Appeal from the Circuit Court of Lee County. No. 11-CF-109 Honorable Ronald M. Jacobson, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Hutchinson concurred in the judgment and opinion.
¶ 1 In this case, the State charged the defendant, Clarence Prather, with committing an aggravated battery on a victim whom the defendant knew to be pregnant (720 ILCS 5/12-4(b)(11) (West 2010)). Prior to trial, the State filed a motion in limine seeking permission for the alleged victim (B.R.) to testify that she had used a home pregnancy test kit and had shown the positive result to the defendant. The State sought to introduce this testimony as evidence that the defendant was aware that B.R. was pregnant, not as evidence that B.R. was in fact pregnant. The trial court held that, absent introduction of the test kit itself, the testimony would be unfairly prejudicial. It stated as a further basis for the bar that it did not deem a home pregnancy test to be acceptable as scientific evidence under the standard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The State filed a certificate of impairment and now appeals. We reverse and remand.
¶ 3 The State filed a five-count information against the defendant: two counts of aggravated battery (victim pregnant); one count of obstructing justice (720 ILCS 5/31-4(a) (West 2010)); and two counts of domestic battery (family or household member) (720 ILCS 5/12-3.2(a)(1) (West 2010)). All of these counts related to the defendant's alleged assault on B.R. on May 31, 2011. Prior to trial, the State filed a motion in limine seeking to admit B.R.'s testimony that, before the battery took place on May 31, 2011, she used a home pregnancy test that indicated that she was pregnant, and she "showed the result of the test" to the defendant. The State asked that the court admit "the result of the home pregnancy test" as non-hearsay to show that the defendant was aware that there was a substantial probability that the victim was pregnant.
¶ 4 The court held a hearing on all motions in limine on November 1, 2011. The court initially assumed that the State was seeking to admit the test device as an exhibit. The State clarified that it was seeking to use B.R.'s testimony concerning the test. The court then asked if a proper foundation existed for that testimony.
¶ 5 The defendant argued that, even if the State were using the testimony to prove notice, there was indeed a problem with the foundation for the testimony and that, even beyond establishing that B.R. used the test properly, the State would have to validate the technology of the device under Frye standards. The State argued that any doubts about B.R.'s testimony would go to the testimony's weight, not its admissibility, and stated that it would agree to a limiting instruction informing the jurors that they could consider B.R.'s testimony only as evidence of notice to the defendant that B.R. was pregnant, not as evidence that she was actually pregnant. The court reserved ruling and asked the parties to present case law, stating that it "struggle[d] here with where a physical item is relied on for hearsay purposes and the weight that a jury might assign to that without delving into the issues [of scientific reliability] that [the defendant] raised."
¶ 6 The next day, when the hearing resumed, the court raised a question as to whether the issue was one of hearsay or was a different evidentiary issue:
"I had some concerns over whether or not *** it was actually hearsay or evidentiary [sic] issue and I believe if I recall correctly your argument was that you wished to have testimony introduced that the victim either showed and/or told the defendant the results of the test, but that my indication was that absent an evidentiary basis for that, that, that I was seriously concerned about whether that hearsay statement should be allowed ***."
The court told defense counsel that "I know you argued as I've just stated that there's some concern about whether or not it, in fact, is a hearsay statement subject to that kind of admission." Defense counsel responded:
"I agreed with the Court at the time and took it beyond the initial foundation to go back to the fact that it's a scientific based concept. That without foundation as to the science that goes into it and the foundation as to whether or not the person even followed the instructions and in applying that science I think it's inadmissible based on the lack of foundation."
¶ 7 The court noted that the State, to show the aggravating circumstance for the battery, had to prove that the defendant was aware that B.R. was pregnant. The State agreed that it needed to prove this, and reaffirmed that it wanted to use the testimony to prove the defendant's awareness of the pregnancy, not to prove the existence of the pregnancy. The court asked, "What's the difference between the two?" The State replied:
"If we were admitting it to prove *** the matter asserted, then it would be hearsay, but since it's only being used *** for *** notice to the defendant, then the jury can consider it only to the extent of the knowledge ...