from the Circuit Court of Kane County, No. 12-CF-2293; the
Hon. T. Clint Hull, Judge, presiding.
A. Lilien and Fletcher P. Hamill, both of State Appellate
Defender's Office, of Elgin, for appellant.
H. McMahon, State's Attorney, of St. Charles (Lawrence M.
Bauer, Joan M. Kripke, and Mary Beth Burns, all of
State's Attorneys Appellate Prosecutor's Office, of
counsel), for the People.
PRESIDING JUSTICE SCHOSTOK delivered the judgment of the
court, with opinion. Justices Jorgensen and Spence concurred
in the judgment and opinion.
1 Following a jury trial in the circuit court of Kane County,
defendant, Mudy Munoz-Salgado, was convicted of aggravated
criminal sexual assault (720 ILCS 5/11-1.30(a)(2) (West
2012)), aggravated battery (720 ILCS 5/12-3.05(c) (West
2012)), and unlawful restraint (720 ILCS 5/10-3(a) (West
2012)). He was sentenced to concurrent prison terms of seven
years for aggravated criminal sexual assault and three years
for each of the other offenses. The alleged victim, J.L.,
resides in another state and did not testify at trial.
However, the statements that she made to an emergency room
nurse were admitted into evidence. Defendant argues that
admitting the statements into evidence violated his sixth
amendment right to confront the witnesses against him.
Defendant also contends that the trial court erred by ruling
that the rape-shield statute (725 ILCS 5/115-7 (West 2014))
barred evidence that J.L. reported engaging in sexual
activity within 72 hours prior to the emergency room
examination. We affirm.
2 At trial, video from a surveillance camera at the Lexington
Inn hotel in Elgin was admitted into evidence and shown to
the jury. The video showed that, at about 12 p.m. on November
13, 2012, defendant approached J.L. in the first floor
hallway, spoke with her, took her by the wrist, and led her
upstairs into a hotel room. A short time later, J.L. left the
room and walked downstairs. Minnie Cotton, a housekeeper at
the hotel, testified that at about noon she encountered a
woman in the first floor hallway who was crying. The police
were summoned. Officers who spoke with J.L. at the hotel
indicated that she was crying. Based on what J.L. told the
police, officers took defendant into custody after
encountering him in the hotel's parking lot. An officer
drove J.L. to the hospital. A search of the hotel room that
J.L. had been taken to led to the discovery of several
condoms in their wrappers and one empty wrapper.
3 Defendant was interviewed by police while in custody. An
audio recording of part of the interview was admitted into
evidence and played for the jury. Defendant indicated that he
lived in Missouri but was working with a construction crew on
a project in the Elgin area. He had been staying at the hotel
for about two weeks. Other members of the construction crew
were also staying there. Defendant was acquainted with J.L.,
who was, in his words, "somebody's woman in the
crew." About a month earlier, defendant had exchanged
text messages with J.L. and spoken with her on the telephone.
They had arranged to meet in Kansas City to have sex. J.L.
told defendant to send her $200. Defendant sent her the
money, but she did not show up in Kansas City, and defendant
did not see her again until November 13, 2012, when he
encountered her at the hotel during his lunch break. He asked
her why she did not show up for the planned meeting in Kansas
City. J.L. made reference to defendant being married.
Defendant asked J.L. whether she wanted to go to the hotel
room with him. She declined because she was going to see
"her man" during lunch. At that point defendant
grabbed J.L.'s arm and told her to go up to his room.
They got to the door, and J.L. started to walk away while
defendant was retrieving his key. He grabbed her and pulled
her into the room. Asked what he was thinking when this took
place, defendant responded, "I was pretty much thinking
about my $200 and I was horny." Defendant understood
that J.L. did not want to go into his room. When they got
into the room, they had sex. J.L. said that defendant was
hurting her, but he did not stop.
4 Kristy Sheehan testified for the State that she was an
emergency room nurse at Sherman Hospital in Elgin. Her duties
included performing sexual assault kits on patients who
reported having been sexually assaulted. A sexual assault kit
contains swabs and containers for the collection of evidence.
Sheehan explained that medical personnel performing a sexual
assault kit "are trying to collect any kind of debris,
semen, hair follicles, oral swabs, so any DNA samples inside,
and clothes." Vaginal swabs and urine samples are also
taken. On cross-examination, Sheehan acknowledged that the
primary purpose of a sexual assault kit is to collect
evidence. When a female patient reports a sexual assault, a
gynecological examination is performed. Medical personnel
also look for bruising, bite marks, and other signs of
5 Sheehan testified that on November 13, 2012, at about 3:30
p.m., she met with J.L. in a treatment room. A police officer
was present, but the officer left the treatment room before
Sheehan began her examination. J.L. was cooperative but
anxious, and she became very tearful when Sheehan started
asking her questions. Sheehan testified, "Like any
patient, I ask what brought her in that day." Sheehan
also asked J.L. how long it had been since the alleged sexual
assault occurred and whether J.L. had taken a shower, removed
any clothing, or gone to the bathroom since it occurred.
Sheehan explained that those questions were "[f]or the
collection of evidence." Sheehan further testified,
"We ask multiple questions of what had happened,
meaning, where, if there was any penetration, if so, where
the penetration was." Sheehan testified that J.L. told
her that defendant threw her face-down on a bed, held her
down, put on a condom, and, in Sheehan's words,
"forcefully put his penis inside her." J.L.
indicated that, prior to the assault, defendant had dragged
her by the wrist.
6 Sheehan observed bruising on J.L.'s wrist and a black
scuff mark on her ankle. Sheehan collected swabs from J.L.
and was present when a physician collected a vaginal swab
from J.L. Sheehan testified that she observed spotting of
blood in J.L.'s vaginal vault. Medically, the presence of
spotting blood indicated "[v]aginal trauma or force to
the vaginal area." On cross-examination, Sheehan
indicated that there were "many reasons why somebody
could be spotting." She acknowledged that it was
possible to have spotting with consensual sex "if it is
rough sex" or there was "little to no
7 Defendant testified that he had met J.L. while working on a
construction job in Milwaukee. J.L.'s boyfriend was on
the construction crew. Thereafter, they spoke on the
telephone and exchanged text messages. They had planned to
meet again and to have sex, and defendant sent J.L. $200.
J.L. did not show up for the meeting. Defendant also
testified that he had not actually gone to meet with J.L. He
added, "I'm married, so it didn't matter to me
so I changed my phone number."
8 Defendant encountered J.L. again on November 13, 2012, at
the Lexington Inn. He was surprised to see her, and she
appeared to be surprised to see him. J.L. was upset because
defendant had changed his phone number. Defendant asked J.L.
to come to his hotel room. He touched her hand but did not
drag her or pull her up the stairs. J.L. was worried that
someone would see them. J.L. started to walk away. Defendant
thought she was playing a game, and he pulled her back. Once
they were inside defendant's room, defendant put on a
condom, and they had sex. At one point she said that
defendant was hurting her, so they changed positions. J.L.
never tried to push defendant away. She never screamed or
yelled, and she was not crying. After they were done, J.L.
calmly left the room. Defendant denied that he forced J.L. to
have sex with him.
9 We first consider whether defendant's right to confront
the witnesses against him was violated. The sixth
amendment's confrontation clause provides that "[i]n
all criminal prosecutions, the accused shall enjoy the right
*** to be confronted with the witnesses against him."
U.S. Const., amend. VI. The right of confrontation applies to
testimonial evidence. Thus, "a testimonial statement of
a witness who does not testify at trial is never
admissible unless (1) the witness is unavailable to testify,
and (2) the defendant had a prior opportunity for
cross-examination." (Emphasis in original.) People
v. Stechley, 225 Ill.2d 246, 279 (2007) (plurality
opinion) (citing Crawford v. Washington, 541 U.S.
36, 53-54 (2004)). In order to qualify as "testimonial,
" a witness's statement must be (1) made in a solemn
fashion and (2) intended to establish a particular fact.
Id. at 281-82.
10 In Stechley, the parties disagreed as to whether
the intent to establish a particular fact must be that of the
declarant (i.e., the witness) or of one eliciting
the statement from the declarant. A majority of the
Stechley court concluded that the answer depends on
whether the witness's statement was elicited through
police interrogation. In doing so, the Stechley court
answered in the affirmative a question that the United States
Supreme Court had reserved in Davis v. Washington,