                       Illinois Official Reports

                                 Appellate Court



                  People v. Sanders, 2015 IL App (4th) 130881



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           DERRY SANDERS, Defendant-Appellant.




District & No.    Fourth District
                  Docket No. 4-13-0881




Filed             June 5, 2015




Decision Under    Appeal from the Circuit Court of McLean County, No. 12-CF-23; the
Review            Hon. Robert L. Freitag, Judge, presiding.




Judgment          Affirmed.




Counsel on        Michael J. Pelletier, Jacqueline L. Bullard, and John M. McCarthy
Appeal            (argued), all of State Appellate Defender’s Office, of Springfield, for
                  appellant.

                  Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
                  David J. Robinson, and Aimee Sipes Johnson (argued), all of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
     Panel                    JUSTICE KNECHT delivered the judgment of the court, with
                              opinion.
                              Justices Steigmann and Appleton concurred in the judgment and
                              opinion.




                                               OPINION

¶1         In May 2013, a jury found defendant, Derry “Jay” Sanders, guilty of two counts of criminal
       sexual assault. On appeal, defendant asserts the trial court (1) improperly denied his Batson
       challenge (Batson v. Kentucky, 476 U.S. 79, 89 (1986)), and (2) erred when it prohibited
       defense counsel from introducing the content of text messages the complaining witness, B.J.,
       sent another man the night of the offense. We affirm.

¶2                                         I. BACKGROUND
¶3         In January 2012, the State indicted defendant, a Caucasian male, on two counts of criminal
       sexual assault (720 ILCS 5/11-1.20(a)(2) (West 2010)) and one count of unlawful possession
       of a controlled substance (720 ILCS 570/402(c) (West 2010)). Defendant entered an open plea
       of guilty to the unlawful possession charge and proceeded to jury trial on the two criminal
       sexual assault charges.

¶4                                          A. Motion in Limine
¶5         In May 2012, the State filed a motion in limine to exclude testimony regarding B.J.’s
       sexual history under section 115-7 of the Code of Criminal Procedure of 1963 (the rape-shield
       statute) (725 ILCS 5/115-7 (West 2010)). Specifically, the State sought to prevent defendant
       from introducing testimony regarding sexually suggestive text messages B.J. sent to Nick
       Lacomba (a bouncer at Fat Jacks bar in Bloomington, Illinois) on the night of the offense.
¶6         At a February 2013 hearing on the motion, the State argued the text messages were
       evidence of B.J.’s sexual history under the rape-shield statute and had no relevancy to the case
       against defendant. Defendant responded the sexual assault charges against him were
       predicated upon defendant knowing B.J. was unable to give knowing consent and the text
       messages were relevant because they related to B.J.’s cognitive abilities. Defendant further
       argued the text messages were not covered by the rape-shield statute because they were only
       statements relating to sex–not actual prior sexual activity.
¶7         Following the hearing, the trial court granted the State’s motion in part and denied the
       motion in part. The court explained:
               “[I]n this court’s opinion, the evidence does touch on the complainant’s prior sexual
               history and/or reputation.
                   After having given this a lot of thought, probably much more thought than the
               parties ever thought the court would, I think that a balance can be struck in this
               situation, and that’s what my ruling is going to be. The court is going to allow the

                                                  -2-
               witness to testify that he had personal contact with the victim at the bar between two
               and 4:30 a.m. He may testify to his observations of her physical condition and his
               ability to converse with her and she with him. He can also testify that he received a
               series of text messages and had a phone conversation with her up until somewhere
               around 4:30 a.m. However, the court will bar the witness from disclosing any sexual
               suggestions or the actual content of the conversation as far as it goes to sexual
               suggestions, and I will not allow the content of the text messages themselves to be
               admitted because of their sexual content.
                   I think this strikes a balance between giving the defendant an opportunity to present
               evidence of the victim’s alleged abilities while also protecting her reputation and her
               from being harassed based upon the content of some of those conversations. So, in
               essence, the motion is allowed in part and denied in part.”
¶8         In April 2013, defendant filed a motion to reconsider the trial court’s ruling on the State’s
       motion in limine, which the court denied. The court found its ruling struck the proper balance
       because it allowed defendant to pursue the issue of whether B.J. had the cognitive ability to
       consent based upon her ability to communicate both electronically and in person with
       Lacomba, while protecting her from embarrassment and harassment. It noted, “the substance
       of those [text messages,] they’re–if they’re offered will serve only to demonstrate a level of
       promiscuity *** to suggest, even if not overtly, *** if she was promiscuous with one
       individual then she obviously must have been promiscuous with the defendant. And I think
       that’s what the statute is meant to avoid.”

¶9                                             B. Voir Dire
¶ 10       The jury venire in this case consisted of 32 potential jurors. The precise racial makeup of
       the venire is unknown. What is known is the State exercised its third and sixth peremptory
       challenges on African-American venire members. Following the State’s sixth challenge, the
       following colloquy took place:
                  “[DEFENSE COUNSEL]: Judge, I would ask the court to note that two challenges
              have been made to the only two African Americans that we’ve reached at this point in
              time, that being [Juror 100 and Juror 14].
                  THE COURT: All right. The court will note that those two jurors indicated by
              counsel appear to be African American.
                  [THE STATE]: I’ll just ask because we think we need to at this point in time, is
              there a Batson challenge?
                  THE COURT: I’m not sure what you’re asking, [defense counsel].
                  [DEFENSE COUNSEL]: I first wanted the court to make that foundationary [sic]
              finding, and yes, I am making a Batson challenge.
                  THE COURT: As indicated, the court would agree that [Juror 100 and Juror 14]
              both appear to be African American in descent. The State has asked to excuse both of
              those jurors, along with several others. The court is required to make a finding that
              there is a pattern of excusing jurors based upon race before the court is to call upon the
              party challenged to offer some race neutral reason for why they’ve excused those
              jurors. It’s always somewhat difficult to do when the numbers of those who are of an
              apparent minority are small. In this particular panel, I believe there are three

                                                   -3-
              individuals of African American descent, although one we have not reached yet is later
              on down the road here. There have only been two thus far. I think it’s almost virtually
              impossible to create a pattern with one, perhaps with two, certainly with three. I’m not
              convinced at this point that a pattern has been established. There are two jurors who
              have been excused, but there are certainly a lot of other jurors the State has excused,
              five other jurors, or four other jurors, rather, who are not of minority, so I don’t–I’m not
              at the point yet where I think that there is a pattern of exclusion based upon race that is
              obvious or evident. So at this point I’m not going to require the State to provide a race
              neutral explanation. ***
                   [DEFENSE COUNSEL]: Judge, I’m sorry, I’m not arguing with, just for record
              keeping purposes, the State dismissed [Juror 14], and who was the other one out of
              there?
                   THE COURT: [Juror 100].
                   [THE STATE]: [Juror 100].
                   [DEFENSE COUNSEL]: She was in our last panel then.
                   THE COURT: Correct.
                   [DEFENSE COUNSEL]: Thank you.”

¶ 11                                 C. Trial and Posttrial Proceedings
¶ 12       In May 2013, defendant’s case proceeded to jury trial. Although the sufficiency of the
       evidence is not at issue, we find the following brief summary of the evidence presented at trial
       helpful to a full understanding of the issues on appeal.
¶ 13       B.J. testified she knew defendant as the bartender at Fat Jacks in Bloomington, Illinois. On
       the night of the offense, B.J. went to Fat Jacks around 11:45 p.m., where defendant gave her
       free alcohol all night. B.J. had maybe 12 drinks–5 or 6 beers and several shots of Grey Goose
       vodka. When the bar closed at 2 a.m., she stayed and continued talking to defendant because
       she was upset. She asked defendant if he wanted to go back to her apartment to continue
       drinking, and they called a cab. Instead of going to B.J.’s apartment, the cab driver took them
       to defendant’s apartment because defendant told B.J. he had to grab some things. When they
       arrived at defendant’s apartment, they went inside and continued drinking. B.J. explained she
       had two more beers and was sitting on the couch drinking and sending text messages until she
       told defendant she needed to go to bed. Defendant took her downstairs to his bedroom and she
       took off all of her clothes except for a tank top and underwear. As soon as she lay down in
       defendant’s bed, her head began spinning and she told defendant she was going to get sick. She
       ran upstairs to the bathroom, where she vomited and dry heaved. When she came out of the
       bathroom, defendant handed her some water and she went back to bed.
¶ 14       The next thing B.J. remembered was waking up to defendant having sex with her. She
       explained she did not understand what was happening to her, and she “just froze.” At one
       point, she heard defendant spit and felt his fingers inside of her. She stated she kept her head
       under the covers and did not say a word during the entire incident. After defendant finished
       having sex with her, B.J.’s “brain told [her]” she just needed to wait until 7 a.m.–until
       defendant fell asleep–and then she could leave. However, she could not wait any longer, and
       woke defendant up to tell him she needed to get home to take care of her dog. Defendant called
       B.J. a cab, and B.J. sent a text message to her mother telling her to meet her at her apartment.

                                                   -4-
¶ 15       B.J.’s parents took her to the hospital, where she talked to the Bloomington police about
       the incident. Police officers then went to defendant’s house, where they found defendant under
       a blanket in a utility room next to his bedroom. Defendant was taken into custody and
       interviewed regarding the incident. During the interview, defendant’s version of events
       mirrored B.J.’s version, until the time of the alleged sexual assault. Defendant explained he
       and B.J. took a cab to his apartment, where they continued drinking. B.J. told him she wanted
       to go to bed and took off her clothes. B.J. had to throw up, so defendant showed her where the
       bathroom was. Defendant explained he could hear her vomiting and asked her if she needed
       any water. B.J. then went back to bed.
¶ 16       Defendant later joined her in bed and fell asleep, but B.J. woke him up when she started to
       rub his penis. Defendant stated he could not believe it was happening, but B.J. pulled him
       closer, grabbed his crotch, and they began having intercourse. He told the police officers B.J.
       did not say anything during the incident–”she just laid there”–but he could hear her moaning
       and her hips were gyrating. He admitted to the police officers B.J. had never flirted with him or
       given him any indication beforehand that she wanted to begin an intimate relationship. When
       asked whether he thought she was intoxicated, defendant replied, “On one level yeah. I mean,
       yeah,” and when asked whether he would have let her drive home from the bar, he responded,
       “absolutely not.”
¶ 17       Several witnesses testified regarding B.J.’s cognitive abilities near the time of the incident.
       Roger Coyne, the taxi driver who picked defendant and B.J. up from Fat Jacks, explained both
       defendant and B.J. appeared normal to him and stated they “weren’t walking *** like they
       were drunk.” Defendant’s roommate, Nick Bargmann, testified B.J. appeared to be sober while
       she was at the apartment.
¶ 18       Pursuant to the trial court’s ruling on the State’s motion in limine, Lacomba testified he had
       been texting B.J. until after 4 a.m. and had talked to her on the phone for around 15 to 20
       minutes. He stated, “Based on the conversation [they] had, the consistency of the conversation,
       and [B.J.’s] body language before leaving the bar,” he did not believe B.J. was intoxicated. On
       cross-examination, the State asked Lacomba whether B.J.’s text messages made it clear she did
       not want to be at defendant’s house. Lacomba responded, “I wouldn’t say that was very clear.”
       The State rephrased its question: “It was clear that she didn’t want to stay at the Defendant’s
       house. In fact, she asked you for a ride?” Lacomba responded, “Yes.”
¶ 19       Following presentation of the evidence, the jury found defendant guilty on both counts of
       criminal sexual assault. In July 2013, the trial court sentenced defendant to consecutive
       eight-year terms of imprisonment on the criminal sexual assault convictions and a consecutive
       three-year term of imprisonment on the unlawful possession conviction. Later that month,
       defendant filed a motion to reconsider his sentence and a motion to withdraw his guilty plea on
       the unlawful possession charge. In August 2013, the court denied both motions.
¶ 20       This appeal followed.

¶ 21                                        II. ANALYSIS
¶ 22       On appeal, defendant argues the trial court (1) improperly denied his Batson challenge
       following the State’s peremptory challenge of Juror 14, and (2) erred when it prohibited
       defense counsel from introducing testimony regarding the content of text messages B.J. sent to
       Lacomba on the night of the offense.


                                                    -5-
¶ 23                                      A. The Batson Challenge
¶ 24        Defendant first argues the trial court erred in denying his Batson challenge because it never
       gave defense counsel an opportunity to establish a prima facie case of purposeful
       discrimination against African-American members of the venire. In the alternative, defendant
       argues (1) the trial court’s ruling on his challenge was incorrect as a matter of law, and (2) the
       record supports a prima facie finding of purposeful racial discrimination. The State contends
       defendant forfeited the issue of whether the trial court erred by denying his Batson challenge
       because he failed to raise the issue in a posttrial motion.
¶ 25        Generally, to preserve a claim of error for appeal, a party must raise an objection both at
       trial and in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129
       (1988). However, our supreme court has relaxed the forfeiture rules with regard to
       “constitutional issues which have properly been raised at trial and which can be raised later in
       a post-conviction hearing petition.” Id. at 190, 522 N.E.2d at 1131-32. Thus, because a Batson
       claim involves a constitutional issue and defendant properly objected at trial, we will address
       the merits of his appeal. See People v. Mitchell, 152 Ill. 2d 274, 285, 604 N.E.2d 877, 884
       (1992).

¶ 26                                        1. Batson Procedure
¶ 27        In Batson, the United States Supreme Court established a three-step process for evaluating
       claims of alleged racial discrimination in the jury selection process. First, “the defendant must
       make a prima facie showing that the prosecutor has exercised peremptory challenges on the
       basis of race.” People v. Williams, 209 Ill. 2d 227, 244, 807 N.E.2d 448, 459 (2004). During
       the second step, once the trial court determines defendant has established a prima facie case,
       the burden shifts to the State to provide a race-neutral explanation for excluding the potential
       jury members. Id. Defendant may then rebut the proffered reason as pretextual. Id. Finally,
       during the third step of the Batson hearing, the trial court must determine whether the
       defendant has met his burden of showing purposeful discrimination in light of the parties’
       submissions. Id.
¶ 28        The issues in this case involve the first step of the Batson process–i.e., whether defendant
       established a prima facie case of purposeful discrimination. To establish a prima facie case
       under Batson, a defendant must demonstrate that relevant circumstances give rise to an
       inference of purposeful discrimination on behalf of the State. People v. Davis, 231 Ill. 2d 349,
       360, 899 N.E.2d 238, 245 (2008). In determining whether a defendant has met this burden, the
       trial court “must consider ‘the totality of the relevant facts’ and ‘all relevant circumstances’
       surrounding the peremptory strike to see if they give rise to a discriminatory purpose.” Id.
       (quoting Batson, 476 U.S. at 94, 96-97). Relevant factors the court should consider include the
       following:
                “(1) racial identity between the [party exercising the peremptory challenge] and the
                excluded venirepersons; (2) a pattern of strikes against African-American
                venirepersons; (3) a disproportionate use of peremptory challenges against
                African-American venirepersons; (4) the level of African-American representation in
                the venire as compared to the jury; (5) the prosecutor’s questions and statements [of the
                challenging party] during voir dire examination and while exercising peremptory


                                                   -6-
               challenges; (6) whether the excluded African-American venirepersons were a
               heterogenous group sharing race as their only common characteristic; and (7) the race
               of the defendant, victim, and witnesses.” People v. Williams, 173 Ill. 2d 48, 71, 670
               N.E.2d 638, 650 (1996).
       See also People v. Rivera, 221 Ill. 2d 481, 501, 852 N.E.2d 771, 783-84 (2006). A trial court’s
       ruling on the sufficiency of a prima facie case is a finding of fact that will not be disturbed
       unless it is against the manifest weight of the evidence. Id. at 502, 852 N.E.2d at 784.

¶ 29                                2. Defendant’s Argument on Appeal
¶ 30        Defendant first argues the trial court erred in denying his Batson challenge because it never
       gave defense counsel an opportunity to establish a prima facie case. We disagree.
¶ 31        After the State exercised its sixth peremptory challenge against Juror 14, defense counsel
       asked the trial court to note “two challenges ha[d] been made to the only two African
       Americans” the court had reached at that point in time. When prompted by the State, the court
       asked defense counsel whether he was making a Batson challenge. Defense counsel
       responded, his statements were a “foundationary [sic] finding” for the record, and “yes, [he
       was] making a Batson challenge.” The court then concluded defendant’s proffered evidence
       was insufficient to establish a prima facie case of purposeful discrimination, finding no need to
       elicit a race-neutral explanation from the State.
¶ 32        Nothing about this exchange leads us to believe defendant was not given an opportunity to
       establish a prima facie case of purposeful discrimination. The trial court asked defense counsel
       to clarify his statements regarding the challenged African-American jurors and defense
       counsel responded by stating he was making a “foundationary [sic] finding” to support his
       Batson challenge. Defendant was not interrupted or prevented from making any additional
       arguments. Moreover, at no point did defense counsel interject or request the court to consider
       anything other than his initial assertion the State had peremptorily challenged both
       African-American venire members. Rather, following the trial court’s pronouncement, defense
       counsel thanked the court, and jury selection continued. We find defendant was given a full
       opportunity to establish a prima facie case, and the record contains the extent of the evidence
       defense counsel sought to offer.
¶ 33        We note, in making this initial argument, defendant impliedly admits the evidence he set
       forth at trial was insufficient to establish a prima facie case of purposeful discrimination. He
       claims, had he been given the opportunity, he could have set forth evidence sufficient for the
       trial court to draw an inference of purposeful discrimination. He then attempts to establish a
       prima facie case on appeal by addressing the seven factors laid out in both Williams and Rivera
       and argues the record produced evidence sufficient to permit the trial court to draw an
       inference of discrimination in the State’s use of peremptory strikes. We remind defendant, he
       had the burden of establishing a prima facie case of purposeful discrimination before the trial
       court–not on appeal. See id. at 512, 852 N.E.2d at 789.
¶ 34        Defendant relies on this court’s decision People v. Shaw, 2014 IL App (4th) 121157, 21
       N.E.3d 802, and argues the trial court has the burden of guiding the parties through the Batson
       process and asking questions based upon the seven relevant factors to determine whether
       defendant has set out a prima facie case. We disagree with defendant’s interpretation of our
       decision in Shaw.


                                                   -7-
¶ 35        In Shaw, defense counsel raised a Batson challenge after the State excused the first
       African-American venire member. Id. ¶ 8. In support of his challenge, counsel alleged the
       challenged juror was the only African-American in the panel thus far, and there were “ ‘no
       facts or other relevant circumstances that would raise an inference that [the challenge] was
       anything other than for race.’ ” Id. Before the trial court could respond, however, the State
       argued defense counsel was not following correct procedure; counsel had to establish a pattern
       with regard to challenges based on race. Id. The court then ruled on the challenge, stating only,
       “ ‘Defendant has not established a pattern under Batson.’ ” Id.
¶ 36        On appeal, we held it was “unclear whether the trial court found defendant established a
       prima facie case of discrimination” because the court did not follow the well-established
       three-step procedure for addressing Batson claims. Id. ¶ 26. We specifically ruled, “[The
       three-step] procedure was not followed here and, as a result, the record is insufficient for us to
       conduct a meaningful review of defendant’s Batson challenges.” Id. ¶ 30. In so holding, we
       noted a pattern is only one of several factors a trial court should consider in determining
       whether a defendant has established a prima facie case of purposeful discrimination. Id. ¶ 26.
       Our point in Shaw was simply to emphasize the importance of the three-step process and to
       remind the trial court to consider all relevant factors–not to transfer the burden of establishing
       a prima facie case from the defendant to the trial court. The three-step process was properly
       followed in the present case, and thus, we must determine whether the trial court erred in
       finding defendant’s evidence insufficient to support a prima facie finding. We conclude it did
       not.
¶ 37        Although the threshold for making out a prima facie case is not high, a defendant must still
       produce evidence “sufficient to permit the trial judge to draw an inference that discrimination
       has occurred.” Johnson v. California, 545 U.S. 162, 170 (2005). The “mere number of
       [minority] venirepersons peremptorily challenged, without more, will not establish a prima
       facie case of discrimination.” Davis, 231 Ill. 2d at 361, 899 N.E.2d at 245; see also Rivera, 221
       Ill. 2d at 512, 852 N.E.2d at 789-90 (“The number of persons struck takes on meaning only
       when coupled with other information such as the racial composition of the venire, the race of
       others struck, or the voir dire answers of those who were struck compared to the answers of
       those who were not struck.”).
¶ 38        Defense counsel’s Batson objection below relied solely on the fact the State used
       peremptory challenges to exclude the first two African-American venire members–i.e., there
       was a pattern of strikes against African-Americans. In responding to defendant’s allegations,
       the court noted the difficulty of establishing a pattern with so few minority venire members and
       noted the State had exercised four other peremptory challenges against nonminority venire
       members. Based on the evidence before it, the court found no reason to require the State to
       provide a race-neutral explanation.
¶ 39        On appeal, defendant does not argue his proffered evidence was sufficient to establish a
       prima facie case; he argues the trial court’s ruling was incorrect as a matter of law. He quotes a
       portion of the court’s ruling, which states, “I think it’s almost virtually impossible to create a
       pattern with one, perhaps two, certainly with three.” He contends this statement directly
       contradicts the United States Supreme Court rule stating the “Constitution forbids striking
       even a single prospective juror for a discriminatory purpose.” (Internal quotation marks
       omitted.) Snyder v. Louisiana, 552 U.S. 472, 478 (2008). Defendant’s reliance on this rule is
       misplaced because, as mentioned earlier, the existence of a pattern is only one of many factors

                                                   -8-
       a defendant has in his arsenal to support a claim of purposeful discrimination in the selection of
       a jury.
¶ 40        Where evidence of a pattern is an irrelevant factor, such as when there has only been one
       African-American challenged, a defendant must set forth other evidence which gives rise to an
       inference of discrimination. See People v. Davis, 345 Ill. App. 3d 901, 910, 803 N.E.2d 514,
       522 (2004) (holding a “pattern of strikes” is an irrelevant factor in determining whether the
       defendant established a prima facie case of discrimination under Batson where there is only
       one African-American in the venire). Moreover, “requiring a trial court to find a defendant has
       established a prima facie case based solely upon the fact that the State has peremptorily
       excused all of the black jurors from the venire *** would effectively negate consideration of
       all the other relevant circumstances *** and would be inconsistent with Batson.” People v.
       Jones, 177 Ill. App. 3d 663, 668-69, 532 N.E.2d 543, 546 (1988).
¶ 41        In this case the existence of a pattern of discrimination was the extent of defendant’s
       argument in support of his Batson claim. Looking to the totality of the circumstances
       surrounding the State’s challenges, the trial court found no pattern had been established. Yet,
       defendant would have us conclude the court erred because it did not sua sponte address other
       factors, which he claims were potentially in his favor. We decline to do so. As stated above, the
       trial court is not tasked with establishing defendant’s prima facie case for him. Further, as the
       party making the Batson objection, defendant was responsible for preserving the record, and
       any ambiguities must be construed against him. Rivera, 221 Ill. 2d at 512, 852 N.E.2d at 789.
       From the record, we know (1) defendant is Caucasian, (2) the court “believed” there were only
       three African-Americans in the venire pool, (3) the State exercised four peremptory strikes
       against Caucasians, and (4) Juror 100 shared several characteristics with other excluded venire
       members and Juror 14 had not spoken at all. Thus, we are left only to speculate as to (1) the
       actual racial makeup of the venire, (2) the race of the complaining witness, and (3) whether any
       African-American venire members served on the jury. Given the substance of defendant’s
       Batson challenge and the content of the record on appeal, we conclude the trial court’s ruling
       was not against the manifest weight of the evidence.

¶ 42                                    B. The Rape-Shield Statute
¶ 43       Defendant next argues the trial court erred when it prohibited defense counsel from
       introducing the content of various text messages between B.J. and Lacomba on the night of the
       offense. He specifically argues (1) the communications were not covered by the rape-shield
       statute and (2) even if the communications were covered by the rape-shield statute, their
       admission was “constitutionally required” to show B.J.’s state of mind and ability to consent to
       sexual relations with defendant.
¶ 44       Nevertheless, because we conclude the content of the text messages should have been
       excluded as irrelevant, we need not determine whether sexually based text messages, in the
       proper case, are considered “prior sexual activity” or “reputation” pursuant to the rape-shield
       statute. See People v. Schuldt, 217 Ill. App. 3d 534, 541, 577 N.E.2d 870, 876 (1991) (holding
       evidence not properly barred by the rape-shield statute “remain[s] subject to standards of
       relevancy”); see also Bell v. Louisville & Nashville R.R. Co., 106 Ill. 2d 135, 148, 478 N.E.2d
       384, 389 (1985) (holding a reviewing court “can sustain the decision of the circuit court on any
       grounds which are called for by the record regardless of whether the circuit court relied on the
       grounds and regardless of whether the circuit court’s reasoning was correct”).

                                                   -9-
¶ 45       The State charged defendant with criminal sexual assault pursuant to section 11-1.20(a)(2)
       of the Criminal Code of 1961 (720 ILCS 5/11-1.20(a)(2) (West 2010)), which states, in
       relevant part, “A person commits criminal sexual assault if [he] commits an act of sexual
       penetration and *** knows that the victim *** is unable to give knowing consent.” Defendant
       argues the content of the text messages was relevant because it goes directly to B.J.’s state of
       mind, ability to consent, and, “more important,” a third person’s (Lacomba’s) perception of her
       ability to consent. Because nothing in the record indicates defendant had any knowledge of
       what B.J. was saying to Lacomba, we fail to see how the content of B.J.’s text messages to
       Lacomba adds anything of value to the fact-finding enterprise. To sustain defendant’s
       conviction, the State was required to prove defendant knew B.J. was unable to give knowing
       consent–not Lacomba. 720 ILCS 5/11-1.20(a)(2) (West 2010).
¶ 46       Even if we were to look solely at whether the evidence had a tendency to show B.J. had the
       ability to consent–irrespective of what defendant knew–the trial court’s ruling on the State’s
       motion in limine allowed Lacomba to testify regarding B.J.’s cognitive abilities during their
       conversation. At trial, Lacomba explained he had conversed with B.J. between the hours of
       2:30 a.m. and 4:30 a.m. and believed she was not intoxicated. He further testified the text
       messages they exchanged were understandable and legible, and B.J. did not appear to have any
       difficulty communicating during their 15- to 20-minute phone call.
¶ 47       We recognize a portion of defendant’s argument relates to his ability to cross-examine B.J.
       pursuant to the confrontation clause of the sixth amendment. See U.S. Const., amend. VI.
       However, not even the confrontation clause requires the admission of evidence which poses an
       undue risk of harassment, prejudice, or confusion of the issues. Delaware v. Van Arsdall, 475
       U.S. 673, 679 (1986). Rather, “[t]he true question is always one of relevancy.” People v. Hill,
       289 Ill. App. 3d 859, 864, 683 N.E.2d 188, 191 (1997). As our sister court explained in People
       v. Cornes, 80 Ill. App. 3d 166, 175, 399 N.E.2d 1346, 1352 (1980), “Defendant’s right of
       confrontation necessarily includes the right to cross-examine witnesses, but that right does not
       extend to matters which are irrelevant and have little or no probative value. Complainant’s past
       sexual conduct has no bearing on whether she has consented to sexual relations with
       defendant.” Accordingly, we disagree that disclosure of the content of the text messages was
       required to show B.J.’s “state of mind.” Even if consent were at issue, B.J.’s willingness to
       engage in sexual conduct with Lacomba has absolutely no bearing on her willingness to
       engage in sexual conduct with defendant.
¶ 48       Last, defendant argues the court’s order allowed the State to mislead the jury into believing
       B.J. was desperate to get away from defendant when, in reality, she wanted to have consensual
       sexual relations with Lacomba. However, when the State asked Lacomba whether it was clear
       B.J. wanted to “get away from” defendant, Lacomba stated, “I wouldn’t say it was clear.” The
       only thing Lacomba positively testified to was that B.J. had asked him for a ride. Again, we fail
       to see how B.J. wanting a ride from Lacomba has anything to do with whether she had the
       ability to consent to sexual relations with defendant or whether defendant had knowledge of
       that fact.
¶ 49       Defendant was given considerable latitude regarding the text messages exchanged between
       B.J. and Lacomba. Revealing the sexual nature of those text messages would have added no
       relevant information and would have served only to harass and embarrass B.J. on a collateral
       matter. We find no error in the trial court’s exclusion of the content of the communications.


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¶ 50                                       III. CONCLUSION
¶ 51       We affirm the trial court’s judgment. As part of our judgment, we award the State its $75
       statutory assessment against defendant as costs of this appeal. 55 ILCS 5/4-2002(a) (West
       2012).

¶ 52      Affirmed.




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