Find Legal Information

Docket No. 94620-Agenda 8-September 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES
K. SANTOS, Appellee.

Opinion filed June 24, 20004.

JUSTICE FREEMAN delivered the opinion of the court:

A jury in the circuit court of Winnebago County convicted defendantJames K. Santos of aggravated criminal sexual abuse (720 ILCS5/12-16(d) (West 1998)) of T.K. The circuit court sentenced him to afour-year prison term. The appellate court reversed defendant's convictionbecause of jury instruction error. The court also addressed an issue likelyto recur on remand, and reversed the trial court's ruling that certainevidence must be excluded pursuant to section 115-7 of the Code ofCriminal Procedure of 1963 (725 ILCS 5/115-7 (West 1998)),commonly known as the "rape shield" statute. 333 Ill. App. 3d 1. Wegranted the State leave to appeal. See 177 Ill. 2d R. 315(a). The Stateadmits that defendant is entitled to a new trial because of the errors in thejury instructions; the State's only argument before this court is that theappellate court erred in reversing the trial court's application of the rapeshield statute. We reverse the appellate court in part and remand for anew trial.

BACKGROUND

Defendant does not challenge the sufficiency of the evidence onappeal. Accordingly, we will summarize the evidence adduced at trialexcept where greater specificity is necessary to our resolution of the legalissues.

Many of the facts surrounding the charges against defendant areundisputed. In May 1999 T.K. was 16 years old. She and defendant metat a party at the home of Angie Enna and Herbert Reaves late on May 8or in the early morning hours of May 9. At the time Enna and Reaves were25 and 20 years old, respectively. T. K., who had been drinking sinceapproximately 9 p.m. on May 8, was already somewhat inebriated whenshe arrived at the party that night. When defendant subsequently arrived,there was no alcohol at the party, and T.K. was among the people whowent with defendant to purchase more. Defendant purchased T.K. a beerat her request. After returning the other persons to the party, defendantand T.K. left again in defendant's car.

Defendant and T.K. testified to different versions of the subsequentevents at trial. Both agreed that after riding around for several hours,defendant parked the car in a remote area where the two engaged insexual intercourse. T.K. testified that she told defendant that she was 16years old before the two engaged in any sexual activities. She also testifiedthat all sexual contact between her and defendant occurred without herconsent and against her will. Defendant, by contrast, testified that T.K.made advances upon him and told him she was 18 years old, onlyrevealing that she was 16 years of age when the two were alreadyengaged in sexual intercourse. He testified that when she informed him ofthis fact, he immediately ceased all sexual activities with her.

The State charged defendant with criminal sexual assault (720 ILCS5/12-13(a) (West 1998)) and two counts of aggravated criminal sexualabuse (720 ILCS 5/12-16(c)(1)(ii), (d) (West 1998)). The first count ofaggravated criminal sexual abuse alleged that defendant had committed anact of sexual conduct with T.K. by the use of force or threat of force. 720ILCS 5/12-16(c)(1)(ii) (West 1998). The second count alleged thatdefendant had committed an act of sexual penetration with T.K., at a timewhen T.K. was between the ages of 13 and 17 and defendant was at least5 years older than she. 720 ILCS 5/ 12-16(d) (West 1998). The juryacquitted defendant of the charge of criminal sexual assault and the chargeof aggravated criminal sexual abuse involving an act of sexual conduct, butconvicted defendant on the charge of criminal sexual abuse involving anact of sexual penetration. The circuit court sentenced defendant to fouryears' imprisonment.

The appellate court reversed defendant's conviction and remandedfor a new trial. The appellate court held that the circuit court committedreversible error in its issues instruction to the jury. The court determinedthat there was sufficient evidence adduced at trial to support the defensetheory that defendant had reasonably believed that T.K. was over 16years of age. Accordingly, the appellate court held, the circuit court wasrequired to instruct the jury that the State had the burden of provingbeyond a reasonable doubt that defendant did not reasonably believe thevictim to be of age. The failure to properly instruct the jury on the State'sburden of proof constituted reversible error, entitling defendant to a newtrial. 333 Ill. App. 3d at 8.

The appellate court also elected to address an additional issuebecause it was likely to recur on remand. Before trial, defendant filed amotion in limine requesting the court's permission to cross-examine T.K.regarding inconsistent statements she had made to the authorities.Specifically, on May 9, T.K. told medical personnel who were collectingrape kit samples that she had not engaged in sexual intercourse withanyone other than the defendant in the previous 72 hours. However, inAugust 1999, when DNA testing revealed that defendant could not havebeen the source of semen recovered from the victim, T.K. admitted to thepolice that she had in fact engaged in sexual intercourse with someone elseon May 9. The State objected to the introduction of this evidence,contending it was barred under the rape shield statute. The trial court ruledin the State's favor and excluded the evidence from consideration.

The appellate court held that the circuit court erred in excluding theevidence. 333 Ill. App. 3d at 9. The appellate court noted that the rapeshield statute contains an exception, permitting the introduction of evidencethe statute would otherwise bar where admission of such evidence is"constitutionally required." Relying on its earlier decision in People v.Grano, the appellate court held that the circuit court should have alloweddefendant to inquire regarding T.K.'s statements, because "T.K.'scredibility was at issue." 333 Ill. App. 3d at 9. The court remanded for anew trial, and directed the circuit court to permit defendant to cross-examine T.K. with her inconsistent statements.

In partial dissent, Justice O'Malley disagreed with the majorityregarding the evidence the circuit court had excluded under the rape shieldstatute. See 333 Ill. App. 3d at 10-11 (O'Malley, J., concurring in partand dissenting in part). The dissenting justice argued that the appellatecourt majority erred in stating that Grano involved "prior inconsistentstatement[s]." 333 Ill. App. 3d at 10 (O'Malley, J., concurring in part anddissenting in part). She also noted that, regardless, the instant case didnot involve prior inconsistent statements, because the statements inquestion were inconsistent only with each other, not with any statement thevictim had made during her in-court testimony. The dissenting justiceconcluded that the cross-examination was impermissible regardless of therape shield, because inconsistent out-of-court statements were not aproper basis for impeaching a witness' credibility. 333 Ill. App. 3d at 11(O'Malley, J., concurring in part and dissenting in part).

ANALYSIS

The State concedes that the appellate court acted correctly ingranting defendant a new trial based on the jury instructions. The State'sonly argument before this court is that the appellate court erred inoverruling the circuit court order barring defendant from cross-examiningT.K. about her inconsistent statements regarding whether she had engagedin sexual activities with anyone else during the 72 hours preceding theassault. The State contends that the trial court acted correctly in excludingthis evidence from the trial.

Evidentiary rulings are reviewed for abuse of discretion. People v.Caffey, 205 Ill. 2d 52, 89 (2001). A trial court abuses its discretion onlywhen its ruling is " ' "arbitrary, fanciful or unreasonable" ' or ' "where noreasonable man would take the view adopted by the trial court." ' "People v. Donoho, 204 Ill. 2d 159, 182 (2003), quoting People v. M.D.,101 Ill 2d 73, 90 (1984) (Simon, J., dissenting), quoting Peek v. UnitedStates, 321 F.2d 934, 942 (9th Cir. 1963).

The rape shield statute provides in pertinent part as follows:

"In prosecutions for *** criminal sexual assault, [and]aggravated criminal sexual abuse, *** the prior sexual activity orthe reputation of the alleged victim *** is inadmissible except (1)as evidence concerning the past sexual conduct of the allegedvictim *** with the accused when this evidence is offered by theaccused upon the issue of whether the alleged victim ***consented to the sexual conduct with respect to which theoffense is alleged; or (2) when constitutionally required to beadmitted." 725 ILCS 5/115-7(a) (West 1998).

Thus the statute absolutely bars evidence of the alleged victim's priorsexual activity or reputation, subject to two exceptions: (1) evidence ofpast sexual activities with the accused, offered as evidence of consent; and(2) where the admission of such evidence is constitutionally required.

The appellate court determined that the circuit court erred inexcluding the evidence. The court relied exclusively on People v. Grano,286 Ill. App. 3d 278 (1996). The appellate court stated that in Grano,the court had

"determined that the [rape shield] statute was not designed topreclude the admission of all evidence related to sex. Instead, thelegislative intent of the rape shield statute is to exclude evidenceof actual sexual history or reputation of the victim, not evidenceoffered for the purpose of impeachment, even when thatevidence relates to sex." 333 Ill. App. 3d at 9.

After discussing Grano, the appellate court noted that the credibility of thealleged victim, T.K., was at issue in the instant case, and concluded that"the trial court misapplied the rape shield statute as a basis for excludingthe evidence of T.K.'s inconsistent statements." We find the appellatecourt to have erred.

Grano does not support the appellate court's holding in this case. InGrano, the appellate court reviewed a circuit court ruling that the rapeshield statute precluded the defendant from introducing evidence that thecomplainant had previously falsely accused three other men of sexualassault. The court reasoned that the circuit court had erred in determiningthat the rape shield statute barred the introduction of this evidence becausea verbal accusation was not "sexual activity." Grano, 286 Ill. App. 3d at288. This finding meant that the rape shield statute had no bearing on thecase at all, and thus the trial court had erred in excluding the evidence.

The same is not true of the instant case. Here, although as in Granothe evidence at issue does consist of statements by the complainant, thosestatements clearly reveal the complainant's "prior sexual activity."Accordingly, the rape shield does come into play. Contrary to thereasoning of the dissenting justice (see slip op. at 17-18 (McMorrow,C.J., dissenting)), and the appellate court majority, the statute makes noexception based on the purpose for which the evidence is offered. It is ofno moment to the statute's application that defendant sought to introducethe evidence for purposes of impeachment, rather than as an explicitattack on the victim's character. The rape shield statute absolutely bars theintroduction of the evidence, unless one of the two exceptions listed in thestatute is applicable.

The first exception relates only to prior sexual activity between thevictim and the accused, offered for purposes of establishing a defense ofconsent. This exception is inapplicable in the instant case, as the prioractivity revealed by the evidence in question was not between complainantand defendant. 725 ILCS 5/115-7(a)(1) (West 1998).

The second exception permits introduction of evidence which thestatute would otherwise operate to exclude, "when constitutionallyrequired." 725 ILCS 5/115-7(a)(2) (West 1998). The evidence inquestion in this case is two out-of-court statements which wereinconsistent with each other, but not with any statement made by thewitness on direct examination. We find that the constitution did not requirethat this evidence be admitted.

As the dissenting justice in the appellate court noted, what defendantwished to do by introducing this evidence was to impeach the victim'scredibility with a specific act of untruthfulness. He wished to show the jurythat T.K. had lied on one occasion-when she told medical personnel shehad not had sexual intercourse with anyone else in the previous 72hours-in order to support his argument that when she testified in court shewas lying about what had occurred between her and the defendant. Farfrom being constitutionally required, specific-act impeachment isprohibited in Illinois.⁽¹⁾ See, e.g., People v. West, 158 Ill. 2d 155, 162(1994) (upholding trial court ruling prohibiting cross-examination regardingspecific instances of untruthfulness and rejecting contention that evidenceof specific acts of untruthfulness may be brought out even in casesinvolving children who are too young to have developed a reputation);People v. Morrow, 303 Ill. App. 3d 671, 680 (1999) ("Although thedefendant's credibility was an issue in this case, specific instances ofuntruthfulness are not admissible to attack a witness's believability");Podolsky & Associates L.P. v. Discipio, 297 Ill. App. 3d 1014, 1026(1998) ("In Illinois a witness's credibility may not be impeached by inquiryinto specific acts of misconduct which have not led to a criminalconviction"); People v. McGee, 286 Ill. App. 3d 786, 796 (1997)("specific instances of untruthfulness are not admissible to attack awitness's believability"); M. Graham, Cleary & Graham's Handbook ofIllinois Evidence