[CJommon design *** is often relevant to show the motive for the crime charged.\u201d (156 Ill. App. 3d at 370.) The majority then erroneously concludes, \u201c[TJhe testimony of S.B. and J.C. was properly admitted as evidence of a common design or scheme.\u201d (156 Ill. App. 3d at 371.) It is farfetched to suggest that the defendant\u2019s motives of sexual gratification with S.B. and J.C. was evidence of his prior motive of sexual gratification with E.B., minor No. 1, for which he was on trial. It is even more strained to suggest that the defendant\u2019s knowledge was an issue or to suggest that evidence of the defendant\u2019s commission of the S.B. and J.C. offenses established the defendant\u2019s knowledge in the E.B. offense. The defendant\u2019s \u201cdesign\u201d was not an issue. IPI Criminal 2d No. 3.14 was not only inappropriate, it was also confusing. The instruction should not have been given. To have done so was reversible error.\nTo compound the aforementioned errors, the trial judge failed to instruct the jury on what offenses the defendant was on trial and, in reading the instructions to the jury, he failed to read the charges in the indictment. He did not send a copy of the indictment with the other instructions to the jury room during the jury\u2019s deliberation. Only guilty and not guilty verdict forms were given to the jury. One verdict returned by the jury was:\n\u201cWe the jury, find the defendant, Richard Partin, guilty of the offense of child pornography.\u201d\nThe other verdict was:\n\u201cWe, the jury, find the defendant, Richard Partin, guilty of the offense of indecent liberties with a child.\u201d\nEach guilty verdict was signed by the foreman and 11 other jurors. Neither guilty verdict identified the particular offense for which the jury found the defendant guilty The jury was presented evidence of the defendant\u2019s commission of indecent liberties and child pornography upon three minors, E.B., S.B. and J.C. The record does not disclose which offenses against which minor the jury found the defendant guilty of committing. Nevertheless, the trial judge sentenced the defendant to 15 years\u2019 imprisonment for the E.B. offenses on judgments entered on the jury\u2019s guilty verdicts.\nA fundamental purpose of the constitutional right of a defendant to be informed of and tried on the nature and cause of an accusation in an indictment is to enable the defendant to plead an acquittal or a conviction thereof as a bar to subsequent proceedings brought against the defendant for the same offense. For the reasons stated, this constitutional right was successfully circumvented in the case at bar.\nThe fifth amendment to the Constitution of the United States provides, \u201c[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; ***.\u201d (U.S. Const., amend. V.) Article 1, section 10, of the Illinois Constitution provides, \u201c[N]o person shall *** be twice put in jeopardy for the same offense.\u201d (Ill. Const. 1970, art. I, sec. 10.)\nIn the case at bar, though the defendant was on trial for the alleged offenses upon E.B., minor No. 1, the assistant State\u2019s Attorney successfully presented evidence of the defendant\u2019s commission of the offenses upon S.B. and J.C., minors Nos. 2 and 3. The defendant was thereby put to the task of defending against the S.B. and J.C. offenses. He was unsuccessful in so doing. Yet, he is precluded from pleading his unsuccessful efforts as a bar to a subsequent prosecution for the S.B. and J.C. offenses. After imposing the 15-year imprisonment sentence in the case at bar, there remained the S.B., minor No. 2, offenses in indictment No. 84-4410 and the J.C., minor No. 3, offenses in indictment No. 84-4397, even though the defendant had been put to the task of defending against those offenses at the trial of E.B., minor No. 1, and even though the jury had relied on evidence of the defendant\u2019s commission of those offenses in reaching the guilty verdicts. The defendant\u2019s Federal and State constitutional rights against being twice put in jeopardy for the same offense were thereby thwarted.\nWhen the defendant was later confronted with the S.B. and J.C. indictments, the assistant State\u2019s Attorney stated to the trial judge:\n\u201cYour Honor, [for] both of the complaints you had the benefit of hearing both of the victims\u2019 [S.B. and J.C., minors Nos. 2 and 3] testimony before the jury.\u201d\nAfter having been confronted with evidence of the S.B. and J.C. offenses during his trial for the E.B. offenses, and the jury having found him guilty, for which he received a 15-year imprisonment sentence, the defendant chose not to confront that same evidence a second and third time. He pleaded guilty to the S.B. and J.C. offenses and was additionally sentenced to two 10 years\u2019 imprisonment terms.\nIf the letter of the defendant\u2019s constitutional rights was not violated, surely the spirit of the defendant\u2019s constitutional rights to be informed of and tried on the nature and cause of the accusation against him, to due process, to fundamental fairness, to a fair trial, and against being twice placed in jeopardy for the same offense was circumvented. For the reasons stated, I would reverse the defendant\u2019s conviction and remand the cause for a new trial.", "type": "dissent", "author": "JUSTICE PINCHAM," } ], "attorneys": [ "Paul P. Biebel, Jr., Public Defender, of Chicago (Kathleen M. Pantle, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Joan E. Disis, and Caroline Koplin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD PARTIN, Defendant-Appellant.\nFirst District (5th Division)\nNo. 85\u20143124\nOpinion filed May 29, 1987.\nPINCHAM, J., dissenting.\nPaul P. Biebel, Jr., Public Defender, of Chicago (Kathleen M. Pantle, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Joan E. Disis, and Caroline Koplin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0365-01", "first_page_order": 387, "last_page_order": 416 }