Appeal from Circuit Court of McLean County. No. 12CF646. Honorable Scott Drazewski, Judge Presiding.
In a prosecution for aggravated criminal sexual abuse and predatory criminal sexual assault of a child where the State's motion in limine seeking admission of a recorded telephone call between defendant and the victims' mother allegedly showing defendant's consciousness of guilt was denied following a hearing conducted during an intermission in the voir dire proceedings, and defendant was eventually acquitted of four counts and a mistrial was declared as to one of the sexual abuse 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.
Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, 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.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Pope and Turner concurred in the judgment and 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 ...