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People v. Cerda

Court of Appeals of Illinois, First District, Fifth Division

March 7, 2014

JESUS CERDA, Defendant-Appellant

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[Copyrighted Material Omitted]

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As Corrected.

Appeal from the Circuit Court of Cook County. No. 09 CR 18692. The Honorable Michael Brown, Judge, presiding.



On appeal from defendant's convictions and consecutive sentences for criminal sexual assault of his stepdaughter, the appellate court rejected his contentions that the complainant's testimony and the other crimes evidence were inherently unbelievable, that his right to present a defense and confront witnesses against him was violated by the exclusion of evidence pursuant to the rape shield statute and that the trial court erred in admitting evidence of uncharged assaults against the complainant and other stepdaughters, since the complainant was cross-examined thoroughly, the jury had the opportunity to see and hear her testimony, observe her demeanor, and resolve any disputes about her credibility, as well as the credibility of her mother and the other witnesses, the admission of the evidence of other crimes was not an abuse of discretion and there was no violation of the rape shield statute.

For APPELLANT: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Sarah Curry, Assistant Appellate Defender, Office of the State Appellate Defender - First Judicial District, Chicago, IL.

For APPELLEE: Anita Alvarez, State's Attorney, Alan J. Spellberg, Assistant State's Attorney, Mary L. Boland, Assistant State's Attorney, Carol Rogala, Assistant State's Attorney, Cook County State's Attorney's Office, Chicago, IL.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Taylor concurred in the judgment and opinion.



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[¶1] Defendant Jesus Cerda was convicted on December 1, 2011, after a jury trial of four counts of criminal sexual assault of his stepdaughter J.M. that occurred between March 1, 2006, and January 31, 2007. After hearing factors in aggravation and mitigation, the trial court sentenced defendant to four consecutive terms of 10 years, for a total of 40 years in the Illinois Department of Corrections (IDOC).

[¶2] On this direct appeal, defendant raises three issues for our consideration: (1) that the State failed to prove him guilty beyond a reasonable doubt because both the complainant's testimony and the other crimes evidence were inherently unbelievable; (2) that the trial court violated defendant's right to present a defense and confront the witnesses against him by excluding evidence, pursuant to the rape shield statute (725 ILCS 5/115-7(a)(2) (West 2006)), concerning the victim's past sexual experience; and (3) that the trial court erred by allowing the State to introduce evidence of other sexual assaults committed by defendant against both J.M. and another stepdaughter. For the following reasons, we do not find these claims persuasive and we affirm.


[¶4] I. Procedural History

[¶5] Defendant was charged on October 19, 2009, in two separate indictments with

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offenses against his then-teenage stepdaughter, J.M. The indictment in case number 09 CR 18693 charged defendant with two counts of criminal sexual assault between November 1 and November 30, 2005. However, defendant was not tried on this indictment.

[¶6] The State proceeded solely with the indictment in case number 09 CR 18692, which charged defendant with six counts of criminal sexual assault and one count of aggravated sexual abuse for acts committed against J.M. between March 1, 2006, and January 31, 2007. Prior to defendant's first trial, the State nol-prossed count VII, the one abuse count, and proceeded to trial on the remaining six counts. Prior to submitting the case to the jury, the State nol-prossed count VI, which had alleged criminal sexual assault by means of defendant inserting his finger into J.M.'s vagina.

[¶7] On September 16, 2011, the first jury acquitted defendant of count V, which had alleged criminal sexual assault by means of contact between defendant's mouth and J.M.'s vagina. However, the jury was unable to reach a verdict on the remaining counts, which were counts I through IV. The trial court then entered judgment on the acquittal for count V and declared a mistrial on counts I through IV.

[¶8] After a retrial, a second jury found defendant guilty on December 1, 2011, on counts I through IV, which all charged criminal sexual assault of J.M. After hearing factors in mitigation and aggravation, the trial court sentenced defendant on January 25, 2012, to 10 years on each count, with all sentences running consecutively.

[¶9] II. Pretrial Motions

[¶10] Defendant contests on this appeal three of the trial court's pretrial rulings. Specifically, he challenges the rulings which (1) granted the State's motion to present other crimes evidence; (2) denied defendant's motion to present evidence concerning the victim's prior sexual and romantic history; and (3) denied defendant's oral motion " to inquire of the victim as to what she told her mother on or just prior to her outcry" concerning her first sexual experience " with a boy her own age." The first two rulings occurred prior to the first trial and the trial court declared them in effect for the second trial. The third ruling occurred prior to the start of the second trial. Since we must decide whether the trial court abused its discretion in ruling on the motions, we provide in detail below the parties' arguments and the trial court's rulings.

[¶11] A. Other Crimes Evidence

[¶12] Prior to defendant's first trial, the State filed a written motion, pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 2006)), to admit proof of other crimes by defendant. This statutory section applies solely to prosecutions for sex offenses, and it permits the State to introduce evidence of other sex offenses by a defendant, if the probative value of the evidence outweighs the undue prejudice to the defendant. 725 ILCS 5/115-7.3(c) (West 2006).

[¶13] In the case at bar, the State sought to introduce evidence of crimes that had been charged in two other indictments: (1) the indictment in case number 09 CR 18693, described above, which charged defendant with criminal sexual assault against J.M. in November 2005, several months before the acts charged in the case at bar; and (2) the indictment in case number 09 CR 18691, which charged defendant with eight counts of aggravated sexual abuse against Y.C., another stepdaughter, between February 1, 2008, and August 31, 2009.[1] The offenses against

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Y.C. occurred more than a year after the acts charged in the case at bar.

[¶14] In its written motion filed November 3, 2010, the State argued:

" The other crimes acts are factually similar to those of the case at bar in that [they] are sexual acts against minor stepchildren with whom defendant resided and which occurred when the children's mother was out of the home. The acts' temporal proximity and factual similarity demonstrates a probative value on the relevant issues of propensity, intent, motive and absence of mistake which outweighs their potential prejudice."

In response, defendant argued that the evidence was not reliable. Defendant also observed that " J.M.'s allegations are not admissible on the issue of intent and/or absence of mistake" because defendant's " defense is based on the proposition that the alleged contact never occurred."

[¶15] After hearing argument on January 14, 2011, the trial court ruled the evidence admissible, and that ruling is the subject of one of defendant's claims on this appeal. At the start of the trial, on September 13, 2011, defense counsel asked his " objection to the proof of other crimes, for the record, continue throughout this trial," in order to avoid " excessive sidebars," and the trial court agreed.

[¶16] B. Rape Shield Statute

[¶17] Prior to the start of the first trial, both parties also filed written pretrial motions concerning the rape shield statute: (1) defendant moved to admit evidence, as not barred by the statute, of the victim's past relationship with S.B.; and (2) the State moved, pursuant to the statute, to bar DNA evidence establishing that defendant was not the source of semen stains found on the victim's bedsheets. As described below, the trial court denied both motions, thereby denying defendant the ability to cross-examine the victim and S.B. about their prior sexual or romantic past, but allowing him to introduce DNA evidence that he was not the source of the semen stains left on the victim's bedsheets.

[¶18] 1. Relationship with S.B.

[¶19] a. Parties' Arguments

[¶20] With respect to S.B., defendant moved in a pretrial motion filed September 12, 2012, " to admit evidence of, or allow inquiry as to, the nature of the alleged victim's past and/or present relationship with the State's witness, [S.B.], for the limited purpose of establishing [her] bias." At a hearing on the motion on September 12, 2011, defense counsel asked " to inquire as to simply the relationship between State's witness, [S.B.], and the alleged victim." Specifically, he sought to ask: " what is your relationship to this victim now? What was your relationship in 2007[?]" He argued that the evidence was not " in violation of [the] rape shield" statute because the defense was " not here trying to put the victim's sexual identity or preference on trial," but to explore " a potential bias for her testimony."

[¶21] In response, the State argued, first, that defendant failed to offer any evidence in his offer of proof. Second, the State argued that, since the romantic relationship began after the first outcry in 2005 and ended before 2007 when law enforcement first became aware of the outcry, the relationship had less relevance. Third, the State argued that " the mere fact that these 2 individuals were dating" still fell within the scope of the rape shield statute.

[¶22] b. Trial Court's Ruling

[¶23] i. Sexual or Romantic Past Not Admitted

[¶24] The trial court held that it would " not allow her testimony concerning a sexual

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or romantic past between [S.B.] and the victim," explaining:

" You may identify and establish what their relationship was at the time of these occurrences and the jury can determine whether or not there was be a bias [sic], but I do think it would be prejudicial even in the 21st Century that we have to put in information or testimony about a same sex relationship. It does not appear to have anything to do with the charges filed against the defendant, and I think it would be inflammatory, and I don't see that it would advance the defendant's right for cross-examination ***."

[¶25] The following day, on September 13, 2011, the trial court clarified its ruling, stating:

" Counsel, just so the record is clear, although it should reflect on yesterday's proceedings that I denied the motion as it relates to a sexual past, sexual relationship between [J.M.] and [S.B.] But I did not allow for testimony as to their general relationship and that you would be able to ask leading questions so as not to elicit testimony concerning a romantic relationship or sexual past between [J.M.] and [S.B.]"

The trial court later added:

" I think that [S.B.] can be cross examined specifically about her relationship with the victim in this matter as long as it does not cross into a prohibited area, of which is the romantic and/or sexual relationship that according to the information that I have took place sometime after the alleged act, but before the charges [were] brought."

[¶26] ii. Offer of Proof Not Required

[¶27] After the trial court's above clarification on September 13, 2011, the prosecutor then asked if the trial court was considering hearing testimony on this issue in order " to satisfy the offer of proof which is required under section B of the Rape Shield Act." The trial judge replied that he did not " need to hear the testimony of the victims about the relationship because I find that [it] does not qualify as an exception to the statute as a matter of law."

[¶28] 2. DNA Evidence

[¶29] The State also filed a written motion on September 12, 2011, pursuant to the rape shield statute, to bar DNA evidence of five separate semen stains found on the victim's bedsheets. None of the stains matched defendant's DNA profile. The trial court denied the motion, stating:

" The question becomes this[:] to what extent will I allow the evidence as an exception to the Rape Shield Act? If the victim indicates that in her testimony that she had sex with another man during that period of time at that location, then I will only allow a stipulation indicating that there was testing done of the bedsheets that the -- that there was a male profile and the male profile did not match the defendant ***."

However, if the victim denied having sex with another male, then the trial court would " expand [its] ruling" to allow forensic testimony about the collection, testing and analysis of the DNA evidence.

[¶30] C. Pretrial Rulings Prior to Second Trial

[¶31] Prior to the second trial, the trial court stated: " Unless either side wants to revisit the motions in limine and give me a reason why I should disturb my earlier rulings, those rulings will be in effect." Defense counsel then " for the record renew[ed] all outstanding or previous objections to proofs of other crimes," and the trial court stated that " for purposes of any appeal *** the matter would be preserved."

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[¶32] Also immediately before the start of the second trial, defendant orally made a new motion to be allowed " to inquire of the victim as to what she told her mother on or just prior to her outcry" concerning her first sexual experience " with a boy her own age." Since the State argues on appeal that the defense made an insufficient offer of proof to support this motion, we provide, in full, counsel's oral statement of defendant's offer of proof:

" According to the Burnham Police reports, the detectives met with her at the Burnham Police Department in 2007, [and] she related to the detectives that two years ago, which would have been 2005, her stepdad began to touch her; the officers asked her to identify her parts, which she did, and then according to the report she states[:] 'She stated that she told her mom days before about having had sex for the first time with a boy her age,' and I would ask the Court for leave to inquire of this witness-victim as to her motives for her outcry in such close proximity to her having admitted to her mom for the first time having sex with a boy her age.
It's alleged that my client started touching her. It says[:] 'According to the victim[,] shortly after that was when the touching started.' So shortly after the time when she first had sex with a boy her age[,] my client's [ sic ] alleged to have molested her. And with that, Judge, I'd rest in argument allowing us in observance of the Rape Shield Law to inquire of the victim as to these facts or motives in her out cry."

The defense did not offer a copy of the police report, which it had quoted from. In response, the State objected to admission of this evidence as violating the rape shield statute, but it did not object to the adequacy of defendant's offer of proof.

[¶33] After hearing argument from both sides, the trial court issued the following ruling:

" I had indicated in the first trial that the information that the victim did have sex with another person was vital to the defendant's defense, it was constitutionally permitted as an exception to the Rape Shield Laws as we know it and I think that's still the same. I think the defendant is entitled to put out that [ sic ] during this period of time there was DNA that was recovered from the bed sheet which did not match the defendant and I indicated in that motion in limine that if the victim denied having sex with another person on that bed that I would expand the scope of the inquiry to allow the defense to delve into it but the victim admitted having sex with another person during that period of time.
That's as far as we're going to go. I think that's as far as we're going to go now. Her motive to outcry to the Burnham police and what she may have told someone shortly before the outcry I think does not go to the exception in the Rape Shield Law. It's not constitutionally required."

[¶34] III. Evidence at Second Trial

[¶35] At trial, the State called six witnesses, including: (1) J.M. and (2) Y.C., the two stepdaughters abused by defendant; (3) their mother; (4) S.B., the friend to whom J.M. first disclosed the abuse; (5) C.M, J.M.'s aunt and the first adult to whom J.M. made an outcry; and (6) the doctor who examined J.M. The defense called four witnesses including: (1) defendant's neighbor; (2) defendant's 16-year-old niece; (3) defendant's sister; and (4) defendant.

[¶36] Since we are called upon in this appeal to decide the sufficiency of the evidence in a case without any corroborating

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physical evidence or admissions by defendant to the police, and where the DNA evidence points to another male, we provide the full particulars of the testimony, below. The State's evidence is in the details which form an interlocking pattern. Each pass through the testimony, on direct, cross and redirect, uncovers more corroborating information and thus supports the State's case more thoroughly than if it had been told in one rehearsed narrative on direct examination.

[¶37] A. The Victim, J.M.

[¶38] 1. Direct Examination

[¶39] J.M., who was 20 years old at the time of the second trial, testified that she was currently the assistant manager at a Family Dollar store and lived outside of the Chicago area. She used to live in a single family house with her mother, brother and two sisters in Burnham, a southern suburb of Chicago. Prior to February 2007, defendant, who was her stepfather, also lived in the house. She first met defendant when she was eight years old.

[¶40] The first high school she attended was Fountain Valley, a boarding school in Colorado, which she received a scholarship to attend. In 2005, when she began her freshman year at Fountain Valley, her family was living in South Dearing, a neighborhood in Chicago, and her family included her mother, her siblings and defendant. She was the oldest child; and her sisters Y.C. and A.C. were 5 and 10 years younger, respectively.

[¶41] In November 2005, during her freshman year at Fountain Valley, she came home for Thanksgiving break to the house in South Dearing. But by the time she came home for spring break in 2006, her family had moved to Burnham. At the end of summer break in 2006, she returned to Fountain Valley for the start of her sophomore year. However, she was only at Fountain Valley for a couple of weeks during her sophomore year before she returned to Burnham and enrolled at a local school.

[¶42] In the Burnham home, which was a single family house, there were three bedrooms on the first floor and a bedroom in a finished basement. In addition to the bedroom, which was J.M.'s bedroom, the basement also contained a laundry room and a computer room. J.M. did not share her bedroom with her other siblings. Her mother worked outside the home as a correctional officer and sometimes worked nights. When her mother worked nights, she sometimes slept during the day. In 2006, defendant was not employed outside the home, so there would be times when defendant was home with J.M. or her siblings and their mother was at work.

[¶43] During the school's spring break in 2006, defendant entered J.M.'s bedroom when no one else was in the basement and " rubbed all over" her and " tried to make [her] suck his penis." At this time, she was 15 years old. Defendant " kept forcing [her] mouth to touch his penis." During spring break, defendant had sex with her more than once but she does not remember exactly how many times. His penis contacted both her vagina and her mouth, and it entered her vagina. When spring break ended, she returned to Fountain Valley and finished her freshman year in Colorado.

[¶44] At the end of her freshman year, she returned to Burnham and, during the summer, defendant again had sex with J.M. in her bedroom. Specifically his penis entered her vagina and also made contact with her mouth. She testified that: " It happened over and over again." At the end of the summer, she returned to Colorado to start her sophomore year of high school but she returned after just two

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weeks. She wanted to come home " [b]ecause [she] was afraid [that] what he was doing to [her] he was going to do to [her] sister." J.M.'s sister Y.C. was only 10 years old in 2006 and her sister A.C. was only five years old.

[¶45] When J.M. returned, she enrolled at a local school and, during the fall and winter of 2006, the sex continued. By sex, she meant that his penis would be inserted into her vagina. It always occurred in her bedroom and when no one else was in the basement. There was a television in the basement, and defendant would watch porn and start masturbating. She did not recall how often the sex happened but it happened " a lot."

[¶46] In January 2007, the sex changed, in that defendant had anal sex with her. Specifically, she testified that he inserted his penis into her " butt." This happened just once. J.M. never saw defendant ejaculate on her bed or on her bedsheets. He would " ejaculate in the shirt or the underwear, whatever was closest to him," and then take his clothes into the bathroom and leave.

[¶47] After the anal sex, J.M. ran away first to a friend's house and then to her aunt C.M.'s house. J.M. went to her aunt's house because her mother told her that she had to either go home or stay with a family member. J.M. stayed at her aunt's house for a couple of weeks until her mother sent " some cops to [her] aunt's house to come get [her]." After J.M. went home, the next day her mother and defendant drove her to a hospital in Indiana to see a therapist. Afterwards, they drove her back home. When they arrived back home, her mother was going to Wal-Mart and J.M. asked to go with her because there was something J.M. needed to tell her. During the vehicle ride, J.M. told her mother what defendant had been doing to her and they then went to the Burnham police station.

[¶48] Spring break of 2006 was not the first time that anything happened with defendant. During Thanksgiving break in 2005, when her family was still in the house in South Dearing, J.M. had a series of telephone conversations with S.B., whom she knew from school. During one telephone conversation with S.B., J.M. was in her bedroom and defendant:

" came in and started trying to force his tongue down my throat and pushing on me. And I kept trying to push him off and tell him no. At that point, he's two hundred and fifty pounds. He's on top of me."

J.M. was then only 14 years old, and defendant had sex with her. It was at night, and her mother was at work. When defendant forced himself on top of her, she tossed the telephone aside. After defendant stopped, he walked out and then walked back in. J.M. said she was going to tell her mother, and he kept saying that he was sorry and that he would never do it again. J.M. then called S.B. and told her that defendant had raped her.

[¶49] Prior to Thanksgiving of 2005, defendant had expressed a sexual interest toward J.M. by trying to pull off her towel to see her breasts or lift up her skirt. This happened on more than one occasion. He would also try to grab her breasts when she walked by, or comment on their size, or " smack [her] butt."

[¶50] Before J.M. told her mother in January 2007 what was happening, she had not told anyone else in her family except her aunt. She told her aunt when she ran away and ended up at her aunt's house. J.M. explained that she did not tell anyone because " [she] was scared. Because [she] didn't know what [defendant] was capable of doing to her." She finally told her mother in January 2007 " [b]ecause everybody

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kept thinking that I was the one that was the problem. That I was just acting out, when really it was because of him. And [I] didn't want to be the one to blame any more." Also, J.M. believed that " [i]f [she] said something, [her] mom wouldn't have nothing."

[¶51] J.M. told her aunt because defendant had come by her aunt's house and given J.M. some money. Her aunt stated that, if J.M. did not tell ...

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