dissenting:
I disagree with the result reached by my colleagues. I believe the defendant is entitled to a new trial. In particular, I believe the trial court committed reversible error when it granted the motion in limine, thereby excluding testimony regarding the conversation which took place four months before the occurrence involved in this case.
The majority of the court has properly declared the applicable rules and standard of review. My disagreement is with the application of such rules to the facts of this case.
People v. Rogers (1985), 135 Ill. App. 3d 608, 482 N.E.2d 639, cited by the majority, is helpful in describing the general rules, as is People v. Illgen (1991), 145 Ill. 2d 353, 583 N.E.2d 515, the other case cited in the opinion on this issue. However, neither case is of any special significance in support of the result reached. In Rogers, the court affirmed the trial court’s ruling sustaining an objection to cross-examination. The line of questioning was pursued in support of the defendant’s theory the female complainant was concerned with the effect a relationship with the defendant would have on her reputation. The questions were premature but involved issues affecting the complainant’s credibility which might be raised on retrial. (The case was reversed and remanded for a new trial on other grounds.)
In Illgen (a murder case), the court approved evidence of threats and misconduct by the defendant towards his wife occurring over a period of several years. According to the court, such evidence was properly introduced to refute any claim the death was accidental. Even though such evidence related to events occurring a long time before the shooting, such remoteness did not render the evidence inadmissible.
Admissibility of evidence depends largely on the relevancy and materiality of such evidence. (People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14.) Evidence is considered “relevant” if it has any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence. People v. Illgen (1991), 145 Ill. 2d 353, 583 N.E.2d 515.
The scope of cross-examination of a witness rests largely within the sound discretion of the trial court, and its ruling will not be disturbed on review unless there has been a clear abuse of discretion. (People v. Rogers (1985), 135 Ill. App. 3d 608, 482 N.E.2d 639.) An abuse of discretion will be found only where the trial court’s decision is arbitrary, fanciful or unreasonable or where no reasonable man would take the view adopted by the trial court. (People v. Illgen (1991), 145 Ill. 2d 353, 583 N.E.2d 515.) Where the standard of review in ruling on the admissibility of evidence is an abuse of discretion, such rulings should be affirmed, unless “the defendant manifestly suffered prejudice as a result of the limitation.” People v. Crosser (1983), 117 Ill. App. 3d 24, 30, 452 N.E.2d 857, 863.
In the instant case, the trial court excluded the evidence of the victim’s conversation because it was of little probative value and too remote. I do not believe the evidence should be so considered. Under a definition of relevancy, such evidence did have a tendency to show the sexual intercourse was consensual as claimed by the defendant.
In this case, sexual intercourse was admitted by the defendant at the time of his arrest and the only issue is that of consent, which was hotly disputed. Other than the victim’s account of the incident, there is no objective evidence to support the claim of nonconsensual intercourse. There was no physical evidence of force or violence. Where consent is the only issue in a case, evidence bearing on the issue ought not to be excluded unless it has no probative value. The degree of probative value should be left to the jury. A defendant ought not be deprived of an opportunity to present any evidence affecting his defense. If a defendant had “boasted” some four months before a sexual assault that he intended to rape a particular woman and thereafter did so, evidence of such boast would be relevant. It would tend to show the subsequent sexual incident was nonconsensual.
Evidence of the relations existing between the defendant and the victim prior to the crime is relevant. (People v. Halcomb (1988), 176 Ill. App. 3d 100, 530 N.E.2d 1074.) Conduct and declarations of the victim are admissible to determine the nature of the incident in which the victim was harmed. (People v. Halcomb (1988), 176 Ill. App. 3d 100, 530 N.E.2d 1074.) Other jurisdictions have recognized the distinction between evidence offered to prove sexual conduct and evidence offered to show the occurrence of an otherwise relevant conversation which revealed sexual conduct. See Doe v. United States (4th Cir. 1981), 666 F.2d 43; State v. Gibson (Mo. 1982), 636 S.W.2d 956; Wood v. State (Alaska Ct. App. 1987), 736 P.2d 363; State v. Ward (1983), 61 N.C. App. 605, 300 S.E.2d 855.
I believe the exclusion of the statements of the claimant was error. The evidence of guilt was not overwhelming and hence such error was reversible error requiring the defendant be granted a new trial.