                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Patterson, 2012 IL App (1st) 101573




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



District & No.              First District, Third Division
                            Docket No. 1-10-1573


Filed                       June 29, 2012
Rehearing denied            September 20, 2012
Modified upon denial
of rehearing                September 26, 2012


Held                        The constitutionality of section 5-130 of the Juvenile Court Act, which
(Note: This syllabus        provides for the automatic transfer of minor defendants at least 15 years
constitutes no part of      old charged with certain offenses, including aggravated criminal sexual
the opinion of the court    assault, to criminal court was upheld, but the cause was remanded for a
but has been prepared       new trial due to the erroneous admission of defendant’s inculpatory
by the Reporter of          statement.
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Cook County, No. 09-CR-1455; the
Review                      Hon. Ellen Beth Mandeltort, Judge, presiding.



Judgment                    Reversed and remanded.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Christopher Kopacz, all of
Appeal                      State Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                            Douglas P. Harvath, and Jessica R. Bargmann, Assistant State’s
                            Attorneys, of counsel), for the People.


Panel                       JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                            Justices Steele and Murphy concurred in the judgment and opinion.



                                              OPINION

¶1           The trial court entered judgment on a jury verdict finding Ronald Patterson, a minor,
        guilty on three counts of aggravated criminal sexual assault. On appeal, Patterson argues that
        the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2008)), in its provision for
        automatic transfer of certain cases to criminal court for the prosecution of minor defendants
        as adults, violates the state and federal constitutions. Patterson also challenges the trial
        court’s decision to admit into evidence a statement Patterson signed at the police station and
        the decision to bar evidence that the alleged victim had sexual intercourse with a different
        man before the doctor examined her.
¶2           We follow other cases upholding the constitutionality of the automatic transfer provision
        in the Juvenile Court Act (705 ILCS 405/5-130 (West 2008)). But we find that the trial court
        erred when it allowed into evidence a statement Patterson signed at the police station,
        because police did not attempt to contact Patterson’s parents, and no concerned adult helped
        Patterson during questioning. We also hold that on remand, if the prosecution again presents
        testimony that physical findings show that the alleged victim had sexual intercourse shortly
        before her medical examination, the court should permit Patterson to present evidence that
        the alleged victim had intercourse with her boyfriend. We reverse and remand for a new trial.

¶3                                         BACKGROUND
¶4          On Sunday, December 14, 2008, after 5 p.m., E.C., who worked for Streamwood
        Behavioral Health Systems (SBHS), drove an SBHS van to Hinsdale to pick up Ronald
        Patterson, then 15 years old, at the end of Patterson’s visit with his family. E.C. and Patterson
        returned to the SBHS facility where Patterson lived around 6:30 p.m. Once Patterson
        returned to his living unit, with the doors locked, E.C. told a coworker that Patterson had
        raped her. E.C. and her coworker called police, who came to SBHS and talked to E.C. An
        ambulance took E.C. to a hospital where a doctor examined her and photographed her bruises
        and some areas of scraped skin.


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¶5          Police arrested Patterson at the SBHS facility around 9 p.m. that evening, and took him
       to the Schaumburg police station. Detective Joe Kaminski interviewed E.C. at the station and
       then, shortly before 10 p.m., he called Stephen Kehoe, the director of the SBHS facility that
       housed Patterson, and left him a message notifying him that police intended to question
       Patterson about the incident with E.C. Detective Kaminski also called and left a message for
       Patterson’s caseworker shortly before 10 p.m. No officer made any attempt to contact
       Patterson’s parents.
¶6          Police began questioning Patterson two minutes after Detective Kaminski left his
       message for Patterson’s caseworker. Detective Kaminski acted as the youth officer, while
       Detective John Atamian questioned Patterson. Initially, Patterson told Detective Atamian that
       E.C. said she wanted to have sex with Patterson and that he agreed. After further questioning,
       Patterson signed a typewritten statement. According to the statement, Patterson admitted that
       he forced E.C. to perform and receive oral sex, and to have vaginal intercourse with him. A
       grand jury charged Patterson with three counts of aggravated criminal sexual assault, with
       one count for each form of contact. The Juvenile Court Act required the court to try Patterson
       as an adult. 705 ILCS 405/5-130(1)(a) (West 2008).
¶7          The court ordered a psychological evaluation of Patterson. The psychiatrist found
       Patterson fit for trial, legally sane at the time of the alleged offense, and able to understand
       Miranda warnings.
¶8          Patterson filed a motion to suppress his typewritten statement. In the motion, he alleged
       that he was “a special education student with limited reading comprehension and
       comprehension skills.” However, neither party presented any evidence at the hearing on the
       motion concerning Patterson’s intelligence and education. Patterson testified that police did
       not read him his rights before he signed the typewritten statement. He admitted that he
       initialed the part of the typewritten statement that set out the Miranda rights. The prosecution
       presented no evidence of any prior arrests of Patterson. Detective Kaminski testified that he
       read Patterson his rights at 10 p.m., directly before Detective Atamian started questioning
       Patterson.
¶9          Kaminski admitted that he did not speak to Kehoe, but he testified that another officer
       told Kaminski that Kehoe gave police permission to question Patterson. Kehoe testified that
       he did not recall giving police such permission and that he lacked authority to give such
       permission because he was not Patterson’s legal guardian. The director of DCFS served as
       Patterson’s legal guardian. No officer attempted to contact the director of DCFS.
¶ 10        The trial court found credible Kaminski’s testimony that he read Patterson his rights and
       the psychiatrist’s report stating that Patterson could understand those rights. The court made
       no finding on the issue of whether Kehoe told police they had his permission to question
       Patterson. The court specifically held that the “police made reasonable inquiries to try to
       interview” Patterson. The trial court denied the motion to suppress.
¶ 11        At trial, E.C. testified that while she was driving Patterson from Hinsdale to the SBHS
       facility, he grabbed her arm and told her to exit from the highway. Because he weighed much
       more than twice E.C.’s weight, E.C. decided to take the exit. Patterson directed E.C. to a
       parking lot near some empty buildings. She tried to reach her cell phone, but he slapped it


                                                 -3-
       out of her hand. She opened the door and tried to run, but Patterson grabbed her coat. As he
       got out of the van, he ripped out a global positioning device that E.C. had plugged into the
       van’s cigarette lighter. The frayed cord fell onto the parking lot. E.C. tried to strike Patterson,
       but her blows had no effect. Patterson pushed E.C. against the van’s side door, pinning her
       against the van.
¶ 12       E.C. testified that Patterson slid the door open and pushed E.C. into the van. When she
       tried to scramble to the door on the other side of the van, Patterson grabbed her feet and
       pulled her back, saying “Don’t make me hurt you.” He ripped off her jeans, then he pulled
       down his pants and choked her to get her to open her mouth. He put his penis in her mouth
       for perhaps 30 seconds. He pushed her legs apart and put his tongue in her vagina. He then
       shoved his penis into her vagina for 30 seconds. When he pulled out, without ejaculating, he
       laid on top of E.C., hugged her and told her he loved her. They dressed and got out of the
       van, and they found E.C.’s cell phone in the parking lot. E.C. then drove back to the SBHS
       facility. When she returned to the parking lot later that night with a police officer, they found
       the cord that had been ripped from E.C.’s global positioning device.
¶ 13       An officer took pictures, admitted into evidence, showing the cord in the parking lot and
       the van’s door with an area that showed cloth had rubbed against the side door. The officer
       who talked with E.C. at SBHS testified that she saw a red mark on E.C.’s neck, but she did
       not make any reference to that mark in her report. Pictures of E.C. taken at the hospital show
       some fresh scrapes, bruises, and redness, but her throat had, at most, a very slight
       discoloration.
¶ 14       The doctor who examined E.C. on December 14 testified that he found several bruises
       on E.C.’s arms and hip. He did not note any marks on E.C.’s neck. He swabbed her vagina.
       The parties stipulated that laboratory tests of the swab did not contain any of Patterson’s
       DNA. The doctor testified that he used a speculum to look into E.C.’s vagina, and he found
       redness on the cervix consistent with recent sexual intercourse.
¶ 15       Patterson sought to introduce evidence that the swab taken from E.C.’s vagina included
       semen with DNA from E.C.’s boyfriend. Defense counsel explained that he needed to rebut
       the inference that the reddened cervix showed that E.C. had intercourse with Patterson, when
       intercourse with her boyfriend could have produced the same effect. The trial court held that
       the rape shield law barred the evidence. 725 ILCS 5/115-7(a) (West 2008).
¶ 16       Detective Atamian read to the jury the typewritten statement Patterson signed. The
       statement corroborated E.C.’s account of the incident.
¶ 17       Patterson testified that E.C. pulled off the highway of her own accord, pulled down his
       pants, and performed oral sex briefly. She then drove back to SBHS. Patterson never said any
       of the statements attributed to him in the typewritten statement he signed. He signed it
       because police told him to do so.
¶ 18       The jury found Patterson guilty on all three counts of aggravated criminal sexual assault.
       The court denied his motion for a new trial.
¶ 19       The presentence investigation report said that Patterson tested positive for cocaine at
       birth. A relative of Patterson’s mother adopted him at 18 months of age, and he grew up with
       his adoptive parents until they found they could not protect his siblings from his increasingly

                                                  -4-
       violent behavior. He had extensive psychiatric treatment from the time he turned 11. The
       Department of Children and Family Services took custody of Patterson, at his adoptive
       parents’ request, in 2006, when he was 13. He took Thorazine, Benadryl, Prozac, Trileptal,
       and Abilify, amongst other medications, to try to control his aggressive behavior and his
       moods. An IQ test in 2006 resulted in a full-scale score of 72.
¶ 20       School records and records from SBHS showed that Patterson acted somewhat violently
       on numerous occasions. He threw hot water on a teacher in 2004, tried to bite SBHS staff
       members when they restrained him in 2006, threatened to stab a staff member in 2006, and
       stabbed a staff member with a pencil in 2008. The behaviors led to some loss of privileges
       at SBHS and other discipline. Records also showed that at times SBHS rewarded Patterson
       for extended periods of good behavior.
¶ 21       The presentence investigator said in his report that Patterson had no prior police contacts.
       According to a printout from the police department, Patterson had one prior arrest, for
       throwing hot water on a teacher when he was 11, and the arrest resulted in a station
       adjustment.
¶ 22       The trial court found several factors in aggravation, and none in mitigation, so the court
       sentenced Patterson to 12 years in prison on each count, with the sentences to run
       consecutively, for a total sentence of 36 years. Patterson now appeals.

¶ 23                                         ANALYSIS
¶ 24        Patterson argues on appeal that the automatic transfer provision of the Juvenile Court Act
       violates the state and federal constitutions. He also argues that the trial court erred (1) when
       it denied his motion to suppress the typewritten statement, (2) when it excluded evidence that
       E.C.’s boyfriend could have caused the redness of E.C.’s cervix, and (3) when it sentenced
       him to 36 years in prison. Finally, Patterson asks us to reverse his convictions because his
       counsel provided ineffective assistance when he failed to present at the hearing on the motion
       to suppress the typewritten statement evidence that Patterson had intellectual deficits that left
       him especially vulnerable to police pressure to make and sign statements against his will. We
       apply different standards of review to the defendant’s arguments.

¶ 25                                     Automatic Transfer
¶ 26       Patterson first argues that the automatic transfer provision of the Juvenile Court Act
       imposes unconstitutionally harsh penalties on juveniles and it violates Patterson’s right to
       due process. We review de novo a decision on the constitutionality of a statute. People v.
       Jackson, 2012 IL App (1st) 100398, ¶ 8.
¶ 27       Our supreme court has rejected essentially the same challenges to the constitutionality
       of the automatic transfer provision. See People v. P.H., 145 Ill. 2d 209, 229-36 (1991);
       People v. J.S., 103 Ill. 2d 395, 403-07 (1984). Patterson contends that we should not follow
       J.S. and P.H. because our supreme court decided those cases before the United States
       Supreme Court decided Graham v. Florida, 560 U.S. ___, 130 S. Ct. 2011 (2010), and Roper
       v. Simmons, 543 U.S. 551 (2005). In Jackson, 2012 IL App (1st) 100398, ¶¶ 14-24, People


                                                 -5-
       v. Salas, 2011 IL App (1st) 091880, ¶¶ 54-80, People v. Sanders, 2012 IL App (1st) 102040,
       People v. Croom, 2012 IL App (4th) 100932, and People v. Brown, 2012 IL App (1st)
       091940, the appellate court rejected indistinguishable arguments about the effect of the
       decisions in Graham and Roper on J.S. and P.H. All of the courts held that Graham and
       Roper did not affect the continuing vitality of J.S. and P.H. or the constitutionality of the
       automatic transfer provision of the Juvenile Court Act. We, too, follow J.S. and P.H.
       Accordingly, we reject Patterson’s challenge to the constitutionality of the Juvenile Court
       Act’s automatic transfer provision for juveniles at least 15 years old accused of aggravated
       criminal sexual assault.

¶ 28                                     Motion to Suppress
¶ 29       Next, Patterson argues that the trial court should have suppressed the typewritten
       statement he signed at the police station. We review the trial court’s findings of fact to
       determine whether they are against the manifest weight of the evidence, and we review de
       novo the legal determination of whether the court should suppress the statement. In re G.O.,
       191 Ill. 2d 37, 49 (2000).
¶ 30       The trial court found credible (1) Detective Kaminski’s testimony that he read Patterson
       his rights before Detective Atamian began questioning him and (2) the psychiatrist’s finding
       that Patterson could understand those rights. The weight of the evidence sufficiently supports
       the trial court’s findings on these issues. The parties did not dispute most other facts related
       to the statement. Police arrested Patterson at the SBHS facility on December 14, 2008, and
       took him to the police station. The prosecution presented no evidence of prior arrests.
       Kaminski, who had taken part in the investigation by interviewing E.C., acted as the youth
       officer. Kaminski called two persons who worked for SBHS, on a Sunday and long after
       office hours, and left messages for both of them. No officer made any attempt to contact
       Patterson’s parents, and no officer made any further attempts to find a concerned adult to
       help Patterson. The questioning began two minutes after Kaminski left a message for
       Patterson’s caseworker.
¶ 31       Patterson answered the officers’ questions, and he told them, just as he told the jury, that
       he and E.C. had consensual sexual relations. About an hour after questioning began,
       Patterson signed a statement that contradicted his initial account and corroborated E.C.’s
       account of the incident.
¶ 32       We apply the following standards to determine whether the facts make the signed
       statement admissible at trial:
                “To be admissible at trial, a confession must be free, voluntary, and not obtained by
           any direct or implied promises or by the exertion of any improper influence. [Citation.]
           Factors that are considered in determining whether a confession was voluntary include
           a defendant’s individual characteristics, such as his age, intelligence, education, physical
           condition and experience with the criminal justice system; the nature of the interrogation
           is also considered, such as the legality and duration of the detention, the duration of the
           questioning, and any physical or mental abuse by the police. [Citations.]
                In cases involving juveniles, additional factors must be considered, such as the time

                                                 -6-
            of day of the questioning and the presence of a parent or other adult concerned with the
            juvenile’s welfare. [Citations.] No single factor is dispositive. [Citation.] The
            voluntariness of a confession is determined by the circumstances of each case.” People
            v. McDaniel, 326 Ill. App. 3d 771, 781-82 (2001).
¶ 33        Reviewing courts have emphasized the special care needed in cases involving juvenile
       confessions when counsel is not present:
                 “The receiving of an incriminating statement by a juvenile in the absence of counsel
            is a sensitive concern requiring great care to assure that the juvenile’s admission was not
            coerced or suggested, or the product of ignorance of one’s rights, adolescent fantasy,
            fright or despair. [Citations.] In cases involving juveniles, courts must be particularly
            careful in scrutinizing the record, since juveniles can easily become victims of the law.”
            McDaniel, 326 Ill. App. 3d at 781.
       See People v. Travis, 122 Ill. App. 3d 671, 674 (1984); see also People ex rel. Brazen v.
       Finley, 119 Ill. 2d 485, 492 (1988) (citing Leonard C. Arnold, Ltd. v. Northern Trust Co.,
       116 Ill. 2d 157, 163 (1987)). Patterson, a 15-year-old juvenile, had an especially acute need
       for the assistance of a concerned adult because the law required the court to try Patterson as
       an adult. 705 ILCS 405/5-130 (West 2008).
¶ 34        Patterson was 15 when police questioned him late in the evening on December 14, 2008.
       The questioning did not last long and no evidence indicates any mental or physical abuse of
       Patterson.
¶ 35        The State argues that we must not take into consideration Patterson’s severely limited
       intelligence and education because Patterson’s attorney failed to present evidence of
       Patterson’s intellectual deficits at the pretrial hearing, and only the presentence investigation
       brought these facts to light. Patterson admits that his counsel waived consideration of his
       intelligence as a factor bearing on the admissibility of the typewritten statement, but
       Patterson contends that counsel’s waiver shows ineffective assistance of counsel. For
       purposes of determining whether the trial court erred when it denied the motion to suppress
       the statement, we will not take into account the evidence of Patterson’s severely limited
       intelligence and education. See People v. Brooks, 187 Ill. 2d 91, 127-28 (1999).
¶ 36        The parties disagree on whether Patterson had prior contact with police. Patterson relies
       on the presentence investigation report, presented to the court after trial, which says he had
       no prior contacts with police. The prosecution relies on police reports, presented to the court
       after trial, which show an arrest in 2004, when Patterson was 11. According to the police
       report, the arrest resulted in a station adjustment. Even if the printout more accurately reflects
       Patterson’s experience, Patterson had, at most, some minimal contact with police, and not
       in a setting where he would have learned about his need to protect his rights. The prosecution
       did not present even this minimal evidence of a prior arrest to the trial court at the hearing
       on the motion to suppress statements. From the evidence presented at the hearing, the court
       knew that Patterson had considerable experience with adults disciplining him for
       inappropriate aggressive behavior, but the discipline included no exposure to a real threat of
       prison time.
¶ 37        Because of Patterson’s youth and lack of exposure to the criminal justice system, in this

                                                  -7-
       case involving charges that require the court to try Patterson as an adult, the presence during
       questioning of an adult concerned with his welfare takes on special significance. See
       McDaniel, 326 Ill. App. 3d at 782-84; In re J.J.C., 294 Ill. App. 3d 227, 237-38 (1998).
       Detective Kaminski, who investigated the charges against Patterson, also purported to act as
       a youth officer during questioning. We find Kaminski’s role here effectively the same as the
       role of the youth officer in People v. Griffin, 327 Ill. App. 3d 538 (2002), named Begeske.
       In Griffin, the court said:
           “[I]n Illinois, even when youth officers are present, their role is unclear. One line of cases
           holds that a youth officer’s role is to verify that minors’ parents have been notified,
           ensure that the minors have been given Miranda rights, and see to it that minors are
           properly treated, that they are fed, given access to washroom facilities, and allowed to
           rest, and that they are not coerced in any way. [Citations.] Other cases find that a youth
           officer may not merely be present and remain silent, but must demonstrate an interest in
           the minors’ welfare and affirmatively protect their rights. [Citations.] These cases are fact
           specific and each case must be evaluated on its own particular set of circumstances.
           [Citation.]
                In the present case, while the court made no factual findings as to Begeske’s role as
           a youth officer, we find that Begeske failed to fulfill his duties under either of the above
           standards. Begeske did not remain a neutral observer but, rather, worked against
           defendant’s interests. While an investigator’s role is to interrogate witnesses and collect
           evidence, it is clear that the role of a youth officer is to act as a concerned adult interested
           in the juvenile’s welfare. A youth officer cannot be adversarial or antagonistic toward the
           juvenile. [Citation.] Thus, these roles are inherently incompatible. Youth officers cannot
           act in their role as a concerned adult while at the same time actively compiling evidence
           against that juvenile.” Griffin, 327 Ill. App. 3d at 547-48.
¶ 38       Here, Kaminski helped compile evidence against Patterson, and that work inherently
       conflicted with his role as a youth officer. Moreover, Kaminski did not even fulfill the most
       basic of a youth officer’s tasks. The Juvenile Court Act provides that following an arrest of
       a minor, an officer must “immediately make a reasonable attempt to notify the parent or other
       person legally responsible for the minor’s care or the person with whom the minor resides
       that the minor has been arrested and where the minor is being held” (705 ILCS 405/5-405(2)
       (West 2008)), to permit the minor to have the help of a concerned adult, if possible, during
       police questioning. People v. Westmorland, 372 Ill. App. 3d 868 (2007). Kaminski attempted
       to contact two persons in their offices at SBHS at 10 p.m. on a Sunday night, and he left
       them messages. But two minutes after leaving the messages, police initiated questioning, and
       they knew or should have known that no person would hear or respond to those messages for
       several hours. Kaminiski did not attempt to find out who bore legal responsibility for
       Patterson’s care or how he could contact such a person at 10 p.m. on a Sunday night.
       Kaminski did not attempt to contact Patterson’s parents or legal guardian. Kaminski did not
       attempt to find the home phone number or the cell phone number for Patterson’s caseworker.
       Kaminski’s two calls to offices on a Sunday night, where he left messages, are not reasonable
       attempts to contact a person or concerned adult who could help Patterson. See G.O., 191 Ill.
       2d at 52-54.

                                                   -8-
¶ 39       Kaminski’s decision not to contact Patterson’s parents or the person legally responsible
       for Patterson’s care or any other person concerned for his welfare, when they likely would
       not learn of the arrest and questioning without information from the police, effectively
       prevented any concerned adults from helping Patterson. Compare J.J.C., 294 Ill. App. 3d at
       236-37; see also People v. Mitchell, 2012 IL App (1st) 100907, ¶¶ 97-99 (Salone, J.,
       specially concurring). Instead, Kaminski assured that only police officers trying to build a
       case against Patterson, persons trying to put Patterson in prison for a long time, would know
       about the questioning. See People v. Fuller, 292 Ill. App. 3d 651, 667 (1997). We find that
       Kaminski and other police made no “reasonable attempt” to contact any concerned adult
       before questioning Patterson. See 705 ILCS 405/5-405(2) (West 2008). The manifest weight
       of the evidence contradicts the trial court’s finding on this issue. See G.O., 191 Ill. 2d at 49.
¶ 40       Due to his youth and inexperience when confronting these charges that required the court
       to try him as an adult, Patterson needed a concerned adult to help him respond to police
       questioning and to ensure that he made any admissions of his own free will. A minor who
       understands his rights may still have his will overborne by police in custodial interrogation.
       See People v. McDaniel, 326 Ill. App. 3d 771 (2001). Weighing all the facts and considering
       the appropriate factors de novo, we find that the prosecution did not show that Patterson
       confessed freely and voluntarily. Therefore, we hold that the trial court erred when it denied
       the motion to suppress the typewritten statement.
¶ 41       The State does not argue that we could find the error harmless. Because confessions have
       such persuasive effect as evidence of guilt, the erroneous admission of a confession into
       evidence rarely constitutes harmless error. People v. St. Pierre, 122 Ill. 2d 95, 114 (1988).
       Although the prosecution presented a strong case against Patterson, we cannot say that the
       erroneous admission into evidence of the signed statement confessing the crime had no
       prejudicial effect here. Accordingly, we reverse the judgment and remand for a new trial
       without the confession.

¶ 42                                     Rape Shield Law
¶ 43       Illinois’s rape shield law (725 ILCS 5/115-7(a) (West 2008)) bars evidence of the past
       sexual history of an alleged sexual assault victim, except (1) as evidence of the alleged
       victim’s prior consent to sexual conduct with the defendant, offered to show consent, or (2)
       when the constitution requires the court to admit the evidence. The trial court has discretion
       to decide evidentiary issues, and we will reverse the trial court’s decision only if it has
       abused its discretion. People v. Santos, 211 Ill. 2d 395, 401 (2004).
¶ 44       The court in People v. Anthony Roy W., 324 Ill. App. 3d 181 (2001), applied the second
       exception to the rape shield’s general principle. The prosecution in Anthony accused the
       defendant of having sexual intercourse with his 12-year-old daughter. A doctor testified that
       he found evidence of sexual trauma to the girl’s hymen. Defense counsel failed to offer
       evidence that the girl had had intercourse with a boy. The appellate court found that the
       defendant received ineffective assistance of counsel. Anthony, 324 Ill. App. 3d at 186-87.
       The court in Anthony points out that, in some instances, due process requires the admission
       of evidence of the victim’s sexual history where that evidence is relevant to a critical aspect


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       of the defense. Anthony, 324 Ill. App. 3d at 186. Therefore, the court should admit evidence
       of an alleged sexual assault victim’s sexual history, despite the rape shield law, when “that
       history explains some physical evidence, such as semen, pregnancy, or physical indications
       of intercourse.” Anthony, 324 Ill. App. 3d at 186.
¶ 45        At trial, Patterson sought to present evidence that E.C. had sexual intercourse with her
       boyfriend within a few days prior to the incident with Patterson, and the swab of E.C.’s
       vagina held DNA from that boyfriend. The doctor who examined E.C. testified that the
       redness of her cervix showed that she recently had sexual intercourse, and the prosecution
       used that evidence to support the inference that E.C. had intercourse with Patterson, contrary
       to his testimony about the incident. The excluded evidence here, like the excluded evidence
       in Anthony, “provided a plausible alternative source of the State’s physical evidence and
       would therefore be admissible under the constitutional exception provision of the rape shield
       doctrine.” Anthony, 324 Ill. App. 3d at 186.
¶ 46        The State argues that the facts in this case more closely resemble the facts of Santos, 211
       Ill. 2d 395, and People v. Freeman, 404 Ill. App. 3d 978 (2010), than the facts of Anthony.
       The defendant in Santos sought to introduce evidence that the 16-year-old girl who accused
       him of raping her had made two inconsistent out-of-court statements about the incident. He
       argued that the evidence showed that she lied out of court, and he wanted to use the evidence
       to persuade the jury that she lied again in court. The Santos court held that the defendant had
       no constitutional right to introduce the evidence of impeachment on a matter collateral to the
       victim’s testimony at trial. The court distinguished Anthony on grounds that the defendant
       in Anthony had a constitutional right to present evidence of prior sexual intercourse with
       someone other than the defendant to explain the physical evidence of the victim’s cleft
       hymen. In Freeman, the State introduced evidence at trial that the victim had not had
       intercourse before the defendant assaulted her. The Freeman court found that no exception
       to the rape shield law permitted the introduction into evidence of this information about the
       victim’s sexual history. Neither party argued that the defendant’s constitutional rights
       required the court to allow the testimony about the victim’s virginity into evidence. Because
       this case involves the defendant’s right to show an alternate explanation for physical
       evidence the State introduced as part of its proof of sexual assault, we find this case most
       similar to Anthony and not like Santos and Freeman.
¶ 47        The State in its petition for rehearing argues that Anthony applies only when the
       complainant is a minor. That is, the State contends that the rape shield law requires the trial
       court to admit evidence that a minor complainant had a sexual encounter that could explain
       physical evidence of intercourse, but it bars the court from admitting the same evidence when
       an adult complains of a sexual assault. Nothing in Anthony or the rape shield law supports
       the rule the State seeks to apply. Whenever the State seeks to use physical evidence of
       intercourse to support the inference that the alleged victim had intercourse with the
       defendant, the court must permit the defendant to introduce evidence of the alleged victim’s
       sexual history insofar as that history could provide a plausible alternative explanation for the
       physical evidence. Anthony, 324 Ill. App. 3d at 186.
¶ 48        The State also argues that the evidence of intercourse with another man lacks relevance,
       because of “myriad other–equally plausible–medical explanations for the existence of

                                                -10-
       cervical inflammation, including infection, allergy, disease, birth control devices, etc.” If
       these possibilities actually show the irrelevance of intercourse to explain the redness of
       E.C.’s cervix, the court must exclude the doctor’s testimony that the redness shows that she
       had intercourse not long before the examination, to support the inference that Patterson had
       intercourse with E.C. See People v. Enis, 139 Ill. 2d 264, 281 (1990).
¶ 49       Following Anthony, we find that the trial court abused its discretion when it excluded
       evidence that E.C. had intercourse with someone other than Patterson, because E.C.’s
       intercourse with her boyfriend could account for the redness of her cervix. Therefore, on
       retrial, if the State introduces any evidence of E.C.’s physical condition to show that she had
       intercourse within a day or two of the medical examination, the court must permit the
       defendant to introduce evidence that doctors found semen from E.C.’s boyfriend in her
       vagina at the time of the medical examination.
¶ 50       In this case, because we remand for a new trial, we vacate the sentence and express no
       opinion on Patterson’s challenge to the length of his sentence.

¶ 51                                      CONCLUSION
¶ 52       We reject Patterson’s challenge to the constitutionality of the statute that provides for the
       automatic transfer to the criminal court of all charges of aggravated criminal sexual assault
       brought against minors aged 15 or older. However, we find that the trial court erred when it
       admitted into evidence a statement Patterson signed at the police station, because Patterson,
       a minor with little exposure to the criminal justice system, had no concerned adult to assist
       him during questioning at the police station. On remand, if the prosecution again presents
       testimony that the doctor who examined E.C. found physical indications that E.C. had sexual
       intercourse shortly before the examination, the court must permit the defense to present
       evidence that semen from E.C.’s boyfriend remained in her vagina at the time of the
       examination.

¶ 53       Reversed and remanded.




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