People v. Cerda

• Decision Date: 20 March 2014
• Docket Number: No. 1–12–0484.,1–12–0484.
• Citation: 379 Ill.Dec. 775,7 N.E.3d 201,2014 IL App (1st) 120484
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Jesus CERDA, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 120484

7 N.E.3d 201

379 Ill.Dec. 775

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Jesus CERDA, Defendant–Appellant.

No. 1–12–0484.

Appellate Court of Illinois,

First District, Fifth Division.

March 7, 2014.

Rehearing Denied March 20, 2014.

Michael J. Pelletier, Alan D. Goldberg, Sarah Curry, State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Mary L. Boland, Carol Rogala, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 Defendant Jesus Cerda was convicted on December 1, 2011, after a jury trial of four counts of criminal sexual assault of his stepdaughter J.M. that occurred between March 1, 2006, and January 31, 2007. After hearing factors in aggravation and mitigation, the trial court sentenced defendant to four consecutive terms of 10 years, for a total of 40 years in the Illinois Department of Corrections (IDOC).

¶ 2 On this direct appeal, defendant raises three issues for our consideration: (1) that the State failed to prove him guilty beyond a reasonable doubt because both the complainant's testimony and the other crimes evidence were inherently unbelievable; (2) that the trial court violated defendant's right to present a defense and confront the witnesses against him by excluding evidence, pursuant to the rape shield statute (725 ILCS 5/115–7(a)(2) (West 2006)), concerning the victim's past sexual experience; and (3) that the trial court erred by allowing the State to introduce evidence of other sexual assaults committed by defendant against both J.M. and another stepdaughter. For the following reasons, we do not find these claims persuasive and we affirm.

¶ 3 BACKGROUND

¶ 4 I. Procedural History

¶ 5 Defendant was charged on October 19, 2009, in two separate indictments with offenses against his then-teenage stepdaughter, J.M. The indictment in case number 09 CR 18693 charged defendant with two counts of criminal sexual assault between November 1 and November 30, 2005. However, defendant was not tried on this indictment.

¶ 6 The State proceeded solely with the indictment in case number 09 CR 18692, which charged defendant with six counts of criminal sexual assault and one count of aggravated sexual abuse for acts committed against J.M. between March 1, 2006, and January 31, 2007. Prior to defendant's first trial, the State nol-prossed count VII, the one abuse count, and proceeded to trial on the remaining six counts. Prior to submitting the case to the jury, the State nol-prossed count VI, which had alleged criminal sexual assault by means of defendant inserting his finger into J.M.'s vagina.

¶ 7 On September 16, 2011, the first jury acquitted defendant of count V, which had alleged criminal sexual assault by means of contact between defendant's mouth and J.M.'s vagina. However, the jury was unable to reach a verdict on the remaining counts, which were counts I through IV. The trial court then entered judgment on the acquittal for count V and declared a mistrial on counts I through IV.

¶ 8 After a retrial, a second jury found defendant guilty on December 1, 2011, on counts I through IV, which all charged criminal sexual assault of J.M. After hearing factors in mitigation and aggravation, the trial court sentenced defendant on January 25, 2012, to 10 years on each count, with all sentences running consecutively.

¶ 9 II. Pretrial Motions

¶ 10 Defendant contests on this appeal three of the trial court's pretrial rulings. Specifically, he challenges the rulings which (1) granted the State's motion to present other crimes evidence; (2) denied defendant's motion to present evidence concerning the victim's prior sexual and romantic history; and (3) denied defendant's oral motion “to inquire of the victim as to what she told her mother on or just prior to her outcry” concerning her first sexual experience “with a boy her own age.” The first two rulings occurred prior to the first trial and the trial court declared them in effect for the second trial. The third ruling occurred prior to the start of the second trial. Since we must decide whether the trial court abused its discretion in ruling on the motions, we provide in detail below the parties' arguments and the trial court's rulings.

¶ 11 A. Other Crimes Evidence

¶ 12 Prior to defendant's first trial, the State filed a written motion, pursuant to section 115–7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115–7.3 (West 2006)), to admit proof of other crimes by defendant. This statutory section applies solely to prosecutions for sex offenses, and it permits the State to introduce evidence of other sex offenses by a defendant, if the probative value of the evidence outweighs the undue prejudice to the defendant. 725 ILCS 5/115–7.3(c) (West 2006).

¶ 13 In the case at bar, the State sought to introduce evidence of crimes that had been charged in two other indictments: (1) the indictment in case number 09 CR 18693, described above, which charged defendant with criminal sexual assault against J.M. in November 2005, several months before the acts charged in the case at bar; and (2) the indictment in case number 09 CR 18691, which charged defendant with eight counts of aggravated sexual abuse against Y.C., another stepdaughter, between February 1, 2008, and August 31, 2009. ¹ The offenses against Y.C. occurred more than a year after the acts charged in the case at bar.

¶ 14 In its written motion filed November 3, 2010, the State argued:

“The other crimes acts are factually similar to those of the case at bar in that [they] are sexual acts against minor stepchildren with whom defendant resided and which occurred when the children's mother was out of the home. The acts' temporal proximity and factual similarity demonstrates a probative value on the relevant issues of propensity, intent, motive and absence of mistake which outweighs their potential prejudice.”

In response, defendant argued that the evidence was not reliable. Defendant also observed that “J.M.'s allegations are not admissible on the issue of intent and/or absence of mistake” because defendant's “defense is based on the proposition that the alleged contact never occurred.”

¶ 15 After hearing argument on January 14, 2011, the trial court ruled the evidence admissible, and that ruling is the subject of one of defendant's claims on this appeal. At the start of the trial, on September 13, 2011, defense counsel asked his “objection to the proof of other crimes, for the record, continue throughout this trial,” in order to avoid “excessive sidebars,” and the trial court agreed.

¶ 16 B. Rape Shield Statute

¶ 17 Prior to the start of the first trial, both parties also filed written pretrial motions concerning the rape shield statute: (1) defendant moved to admit evidence, as not barred by the statute, of the victim's past relationship with S.B.; and (2) the State moved, pursuant to the statute, to bar DNA evidence establishing that defendant was not the source of semen stains found on the victim's bedsheets. As described below, the trial court denied both motions, thereby denying defendant the ability to cross-examine the victim and S.B. about their prior sexual or romantic past, but allowing him to introduce DNA evidence that he was not the source of the semen stains left on the victim's bedsheets.

¶ 18 1. Relationship With S.B.

¶ 19 a. Parties' Arguments

¶ 20 With respect to S.B., defendant moved in a pretrial motion filed September 12, 2012, “to admit evidence of, or allow inquiry as to, the nature of the alleged victim's past and/or present relationship with the State's witness, [S.B.], for the limited purpose of establishing [her] bias.” At a hearing on the motion on September 12, 2011, defense counsel asked “to inquire as to simply the relationship between State's witness, [S.B.], and the alleged victim.” Specifically, he sought to ask: “what is your relationship to this victim now? What was your relationship in 2007[?]” He argued that the evidence was not “in violation of [the] rape shield” statute because the defense was “not here trying to put the victim's sexual identity or preference on trial,” but to explore “a potential bias for her testimony.”

¶ 21 In response, the State argued, first, that defendant failed to offer any evidence in his offer of proof. Second, the State argued that, since the romantic relationship began after the first outcry in 2005 and ended before 2007 when law enforcement first became aware of the outcry, the relationship had less relevance. Third, the State argued that “the mere fact that these 2 individuals were dating” still fell within the scope of the rape shield statute.

¶ 22 b. Trial Court's Ruling

¶ 23 i. Sexual or Romantic Past Not Admitted

¶ 24 The trial court held that it would “not allow her testimony concerning a sexual or romantic past between [S.B.] and the victim,” explaining:

“You may identify and establish what their relationship was at the time of these occurrences and the jury can determine whether or not there was be a bias [sic], but I do think it would be prejudicial even in the 21st Century that we have to put in information or testimony about a same sex relationship. It does not appear to have anything to do with the charges filed against the defendant, and I think it would be inflammatory, and I don't see that it would advance the defendant's right for cross-examination * * *.”

¶ 25 The following day, on September 13, 2011, the trial court clarified its ruling, stating:

“Counsel, just so the record is clear, although it should reflect on yesterday's proceedings that I denied the motion as it relates to a sexual past, sexual relationship between [J.M.] and [S.B.] But I did not allow for testimony as to their general relationship and that you would be able to ask leading questions so as not to elicit testimony concerning a romantic...