NOTICE 2024 IL App (4th) 230280-U This Order was filed under FILED Supreme Court Rule 23 and is January 25, 2024 NO. 4-23-0280 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County AMANDA RUTH PETERSEN, ) No. 21CF436 Defendant-Appellant. ) ) Honorable ) John Casey Costigan, ) Judge Presiding.
PRESIDING JUSTICE TURNER delivered the judgment of the court. Justices Cavanagh and Zenoff concurred in the judgment.
ORDER
¶1 Held: The appellate court reversed and remanded for a new trial, finding (1) the introduction into evidence of defendant’s sexual orientation as bisexual was irrelevant to whether she sexually abused her stepdaughter and (2) based on the closeness of the case, the error was not harmless.
¶2 In April 2021, the State charged defendant, Amanda Ruth Petersen, with (1) two
counts of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(b) (West 2020)), alleging
defendant or one whose conduct for which she was legally responsible committed an act of
sexual conduct with a family member, her 14-year-old stepdaughter, N.N., (2) two counts of
aggravated criminal sexual abuse (720 ILCS 5/11-1.60(f) (West 2020)), alleging defendant or
one whose conduct for which she was legally responsible, who was 17 years of age or older,
committed an act of sexual conduct with N.N., who was at least 13 years of age but under 18
years of age, when defendant held a position of trust, authority, or supervision in relation to N.N., and (3) three counts of criminal sexual assault (720 ILCS 5/11-1.20(a) (3) (West 2020))
based on alleged sexual penetration.
¶3 During trial, the trial court overruled defendant’s objection to a portion of a
video-recorded police interview in which defendant stated she was bisexual. The court found
defendant’s sexual orientation was relevant to whether defendant would commit the crime
against a female victim. The jury found defendant guilty of the criminal sexual abuse charges
and not guilty of the criminal sexual assault charges. Defendant moved for a judgment of
acquittal notwithstanding the verdict or a new trial, arguing, in part, it was error under the
Second District case of People v. Stowe, 2022 IL App (2d) 210296, to allow the jury to hear
evidence she was bisexual. The court denied the motion.
¶4 At sentencing, the trial court stated defendant’s position of trust over N.N. was a
very “aggravating factor”. The court sentenced defendant to the maximum extended term of 14
years in prison on the counts involving criminal sexual abuse by a person in a position of trust,
authority, or supervision in relation to N.N. and merged the remaining counts. 720 ILCS 5/11-
1.60(f) (West 2020); 730 ILCS 5/5-4.5-35(a) (West 2020).
¶5 On appeal, defendant contends the trial court erred when it (1) allowed the jury to
hear evidence of her sexual orientation and (2) considered a factor inherent in the offense in
aggravation at sentencing.
¶6 We determine (1) the introduction into evidence of defendant’s sexual orientation
as bisexual was irrelevant to whether she sexually abused her stepdaughter and (2) the error was
not harmless. Accordingly, we reverse and remand for a new trial.
¶7 I. BACKGROUND
¶8 A. Trial
-2- ¶9 Defendant was arrested on April 15, 2021, in connection with allegations she and
her husband, Justin N., sexually abused Justin’s daughter, N.N., on December 4, 2020, at a
Quality Inn in Bloomington, Illinois. In December 2022, a jury trial was held.
¶ 10 Before opening arguments, the trial court instructed the jury it must not be biased
against any person because of his or her race, ethnicity, national ancestry, religion, gender,
sexual orientation, age, disability, or socioeconomic status. The parties did not mention
defendant’s sexual orientation during opening statements.
¶ 11 At the beginning of the trial, the State played a recording of a call N.N. placed
from her cell phone to 911 on December 4, 2020. In the call, N.N. sounded out of breath. She
said defendant and Justin tried to rape her in a room at the Quality Inn and she was running away
from the hotel. During the call, defendant took the phone and identified herself as N.N.’s
stepmother. Defendant told the operator N.N. was making a big deal out of nothing, nothing
happened, and N.N. was just acting out. Defendant stated she had been giving N.N. a back
massage, and N.N. was not getting her way about wanting to go somewhere and stormed out of
the room. Defendant said she chased after N.N. to try to get her to come back inside.
¶ 12 Clayton Arnold, a lieutenant with the Bloomington Police Department, testified
officers were dispatched at approximately 2 a.m. on the morning of December 4, 2020, based on
N.N.’s report of a sexual assault. When Arnold arrived near the scene of the hotel, he observed
N.N. sitting on the ground crying and speaking with Bloomington Police Officer Hector
Melchor.
¶ 13 Arnold identified a video recording from Melchor’s body camera. In the video,
N.N. was crying, and Melchor stated he could see she was “highly upset.” N.N. told Melchor
Justin and defendant were giving her a back massage, and defendant started pulling her pants
-3- down. She said both started touching her as she lay on her back with a stuffed animal over her
face. She also said Justin tried to rape her. When defendant and Justin briefly stopped, N.N.
took the opportunity to get her clothes on, grab her phone, run out the door, and call 911. She
said she left without her shoes because she had to get away as soon as possible and defendant
was chasing her. N.N. told Melchor she was 14 and took the medications Geodon and Lexapro.
¶ 14 Arnold testified he went to the Quality Inn to talk to Justin. Justin seemed
fidgety, his demeanor was odd, and his speech was difficult to understand. Thus, Arnold
believed Justin was under the influence of something. Justin’s demeanor also did not change
when he was informed of the allegations, which was out of the ordinary.
¶ 15 Arnold spoke to defendant, who admitted giving N.N. a back rub and touching her
back, arms, legs, and feet. Defendant said N.N. had earlier wanted to go visit a boy, who was
later identified at trial as A.D., and was upset when told no. Defendant said when N.N. did not
get her way, she would have an outburst of bad behavior.
¶ 16 Arnold identified a video recording taken from his body camera inside the hotel
after defendant and N.N. returned to the scene. In the video, Arnold asked N.N. what other
options they had for the night and asked if N.N. wanted to talk to Justin. Defendant said N.N.
should return to the room, lie down, and go to sleep. N.N., crying, said, “[H]e touched me.”
When defendant said they had just been giving N.N. a back rub, N.N. forcefully said, “[T]hat’s
not what that was, you don’t give back rubs right there.”
¶ 17 Arnold testified arrangements were made for N.N. to stay with her older sister
that night. Having heard allegations regarding both Justin and defendant, Arnold sought to have
N.N. interviewed by the Children’s Advocacy Center, see if she would agree to a
-4- sexual-assault-collection kit, and sought to contact the Illinois Department of Children and
Family Services to make sure they were okay with N.N. being placed with her sister.
¶ 18 Alyssa N., N.N.’s older sister, testified she went to the hotel, picked up N.N., and
took her to the hospital to undergo a sexual-assault kit. Alyssa described N.N. as upset and “kind
of like she was in shock.” The parties stipulated to lab results from the testing. The
sexual-assault-kit test was negative, except that DNA from Justin N. could not be excluded from
a profile obtained from swabbing N.N.’s underwear. N.N.’s toxicology screen was negative for
drugs and alcohol.
¶ 19 A.D. testified he had been dating N.N. on December 4, 2020, and they did not
have any plans to meet on that night. He said N.N. would not normally come over without them
having plans. He further testified he lived about a 20-minute car ride away and it was too far to
walk or bike there from Bloomington.
¶ 20 N.N. testified she had not lived with Justin since she was 11 years old, but she
occasionally spent the night with him and defendant. At the time of the trial, N.N. was living
with her brother. In December 2020, N.N. lived with Alyssa, and she was planning to move to
Tennessee to be with her mother.
¶ 21 N.N. testified she was undergoing mental-health treatment, and, in December
2020, she had diagnoses of major depressive disorder and generalized anxiety disorder. She was
later diagnosed with posttraumatic stress disorder (PTSD). In December 2020, N.N. was taking
Lexapro and Geodon daily. She occasionally missed a dose, but she only felt the effects if she
missed them for a significant period of time. N.N. testified she was able to tell the difference
between fantasy and reality on December 4, 2020, and there had never been a time when she
could not tell the difference between fantasy and reality.
-5- ¶ 22 N.N. testified she had plans on December 3, 2020, to spend an overnight at the
hotel with Justin and defendant as a going away party before she moved to Tennessee. She did
not have plans to go anywhere else that night. Justin and defendant picked her up, and they spent
time together hanging out, joking around, customizing clothing for a doll, and playing with her
cat. They originally planned to swim in the hotel pool, but it was closed. Defendant and Justin
purchased a bra and underwear she could wear for swimming, which N.N. tried on at the hotel
while defendant was in the bathroom with her.
¶ 23 N.N. testified defendant tried to get her to drink some alcohol, but N.N. did not
like it and just had a sip. N.N. said the group also had marijuana at the hotel, and all three of
them smoked it. N.N. testified she lay down to go to sleep around 11 p.m. wearing a hoodie,
sweatpants, bra, and underwear. Justin and defendant were massaging and scratching N.N.’s
back, which was something they normally did to help her calm down. At some point, defendant
went to McDonald’s to get a drink. N.N. testified Justin then rubbed her back further down and
lifted her pants a bit, trying to touch her butt. N.N. pulled her pants back up and went to sleep.
N.N. woke up when defendant returned to the hotel room. Defendant gave N.N. a drink, but it
tasted like alcohol, so N.N. did not have more than a sip. Defendant tried to pressure N.N. into
drinking it, but N.N. refused and tried to go back to sleep.
¶ 24 N.N. testified Justin and defendant resumed rubbing her back, which N.N. said
“was pretty typical.” Defendant told N.N. to roll onto her back so defendant could rub her belly,
and N.N. complied. N.N. had her eyes closed and a stuffed animal over her face, which was also
normal for her. However, defendant then started moving her hands under N.N.’s bra and shirt
and rubbed her breasts. N.N. said she did not react. N.N. testified defendant then removed her
bra and hoodie, put her hands in N.N.’s pants and under her underwear, and touched the inside
-6- and outside of N.N.’s vagina, with her fingers moving in and out. N.N. initially felt only
defendant’s hands, but she then heard Justin walk over and, with her underwear pulled down, he
started touching her vagina with his mouth and tongue. She knew it was Justin because she
could feel his beard. Both Justin and defendant then walked away. N.N. testified she then
realized what was happening and was able to react.
¶ 25 N.N. testified she was in a “complete state of panic,” got up, put on her clothes,
grabbed her phone and keycard, and ran out of the hotel and down the street. While she was
running, N.N. called 911 and heard defendant calling her name and chasing her.
¶ 26 On cross-examination, N.N. denied a symptom of her mental-health conditions
was difficulty telling reality from fantasy. N.N. admitted she had some hallucinations and
delusions, such as seeing colors on a wall, but she said she could always distinguish what was
real and what was not. She likened her “delusions” to anxiety, where she would worry about
unrealistic things or be mistrustful of people. N.N. said she still had symptoms even with
medication but agreed the medication “took a little bit of the edge off.”
¶ 27 The defense introduced N.N.’s medical records, including records from April 20,
2020, which included a scale rating her “extremely severe” for peculiar fantasies, indicating she
was often absorbed in elaborate fantasies and had a difficult time distinguishing reality from
fantasy. She also had an “extremely severe” rating for the delusions category, indicating she
mistrusted or was suspicious of everyone or everything and could not distinguish reality from
fantasy. She further had an “extremely severe” rating for hallucinations, indicating she
constantly experienced auditory hallucinations in the form of commanding voices and visual
hallucinations. Her depression diagnosis was described as recurrent major depressive disorder
-7- with psychotic features. N.N. said that diagnosis was not what she was told, but she
acknowledged it was what was written in her records.
¶ 28 On redirect examination, N.N. denied hearing commanding voices but admitted
she previously told her sister there were a few people living inside her. N.N. also admitted that,
on December 4, 2020, she had missed one dose of her medication and possibly had missed two
days. She said she had heightened anxiety and was a bit paranoid before going to the hotel that
day. N.N. acknowledged she did not tell the hospital that night about smoking marijuana and
had mentioned being offered alcohol only one time. N.N. told the hospital employees her hoodie
was removed during the incident and testified on cross-examination it was possible her bra was
not actually removed but was instead pushed up.
¶ 29 N.N. testified the “extremely severe” ratings in her medical records were made by
psychiatric evaluators. They were not her own subjective ratings, and she did not report to
psychiatric evaluators having difficulty distinguishing fantasy from reality. She said she tended
to get lost in thought and had delusions, such as wondering whether a cheeseburger that seemed
different was tainted. N.N. said that was different from knowing there was something in the
McDonald’s drink on December 4, 2020, because with the burger, she knew there was not really
anything wrong with it. She admitted hearing voices but said they were conversational rather
than commanding. She also acknowledged having visual hallucinations of seeing spots of color
on the wall but knew those were not real. N.N. stated none of her mental-health issues altered
her sense of reality. When asked if it was possible parts of her memory were imagined, she
stated, “I just really don’t see how that would have happened,” and, “It never happened at any
point in my life before that I had experienced something that day that wasn’t real.”
-8- ¶ 30 Curt Maas, a detective with the Bloomington Police Department, testified he
obtained surveillance-camera video from the hotel and identified an exhibit of the video. He also
conducted interviews with Justin and defendant, who initially seemed hesitant to do so.
¶ 31 Excerpts of the surveillance video showed defendant leaving the hotel to buy a
drink from McDonalds, N.N. running out of the hotel with defendant chasing her, and N.N. and
defendant running outside the hotel down the street.
¶ 32 When the State sought to admit Maas’s video interview of defendant, defense
counsel objected, stating he had never been given a redacted version and was under the
impression the State would not be using the video at trial. The trial court gave defense counsel a
chance to preview the proposed exhibit. After viewing the video, defense counsel objected to the
jury hearing defendant’s statement in the video identifying herself as bisexual. Counsel argued
the reference to her sexuality should be redacted and was overly prejudicial. Counsel further
stated:
“I think it is inappropriate to equate sexual orientation with sexual decency. They
are saying that because she is bi-sexual, it is likely that she is attracted to minors
who are young adolescent, or even pre-pubescent. I don’t see that. I think that is
crossing a different line. There has been no propensity motion, nothing like that.”
The State argued the reference was relevant but did not specifically name a purpose for the
reference, such as to show intent, motive, or lack of mistake. Instead, the State told the court,
“She is charged and accused of committing sexual crimes on a female with a male present.
Whether or not she is a bi-sexual is relevant as to whether or not she would commit these
crimes.” The court overruled the objection, finding the material relevant, stating, “The Court
-9- agrees with the State, including this potentially could have happened based upon the answer that
was given.” The court did not specifically discuss whether the evidence was overly prejudicial.
¶ 33 Maas testified defendant was cooperative, gave a voluntary statement, and
submitted to genetic testing. In the interview, defendant denied any inappropriate sexual contact
occurred. Defendant told Maas N.N. was very disappointed when they found out the hotel pool
was closed and N.N. remained in “a funk” that night. Defendant said N.N. normally loved
having her back scratched, so defendant began massaging and scratching N.N.’s back, head,
shoulders, arms, and sides. Justin also participated in massaging N.N.’s feet and back. Early in
the interview, defendant stated N.N. was wearing a T-shirt and “regular jeans.”
¶ 34 According to defendant, around 1:30 a.m., N.N. asked if they could go
somewhere else, such as to see A.D. in another town. Defendant told her it was too late to go
out, and N.N. started getting “major attitude” and began acting out, which she had done in the
past. Defendant described other incidents where N.N. did not get her way and had run away and
invented stories about someone hurting her. Defendant said it was not unusual for N.N. to run
out the door and “make a big dramatic scene.” When Maas suggested the “whole thing” was
perhaps because defendant told N.N. they were not going to go see A.D., defendant agreed that
was the case.
¶ 35 Defendant stated she drank a vanilla vodka cocktail that night, and Justin had a
vodka cocktail and beer. Defendant also put vodka in her sweet tea that she bought at
McDonald’s and might have had a shot of vodka. She denied giving alcohol to N.N. or having
marijuana.
¶ 36 In the middle of the interview, Maas told defendant he was going to ask some
questions or have a candid conversation about sexual orientation or body parts. He then asked
- 10 - defendant her sexual orientation, and defendant stated she was bisexual. There was a redaction
or change in camera angle before defendant’s answer and a redaction right after, which
potentially made the question and answer stand out because of the change in the video before
defendant’s answer and the pause after that section of the video.
¶ 37 Approximately a minute and a half later in the video, defendant stated she had
massaged the side of N.N.’s torso and may have accidentally touched the side of N.N.’s breast.
Defendant said that was when N.N. jumped up, put on her hoodie, and ran out the door. She
later agreed that was the “triggering event” that made N.N. run out of the room. However,
defendant also repeated she thought N.N. made the whole thing up because she was mad about
not getting to go see A.D.
¶ 38 Maas asked defendant to describe N.N.’s clothes, and defendant said N.N. was
wearing a black halter top or sports bra, boy shorts, and black sweatpants. Defendant said she
massaged under the band of N.N.’s bra, which had been irritating N.N.’s skin, but she did not
otherwise place her hand under the bra. With N.N.’s permission, she had also rolled down
N.N.’s waistband to massage her lower back and belly, but she did not move her hand into
N.N.’s underwear or touch her vagina.
¶ 39 Defendant testified she previously saw N.N. on a regular basis and was often
involved in taking her to doctor’s appointments and making sure she took her medications.
Defendant said when N.N. did not take her medications, she would get frustrated easily and
exhibit extreme anxiety and paranoia. According to defendant, when they arrived at the hotel
that evening, N.N. was acting fearful and paranoid. Defendant said N.N. normally took
medications both morning and night and that she knew N.N. did not take her night medication at
- 11 - the hotel because no pills were sent with them. Defendant did not mention N.N.’s paranoia in
her video interview because she was not asked about it.
¶ 40 Defendant testified N.N. had forgotten to pack a bra and underwear, and Justin
went back in the house to retrieve those. Defendant said she chased N.N. when she ran from the
hotel because she was worried about her safety. Defendant acknowledged she had prior
convictions for forgery and theft and stated she had taken responsibility for her actions in those
cases and pleaded guilty to both.
¶ 41 Officer Melchor testified he briefly glanced at the hotel room on December 4,
2020, and saw no drugs or signs of a struggle. When Melchor spoke with N.N. around 2 a.m.,
she indicated the last time she took her medication was on December 2, 2020. In a video clip
from his body camera, another officer asked Melchor if N.N.’s allegations were increasingly
getting worse, and Melchor responded “yes.” The parties stipulated Bloomington Police Officer
J. Freeman would testify that, when he arrived at the scene, an adult was waving an arm in the
air, and upon locating them, defendant appeared to be leaning over N.N. rubbing her upper back.
¶ 42 Neither party mentioned defendant’s sexual orientation in closing arguments,
although defense counsel reminded the jury it must not be biased in favor or against any person
because of his or her race, ethnicity, national ancestry, religion, gender, sexual orientation, age,
disability, or socioeconomic status. Although there was evidence suggesting defendant may
have accidentally touched the side of N.N.’s breasts, defendant did not specifically raise
inadvertent touching as a defense. Instead, defendant focused primarily on the theory N.N.
lacked credibility because of her mental-health issues.
¶ 43 The trial court instructed the jury, “Neither sympathy nor prejudice should
influence you. You should not be influenced by any person’s race, ethnicity, national ancestry,
- 12 - religion, gender, sexual orientation, age, disability, or socioeconomic status.” The trial court also
gave the jury the following instruction:
“We all have feelings, assumptions, perceptions, fears, and stereotypes
about others. Some biases we are aware of and others we might not fully be
aware of which is why they are called implicit biases or unconscious biases.
Our biases often affect how we act favorably or unfavorably towards
someone. Bias can also affect our thoughts, how we remember, what we see and
hear, whom we believe or disbelieve, and how we make important decisions.
As jurors you are being asked to make very important decisions in this
case. You must resist jumping to conclusions based upon personal likes or
dislikes. You must not let bias, prejudice, or public opinion influence your
decision.”
¶ 44 The jury found defendant guilty of all four counts of aggravated criminal sexual
abuse and not guilty of the three counts of criminal sexual assault. Defense counsel moved for a
judgment of acquittal notwithstanding the verdict or a new trial, arguing, in part, it was error
under Stowe to allow the jury to hear evidence defendant was bisexual. In response, the State
again argued defendant’s bisexuality made it more probable that she would commit sexual acts
on N.N., who was also female. The trial court denied the motion.
¶ 45 B. Sentencing
¶ 46 On February 21, 2023, the trial court held a sentencing hearing. The presentence
investigation report showed defendant had numerous prior nonviolent felony convictions. At the
time of the offense, she was on probation for manufacture or delivery of a narcotic. She also had
- 13 - multiple felony convictions for forgery, retail theft, and theft. Her longest previous prison
sentence was four years.
¶ 47 Defendant had four children with her previous husband, whom she described as
sexually, physically, emotionally, and mentally abusive. Her children lived with her parents in
Bloomington. Defendant described her relationship with her children as strained, which she
attributed to her struggle with addiction and being in and out of prison. Two of her children
received disability benefits, one for bipolar disorder and the other for autism.
¶ 48 Defendant reported having been sexually abused for many years by two different
male relatives when she was a child. She suffered from a number of mental-health issues and
had attempted suicide multiple times. Her most recent diagnoses included bipolar disorder,
depression, PTSD, substance use disorder, and borderline personality disorder. Defendant had a
long history of abusing alcohol and underwent drug treatment from 2008 to 2009 and in 2013.
She had been prematurely discharged from drug court probation after being arrested for theft and
sentenced to incarceration. Just before her arrest in 2021, defendant used cannabis, cocaine,
crack, and methamphetamine.
¶ 49 While awaiting trial, defendant participated in alcohol and drug treatment
programs and a “Job Partnership.” Defendant declined to make an in-court statement in
allocution, but she provided a written statement in which she characterized her arrest as a rescue
from drugs and from herself. She wrote she had spent her time in jail participating in programs,
working on self-improvement with her counselor, consistently taking her medications, and
working on healing the sexual and physical trauma of her past. Defendant expressed regret for
things she did in the midst of her addiction and acknowledged her behavior had adversely
affected her loved ones. However, she maintained her innocence of the charges. Defendant
- 14 - provided letters of support from her parents, individuals in jail who viewed her as a friend and
mentor, and from the director of a bible-study correspondence course.
¶ 50 In mitigation, defense counsel argued the jury’s split verdicts showed uncertainty
about what actually transpired, and defendant’s statement to the detective about possibly
accidentally touching N.N.’s breast showed she did not contemplate that her conduct would
threaten serious physical harm. Defense counsel argued defendant cooperated in the
investigation and had no violent criminal history, including no allegations of domestic violence,
and she had children who would be negatively impacted by her incarceration.
¶ 51 The State presented victim impact statements from N.N. and her mother
describing the emotional trauma caused by the abuse. The State argued defendant blamed her
addiction to drugs or alcohol for her actions, making them aggravating factors. The State also
argued in aggravation the trial evidence showed defendant was in a position of trust and
authority, in that she was N.N.’s stepmother, was entrusted with N.N.’s care and supervision for
periods of time, helped N.N. adhere to her medication schedule, and was involved in taking N.N.
to and from appointments. The State sought consecutive sentences and extended-term
sentencing based on defendant’s criminal record.
¶ 52 The trial court stated it considered the totality of circumstances, including the
relevant statutory factors in aggravation and mitigation, the victim impact statements, the letters
of support, the role of defendant’s substance-abuse and mental-health issues, the proactive steps
she took in jail, and the trauma she suffered in childhood. The court considered in aggravation
that defendant’s conduct caused significant harm to N.N. based on N.N.’s trial testimony and the
victim impact statements. The court also considered defendant’s criminal history, describing it
as nonviolent but extensive. The court also noted defendant had previously been given
- 15 - opportunities at probation and was on probation at the time of the offenses. The court further
considered the role of deterrence. Finally, the court considered in aggravation defendant’s
position of trust relative to N.N., stating:
“And the court is likewise looking at position of trust over the victim in this case.
You were in a position of trust. This was a young lady who trusted you to do the
right thing for her and that trust was violated in the worst possible way. And that
is very aggravating to the court.”
Defense counsel did not object.
¶ 53 The trial court, applying the totality of the circumstances, sentenced defendant to
concurrent extended terms of 14 years in prison on each of the two counts of aggravated criminal
sexual abuse by a person in a position of trust, authority, or supervision. The court merged the
remaining counts. Defense counsel did not file a motion to reconsider the sentence.
¶ 54 This appeal followed.
¶ 55 II. ANALYSIS
¶ 56 On appeal, defendant contends the trial court erred when it (1) allowed the jury to
hear evidence of her sexual orientation and (2) considered a factor inherent in the offense in
aggravation at sentencing, resulting in a double enhancement.
¶ 57 Defendant first contends the trial court erred in allowing the jury to hear evidence
she was bisexual. In particular, relying on Stowe, defendant argues her sexual orientation was
not relevant and was unduly prejudicial. She then argues the error was not harmless.
¶ 58 A. Relevance
- 16 - ¶ 59 “All relevant evidence is admissible (Ill. R. Evid. 402 (eff. Jan. 1, 2011)), but the
State bears the burden of demonstrating the admissibility of evidence it offers.” Stowe, 2022 IL
App (2d) 210296, ¶ 50. “[E]vidence is relevant if it has ‘any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.’ ” (Emphases omitted.) Stowe, 2022 IL App (2d)
210296, ¶ 50 (quoting Ill. R. Evid. 401 (eff. Jan. 1, 2011)).
¶ 60 “Relevant evidence may be excluded, however, if its probative value is
substantially outweighed by the danger of unfair prejudice or confusion of the issues.” Stowe,
2022 IL App (2d) 210296, ¶ 51 (quoting Ill. R. Evid. 403 (eff. Jan. 1, 2011)). Evidence is unduly
prejudicial when it casts a negative light on the defendant for reasons having nothing to do with
the case on trial or invites the jury to decide the case on an improper basis, commonly an
emotional one, such as sympathy, hatred, contempt, or horror. Stowe, 2022 IL App (2d) 210296,
¶ 51; People v. Romanowski, 2016 IL App (1st) 142360, ¶ 30, 61 N.E.3d 999.
¶ 61 The trial court’s admission of evidence is reviewed for an abuse of discretion.
Stowe, 2022 IL App (2d) 210296, ¶ 51. A trial court abuses its discretion when its ruling is
arbitrary, fanciful, or unreasonable. Stowe, 2022 IL App (2d) 210296, ¶ 51.
¶ 62 In Stowe, the defendant was charged with criminal sexual abuse and aggravated
criminal sexual abuse based on allegations he sexually abused a 14-year-old autistic boy who
was a resident of a care facility where the defendant worked. Before trial, the court granted the
State’s motion in limine to introduce evidence of two images found on the defendant’s cell phone
of an adult nude man with an erection. The State argued the images were relevant to establish
the defendant’s intent to commit the alleged conduct for sexual gratification or arousal and to
disprove any claim his conduct was accidental or inadvertent. At the hearing on the motion the
- 17 - State argued the images were evidence of defendant’s sexual proclivities and relevant to prove
intent, motive, and lack of mistake. The court granted the motion, stating, “It’s in regard to a
proclivity, essentially is what it amounts to.” Stowe, 2022 IL App (2d) 210296, ¶ 10. The court
also noted there was some prejudice involved but not enough to overcome the relevancy of the
images.
¶ 63 At trial, the evidence was largely based on the testimony of a supervisor at the
care facility, who briefly saw the defendant masturbating the boy when she opened a bathroom
door to ask the defendant for a key that she needed. The defendant denied the allegations. He
testified he was helping the boy change after the boy had soiled himself. The defendant testified
the boy began to masturbate while defendant was assisting him, and the defendant noticed a
mark on the boy’s penis. The defendant said he tried to get a look at the mark when the
supervisor opened the door. The defendant testified he was a married heterosexual and was not
attracted to men. Stowe, 2022 IL App (2d) 210296, ¶ 39. During closing arguments, the State
told the jury the images were relevant because defendant was accused of sexually abusing
another male and he had images of a nude man with an erection on his phone. The State told the
jury, “[D]oes this make it more or less likely that he was masturbating a child? It doesn’t hurt.
Right?” Stowe, 2022 IL App (2d) 210296, ¶ 44. The trial court did not give a limiting
instruction specifically regarding the evidence.
¶ 64 On appeal, the Second District reversed. Stowe, 2022 IL App (2d) 210296, ¶ 84.
First, the court found evidence of sexual orientation was not relevant to the determination of
whether the defendant was sexually attracted to children. In particular, the court held the images
“were, at best, probative of sexual attraction to a class of adults, and the State offered no
evidence to support the further inference that sexual attraction to that class of adults is probative
- 18 - of sexual attraction to children of any kind.” Stowe, 2022 IL App (2d) 210296, ¶ 60. The court
also took issue with the State’s use of the evidence in closing argument, finding the argument
could be read as directly equating same-sex attraction to men with a propensity to sexually abuse
children when such an assertion was otherwise unsupported by any evidence in the record.
Stowe, 2022 IL App (2d) 210296, ¶ 61.
¶ 65 The court distinguished cases involving evidence a defendant had sexual
attraction to children. Stowe, 2022 IL App (2d) 210296, ¶¶ 59-60. The court also distinguished
People v. Wilson, 214 Ill. 2d 127, 824 N.E.2d 191, 197-98 (2005), a case not involving issues of
sexual orientation and in which our supreme court explained that other-acts evidence was
permissible to rebut a defense theory the defendant was “ ‘the kind of person that touches
people’ ” and that, “ ‘even if there was contact with the victims, it was merely incidental contact
and not for sexual arousal.’ ” Stowe, 2022 IL App (2d) 210296, ¶ 64 (quoting Wilson, 214 Ill. 2d
at 138, 824 N.E.2d at 197-98). There, our supreme court explained, “ ‘defense counsel raised
motive, intent and the possibility that any of the complained-of touching was inadvertent in such
a way that the jury could acquit defendant even if it believed that he actually touched the
victims’ breasts.’ ” Stowe, 2022 IL App (2d) 210296, ¶ 64 (quoting Wilson, 214 Ill. 2d at138,
824 N.E.2d at 198). In Stowe, however, the defendant did not claim he touched the boy
inadvertently and denied touching the boy’s penis altogether. The court then stated, “While the
State was obligated to prove that defendant’s touching was for sexual arousal or gratification,
evidence that defendant had photos of two adult males was not relevant under the facts of the
case to prove this proposition.” Stowe, 2022 IL App (2d) 210296, ¶ 64.
- 19 - ¶ 66 The Stowe court relied in part on cases from other jurisdictions to support its
holding the evidence was irrelevant. See Stowe, 2022 IL App (2d) 210296, ¶ 65 (citing cases).
One of those cases is also particularly applicable here.
¶ 67 In People v. Garcia, 229 Cal. App. 4th 302, 177 Cal. Rptr. 3d 231 (2014), the
female defendant was charged with sexually abusing a girl she babysat. The trial court limited
the prosecution’s ability to elicit testimony the defendant was a lesbian. However, during trial,
the prosecution repeatedly attempted to bring the defendant’s sexual orientation to light, and the
court denied the defendant’s motions for a mistrial. The prosecution then specifically told the
jury in closing arguments the defendant was sexually attracted to women. The court instructed
the jury arguments were not evidence and instructed the jurors they were not to let bias,
including bias based on sexual orientation, influence their decision. The jury found the
defendant guilty, and she appealed. Garcia, 229 Cal. App. 4th at 310, 177 Cal. Rptr. 3d at
237-38.
¶ 68 On appeal, the California Court of Appeals held the defendant’s sexual orientation
had “no logical bearing” on the determination whether she was guilty of sexually abusing a child.
Garcia, 229 Cal. App. 4th at 311, 177 Cal. Rptr. 3d at 238. In particular, the court rejected
arguments that the defendant’s sexual orientation was relevant to prove intent or motive. The
court noted the prosecution essentially told the jury the reason the defendant victimized the child
was because she was gay. The court then stated, “We have grown beyond that notion. ‘[T]he
modern understanding of pedophilia is that it exists wholly independently from homosexuality.
The existence or absence of one neither establishes nor disproves the other.’ ” Garcia, 229 Cal.
App. 4th at 313, 177 Cal. Rptr. 3d at 240 (quoting State v. Crotts, 104 Ohio St. 3d 432, 820
N.E.2d 302, 306 (2004)). The court further stated, “[A] defendant’s sexual attraction to adults of
- 20 - the same sex has nothing to do with whether they are sexually attracted to children of the same
sex.” (Emphasis omitted.) Garcia, 229 Cal. App. 4th at 313, 177 Cal. Rptr. 3d at 240. The
court additionally stated:
“[W]e do not believe the evidence of appellant’s sexual orientation was relevant
to her prosecution. Period. Whether designed to show appellant’s intent, motive
or why she would select [the child] as a victim, the evidence, standing alone,
simply did not hold up in terms of facilitating the jury’s understanding of the case
or ‘having any tendency in reason’ to prove a disputed fact of consequence to the
determination of the action.” (Internal quotation marks omitted.) Garcia, 229
Cal. App. 4th at 314, 177 Cal. Rptr. 3d at 241.
¶ 69 The majority of courts in other jurisdictions have likewise held a person’s sexual
orientation is irrelevant to the issue of whether that person would sexually abuse a child. See
Crotts, 104 Ohio St. 3d at 434-35, 820 N.E.2d at 306; State v. Bates, 507 N.W.2d 847, 852
(Minn. App. 1993); State v. Ellis, 820 S.W.2d 699, 702 (Missouri App. 1991); United States v.
Gillespie, 852 F.2d 475, 478 (9th Cir. 1988). However, two cases hold otherwise, but with no
meaningful substantive analysis. State v. Davis, 1 Neb. App. 502, 513, 500 N.W.2d 852, 858-59
(1993) (stating bisexuality was relevant to show motive in a crime committed by a male on a
male); Williams v. State, 204 Ga. App. 878, 879, 420 S.E.2d 781, 782-83 (1992) (stating the
defendant’s bisexuality was relevant to prove “intent, motive, plan, scheme and bent of mind”).
¶ 70 Here, applying Stowe and the majority of cases from other jurisdictions, without
evidence connecting defendant’s sexual orientation to a sexual interest in children, her sexual
orientation was irrelevant. The burden was on the State to establish the relevancy of the
evidence, but the State provided nothing indicating defendant’s bisexuality extended to anyone
- 21 - other than adults. Further, the State never articulated any relevant use of the evidence other than
the assumption a bisexual person would be more likely to commit a sex crime on a child of the
same sex. For example, the State never suggested the evidence was relevant under Wilson to
show absence of mistake. Even in its brief on appeal, the State does not articulate a specific
relevant use of the evidence other than to state “[a]n offender’s bisexuality is relevant where the
victim was the subject of a homosexual act.” The State then cites the Nebraska and Georgia
cases holding such evidence is relevant to show intent, motive, or other similar factors. But as
previously noted, those cases are in the minority and contain little to no substantive analysis.
¶ 71 The State also attempts to distinguish Stowe and Garcia on their facts. For
example, Stowe involved physical evidence consisting of photographs, and both cases involved
the use of the evidence in closing arguments. But the factual distinctions of those cases do not
change the application of the overall holding of those cases that, without more, evidence of
sexual orientation toward adults is irrelevant to whether an adult would sexually abuse a child.
In that regard, the State also suggests Stowe be limited to cases involving prepubescent children.
However, the victim in Stowe was not prepubescent. He was 14, the same age as N.N. here.
¶ 72 We find Stowe well-reasoned and applicable. Accordingly, under the
circumstances of this case, evidence defendant was bisexual was irrelevant, and the trial court
erred in allowing it. We further note, while we need not decide the matter, the court did not
make any findings regarding the possibility the evidence was more prejudicial than probative,
which would be problematic even if we were to find the evidence relevant. The next issue then
is whether the error was harmless.
¶ 73 B. Harmless Error
- 22 - ¶ 74 Defendant argues the error was not harmless. Meanwhile, the State contends it
was harmless because the evidence consisted of a single mention of bisexuality, and the trial
court gave limiting instructions.
¶ 75 Where, as here, “the defendant has made a timely objection and properly
preserved an error for review, the reviewing court conducts a harmless-error analysis in which
the State has the burden of persuasion with respect to prejudice.” People v. McLaurin, 235 Ill.
2d 478, 495, 922 N.E.2d 344, 355 (2009). “An evidentiary error is harmless if there is no
reasonable probability the jury would have acquitted the defendant without the error.” Stowe,
2022 IL App (2d) 210296, ¶ 68. When considering whether an error was harmless, this court
“may (1) focus on the error to determine whether it might have contributed to the conviction;
(2) examine the other properly admitted evidence to determine whether it overwhelmingly
supports the conviction; or (3) determine whether the improperly admitted evidence is merely
cumulative or duplicates properly admitted evidence.” In re Rolandis G., 232 Ill. 2d 13, 43, 902
N.E.2d 600, 617 (2008).
¶ 76 In Stowe, the appellate court found the error was not harmless. Stowe, 2022 IL
App (2d) 210296, ¶ 80. The court noted the evidence against the defendant was not
overwhelming and boiled down to a credibility contest between the supervisor and the defendant.
The court further noted the jury was not provided a limiting instruction as to the purpose for
which it could consider the photos. Thus, the court could not say there was no reasonable
probability the jury would have acquitted defendant without the error. Stowe, 2022 IL App (2d)
210296, ¶ 80; see Ellis, 820 S.W.2d at 703 (finding error not harmless when the case was
dependent on credibility determinations).
- 23 - ¶ 77 Courts have also rejected the argument a limiting instruction cures the error. For
example, in Gillespie, the Ninth Circuit noted “[e]vidence of homosexuality is extremely
prejudicial.” Gillespie, 852 F.2d at 479. The court there found “unconvincing” the prosecution’s
argument admission of evidence of homosexuality was harmless because the trial court gave a
limiting instruction. Gillespie, 852 F.2d at 479. There, the case centered around the defendant’s
denial of eyewitness testimony. The court found the verdict probably depended on the jury’s
assessment of the credibility and character of the defendant and the witness. Under those
circumstances, the court held a curative instruction to the jury was not sufficient to obviate the
prejudice. Gillespie, 852 F.2d at 479.
¶ 78 Likewise, the Garcia court found the error was not harmless, but under
circumstances different from the instant case. Initially the court noted, had the issue of the
defendant’s sexual orientation been “left alone” after the initial reference, the court would have
likely affirmed the conviction. Garcia, 229 Cal. App. 4th at 312, 177 Cal. Rptr. 3d at 239.
However, based on the cumulative exposure to the issue, the court found the defendant had been
denied a fair trial. The court acknowledged prejudice against homosexuals was “not as
antithetical to a fair trial as it once was,” but it also noted evidence and argument regarding the
defendant’s sexual orientation was still inflammatory. Garcia, 229 Cal. App. 4th at 315, 177
Cal. Rptr. 3d at 241-42. The court then addressed the instruction on bias, stating:
“To guard against the possibility that some of the jurors might harbor bias toward
gays, the trial court admonished the jury on the point. [Citation]. We presume
the jury followed this instruction in deciding the case. [Citation]. But that
instruction only went so far. It did not, as the Attorney General maintains, tell the
jurors to disregard the issue of appellant’s sexual orientation altogether. And as it
- 24 - turned out, that issue was kept alive by a confluence of factors.” Garcia, 229 Cal.
App. 4th at 315, 177 Cal. Rptr. 3d at 242.
¶ 79 The Garcia court found notable the prosecution, as a prominent component of its
closing argument, wrongly told the jury the defendant’s sexual orientation was relevant. The
court found it was quite possible the closing argument confirmed preconceived notions the jury
might have about the case. Thus, although it was not true, jurors may have suspected any
woman who sexually abused a girl would have to be a lesbian or at least bisexual. Thus, given
the emphasis on the issue in closing, the court found the error was not harmless. Garcia, 229
Cal. App. 4th at 317-18, 177 Cal. Rptr. 3d at 243-44. In comparison, an error in the admission of
evidence of a defendant’s sexual orientation has been found harmless when there was substantial
evidence supporting the conviction. See Bates, 507 N.W.2d at 852.
¶ 80 Here, while we recognize the evidence was not as pervasive as it was in Stowe or
Garcia, and it consisted of only a single instance, the State has not met its burden of persuasion
to show the error was harmless. First, although the evidence consisted of a single question and
answer in defendant’s police interview, its topic was potentially inflammatory, and a camera
angle change and redaction in the video particularly drew attention to it. In general, we do not
conclude it is something the jury would easily overlook or disregard.
¶ 81 Next, as in Stowe, this was a close case, with the outcome depending on a
credibility contest between defendant and N.N. While defendant exhibited inconsistencies in her
interview and testimony that could undermine her credibility, N.N.’s credibility was also highly
questionable based on her mental-health struggles. For example, eight months before the
charged offenses, medical professionals rated N.N. as “extremely severe” for peculiar fantasies,
indicating she was often absorbed in elaborate fantasies and had a difficult time distinguishing
- 25 - reality from fantasy. N.N. admitted that, as of December 4, 2020, she had not taken her
medication for one or two days, and she was feeling paranoid before going to the hotel. Melchor
had also remarked N.N.’s allegations were increasingly getting worse as time went on. Given
the closeness of the case, defendant’s irrelevant statement that she was bisexual could have
reasonably tipped the scale in favor of her conviction. The evidence was also not cumulative of
other evidence at trial. Thus, when we (1) focus on the error to determine whether it might have
contributed to the conviction, (2) examine the other properly admitted evidence to determine
whether it overwhelmingly supported the conviction, and (3) determine whether the improperly
admitted evidence was merely cumulative or duplicated properly admitted evidence, we
determine the error was not harmless.
¶ 82 We also reject the State’s argument the limiting instruction was curative. The
trial court admonished the jury it was to not allow bias based on sexual orientation to influence
its decision. The State, however, has wholly failed to address the more nuanced argument
defendant raises, which is, independent of any bias, the jury, in the absence of a limiting
instruction, was free to consider the evidence for an improper purpose. As illustrated in Garcia,
the instruction given did not tell the jurors to disregard the issue of appellant’s sexual orientation
altogether. As the court noted in Garcia, although it was not true, jurors may have suspected any
woman who sexually abused a girl would have to be a lesbian or at least bisexual. Thus, it is
possible, while the jurors were not influenced by a general bias against defendant’s bisexuality,
they still wrongly believed defendant’s sexual orientation made it more likely she would commit
the crime when the victim was female. As previously discussed, the evidence was not relevant
for that purpose, and the court’s limiting instruction, which merely discussed bias in general, did
not tell the jury it could not consider the evidence in that manner. Given the closeness of the
- 26 - case, which amounted to a credibility contest, the jury’s improperly drawing such an inference
would be prejudicial to defendant. Under the circumstances of this case, a curative limiting
instruction would have to tell the jury to disregard the evidence altogether.
¶ 83 Overall, in such a close case, the State has not convinced us there is no reasonable
probability the jury would have acquitted defendant without the error. See Stowe, 2022 IL App
(2d) 210296, ¶ 80. However, although we find the trial court erred in allowing the evidence of
defendant’s sexual orientation and the error was not harmless, we note defendant does not argue
double jeopardy precludes retrial. We also find the evidence sufficient to sustain a conviction.
Thus, defendant may be retried. See Stowe, 2022 IL App (2d) 210296, ¶ 82.
¶ 84 Because we reverse defendant’s convictions, we need not discuss her argument
she was subjected to an improper double enhancement when the trial court considered the fact
she was in a position of authority, trust, or supervision over N.N. as both an element of the
offenses and as a factor in aggravation. However, we note the court specifically found “very
aggravating” defendant’s position of trust, which was an element of the counts the court
sentenced her on. On appeal, both parties discussed the effect of statutory changes and
principles of statutory interpretation to address whether the legislature clearly intended to
enhance the penalty for aggravated sexual abuse of child based on the element of a position of
trust inherent in the crime. Although we express no view on the issue, if defendant is retried and
convicted, the court should consider the double-enhancement question before applying
defendant’s position of trust as a factor in aggravation at sentencing.
¶ 85 III. CONCLUSION
¶ 86 For the reasons stated, we reverse the trial court’s judgment and remand for a new
trial.
- 27 - ¶ 87 Reversed and remanded.
- 28 -