2023 IL App (4th) 230172-U NOTICE This Order was filed under FILED November 22, 2023 Supreme Court Rule 23 and is NO. 4-23-0172 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Winnebago County STEVEN W. WHITE, ) No. 21CF550 Defendant-Appellee. ) ) Honorable ) Joseph G. McGraw, ) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices Steigmann and Lannerd concurred in the judgment.
ORDER
¶1 Held: This court lacks jurisdiction of the circuit court’s orders regarding the State’s motion to present hearsay statements by the victim but has jurisdiction of the orders related to propensity evidence, which we reverse.
¶2 In May 2021, a grand jury indicted defendant, Steven W. White, on one count of
predatory criminal sexual assault of a child (720 ILCS 5/l l-l.40(a)(l) (West 2014)), two counts of
criminal sexual assault (720 ILCS 5/l1-1.20(a)(3) (West 2012)), and six counts of aggravated
criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i), (d) (West 2012)). The alleged victim of the
predatory sexual assault of a child charge was A.H. (born in August 2008), and the alleged
victim of the other charges was either S.R. (born in December 1999) or E.J. (born in May 2006).
By agreement of the parties, the Winnebago County circuit court severed the predatory criminal
sexual assault of a child count from the other counts, and the State elected to first proceed on that
charge. In February 2023, the State filed a motion to allow the hearsay statements of A.H. under section 115-10 of the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS
5/115-10 (West 2022)). It also filed a motion in limine seeking to introduce testimony from S.R.
and E.J. about defendant’s actions with them (propensity evidence) pursuant to section 115-7.3
of the Procedure Code (725 ILCS 5/115-7.3 (West 2022)). After a hearing, the court denied the
State’s motions. The State filed motions to reconsider. The court denied the motion to
reconsider the denial of the State’s request to present propensity evidence under section 115-7.3
and granted in part the motion to reconsider the denial of the State’s request to present hearsay
statements of the victim under section 115-10. The State then filed a certificate of impairment
and an appeal under Illinois Supreme Court Rule 604(a) (eff. July 1, 2017).
¶3 On appeal, the State contends the circuit court abused its discretion by (1) barring
the State’s propensity evidence admissible under section 115-7.3 and (2) only granting in part the
State’s request to present the victim’s hearsay statements under section 115-10. We lack
jurisdiction of the orders related to the State’s section 115-10 motion, reverse the orders related
to the State’s section 115-7.3 motion, and remand the cause with directions.
¶4 I. BACKGROUND
¶5 The predatory criminal sexual assault of a child indictment alleged, on August 7,
2015, defendant, a person 17 years of age or older, knowingly committed an act of sexual
penetration with A.H., in that he made contact between his sex organ and the mouth of A.H.,
who was under the age of 13. The alleged victim of the two criminal sexual assault indictments
and two of the aggravated criminal sexual abuse indictments was S.R. Those incidents were
alleged to have occurred on December 17, 2013, and December 17, 2015. The alleged victim of
the four other aggravated criminal abuse charges was E.J. Those incidents were alleged to have
taken place on May 22, 2014, and May 22, 2015.
-2- ¶6 In July 2021, defendant filed a motion to sever the charges. A May 2022 case
management order indicated discovery was complete on all nine indictments. At a December 20,
2022, case management hearing, the circuit court heard defendant’s motion to sever. The State
noted it was not objecting to the motion but anticipated filing a propensity motion if the case was
set for trial. It also elected to proceed on the predatory criminal sexual assault charge.
Defendant made an oral speedy trial demand. The court entered an agreed order severing the
predatory criminal sexual assault charge from the other charges. It also established a due date of
January 23, 2023, for motions in limine and noted courtesy copies of any motions should be sent
to the court electronically. Additionally, the court set the following dates: (1) February 2 for a
hearing on motions in limine, (2) February 9 for a final pretrial conference, and (3) February 13
for defendant’s jury trial.
¶7 On February 1, 2023, defendant filed three motions in limine. The first motion
in limine sought to prohibit the State from using the term “rape” or any derivative. The second
one requested the State not be allowed to introduce propensity evidence because it did not
comply with the disclosure requirements of section 115-7.3(d) of the Procedure Code (725 ILCS
5/115-7.3(d) (West 2022)). The third motion in limine sought to prohibit the State from
presenting a video of the victim’s interview because of noncompliance with the hearing
requirement of section 115-10(a) of the Procedure Code (725 ILCS 5/115-10(a) (West 2022)).
The next day, the State filed a motion to continue defendant’s jury trial. The circuit court held a
hearing that same day. At the hearing, the State noted its motions in limine were being filed, one
of which was going to be brought under section 115-10. The State provided a copy of the
victim’s interview to the court. Defendant objected to the continuance, and the court granted a
continuance over defendant’s objection. The court scheduled the hearing on the motions
-3- in limine and a section 115-10 hearing for February 23, 2023, and defendant’s jury trial was set
for February 27, 2023. The court informed the parties it had very limited access to a courtroom
due to a fire.
¶8 On February 6, 2023, defendant filed his fourth motion in limine seeking to
prohibit the State from introducing statements defendant made to his ex-wife concerning his
sexual characteristics and mental health. On February 23, 2023, the State filed its first motion
in limine seeking to introduce under section 115-7.3 testimony from S.R. and E.J. about
defendant’s acts of sexual conduct with them to show defendant’s propensity to commit sex
crimes. Additionally, the State filed a motion to allow under section 115-10 hearsay statements
by A.H. during a recorded interview at the Carrie Lynn Children’s Center. The State also filed a
motion to bar defendant from presenting any evidence contained in the 105 pages of discovery
tendered by defendant on February 22, 2023, because the tender was untimely. The motions do
not state at what time on February 23 they were filed.
¶9 During the morning jury status call on February 23, 2023, the circuit court
addressed this case. The prosecutor noted a hearing needed to take place on the section 115-10
motion and the section 115-7.3 motion. She noted a continuance may be necessary to address
the motions and proposed March 13 for defendant’s trial because it was still within the speedy
trial period. The court noted it would not be in session the next day (due to surgery) and the
week of March 13. The court proposed a jury trial date of March 27, which was beyond the
speedy trial period, but defendant persisted in his right to a speedy trial. The court indicated it
would hear the motions in the afternoon. We note the court acknowledged it received paper
copies of the motions during the morning session but noted the motions had not been filed.
¶ 10 In the afternoon of February 23, 2023, the circuit court held a section 115-10
-4- hearing and a hearing on all of the motions in limine. Defendant objected to the request to admit
A.H.’s hearsay statements during the recorded interview asserting the prosecutor had not actually
filed the section 115-10 motion yet. He also contended not all of the statements in the video
were admissible and noted an incident in Missouri. Defendant further asserted A.H.’s statements
in the video were not reliable. The prosecutor explained she does not file motions herself but
admitted she should have confirmed the motions were actually filed. She also noted she would
redact the statements about the Missouri incident. The court found adequate notice of the section
115-10 motion but denied it because the court was “not sure how it really even assists the trier of
fact” because the victim was not “a little child.” As to the State’s motion to submit propensity
evidence under section 115-7.3, defendant again objected to the lateness of the motion noting the
lack of time to prepare for the motion. The prosecutor again noted she was unaware the motions
had not been filed. She also argued defendant was aware she was going to file a propensity
motion and thus should not be able to claim surprise. The court denied this motion as untimely.
The State then asked for, in lieu of a denial of the section 115-7.3 motion, a continuance of
defendant’s jury trial to allow for a hearing on the section 115-7.3 motion. The court observed it
was fully booked and asked why the motion had not been timely filed. The prosecutor indicated
she had the motions drafted and in the file but did not know why the motions were not filed as
she does not personally file them. The court denied the continuance. It also denied the State’s
motion to bar evidence finding it was untimely. As to defendant’s motions in limine, the court
granted defendant’s first and fourth motions and found the second and third motions were moot.
¶ 11 On February 27, 2023, the State filed numerous motions to reconsider. It
requested the circuit court to reconsider its decision to deny both of the State’s motions in limine
as well as the State’s motion to continue and motion to bar defendant’s evidence due to late
-5- discovery. In the motion to reconsider the denial of the section 115-10 motion, the State argued
A.H. made very detailed statements about defendant’s abuse and set forth 13 statements by A.H.
and the timestamp of those statements during the recorded interview. The State indicated those
were not the only statements made by A.H. during her interview. At a hearing that same day, the
court granted in part and denied in part the State’s motion to reconsider its ruling on the section
115-10 motion. The court only allowed the 13 statements of A.H. identified in the State’s
motion to reconsider. The court denied the motion to reconsider the denial of the section 115-7.3
motion, the motion to bar, and the motion to continue defendant’s jury trial. The State then filed
a certificate of impairment. Defendant filed a motion to dismiss the bill of indictment with
prejudice, which the court denied. The court released defendant on a recognizance bond.
¶ 12 That same day, the State filed a timely notice of appeal in sufficient compliance
with Illinois Supreme Court Rule 606 (eff. Mar. 12, 2021). Given defendant’s arguments on
appeal, we will address jurisdiction in our analysis section.
¶ 13 II. ANALYSIS
¶ 14 A. Jurisdiction
¶ 15 Defendant asserts this court lacks jurisdiction of the circuit court’s orders related
to the State’s section 115-10 motion. In support of his argument, defendant cites In re K.E.F.,
235 Ill. 2d 530, 922 N.E.2d 322 (2009), and People v. Lee, 2020 IL App (5th) 180570, 162
N.E.3d 356. The State asserts this court does have jurisdiction under Illinois Supreme Court
Rule 604(a)(1) (eff. July 1, 2017) because the K.E.F. decision is distinguishable and the Lee
decision was wrongly decided. Since our supreme court has instructed reviewing courts to be
certain of their jurisdiction prior to addressing an appeal (see People v. Smith, 228 Ill. 2d 95, 106,
885 N.E.2d 1053, 1059 (2008)), we begin by addressing defendant’s argument.
-6- ¶ 16 Rule 604(a)(1) addresses when the State may appeal and provides the following:
“In criminal cases the State may appeal only from an order or judgment the
substantive effect of which results in dismissing a charge for any of the grounds
enumerated in section 114-1 of the [Procedure Code]; arresting judgment because
of a defective indictment, information or complaint; quashing an arrest or search
warrant; or suppressing evidence.” Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2017).
Our supreme court has explained an interlocutory appeal by the State is permitted under Rule
604(a)(1) when (1) the substantive effect of the underlying order resulted in (a) quashing a
search warrant or (b) suppressing evidence and (2) the prosecutor certified the order substantially
impaired the State’s ability to prosecute the case. People v. Sneed, 2023 IL 127968, ¶ 37.
Defendant contends the circuit court’s orders related to the State’s section 115-10 motion did not
have the substantive effect of suppressing evidence.
¶ 17 In K.E.F., 235 Ill. 2d at 533, 922 N.E.2d at 323-24, the State intended to present a
recording of statements made by the victim during an interview and sought a ruling on its
admissibility under section 115-10 of the Procedure Code (725 ILCS 5/115-10 (West 2006)).
The circuit court allowed the admission of the victim’s record statements “ ‘assuming the other
provisions of section 115-10 [were] satisfied.’ ” K.E.F., 235 Ill. 2d at 533, 922 N.E.2d at 324.
At the adjudicatory hearing on the delinquency petition, the State limited its questioning of the
victim to just the circumstances surrounding the recorded statement, and the court denied
admission of the recorded statements. K.E.F., 235 Ill. 2d at 533, 535, 922 N.E.2d at 324-25.
Our supreme court found the circuit court’s order was unappealable under Rule 604(a)(1)
because the order did not have the substantive effect of suppressing evidence, where the
admissibility of the evidence was “entirely within the State’s control.” K.E.F., 235 Ill. 2d at 540,
-7- 922 N.E.2d at 328. It observed the order denying the admission of the section 115-10 statements
only impacted the means by which the information could be presented, which did not constitute
suppression of evidence. K.E.F., 235 Ill. 2d at 540, 922 N.E.2d at 328.
¶ 18 In Lee, 2020 IL App (5th) 180570, ¶ 5, as in K.E.F., the State sought to introduce
recorded statements of the three victims pursuant to section 115-10 of the Procedure Code (725
ILCS 5/115-10 (West 2016)). After a hearing, the circuit court found all three victims’ recorded
statements were inadmissible. Lee, 2020 IL App (5th) 180570, ¶ 6. As to two of the victims, the
court found the State did not provide sufficient evidence of the reliability of their recorded
statements. Lee, 2020 IL App (5th) 180570, ¶ 6. The State sought to appeal the inadmissibility
ruling as to the recorded statements of those two victims and argued K.E.F. was distinguishable.
Lee, 2020 IL App (5th) 180570, ¶¶ 7, 23. The reviewing court observed the conclusion in K.E.F.
was based on the fact the circuit court’s judgment left the State with another option to present the
pertinent information through the witness’s live testimony. Lee, 2020 IL App (5th) 180570,
¶ 23. It emphasized the following language in K.E.Z.: “ ‘[t]he substantive effect of the trial
court’s ruling is the pertinent issue.’ ” Lee, 2020 IL App (5th) 180570, ¶ 23 (quoting K.E.F., 235
Ill. 2d at 540, 922 N.E.2d at 328). While many differences existed between the Lee case and the
K.E.F. case, the Lee court found “no meaningful distinction on [that] dispositive point” and
concluded it lacked jurisdiction to consider the merits of the State’s appeal. Lee, 2020 IL App
(5th) 180570, ¶ 23.
¶ 19 Recently, the supreme court addressed the applicability of the decisions in K.E.F.
and Lee in the State’s appeal from the denial of its motion to compel production of a cell phone’s
passcode where the defendant argued the circuit court’s order did not prevent the State from
pursuing the evidence by some other means. Sneed, 2023 IL 127968, ¶¶ 1, 43. In addressing the
-8- two decisions, the supreme court noted those cases were distinguishable on the facts and “both
cases involved motions to admit evidence that was readily presentable to the factfinder, already
in the State’s possession, and entirely within the State’s control.” (Internal quotation marks
omitted.) Sneed, 2023 IL 127968, ¶ 46.
¶ 20 In this case, the circuit court denied the State’s section 115-10 motion, and the
State intended for the victim to testify at trial. As such, the K.E.F. and Lee decisions suggest this
court lacks jurisdiction of the circuit court’s orders on the State’s section 115-10 motion. Even if
Lee was wrongly decided, the evidence at issue was in the State’s possession and entirely within
the State’s control. See Sneed, 2023 IL 127968, ¶ 46. At the hearing on the section 115-10
motion, the circuit court noted not all of the recording was admissible and questioned why the
State had not presented a redacted version. The State indicated it agreed some of the statements
were inadmissible. However, when it later filed its motion to reconsider the denial of its section
115-10 evidence, the State only set forth a nonexclusive list of 13 statements by A.H. The court
granted the motion to reconsider as to the 13 specific statements mentioned in the motion. As
such, any other evidence on the recording that the State wanted to present was inadmissible as a
result of the State’s own actions by not providing a redacted version of the recording or a more
extensive list of desired material to the court.
¶ 21 Accordingly, for the reasons stated, this court lacks jurisdiction to review those
orders.
¶ 22 Additionally, we note defendant does not challenge this court’s jurisdiction of the
circuit court’s rulings related to the State’s section 115-7.3 motion and find we do have
jurisdiction of those rulings under Rule 604(a)(1).
¶ 23 B. Propensity Evidence
-9- ¶ 24 The State contends the circuit court erred by denying its first motion in limine
which sought to introduce propensity evidence under section 115-7.3. The court denied the
motion because the State did not comply with the court’s scheduling order. Defendant contends
the court did not err.
¶ 25 Illinois law provides a limited exception to the general rule of inadmissibility for
other-crimes evidence intended to show the defendant’s propensity to commit crimes. People v.
Ward, 2011 IL 108690, ¶ 25, 952 N.E.2d 601. Since defendant was going to trial for predatory
criminal sexual assault of a child which is one of the offenses listed in section 115-7.3(a)(1) of
the Procedure Code (725 ILCS 5/115-7.3(a)(1) (West 2022)), section 115-7.3(b) of the
Procedure Code (725 ILCS 5/115-7.3(b) (West 2022)) allowed the State to introduce evidence
defendant also committed another of the enumerated sex offenses. See Ward, 2011 IL 108690,
¶ 25. “The statute expressly permits this other-crimes evidence to be admitted for any relevant
purpose.” Ward, 2011 IL 108690, ¶ 25 (citing 725 ILCS 5/115-7.3(b) (West 2006)). Our
supreme court noted the United States Supreme Court’s finding propensity evidence is often
highly relevant and, thus, concluded other-crimes evidence is admissible under section 115-7.3
to show a defendant’s propensity to commit sex crimes. Ward, 2011 IL 108690, ¶ 25 (citing
Michelson v. United States, 335 U.S. 469 (1948)). However, before the State may introduce the
other-crimes evidence, the statute requires the court to conduct a balancing test, weighing the
probative value of the evidence against the undue prejudice it may produce against the
defendant. Ward, 2011 IL 108690, ¶ 25 (citing 725 ILCS 5/115-7.3(c) (West 2006)). Moreover,
the State “must disclose the evidence, including statements of witnesses or a summary of the
substance of any testimony, at a reasonable time in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown.” 725 ILCS 5/115-7.3(d) (West 2022). This court
- 10 - reviews the propriety of a ruling on the admission of other-crimes evidence for an abuse of
discretion. Ward, 2011 IL 108690, ¶ 21. An abuse of discretion occurs when the court’s ruling
is arbitrary, fanciful, unreasonable, or when no reasonable person would adopt the court’s view.
Ward, 2011 IL 108690, ¶ 21.
¶ 26 In this case, the circuit court did not conduct the balancing test. It simply found
the motion violated the court’s scheduling order and denied the motion as untimely. The court
had ordered all motions in limine to be filed by January 23, 2023, with a February 2, 2023,
hearing date. No motions were filed by the due date for filing motions. Before the February 2
hearing, defendant did file three of his motions in limine, and the State filed a motion to
continue, which the court granted and set a hearing date of February 23, 2023. Thereafter,
defendant filed another motion in limine. The State filed its section 115-10 and section 115-7.3
motions sometime on the day of the hearing. Despite all of defendants motions in limine and the
State’s section 115-10 and 115-7.3 motions being filed after the January 23 deadline, the court
only found the State’s section 115-7.3 motion was untimely. The court noted it had adequate
notice of the section 115-10 motion, which presumably was the State saying it was going to file a
section 115-10 motion and providing the court with the recording. However, the State had noted
at the time the charges were severed it was going to seek to present other-crimes evidence related
to the other victims to show propensity. Moreover, defendant clearly had notice the State was
seeking to admit the other alleged victims’ testimony as propensity evidence given defendant’s
second motion in limine seeking to bar such evidence. Here, the court had notice of a
forthcoming section 115-7.3 motion, just like the section 115-10 motion.
¶ 27 While a circuit court has the authority to control its own docket (People v. Garcia,
312 Ill. App. 3d 422, 423, 727 N.E.2d 683, 685 (2000)), the court indicated it would hear the
- 11 - section 115-7.3 motion but then did not address its merits like the other motions. The evidence
at issue had been known to the parties for more than eight months because discovery was
completed jointly as to all three victims. It was not a surprise and should not have been
cumbersome to review. As required by section 115-7.3(d) of the Procedure Code (725 ILCS
5/115-7.3(d) (West 2022)), the State had submitted brief summaries of the other victim’s
allegations against defendant and their relevance in its section 115-7.3 motion the morning of the
hearing. At the motions hearing, the court used language suggesting the existence of a policy of
being lax with motion deadlines but then imposed the deadline solely on the section 115-7.3
motion. On the facts before us, the court’s treatment of the State’s motion appears arbitrary
given the court heard the section 115-10 motion despite its also late filing and defendant’s late
motions. Accordingly, we find the circuit court abused its discretion by denying the section
115-7.3 motion on the basis of untimeliness. While we find the court’s ruling arbitrary, we do
not condone the State’s actions in this case and note both parties are obliged to comply with
court-set deadlines.
¶ 28 III. CONCLUSION
¶ 29 For the reasons stated, we reverse the Winnebago County circuit court’s denial of
the State’s motion to present propensity evidence under section 115-7.3 of the Procedure Code
(725 ILCS 5/115-7.3 (West 2022)) based upon untimeliness and remand the cause for the court
to conduct a hearing to determine whether the State’s proposed propensity evidence is admissible
under the guidelines of section 115-7.3.
¶ 30 Reversed and remanded with directions.
- 12 -