                                  Illinois Official Reports

                                           Appellate Court



                             People v. Mendiola, 2014 IL App (4th) 130542




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


District & No.               Fourth District
                             Docket No. 4-13-0542


Filed                        March 4, 2014


Held                         In a prosecution for aggravated criminal sexual abuse and predatory
(Note: This syllabus         criminal sexual assault of a child where the State’s motion in limine
constitutes no part of the   seeking admission of a recorded telephone call between defendant and
opinion of the court but     the victims’ mother allegedly showing defendant’s consciousness of
has been prepared by the     guilt was denied following a hearing conducted during an intermission
Reporter of Decisions        in the voir dire proceedings, and defendant was eventually acquitted
for the convenience of       of four counts and a mistrial was declared as to one of the sexual abuse
the reader.)                 counts, the State’s appeal from the subsequent denial of a second
                             motion in limine refiled just before defendant was retried on the
                             remaining sexual abuse count and seeking the same relief was
                             dismissed for lack of jurisdiction, since the State’s failure to seek
                             appellate review of the denial of its first motion in limine and decision
                             to proceed with the first trial resulted in the forfeiture of its right under
                             Supreme Court Rule 604(a) to appeal the denial of the refiled motion
                             in limine.


Decision Under               Appeal from the Circuit Court of McLean County, No. 12-CF-646; the
Review                       Hon. Scott Drazewski, Judge, presiding.



Judgment                     Dismissed.
     Counsel on               Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
     Appeal                   David J. Robinson, and Anastacia R. Brooks, all of State’s Attorneys
                              Appellate Prosecutor’s Office, of counsel), for the People.

                              Michael J. Pelletier, Karen Munoz, and Colleen Morgan, all of State
                              Appellate Defender’s Office, of Springfield, for appellee.



     Panel                    JUSTICE STEIGMANN delivered the judgment of the court, with
                              opinion.
                              Justices Pope and Turner concurred in the judgment and opinion.




                                               OPINION

¶1         In July 2012, the State charged defendant, Juan Mendiola, with (1) four counts of
       aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2012)) and (2) one count
       of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)).
¶2         During a February 11, 2013, hearing, the trial court considered and denied the State’s
       motion in limine, which sought the admission of a telephone call recording that defendant
       made from jail to Lisa K. (Lisa), the mother of the two minor victims the State alleged
       defendant abused. Two days later, the court denied the State’s motion to reconsider. The jury
       later acquitted defendant on four of the five charges, but could not reach a verdict on one count
       of aggravated criminal sexual abuse. The court declared a mistrial on that remaining count.
¶3         In March 2013–prior to a second trial on the remaining count of aggravated criminal sexual
       abuse–the State filed a second motion in limine, which sought to introduce the same recording.
       In June 2013, the trial court entered a written order, denying the State’s motion in limine,
       reiterating the rationale the court stated in its earlier denial.
¶4         The State appeals, arguing that the trial court abused its discretion by denying the State’s
       March 2013 motion in limine. Because we conclude that this court lacks jurisdiction, we
       dismiss the State’s appeal.

¶5                                         I. BACKGROUND
¶6                                        A. The State’s Charges
¶7        In July 2012, the State charged defendant with four counts of aggravated criminal sexual
       abuse, alleging that defendant (1) pulled A.P. (born October 30, 1998) on top of him and
       simulated a sex act (count I), (2) put his hands down A.P.’s pants (counts II and IV), and (3)
       penetrated A.P.’s vagina with his finger (count III). The State also charged defendant with one
       count of predatory criminal sexual assault in that he put his hands down the pants of S.P. (born
       November 29, 2002) (count V).

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¶8                                       B. The Trial Court’s Rulings
¶9          On Monday, February 11, 2013, the State filed a motion in limine, seeking a ruling on the
       admissibility of a January 13, 2013, recorded conversation in which defendant called Lisa from
       jail. The State explained that it learned about the recording on the previous Thursday and
       listened to its content the following day. Noting that (1) the State had not provided a transcript
       of the recorded conversation and (2) voir dire of prospective jurors was scheduled for that
       morning, the trial court stated its intent to listen to the recording during the lunch recess.
       Immediately thereafter, voir dire of prospective jurors began.
¶ 10        After the lunch recess, the trial court informed the parties that it had listened to the recorded
       conversation. The court then conducted a hearing on the State’s motion in limine, which
       occurred prior to empanelling a jury. A summary of that conversation showed that defendant
       began by informing Lisa that (1) he did not have a guilty plea offer from the State and (2) his
       life was in her hands. Defendant told Lisa that he did not care about himself, but he was
       concerned about the impact of his incarceration on his son and mother. Defendant then asked
       Lisa for “some mercy.” Lisa suggested that defendant “take a deal,” stating that she would ask
       the State’s Attorney to make defendant an offer. Defendant again asked Lisa to show him
       “mercy.” Lisa informed defendant that he had destroyed her child and “that can never be taken
       back.” Lisa vowed that defendant would spend some time in prison.
¶ 11        In support of its motion in limine, the State argued that (1) the recording was admissible
       because it showed defendant’s consciousness of guilt and (2) defendant made statements
       against his interest. Defendant argued that the recording concerned issues surrounding
       guilty-plea negotiations, which were not admissible. After considering counsel’s respective
       arguments, the trial court found, as follows:
                     “[As the court] indicated, *** [the recording] does have some probative value. ***
                [T]here could be an inference made *** in the manner in which the State has described
                it. [T]here’s also *** a concern *** with respect to the prejudicial impact to bring in
                [the statements] the jury ought not and should not hear about, such as plea deals, plea
                negotiations, punishment[;] things that are not their concern. ***
                     And that’s why these statements *** aren’t coming in. They are not inculpatory
                statements. They are statements basically seeking mercy, seeking help, assistance by
                [Lisa] to work whatever influence she may have with the State’s Attorney *** to obtain
                the best possible deal that could be considered. [Defendant] never said that he
                committed the offense. [Defendant] never said that he would take the deal. So, again,
                [these statements are] fraught with all kinds of problems, which is why [the court finds]
                that the probative value is outweighed by the prejudicial effect.”
       Following the court’s denial of the State’s motion in limine, voir dire resumed. Later that
       afternoon, the court empanelled a jury and adjourned for the day.
¶ 12        Two days later, on February 13, 2013, the trial court conducted a hearing, outside of the
       jury’s presence, to hear arguments on the State’s written motion to reconsider, which it
       tendered to the court that morning. The State sought to clarify what it acknowledged were
       confusing arguments it made in support of its motion in limine. The State then addressed the
       underlying rationale for the court’s denial–that is, the prejudice and absence of a threat from
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       defendant. Defendant again argued that the recording was more prejudicial than probative due
       to the numerous discussions concerning guilty-plea offers. The court denied the State’s motion
       to reconsider, adhering to the rationale underlying its earlier denial. Immediately thereafter, the
       parties made their respective opening statements to the jury.

¶ 13                                    C. The Defendant’s Jury Trial
¶ 14       During trial, the State renewed its request to admit the recorded telephone conversation
       defendant had with Lisa, claiming that defense counsel “opened the door” by repeatedly asking
       Lisa whether she gave defendant an opportunity to tell his side of the story. The trial court
       rejected the State’s request on relevancy grounds.
¶ 15       Following the presentation of evidence and argument, the jury acquitted defendant on
       counts I, II, III, and V, but could not reach a verdict on count IV. The trial court then declared
       a mistrial as to count IV.

¶ 16               D. The Trial Court’s Pretrial Rulings Before Defendant’s Second Trial
¶ 17       In March 2013–prior to defendant’s second trial on the remaining count of aggravated
       criminal sexual abuse–the State filed a second motion in limine, seeking to introduce the same
       recording of defendant’s telephone call to Lisa.
¶ 18       In a June 2013 written order, the trial court denied the State’s second motion in limine,
       finding that the recorded conversations between defendant and Lisa were not admissible
       because they (1) amounted to a guilty-plea negotiation, (2) were more prejudicial than
       probative, and (3) were not admissible as consciousness of guilt evidence.
¶ 19       This appeal followed.

¶ 20                              II. THIS COURT’S JURISDICTION
¶ 21       The State argues that the trial court abused its discretion by denying its March 2013 motion
       in limine. However, prior to addressing the merits of the State’s argument, we must first
       determine whether this court has jurisdiction. See People v. Smith, 228 Ill. 2d 95, 106, 885
       N.E.2d 1053, 1059 (2008) (determining its jurisdiction and whether an issue has been forfeited
       are the “two most important tasks of an appellate court panel when beginning the review of a
       case”); People v. Blalock, 2012 IL App (4th) 110041, ¶ 5, 976 N.E.2d 643 (before addressing
       the merits of an appeal, the appellate court first has a duty to determine whether it has
       jurisdiction).
¶ 22       Illinois Supreme Court Rule 604(a)(1) (eff. Feb. 6, 2013) provides as follows:
                “When State May Appeal. In criminal cases the State may appeal only from an order or
                judgment the substantive effect of which results in dismissing a charge for any of the
                grounds enumerated in section 114-1 of the Code of Criminal Procedure of 1963 [(the
                Code) (725 ILCS 5/114-1 (West 2012))]; arresting judgment because of a defective
                indictment, information[,] or complaint; quashing an arrest or search warrant; or
                suppressing evidence.”
¶ 23       Illinois Supreme Court Rule 606(b) (eff. Feb. 6, 2013) provides as follows:

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                “Except as provided in Rule 604(d), the notice of appeal must be filed with the clerk of
                the circuit court within 30 days after the entry of the final judgment appealed from or if
                a motion directed against the judgment is timely filed, within 30 days after the entry of
                the order disposing of the motion.”
       The time constraints mandated by Rule 606(b) apply to the State. See People v. Bridgewater,
       235 Ill. 2d 85, 90-91, 918 N.E.2d 553, 555-56 (2009); see also People v. Marker, 233 Ill. 2d
       158, 163-67, 908 N.E.2d 16, 19-22 (2009).
¶ 24        Our jurisdictional question arises from the trial court’s February 2013 denial of the State’s
       motion in limine. The State never appealed that denial. Instead, after defendant’s jury trial
       ended with four acquittals and the court declaring a mistrial on the remaining count, the State
       (1) recharged defendant with the remaining count and (2) filed a second motion in limine,
       seeking admission of the same recorded evidence that the court had previously denied. It is the
       court’s June 2013 denial of the second motion in limine that the State is seeking to have this
       court review on appeal. However, we must first determine whether the State’s failure to appeal
       the court’s denial of the State’s February 2013 motion in limine deprives this court of
       jurisdiction. We conclude that it does.
¶ 25        Defendant contends that the principle of collateral estoppel bars consideration of the
       State’s March 2013 motion in limine because prior to his February 2013 jury trial, the trial
       court had already barred the evidence the State now seeks to readmit. Citing People v. Baker,
       177 Ill. App. 3d 342, 346, 532 N.E.2d 306, 308 (1988), defendant also contends that the court’s
       pretrial denial of the State’s motion in limine “fairly and completely resolved” the issue. The
       State could have appealed that denial but failed to do so. See People v. Hatfield, 161 Ill. App.
       3d 401, 405, 514 N.E.2d 572, 574 (1987) (“ ‘Rule 604(a)(1) allows an interlocutory appeal by
       the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that
       the suppression substantially impairs the State’s ability to prosecute the case.’ ” (quoting
       People v. Young, 82 Ill. 2d 234, 247, 412 N.E.2d 501, 507 (1980))).
¶ 26        In response, the State argues that the record does not support defendant’s claim that the
       trial court’s denial was a pretrial ruling. Specifically, the State contends that because
       defendant’s trial had already begun when the court denied its motion in limine, the State could
       appeal only under the provisions of section 114-12(c) of the Code (725 ILCS 5/114-12(c)
       (West 2012)), which governs motions to suppress illegally seized evidence. Thus, the State
       asserts that because the court’s denial occurred during trial and did not concern illegally seized
       evidence, it could not immediately appeal the denial of its February 2013 motion in limine.
¶ 27        We need not address the State’s argument regarding section 114-12(c) of the Code because
       the record clearly shows that when the trial court denied the State’s February 2013 motion
       in limine it did so before a jury had yet to be sworn in–that is, before jeopardy had attached.
       People v. Dahlberg, 355 Ill. App. 3d 308, 312, 823 N.E.2d 649, 653 (2005). Thus, we reject the
       State’s underlying premise that the court’s denial occurred during trial. See People v. Nelson,
       377 Ill. App. 3d 1031, 1037, 880 N.E.2d 1096, 1101 (2007) (“ ‘ “An appeal *** shall lie ***
       from a decision or order *** suppressing or excluding evidence *** in a criminal proceeding,
       not made after the defendant has been put in jeopardy ***.” ’ ” (Emphasis in original.)
       (quoting Young, 82 Ill. 2d at 248, 412 N.E.2d at 508, quoting 18 U.S.C. § 3731 (1976))).


                                                    -5-
¶ 28        The present case does not involve a suppression order. Instead, this case concerns the trial
       court’s denial of the State’s motion in limine seeking a pretrial ruling that certain evidence–that
       is, the recording of defendant’s telephone call to Lisa–was admissible. In People v. Owen, 299
       Ill. App. 3d 818, 822, 701 N.E.2d 1174, 1177-78 (1998), this court noted that although parties
       frequently use motions in limine to bar or limit the scope of evidence, the State may also use
       such motions, as in the present case, to obtain a ruling authorizing the use of certain evidence
       during trial. (We note that the supreme court made clear in People v. Drum, 194 Ill. 2d 485,
       491, 743 N.E.2d 44, 47 (2000), that for purposes of Rule 604(a)(1), “there is no substantive
       distinction between evidence that is ‘excluded’ and evidence that is ‘suppressed.’ ”) Because a
       motion in limine requires a court to consider offers of proof out of the normal trial context
       either in the form of live testimony or counsel’s representations, a court has the discretion to
       choose not to hear the motion in limine, and instead, address the evidentiary issue when the
       matter becomes ripe at trial and the context is no longer in doubt. Owen, 299 Ill. App. 3d at
       823, 701 N.E.2d at 1178. Although the State proffered its motion in limine on the morning
       before jury selection commenced, the court chose to consider the State’s motion instead of
       deferring the matter.
¶ 29        In Nelson, 377 Ill. App. 3d at 1039, 880 N.E.2d at 1103, the First District addressed the
       following issue, which was substantially similar to the facts before us in this case:
                “The State requested the grant of use immunity to [certain witnesses] after the jury had
                been selected and immediately before trial. When the trial court denied the State’s
                motions, the State took no action and proceeded to trial. Only after the jury was unable
                to reach a verdict and a mistrial declared did the State seek review. The State fails to
                cite a case *** in which a reviewing court has allowed the State to seek a posttrial
                appeal of a pretrial order, nor does our research disclose any such case.”
¶ 30        The Nelson court then provided the following analysis:
                    “When the State opted to prosecute the case, it essentially took a chance on whether
                defendant would be convicted without [the suppressed] testimony. If defendant was
                found guilty, then the State would have succeeded in its prosecution. If defendant had
                been acquitted, then no appeal could be brought by the State. The fact that the trial
                ended in a mistrial should not give the State the right to appeal an order it would have
                been foreclosed to raise had there been any other result. The State forfeited its right to
                appeal based on the supposed substantial impairment of its case when it decided to
                prosecute defendant.” Id.
¶ 31        Here, after the trial court denied the State’s initial motion in limine, the State chose to
       proceed to trial instead of seeking appellate review by timely filing a certificate of impairment.
       No doubt the State hoped that the jury would return guilty verdicts on the counts charged, but
       instead the jury acquitted defendant on four counts and was unable to reach a verdict on the
       fifth count. Thus, in accord with Nelson, the State forfeited its right under Rule 604(a) to
       appeal the court’s order denying the State’s motion in limine.

¶ 32                                     III. CONCLUSION
¶ 33      For the foregoing reasons, we dismiss the State’s appeal.


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¶ 34   Dismissed.




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