                                    2015 IL App (4th) 130881
                                                                                  FILED
                                                                                  June 5, 2015
                                                                                 Carla Bender
                                         NO. 4-13-0881                       4th District Appellate
                                                                                    Court, IL
                                   IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT


 THE PEOPLE OF THE STATE OF ILLINOIS,                       )     Appeal from
            Plaintiff-Appellee,                             )     Circuit Court of
            v.                                              )     McLean County
 DERRY SANDERS,                                             )     No. 12CF23
            Defendant-Appellant.                            )
                                                            )     Honorable
                                                            )     Robert L. Freitag,
                                                            )     Judge Presiding.


               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 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



                                               -2-
               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



                                               -3-
¶ 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



                                                -4-
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 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."



                                 -5-
¶ 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—five or six 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



                                                 -6-
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.

¶ 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,



                                                -7-
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.



                                                -8-
¶ 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



                                                -9-
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 challenges; (6) whether the excluded

                African-American venirepersons were a heterogenous group

                sharing race as their only common characteristic; and (7) the race




                                                 - 10 -
               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

                                                - 11 -
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.

¶ 35           In Shaw, defense counsel raised a Batson challenge after the State excused the

first African-American venire member. Id. ¶ 8, 21 N.E.3d 802. 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



                                                - 12 -
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, 21 N.E.3d 802. 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,

21 N.E.3d 802. 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, 21 N.E.3d 802. 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



                                               - 13 -
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 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



                                                - 14 -
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



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¶ 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").

¶ 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



                                               - 16 -
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




                                               - 17 -
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.

¶ 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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