2021 IL App (2d) 180542-U 

No. 2-18-0542 

Order filed March 15, 2021 

NOTICE: This order was filed under Supreme Court Rule 23(b) and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court 

OF ILLINOIS, ) of Kendall County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 14-CF-369 

) 

JESUS AVILAS, ) Honorable 

) Timothy J. McCann, 

Defendant-Appellant. ) Judge, Presiding. 

______________________________________________________________________________ 

JUSTICE HUTCHINSON delivered the judgment of the court. 

Presiding Justice Bridges and Justice Zenoff concurred in the judgment. 

ORDER

¶ 1 Held: Defendant was proven guilty beyond a reasonable doubt of two counts of criminal 

sexual assault and he was not denied his right to effective assistance of counsel in 

the presentation of his defense; affirmed. 

¶ 2 Following a bench trial, defendant, Jesus Avilas, was found guilty of two counts criminal 

sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2014)) and sentenced to two consecutive 5-year 

terms. On appeal, he contends that the evidence was insufficient to sustain his conviction and that 

his attorney was ineffective. We affirm.

¶ 3 I. BACKGROUND
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¶ 4 Defendant was arrested following an incident on March 28, 2014, which occurred at the 

U.S. 30 Motel in Aurora. There, according to the victim, M.M., defendant forcibly placed his penis 

into both her mouth and her anus. Defendant asserted these acts were consensual.

¶ 5 Prior to trial, defendant filed a motion in limine seeking to introduce evidence of M.M.’s 

prior sexual activity as an exception to the rape-shield statute. 725 ILCS 5/115-7 (West 2014). 

Specifically, defendant sought to introduce evidence that M.M. made a statement to hospital 

personnel denying that she had vaginal intercourse with her boyfriend in the 72 hours preceding 

her sexual-assault examination. The trial court denied the motion but held that it would revisit the 

issue at trial if M.M. denied having a boyfriend while testifying at trial. In addition, defendant filed 

a separate motion to introduce evidence that he and M.M. had consensual vaginal intercourse 

approximately one week before the assault. The trial court granted that motion. 

¶ 6 At trial, M.M., who spoke only Spanish, testified through an interpreter. M.M. was either 

19 or 20 years old at the time of this incident and was not lawfully present in the United States. 

Back in 2014, M.M. was working at a temp agency, where she met defendant whom she knew as 

“Carlos.” M.M. knew defendant for about a week through work. On March 27, 2014, M.M. 

mentioned that she needed to borrow $400 to bring her daughter to the United States from Mexico.

Defendant told M.M. that he would lend her the money and he arranged to meet her at a Dunkin’ 

Donuts near her house the following day. On March 28, 2014, defendant met M.M. in the morning 

and told her to get in his car; “[h]e said that [they] were going to go to the bank to take the money, 

so that he could give it to [her]” and then he would drive her home. Defendant did not take M.M. 

to a bank. Instead, defendant drove M.M. to a location that she later identified as the U.S. 30 Motel 

in Aurora. 
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¶ 7 Defendant exited the car and locked the doors. M.M. stated, “I didn’t know what that place 

was. So, he walked out somewhere and I don’t know what it was. I don’t know where he went.” 

Defendant returned to the car and told M.M. to exit the vehicle. Then he grabbed her by the arm 

and walked her to one of the rooms. M.M. did not see anyone else in the area to call to for help. 

M.M. explained that she went along with defendant “[b]ecause he said that he was going to take 

me to go get the money, and I didn’t know where that place was to go get the money, so I didn’t 

know.” 

¶ 8 Once inside the hotel room, defendant became violent. She felt trapped in the room with 

him. Defendant then grabbed M.M. by the arms, pulled her hair, kissed her, and yelled at her to 

take off her clothes. Defendant took off his clothes and forced M.M. onto the bed. Defendant then 

put his penis in her mouth, in her vagina, and in her anus. M.M. explained: “When he was -- when 

he put his penis in my anus, he put his hand over my mouth because I wanted to scream, and he 

didn’t let me. He covered my mouth, and he was pulling my hair at the same time.” M.M. further 

stated that she repeatedly wanted to yell for help, but defendant covered her mouth, told her not to 

scream, and pulled her hair. At some point, defendant ejaculated on M.M.’s lower back. M.M. 

stated that she did not consent to any sexual act with defendant. 

¶ 9 Afterwards, defendant told M.M. the following: “He said he had contacts here, and that if 

I would say anything of what had happened, that something bad would happen to me. *** He 

threatened my daughter [in Mexico] and my family as well. *** He said that he was going to hurt 

us and kill us.” M.M. estimated they were in the hotel room for around two hours. Defendant told 

M.M. to get dressed and they got back in the car. During the car ride, defendant told M.M. that 

they should keep this between the two of them. Defendant told M.M. that he was going to pay 

M.M. “to be his bitch.” Defendant stopped off at a bank and went inside, but did not bring M.M. 
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any money. M.M. said nothing. She stayed totally quiet. She testified that she was not upset that 

defendant did not give her the money. Instead, she said she acted like she didn’t exist and just 

wanted to go home and get away from defendant. Defendant took her to the Dunkin’ Donuts and 

dropped her there. 

¶ 10 When M.M. returned home, she did not want to contact the police and she was in 

considerable pain. M.M. called a friend and M.M. said she “wanted to take [her] life by cutting 

[her] veins.” M.M.’s friend called the police, and M.M. was taken to the hospital where she was 

examined and treated. Finally, M.M. testified that she did not remember having any interaction or 

text messages with defendant after the incident at the motel. 

¶ 11 On cross examination, M.M. explained how she came to ask defendant for financial help 

while the two were at work:

 “When I told him about my daughter * * * he offered to help with no conditions at 

all. And he offered to help me, and that’s why I asked him for the money, because he said 

he also had a daughter, and that he would not want anything to happen like that, like [what] 

was happening to mine.” 

M.M. further explained that she did not know that defendant had taken her to a motel instead of a 

bank because she had just come to the United States, and initially she did not know what a motel 

looked like: 

 “Now, I do. Now, I do, because I come from a place where everything was pretty 

much the same. There was no differences in places. I just came here, and after this 

happened, I was able to see that. But because of my knowledge, I don’t know what some 

places look like. I felt like a little dumb, but I just don’t know what some locations may 

look like compared to the place where I come from.” 
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¶ 12 In addition, on cross-examination, M.M. confirmed that she told one of the officers that 

defendant removed her clothes as opposed to saying that she removed her own clothes. She also 

said that it had been nearly four years since the interview and the trial so she was not certain what 

was said. M.M. also explained why she did not call for help in the hotel room: 

“Q. At no time in between these different sexual acts did you try to scream or get 

anyone’s attention, correct? 

A. He had my mouth covered. 

Q. The whole two hours? 

A. Not the whole two hours, but he was pulling by my hair, and he was -- I was 

afraid he was going to hit me besides everything that he was already doing to me.” 

Finally, when defendant was unable to take out any money from the bank, he told M.M. he 

would give her the money, not loan it to her, because he wanted “[her] to be his bitch.” 

¶ 13 A nurse, Amy Wright, testified that she administered a sexual assault kit and collected 

evidence from M.M.’s body on March 28, 2014, at Presence Mercy Medical Center in Aurora. 

¶ 14 Dr. Laurel Kietzman was the emergency room physician that night and had received basic 

training, during her residency, on sexual assault examinations. Kietzman noted that M.M. had 

abrasions on her left wrist and three tears from the entrance of the vagina towards the cervix. In 

addition, Kietzman found an abrasion near the center of M.M.’s cervix. Kietzman opined that the 

tears she observed were “fresh”—as in, within a matter of hours—because the vagina heals 

quickly. Kietzman observed no other injuries to M.M. On cross-examination, Kietzman confirmed 

that it is possible to have normal, consensual intercourse that results in some physical trauma, as 

well as non-consensual intercourse that leaves no sign. 
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¶ 15 The parties stipulated that a DNA swab taken from M.M.’s lower back was positive for 

defendant’s semen. In addition, DNA from a vaginal swab was positive for semen from an 

unidentified male profile. 

¶ 16 Theo Manikas, the owner of the U.S. 30 Motel, testified that the motel was a ten-room, Lshaped structure. Manikas confirmed that a motel registration card had been issued to “Carlos 

Mendoza” for Room 8 on March 28, 2014 at 10:38 a.m. Manikas also identified a person in a 

screenshot from a surveillance camera, taken from another date, as the person he knew as Carlos. 

¶ 17 Detective Mitchell Hattan testified that he investigated the case for the Kendall County 

Sheriff’s Office. Hattan spoke to M.M. through an interpreter and drove M.M. around until she 

was able to identify the location of the assault: the U.S. 30 Motel, Room 8. Hattan spoke to the 

manager and obtained the receipt for the room from March 28, 2014. Using car registration records, 

Hattan determined what type of vehicle defendant had registered; Hattan showed M.M. a picture 

of a similar car, and M.M. identified it as being similar to defendant’s car. Hattan also took a 

screenshot of defendant from the motel’s security camera feed. Hattan showed the picture to M.M., 

who identified defendant as her attacker. 

¶ 18 On August 11, 2014, Hattan was contacted by the manager of the U.S. 30 Motel who said 

that “Carlos” was at the motel and had rented a room. Hattan and another deputy went to the hotel 

and spoke to defendant (in English). Defendant identified himself by name and explained that 

“Carlos Mendoza” was an alias he had used. Hattan and the other deputy spoke to defendant for 

approximately 40 minutes at the motel. The interview was recorded with defendant’s permission, 

and the audio recording was played in court. During the interview, defendant repeatedly denied 

that he knew M.M. and denied assaulting her. Defendant stated that he was married but frequented 

the motel for his extramarital rendezvouses. Defendant often used the alias “Carlos” so that his 
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wife would not find out about his affairs. Before the interview concluded, defendant agreed to 

submit a buccal swab.

¶ 19 On cross-examination, Hattan confirmed that he did not speak Spanish, and only spoke to 

M.M. through interpreters. Hattan also testified that when he interviewed defendant at the U.S. 30 

Motel, defendant answered the door wearing only a towel and an unidentified woman was initially 

present in the room. Defendant got dressed and the woman left while defendant spoke to the police.

On redirect, Hattan testified that M.M. was initially unsure of where the motel was. They did not 

take a “direct route” from M.M.’s apartment. However, once M.M. identified some landmarks, she 

was able to direct them to the motel with “little difficulty.” The State rested and defendant’s motion 

for a directed verdict was denied. 

¶ 20 Defendant called Deputy Jennifer Larsen, who testified that she met with M.M. at the 

hospital on March 28, 2014. Larsen said that she was not a fluent Spanish speaker. According to 

Larsen, M.M. stated that defendant had removed her clothes, not that he had ordered her to remove 

them herself. M.M. told Larsen that defendant had “threatened to kill her and her family if she had 

told anybody about it.” M.M. said that, after the assault, she washed herself from the waist down 

and “ended up slitting her wrists because she did not want to live anymore.” M.M. did not want 

any photographs taken of her at the hospital.

¶ 21 Deputy Nancy Velez testified that she was fluent in Spanish and translated for Hattan when 

he interviewed M.M. on May 5, 2014. M.M. did not want the interview recorded. According to 

Velez, M.M. told Hattan that she had not previously arranged to meet defendant the morning of 

March 28, 2014. M.M. stated that she had known defendant for a month before the morning when 

he pulled into the parking lot and offered her a ride; then, he took her to the motel. According to 

Velez, M.M. was never asked if she had any communication with defendant before March 28th. 
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On cross-examination, Velez agreed that not every word or phrase translates precisely from 

Spanish to English or vice versa. Velez also further stated that she did not recall the precise words 

M.M. used in Spanish from the interview three years earlier. 

¶ 22 By stipulation, the parties introduced evidence showing that M.M. sent three text messages 

to defendant’s phone at 12:29 a.m. on March 29, 2014. (The substance of those text messages was 

never introduced.) The parties further stipulated that two Aurora police officers would testify that 

they responded to a wellbeing check at M.M.’s apartment at around 2 p.m. on March 28, 2014. 

The officers would testify that M.M. told them that she contacted “Carlos” the day before and 

asked him to lend her $500; “Carlos” picked her up at 9:00 a.m. the following morning to take her 

to a bank; instead, he took her to a motel, took off her clothes, and raped her. M.M. further stated 

that she believed “Carlos” used a condom during intercourse. Afterwards, “Carlos” dropped M.M. 

off at the Dunkin’ Donuts, which was near both her apartment and the Aurora Police Department. 

M.M. did not go home. Instead, she went into the police station to report the rape but saw a man 

in the lobby that she thought was “Carlos” and left.

¶ 23 Defendant testified that he was married with one daughter. Defendant testified that he met 

M.M. when she was walking across a street in Aurora a week or two prior to the incident at the 

hotel. Defendant offered M.M. a ride to the employment office; she went inside and came out 

about 10 to 15 minutes later. Then defendant drove her to a park near the Aurora police station. In 

the car, they talked and had sex. Then, they exchanged phone numbers, and M.M. exited the car 

and walked home. 

¶ 24 The day before they went to the motel, M.M. texted defendant and asked him for $1000. 

He said he could not do that, but he could give her $500. According to defendant, they made plans 

the following day to “[m]eet at the motel, and from the motel, go to the bank.” 
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¶ 25 Defendant testified he picked M.M. up the following morning in a different vehicle and 

that the driver’s side door did not work; so, the passenger side door was the only method of entry 

and exit. Defendant then stated that they first went to the Motel 6; M.M. waited in the car, but the 

hotelier would not rent them a room without identification from M.M. When M.M. told defendant 

she did not have any ID, defendant drove to the U.S. Route 30 Motel. There, defendant rented a 

room under his alias “Carlos Mendoza” so that his wife would not find out. He had previously 

used the same alias and rented a room at the same motel with another woman.

¶ 26 Defendant testified that they walked to the motel room that he rented and he did not place 

his hands on M.M. at all as they walked. Once inside the room, they sat on the bed, talked, and 

then had consensual oral, vaginal, and anal sex. Afterwards, defendant returned the hotel key to 

the front desk, and he and M.M. drove off. Defendant drove them to a bank but was unable to take 

out any money. Then he drove M.M. home. Defendant said M.M. was angry that he had not been 

able to take out any money from the bank. Several days later, defendant stated, M.M. threatened 

that she would call the police and make a report if he did not give her the money. 

¶ 27 As noted, defendant was eventually interviewed at the motel and then later arrested. 

Defendant testified that he repeatedly told the police he did not know M.M. or have sex with her 

because he was afraid that the admission would destroy his marriage. 

¶ 28 After closing arguments the trial court entered a written six-page ruling finding defendant 

guilty of both counts of aggravated criminal sexual assault. The trial court’s findings rejected each 

of the arguments and claimed inconsistencies in the evidence that had been advanced by defendant. 

The trial court noted that there were some language barriers in M.M.’s testimony, but more or less 

accepted her account as completely credible while it rejected defendant’s testimony as simply not 
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believable. The court denied defendant’s post-trial motion and sentenced defendant to consecutive 

five-year terms for each of the two counts. This appeal follows. 

¶ 29 II. ANALYSIS

¶ 30 On appeal, defendant contends that there was insufficient evidence to sustain his 

convictions and that his attorney was ineffective for failing to introduce evidence of M.M.’s recent 

sexual activity with another man. We find neither contention availing. 

¶ 31 We first address the sufficiency of the evidence. The State carries the burden of proving 

beyond a reasonable doubt each element of an offense and, where a criminal conviction is 

challenged based on insufficient evidence, a reviewing court, considering all of the evidence in the 

light most favorable to the prosecution, must determine whether any rational trier of fact could 

have found beyond a reasonable doubt the essential elements of the crime. Jackson v. Virginia, 443 

U.S. 307, 315-19 (1979). Under this standard of review, it is the responsibility of the trier of fact 

to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts. People v. Siguenza-Brito, 235 Ill. 2d 213, 224 (2009). 

 “When considering a challenge to the sufficiency of the evidence, it is not the 

function of a reviewing court to retry the defendant. [Citations.] Rather, in a bench trial, it 

is for the trial judge, sitting as the trier of fact, to determine the credibility of witnesses, to 

weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in 

the evidence. [Citations.] A reviewing court will not reverse a conviction simply because 

the evidence is contradictory [citation] or because the defendant claims that a witness was 

not credible [citation].” Id. at 228. 

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory 

as to create a reasonable doubt of the defendant’s guilt. Id. at 225. 
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¶ 32 Despite the trial court’s findings, defendant’s primary argument is that M.M.’s testimony 

was “unconvincing.” Ultimately, nothing defendant points to renders M.M.’s testimony wholly 

unworthy of belief. For example, defendant points out that he and M.M. exchanged dozens of text 

messages prior to the assault. None of those messages were introduced at trial, but according to 

defendant, from the fact that they were texting, standing alone, “the inference is that they were 

forming an intimate connection and making plans to meet.” That, simply put, is a whole lot of 

speculation. At any rate, even if M.M. and defendant exchanged text messages about meeting at 

Dunkin Donuts, that fact would not compel the inference that M.M. consented to sexual intercourse 

generally, or consented to oral and anal sex specifically. 

¶ 33 Defendant next challenges M.M.’s testimony that she believed defendant had taken her to 

a bank and that she did not initially know that he had taken her to a motel. Defendant notes M.M.’s 

testimony that she did not scream when defendant took her out of the car and led her to the room 

because he told her not to. According to defendant, “[i]f she truly had believed the ‘U.S. 30 Motel’ 

was a bank, there would have been no reason to scream.” Defendant asks us to take judicial notice 

of a GoogleMaps picture of the building attached to his appellate brief to support his assertion that 

“[M.M.] entered the motel room to have sex with [him].” Here, too, we find nothing inherently 

improbable in M.M.’s testimony. M.M. may have believed the building was a bank, or that the 

building was next to the bank, or that defendant would retrieve the money from an ATM machine 

at the motel. Even setting aside the fact that defendant may have led M.M. by the arm from the car 

to the motel room, M.M. may well have not known there was anything wrong until she was inside 

the motel room itself. Indeed, defendant may not have known what he would do or how far he was 

willing to go prior to the moment of assault. In any event, no principle of law requires a victim to 

be supremely aware of her surroundings or cognizant of her attacker’s intentions prior to being 
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assaulted.

¶ 34 Finally, defendant argues that there was insufficient evidence that he used force or 

threatened M.M. during the assault. Defendant notes that M.M. stated that once she was inside the 

room, she felt trapped and wanted to yell for help but never did even though she stated that 

defendant grabbed her hair. According to defendant, “[t]here [was] no evidence that [M.M.’s] scalp 

was red from her hair being pulled, or that her mouth was raw from being forced to perform oral 

sex.” 

¶ 35 “The force element of rape does not depend for its proof on actual physical damage to 

bodily tissue, however, [citation] and a rape victim is not required to subject herself to serious 

physical harm by resisting in order to establish that intercourse was nonconsensual.” People v. 

Nelson, 148 Ill. App. 3d 811, 820-21 (1986). Moreover, “proof of physical force is unnecessary if 

the complainant was paralyzed by fear or overcome by the superior strength of her attacker.” Id. 

at 820 (1986) (citing People v. Faulisi, 25 Ill. 2d 457 (1962)). In addition, a reviewing court may 

consider intangible factors which may have contributed to the force or threat of force perceived by 

the victim, such as the seclusion of the area in which the assault occurred, the victim’s lack of 

familiarity with the area, the presence or absence of others, physical disparities between the victim 

and the defendant, the age difference between the two, and whether the defendant was able to 

assert himself over the victim due to her legal status. See Nelson, 148 Ill. App. 3d at 822 (upholding 

finding of force where, inter alia, defendant knew that the victim was a runaway and that the police 

were looking for her).

¶ 36 Based on the evidence at trial, these factors do not favor defendant. Taking the evidence in 

the light most favorable to the State, as we must, defendant lured the victim, an undocumented 

immigrant, to a secluded, unfamiliar area in his car (a motel, in the United States), used aggression 
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to remove her from his car, lead her to a more secluded area (the motel room), and forcibly 

committed acts of sexual penetration upon her while she was terrified. On balance, we determine 

that the circumstances of these offenses support the trial court’s finding that defendant committed 

the charged sex acts using the force or threat of force. 

¶ 37 To the extent defendant claims M.M. was not terrified, or was not as terrified as she stated, 

we find his argument belies belief. Again, as our supreme court has noted, “We cannot accept this 

challenge to the sufficiency of the evidence. It remains the firm holding of this court that the 

testimony of a single witness, if positive and credible, is sufficient to convict, even though it is 

contradicted by the defendant.” Siguenza-Brito, 235 Ill. 2d at 228. M.M.’s testimony as observed 

by the trial court was positive and credible; meanwhile, defendant has failed to point to any serious 

inconsistencies that would render M.M.’s testimony fanciful or unworthy of belief. Accordingly, 

like the trial court, we determine there was sufficient evidence to find defendant guilty of both

offenses.

¶ 38 Defendant’s second contention is that his counsel was ineffective for failing to introduce 

evidence of M.M.’s recent sexual activity during defendant’s case in chief—specifically, evidence 

regarding the male source of the unidentified semen found in M.M.’s vagina. According to 

defendant, had counsel done so, the evidence would have provided an alternative explanation for 

M.M.’s vaginal injuries, which might have lead to the inference that M.M.’s sex with defendant 

was consensual. As we explain, by defendant’s own concession, the evidence was inadmissible, 

making this issue something of a tempest in a teapot.

¶ 39 Claims of ineffective assistance are subject to the two-part test outlined in Strickland v. 

Washington, 466 U.S. 668 (1984). This means that a defendant must show that (1) “his attorney’s 

assistance was objectively unreasonable under prevailing professional norms” and (2) “there is a 
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reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Id. at 694. The defendant bears the burden of persuasion under both 

prongs of Strickland, and we may reject an ineffective assistance claim in its entirety based on 

such a failure.

¶ 40 The rape shield statute provides that in a prosecution for criminal sexual assault:

 “the prior sexual activity or the reputation of the alleged victim or corroborating 

witness * * * is inadmissible except (1) as evidence concerning the past sexual conduct of 

the alleged victim or corroborating witness under Section 115-7.3 of this Code with the 

accused when this evidence is offered by the accused upon the issue of whether the alleged 

victim or corroborating witness under Section 115-7.3 of this Code consented to the sexual 

conduct with respect to which the offense is alleged; or (2) when constitutionally required 

to be admitted.” 725 ILCS 5/115-7(a) (West 2014). 

Under the exception for evidence that may be “constitutionally required,” prior sexual activity of 

the alleged victim is admissible if it enables a criminal defendant a meaningful opportunity to 

present a complete defense to the charged offenses. People v. Santos, 211 Ill. 2d 395, 412 (2004); 

see also People v. Johnson, 2014 IL App (2d) 121004, ¶ 42. 

¶ 41 Because of the importance of the rights at stake, a criminal defendant invoking this 

exception to rape shield faces a steep hill and the defendant has the burden of providing an 

adequate offer of proof to the trial court. People v. Patterson, 2014 IL 115102, ¶¶ 118, 123; People 

v. Grant, 232 Ill. App. 3d 93, 103 (1992). Our supreme court has explained that “[t]o preserve a 

claim on appeal, a party is required to make ‘considerably detailed and specific’ offers of proof 

after a denial of a request to admit evidence if the substance of the witness’s answer is 

unclear.” Patterson, 2014 IL 115102, ¶ 118 (quoting People v. Peeples, 155 Ill. 2d 422, 457 
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(1993)). A specific offer of proof is required where a defendant alleges that the victim engaged in 

similar sexual contact with a third party. Grant, 232 Ill. App. 3d at 103-05 (defendant sought to 

introduce evidence that victim had prior sexual relations with a boyfriend but did not put forth an 

adequate offer of proof with specific information regarding the date, time, or location of alleged 

sexual contact). The rape-shield statute requires such details when the prior conduct occurred 

between the victim and the defendant, and no less is required when the defendant seeks to admit 

evidence of the victim’s sexual contact with others. See Grant, 232 Ill. App. 3d at 104-05. 

¶ 42 As an initial matter, based on the holding in Grant, we find that defendant’s offer of proof 

was far too vague to merit serious consideration as admissible evidence, let alone that it would 

have formed a cornerstone of defendant’s trial defense. In addition, as the State points out, 

defendant’s brief concedes that his offer of proof was so insufficient that his purported evidence 

could not even meet the most basic standard for introduction: relevance. See Ill. R. Evid 403 (eff. 

Jan. 1, 2011). As defendant notes: 

 “Arguably, the court and [the] State were correct that M.M.’s sexual activity with 

another man, who may or may not have been her boyfriend, was not relevant to the question 

of whether her sexual activity with Avilas was consensual. Also, the fact that M.M. may 

have lied to the police and medical examiners about not having sex with anyone other than 

Avilas during the preceding 72 hours was not necessarily admissible to impeach her 

credibility. See People v. Santos, 211 Ill. 2d 395, 405-06 (2004) (alleged victim’s past 

sexual conduct was a collateral matter so her prior inconsistent statements about that matter 

was not admissible for impeachment purposes).” (Emphasis added.) Def. Op. Br. p. 41. 

As defendant concedes, his evidence cannot clear the hurdle of relevance, it is axiomatic that it 

also cannot clear the high bar that it was constitutionally required to be admitted. 
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¶ 43 Finally, before concluding we note that the charges in this case pertained to the anal and 

oral, and not vaginal penetration. Although as we noted above, M.M.’s testimony clearly 

established the essential elements of the charged offenses, she also gave a thorough account of 

defendant’s forcible vaginal penetration as well. Surely, it cannot be defendant’s contention that 

in order to bolster the negligible relevance of M.M.’s prior sexual conduct with another man, 

defendant would have welcomed prosecution on a third sexual assault charge stemming from the 

same incident. For these reasons, we determine that defendant suffered no prejudice and that 

counsel was not ineffective for failing to introduce defendant’s proffered evidence. 

¶ 44 III. CONCLUSION

¶ 45 In sum, we affirm defendant’s convictions and sentences, as well as the judgment of the 

Circuit Court of Kendall County. 

¶ 46 Affirmed.