## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Patterson , 2012 IL App (1st) 101573

Appellate Court Caption THE PEOPL E OF THE STATE OF I LL I NOI S, Plaintiff-Appe l lee, v. RONALD PATTERSON, Def endant- Appellant.

District & N o. First District, Third Division Docke t No. 1-10-1573

Filed Rehea ringdenied Modified upon denial of re hearing J une 29, 2012 September 20, 2012

September 26, 2012

Held (Note : This sy ll abus

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) T h e constitutionality of section 5-130 of the J uvenile C ourt Act, w h i ch provides for the automatic transfe r of minor defe ndants at least 15 year s old charg ed with certain off enses, includingag grava

ted criminal sex ual assault, t o criminal cour

t was upheld, but the cause was rema nded for a

new trial due to the err oneous admission of defe ndant’s inculpatory
statement.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 09-CR-14 5 5 ; t he Hon. Ellen B eth Mande ltort, J udg e, pre siding.

J udgment Reverse d and re manded.Counsel on

Appea l Michae l J

. Pell et i er , Al an D. Goldberg
, and Christopher Kopac z, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s At torney , of Chicag o (Alan J

. Spellberg
, Do ug las P. Har

vath, and J essica R. Ba rgmann, Assistant State’s Attorney s, of counse l), for the People.

Panel J USTI CE NEVI L L E delivere d the judgment of the c ourt, with opinion.
J ustices Steele a

nd Murphy

concur red in the judgment and opinion.

OP INION

¶ 1 The t ri al co u rt entered judgme nt on a jury verdic t finding Ronald Patterson, a minor, guilty on three counts of ag gravated criminal sexual assault. On appea l, Patterson argues that the J uvenile Court Act of 1987 (705 I L CS 405/1-1 et seq. (West 2008)), in its provision for automatic transfe r of cer

tain case s to criminal court for the prosec ution of minor defe ndants

as adults, violates the state and fede ral constitutions. Patterson also challeng es the trial court’s decision to admit into evidenc e a statement Patterson signe d at the police station and the decision to bar evidence that the allege d victim had sexual intercour se with a differe nt man bef ore the doctor e x amined her

. ¶ 2 We follow other case s upholding the constitutionality of the automatic transfe r provision in the J uvenile Court Act (705 I L CS 405/5-130 (West 2008)). But we find that the trial court

err ed when it allowed into evidenc e a statement Patterson signe d at the police st ati on, beca use police did not attempt to contac t Patterson’s pare nts, and no conce rned adult helped Patterson during questioning. We also hold that on rema nd, if the prosec ution ag ain prese nts testimony that phy sical finding s show that the alleg ed victim had sexual intercour se shortly befor e her medical examination, the court should pe rmit Patter son to pr esent evidenc e that the alleg ed victim had intercour se with her boyfriend. We reve rse and rema nd for a new trial.

¶ 3 BA CKGROUND ¶ 4 On Sunday
, De ce mb er 1 4
, 2 0 0 8, afte r 5 p.m., E.C., who worke d for Strea mwood Behaviora l Hea lth Sy stems (SBHS), drove an SBHS van to Hinsdale to pick up R o n al d Patterson, then 15 year s old, at the end of Patterson’s visit with his family

. E.C. and Patterson

re tu rned to the SBHS fac ility wher e Patterson lived around 6:30 p.m. Once Patterson returne d to his living unit, with the doors locked, E.C. told a cowor ker that Pat t er s o n had rape d her. E.C. and her coworke r called police, who came to SBHS and talked to E.C. An ambulance took E.C. to a hospital wher e a doctor examined her and photogr aphed her bruises and some a

rea s of scra

ped skin.

-2-¶ 5 Police arr ested Patterson at the SBHS fac ility around 9 p.m. that evening
, and took him

to the Schaumburg police station. Detec tive J oe Kaminski interviewe d E.C. at the station and then, shortly before 10 p.m., he called Stephen Kehoe
, the direc tor of the SBHS fac ility that housed Patterson, and left him a mes s ag e notifying him that police intended to question Patterson about the incident with E.C. Detec tive Kaminski also called and left a messag e for P at t er son’s case worke r shortly befor e 10 p.m. No office r made any attempt to contac t Patterson’s par ents. ¶ 6 Police beg an questioning Patterson tw o m i nu t es af t er De t ec t i v e Kaminski left his messag e for P att erson’ s case worke r. Detec tive Kaminski acte d as the youth office r, while D e te c tiv e Jo hn Ata

mi a n q u estioned Patterson. Initially
, Patterson told Detec tiv e Ata mi a n th a t E.C. said she wanted to have sex with Patterson and that he agree d. After further questioning, Patterson signe d a ty

pewritten statement. Acc ording to the statement, Patterson admitted that he forc ed E.C. to perf

orm and rec eive oral sex, and to have vag inal intercour se with him. A grand jury charg ed P atterson with three counts of aggrava ted criminal sexual assault, with

one count for eac h form of contac t. The J uvenile Court Act require d the court to try Patterson

as an a dult. 705 I L CS 405/ 5-130(1) (a) (West 2008). ¶ 7 The court order ed a psycholog ica l ev al u at i o n o f P at t er s o n

. The psychiatrist found Patterson fit for trial, leg ally sane at the time of the alleg ed offe nse, and able to unde rstand Miranda war

nings. ¶ 8 Patterson filed a motion to suppress his ty pewritten statement. In the motion, he alleg ed
t h at he was “a specia l education student with limit ed rea ding compre hension an d compre hension skills.” Howeve r, neither party prese nted any evidenc e at the hearing on the motion conce rning Patterson’s intelligenc e and education. Patterson testified that police did
not rea d him his rights before h e s i gn ed the ty pewritten statement. He admitted that he initialed the part of the ty

pewritten statement that set out the Miranda rights. The prosec ution prese nted no evidenc e of any prior arr ests of Patterson. Detec tive Kaminski testified that he

rea d Patterson his rights at 10 p.m., direc tly befor e Detec tive Atamian started questioning Patterson. ¶ 9 Kaminski admitted that he did not speak to Kehoe
, but he testi fied that another office r told Kaminski that Kehoe g ave police permission to question Patterson. Kehoe testified that he did not rec all g iving police such permission and that he lacke d au t h o rity to g ive such permission beca

use he w as not Patter son’s leg al guardia n. The direc tor of DCFS ser ved as Patterson’s leg al guardia

n. No offic er attempted to contact the dir ector of DCFS. ¶ 10 The trial court found cre dible Kaminski’s testimony that he rea d Patterson his rights and the psychiatrist’s repor

t stating that Patterson could understand those rights. The court made

no finding on the issue of whether Ke h oe told police they had his permission to question Patterson. The court specific ally held that t h e “p o l ice made rea sonable inquiries to try to interview” Patterson. The tria l court denie d the motion to suppress. ¶ 11 At trial, E.C. testified that while she wa s driving Patter son from Hinsdale to the SBHS fac ility
, he grabbe d her arm and told her to exit from the highw ay

. Be cause he weighed much

more than twice E.C.’s weight, E.C. decide d to take the exit

. Patt er son direc ted E.C. to a parking lot near some empty buildings. S he tried to rea ch her cell phone, but he sl apped it

-3-out of her hand. She opened the door and tried to run, but Patterson grabbe d her coat. As he

g ot out of the van, he ripped out a g lobal positioni ngdevice that E.C. ha d plugg ed into the van’s cig are tte lighter

. The fra yed cord fell onto the parking lot. E.C. tried to strike Patterson, but her blows had no eff

ect. Patterson pushed E.C. a g ainst the van’s side door, pinning her ag ainst the van. ¶ 12 E.C. te stified that Patterson slid the door open and pushed E.C. into the van. When she tried to scra

mble to the door on the other side of the van, Patterson grabbed h er fe et and pulled her ba ck, say

ing “ Don’t make me hurt you.” He ripped off her je ans, then he pulled down his pa

nts a nd choked her to g et her to ope n her mouth. He put his penis in her mouth for perha ps 30 seconds. He pushed her leg s apar t a nd put his tongue in he r vag ina. He then shoved his penis into her vag ina for 30 seconds. When he pulled out, without ejac ulating, he laid on top of E.C., hug g ed her and t o l d her he loved her. They dresse d and g ot out of the
van, and they found E.C.’s cell phone in the parking lot. E.C. then drove back to the SBHS fac ility

. When she returne d to the parking lot later that night with a police office r, they found the cor d that had bee n ripped fr om E.C.’s globa l positi oning de vice. ¶ 13 An office r took pictures, admitted into evidenc e, showing the cord in the parking lot a nd the van’s door with an are a that showed cloth had rubbed ag ainst the side door. The office r who talked with E.C. at SBHS testified that she saw a red mark on E.C.’s neck, but she did
not make any ref

ere nce to that mark in her repor t. Pictures of E.C. taken at the hospital show

some fre sh scra

pes, b ru i s es, and redne ss, but her throat had, at most, a very slight discoloration. ¶ 14 The doc tor who examined E.C. on Dec ember 14 testified that he found sever al bruises

on E.C.’s arms and hip. He did not note any marks on E.C.’s neck. He swabbe d her vag ina. The parties s t i p u lated that laboratory tests of the swab did not contain any of Patterson’s DNA. The doctor testified that he used a speculum to look into E.C.’s vag ina, and he found redne ss on the cer

vix consistent with rec ent sexual intercourse

. ¶ 15 Patterson sought to introduce evidenc e that the swab taken from E.C.’s vag ina included

semen with DNA from E.C.’s boyfriend. Def ense counsel explained that he neede d to rebut the infere nce that the redde ned cer vix showed that E.C. had intercour se with Patterson, when intercour se with her boyfriend could have produce d the same eff ect. The trial court held that the ra pe shield law ba

rre d the evidenc e. 725 I L CS 5/ 115-7(a) (West 2008). ¶ 16 Detec t i v e At am i an re ad t o the jury the ty pewritten statement Patterson signe d. The
statement cor

roborated E.C.’s ac count of the inc ident. ¶ 17 Patterson testified that E.C. pulled off the highway of her own acc ord, pulled down his pants, and perf

ormed oral sex briefly

. She then drove back to SBHS. Patterson never said any of the statements attributed to him in the ty pewritten sta t em en t he signe d. He signe d it beca use police told him to do so. ¶ 18 The jury found Patterson guilty on all three counts of ag grava ted criminal sexual assault. The c ourt denied his motion for a ne w trial. ¶ 19 The prese nten ce i n v es t igation repor t said that Patterson tested positive for coca ine at birth. A relative of Patterson’s mother adopted him at 18 months of ag e, and he grew up with his adoptive pare nts until they found they could not protec t his siblings from his incre asing ly

-4-violent beha v i o r. He had extensive psychiatric trea tment from the time he turned 11. The Depa rtment of C hildren and Family Service s took custody of Patterson, at his adoptive pare nts’ reque st, in 2006, when he was 13. He took Thorazine, Be nadry l, Prozac, Trileptal,

an d Abilify
, among st other medications, to try to control his ag gressive behavior an d h i s moods. An I Q test in 2006 resulted in a f ull-scale sc ore of

72. ¶ 20 School rec ords and rec ords from SBHS showed that Patterson acte d somewhat violently

on numerous occasions. He threw hot wat er o n a t ea cher in 2004, tried t o bite SBHS staff members when they restra ined him in 2006, threa tened to stab a staff member in 2006, and stabbed a staff member with a pencil in 2008. The be haviors led to some loss of privileg es at SBHS and other discipline. Records also showed that at times SBHS rew arde d Patterson for e x tended pe riods of g ood behavior

. ¶ 21 The prese ntence investigator said in his repor t that Patterson had no prior police conta cts. Acc ording to a p ri n t o ut from the police depar tment, Patterson had one prior arr est, for throwing hot water on a teac her when he was 11, and the arr est result ed i n a station adjustment. ¶ 22 The trial court found sever al fac tors in ag gravation, and none in mitigation, so the court sentenc ed Patterson to 12 year s in prison on eac h count, with the sentenc es to run

consec utively , for a

total sentence of 36 year s. Patterson now appe als.

¶ 23 ANALYSI S ¶ 24 Patterson argues on appea l that the automatic transfe r provision of the J uvenile Court A ct violates the state and fede ral constitutions. He also argues that the trial court err ed (1) when it denied his motion to suppress the ty pewritten statement, (2) when it excluded evidenc e that E.C.’s boyfriend could have cause d the redne ss of E.C.’s cer vix
, and (3) when it sentenc ed him to 36 year s in prison. Finally
, Patterson asks us to reve rse his convictions beca use hi s counsel provided ineffe ctive assistance when he failed to prese nt at the hearing on the motion
to suppress the ty

pewritten statement evidenc e that Patterson had intellectual defic its that left him espec ially vulnera

ble to police pressure to make and sign statements ag ainst his will. We apply differ ent standards of re view to the def endant’ s arguments.

¶ 25 Automatic Tra nsfer ¶ 26 Patterson first argues that th e au t o m at i c transfe r provision of the J uvenile Court Act imposes unconstitutionally harsh penalties on juveniles and it violates Patterson’s right to due proce ss. We revie w de novo a d ec i sion on the constitutionality of a statute. People v. Jack son , 2012 I LApp (1st) 100398, ¶ 8. ¶ 27 Our supreme court has reject ed essentially the s ame challeng es t o the constitutionality of the au t o matic transfe r provision. See People v. P.H.
, 145 I ll. 2d 209, 229-36 (1991); People v. J.S.
, 103 I ll. 2d 395, 403-07 (1984). Patterson contends that we should not follow J.S. and P.H. beca

use our supreme court decide d those case s before the United States Supreme Court decide d Graham v. Florida
, 560 U.S. ___, 130 S. Ct. 2011 (2010), and Roper

v. Simmons
, 543 U.S. 551 (2005). In Jack son , 2012 I L App (1st) 100398, ¶¶ 14-24, People

-5-v. Salas
, 2011 I L App (1st) 091880, ¶¶ 54-80, People v. Sanders
, 2012 I L App (1st) 102040,

People v. Cr o o m , 2012 I L App (4th) 100932, and People v. Brown
, 2012 I L App (1st) 091940, the appellate court reje cted indisti nguishable arguments about t h e eff ect of the decisions in Graham and Roper on J.S. and P.H. All of the courts held that Grah a m and Roper did not aff

ect t h e co n t i nu ing vitality of J.S. and P.H. or the constitutionality of the automatic transfe r provision of the J uvenile Court Act. We, t o o , follow J.S. and P.H. Acc ording ly
, we reje ct Patte rs o n ’s challeng e to the constitutionality of the J uvenile Court Act’s automatic transfe r provision for juveniles at least 15 year s old a ccuse d of ag gravated criminal sexual assault.

¶ 28 Motion to S uppress ¶ 29 Next, P at t er s o n ar gu es t h at t h e t ri al court should have suppressed the ty pewritten
statement he signe d at the police station. We revie w the trial court’s finding s of fac t to deter mine whether they are ag ainst the manifest weight of the evidence, and we revie w de

novo the leg al deter

mination of whether the court should suppress the statement. In re G.O.
, 191 I ll. 2d 37, 49 (2000). ¶ 30 The trial court found cre dible (1) Detec tive Kaminski’s testimony that he rea d Patterson his rights befor e Detec tive Atamian beg an questioning him and (2) the psychiatrist’s finding that Patterson could understand those rights. The wei ght of the evidenc e sufficie ntly supports the trial court’s finding s on these issues. The parties did not dispute most other fac ts related to the statement. Police arrested Patterson at the SBHS fac ility on Dec ember 14, 2008, and took him to the police station. The prosec ution prese nted no evidenc e of prior arrests. Kaminski, who had taken part in the investigation by interviewing E.C., a cted a s the youth office r. Kaminski called two persons who worke d for SBHS, on a Sunday and long afte r office hours, and left messag es fo r b o th of them. No office r made any attempt to contac t Patterson’s pare nts, and no office r made any furth er attempts to find a conce rned adult to help Patterson. The questi oning beg an two minutes afte r Kaminski left a messag e for Patterson’s ca seworke r. ¶ 31 Patterson answe red the office rs’ questions, and he told them, just as he told the jury
, that he and E.C. had consensua l sexual relations. About an hour afte r questioning beg an, Patterson signe d a statement that contradicted his initial acc ount and corr oborate d E.C.’s

acc ount of the incident. ¶ 32 We apply th e fo l l o wi n g s t an d ar d s to deter mine whether the fac ts make the signed statement admissible at trial: “To be admissible at trial, a confe ssion must be fre e, voluntary
, and not obtained by any direc t or implied promises or by the exertion of any improper influence

. [C itation.] Fa ctors that ar e conside red in de terminingwhether a confe ssion wa s voluntary include

a defe ndant’s individual characte ristics, such as his ag e, intelligenc e, education, phy sical condition and experience with the criminal justice sy stem; the nature of the interrog ation is also considere d, such as the leg ality and duration of the detention, the duration of the questioning, a

nd any phy sical or menta l abuse by the police. [Citations .]
In case s involving juveniles, additional fac tors must be considere d, such as the time

-6-of day of the questioning and the prese nce of a pare nt or other adult conce rned with the j u v enile’s welfa

re. [C itations.] No single fac tor is dispositi ve. [C itation.] The voluntariness of a confe ssion is deter mined by the circ umstances of eac h case .” People v. Mc Daniel , 326 I ll. App. 3d 771, 781-82 (2001). ¶ 33 Reviewingcourts haveemphasized the spec ial car e nee ded in ca ses involving juvenile confe ssions when counsel is not prese nt: “The rec eiving of an incriminating statement by a juvenile in the absenc e of counsel is a sensitive conce rn requiring great car e to assure that the juvenile’s admission was not

coer ced or sug g ested, or the product of ignor ance of one’s rights, adol esce nt fanta sy , fright o r d es p air. [C itations.] In case s involving juveniles, courts must be particula rly

car eful in scrutinizing the rec ord, since juveniles can easily become victims of the law.” McD aniel , 326 I ll. App. 3d at 781. See People v. Travis
, 122 I ll. App. 3d 671, 674 (1984); see also People ex rel. Brazen v. Finley
, 119 I ll. 2d 485, 492 (1988) (citing Leona rd C

. A rnold, Ltd. v. N orthern Trust Co.
, 116 I ll. 2d 157, 163 (1987))

. Patterson, a 15-year -old juvenile, had an espec ially acute need for the assistance of a conce rned adult beca use the law require d the court to try Patterson as an adult. 705 I L CS 405/ 5-130 (West 2008). ¶ 34 Patterson was 15 when police questioned him late in the evening on Dec ember 14, 2008. The questioning did not last long and no evidenc e indicates any mental or phy sical abuse of Patterson. ¶ 35 The State argues that we must n o t t ak e into consideration Patterson’s sever ely limit ed intelligenc e and educa

tion beca use Patterson’s attorney failed to prese nt evidenc e of Patterson’s intellectual defic its at the pretria l hearing, and only the prese ntence investigation brought these fac ts to light. Patterson admits that his cou n s el wa i ved consideration of his intelligenc e as a fac t o r b earing on the admissibili ty of the ty pewritten statement, but Patterson contends that counsel’s waiver shows ineffe ctive assistance of co u n s el

. For purposes of deter

mining whether the trial court erred when it denied the motion to suppress the s t at ement, we will not take into acc ount the evidenc e of Patterson’s severely limit ed intelligenc e and e ducation. See People v . Brooks , 187 I ll. 2d 91, 127-28 (1999). ¶ 36 The parties disagree on whether Patterson had prior contac t with police. Patterson relies

on the prese ntence investigation repor t, prese nted to the court afte r trial, which say s he had

no prior contac ts with police. The prosec ution relies on police repor ts, prese nted to the court after trial, which show an arrest in 2004, when Patterson was 11. Acc ording to the p o l i ce repor t, the arr est resulted in a station adjustment. Even if the printout more acc urate ly ref lects Patterson’s ex perie nce, Patterson had, at most, some minimal contac t with police, and not in a setting wher e he would have lear ned about his need to protec t his rights. The prosec ution did not prese nt even this minimal evidenc e of a prior arre st to the trial court at the hearing

on the motion to suppress statements. Fr om the evidenc e prese nted at the hearing, the court knew that Patterson had considera ble experience with adults disciplining him for inappropriate ag gressive behavior
, but the discipline included no exposure to a rea l threat of prison time. ¶ 37 Be cause of Patterson’s youth and lack of exposure to the criminal justice sy stem, in this

-7-case involving charg es that require the court to try Patterson as an adult, the prese nce during

questioning o f an adult conce rned with his welfa re takes on specia l signific ance

. See McD aniel
, 326 I ll. App. 3d at 782-84; In re J.J.C.
, 294 I ll. App. 3d 22 7
, 2 3 7 -3 8 (1998). Detec tive Kaminski, who investigated the charg es ag ainst Patterson, also purported to act as

a youth office r during questioning. We find Kaminski’s role here eff ectively the same as the role of the youth office r in People v . Griffin
, 327 I ll. App. 3d 538 (2002), name d Be g eske. In Griffin , the cour

t said: “[I ]n I llinois
, even when youth office rs are prese nt, their role is unclea r. One line of case s holds that a yo u t h office r’s role is to verify that minors’ pare nts have been notified,

ensure that the minors have been g iven Miranda rights, and s ee t o it that minors are properly treated, that they are fed, g iven acc ess to washroom fac iliti es, and allowed to rest, and that they are not c oerc ed in a ny way

. [C itations.] Other case s find that a youth office r may not mere ly be prese nt and rema in silent, but must demonstrate an interest in the minors’ welfa

re and aff irmatively protec t th e ir rig hts. [C itations.] These case s are fac t specific and eac h case must be evaluated on its own particula r s et o f circ umstances. [C itation.]
In the prese nt case , while the court made no fac tual finding s as to Be g eske’ s role as

a youth office r, we find that Be g eske failed to fulfill his duties under either of the above

s t andards. Be g eske did not rema in a neutra l observe r but, rathe r, worke d ag ai n s t defe ndant’s interests. Whil e an investigator’s role is to interrog ate witnesses and collect evidenc e, it is clea

r that the role of a youth office r is to act as a conce rned adult interested in the juvenile’s welfa

re. A youth office r cannot be adver sarial or antag onistic toward the juvenile. [C itation.] Thus, these roles are inhere ntly incompatible. Youth office rs cannot act in their role as a conce rned adult while at the same time actively compiling evidenc e ag ainst that juvenile.” Griffin , 327 I ll. App. 3d at 547-48. ¶ 38 He re , Kaminski helped compile evidenc e ag ainst Patterson, and that work inher entl y conflicte d with his role as a youth office r. Moreove r, Kaminski did not even fulfill the most basic of a youth office r’s tasks. The J uvenile Court Act provides that following an arr est of

a minor, an office r must “immediately make a rea sonable attempt to notify the pare nt or other person leg ally

responsible for

the m inor’s care or the person with whom the m inor resides that the minor has been arr ested and wher e the minor is being held” (705 IL CS 405/5-405(2) (West 2008)), to permit the minor to ha ve the help of a conce rned adult, if possible, during police questioning. People v. W estmorland
, 372 I ll. App. 3d 868 (2007). Kaminski attempted
to contac t two persons in their office s at S BH S at 10 p.m. on a Sunday night, and he left them messag es. But two minutes afte r leaving the messag es, police initiated questioning, and they knew or should have known that no person would hear or respond to those messag es for

sever al hours. Kaminiski did not attempt to find out who bore legal re s p o n s ibility for Patterson’s car e or how he could contac t such a person at 10 p.m. o n a S u n d ay night. Kaminski did not attempt to contac t Patterson’s pare nts or leg al guardia n. Kaminski did not attempt to find the home phone number or the cell phone number for Patterson’s case worke r. Kaminski’s two calls to office s on a Sunday night, wher e he left messag es, are not rea sonable attempts to contac t a person or conce rned adult who could help Patterson. See G.O.
, 191 I ll. 2d at 52-54.

-8-¶ 39 Kaminski’s decision not to contac t Patterson’s pare nts or the person leg ally responsible

for Patter son’s ca

re or any other person conce rned for hi s welfa re, when they

likely would
not lear n of the arr est and questioning without information from the po l i ce , eff ectively preve nted any conce rned adults from helping Patterson. Compare J.J.C.
, 294 I ll. App. 3d at 236-37; see also People v. Mitchell
, 2012 I L App (1s t ) 1 0 0 9 0 7, ¶¶ 97-99 (Salone, J
., specia lly concur

ring ). Instead, Kaminski assure d that only police office rs trying to build a

case ag ainst Patterson, persons trying to put Patterson in prison for a long time, would know about the questioning. See People v. Fuller
, 292 I ll. App. 3d 651, 667 (1997). We f ind that Kaminski and other police made no “re asonable attempt” to contac t any conce rned adult befor e questioning Patterson. See 705 I L CS 405/5-405(2) (West 2008). The manifest weight of the evidenc e contra dicts the trial court’s finding on this issue. See G.O.
, 191 I ll. 2d at 49. ¶ 40 Due to his youth and inexperience when confr onting these charg es that require d the cour t to try him as an adult, Patterson neede d a co n ce rn ed adult to help him respond to police questioning and to ensure that he made any admissions of hi s own free will. A m inor who understands his rights may still have his will overbor ne by police in custodial interrog ation. See People v. McD aniel
, 326 I ll. App. 3d 771 (2001). Weighing all the fac ts and considering the appropriate fac tors de novo , we find that the prosec ution did not show that Patterson confe ssed fre ely and voluntarily

. There fore
, we hold that the trial court err ed when it denied the motion to suppress the ty pewritten statement. ¶ 41 The State does not arg ue that we could find the err or harmless. Be cause confe ssions have

s u ch persua sive eff

ect as evidenc e of guilt, the err oneous admission of a confe ssion i n t o evidenc e ra

rely constitutes harmless error. People v. St. Pierre
, 122 I ll. 2d 95, 114 (1988). Although the prosec ution presented a strongcase ag ainst Patterson, we c annot say that the

err oneous admission i n t o evidenc e of the signe d statement confe ssing the crime had no prejudicia l eff

ect here

. Acc ording ly
, we reve rse the judgme nt and rema nd fo r a n ew trial without the confe ssion.

¶ 42 Rape Shield L aw ¶ 43 I llinois ’s rape shi eld l aw (725 I L CS 5/ 115-7(a) (West 2008)) ba rs evidence of the past sexual history of an alleg ed sexual assault victim, except (1) as evidenc e of the alleg ed victim’s prior consent to sexual conduct with the defe ndant, offe red to show consent, or (2) when the constitution require s the court to admit the evidenc e. The trial court has discretion
to decide evidentiar

y issues
, an d we will reve rse the trial court’s decision only if it has abused its discre tion. People v . Santos , 211 I ll. 2d 395, 401 (2004). ¶ 44 The court in People v. Anthony Roy W

. , 324 I ll. App. 3d 181 (2001), applied the second exception to the rape shield’s g eneral principle. The prose cu tion in Anthony acc used the defe ndant of having sexual intercour se with his 12-year -old daughter. A doctor testified that he found evid en ce o f sexual trauma to the g irl’s hy men. Def ense counsel failed to offe r evidenc e that the g irl had had intercour se with a boy

. The appellate court found t h at the defe ndant rec eived ineffe ctive assista n ce o f co unsel. Anthony
, 324 I ll. App. 3d at 186-87. The court in Anthony points out that, in some instances, due proce ss require s the admission of evidenc e of the victim’s sexual history wher e that evidenc e is rele vant to a critica l aspec t

-9-of the defe nse. Anthony
, 324 I ll. App. 3d at 186. There fore
, the court should admit evidenc e

of an alleg ed sexual a ssault victim’s sexual history
, despite the rape shield law, when “that history explains some phy sical evidenc e, such as semen, pregnancy , or phy sical indications of interc ourse.” Anthony , 324 I ll. App. 3d at 186. ¶ 45 At trial, Patterson sought to present evide nce tha t E.C. had sex ual i nterc ourse with her boyfriend wi t h i n a few day s prior to the incident with Patterson, and the swab of E.C.’s vag ina held DNA from that boyfriend. The doctor who examin ed E

. C

. testified that the redne ss of her cer

vix showed that she recently had sex ual interc ourse, a nd the prosecution used that evidenc e to support the infere nce that E.C. had intercour se with Patterson, contra ry to his testimony about the incident. The excluded evidenc e here
, like the excluded evidenc e in Anthony
, “provide d a plausible altern ative source of the State’s phy sical evidenc e and would there fore be admissible under the constitutional exception provision of the rape shield doctrine.” Anthony , 324 I ll. App. 3d at 186. ¶ 46 The State argues that the fac ts in this case more closely rese mble the fac ts of Santos , 211 I ll. 2d 395, and People v. Free man , 404 I ll. App. 3d 978 (2010), than the fac ts of Anthony

. The defe ndant in Santos sought to introduce evidenc e that the 16-year -old g irl who acc used him of raping her had made two inconsistent out-of-c ourt statements about the incident. He argued that the evidenc e showed that she lied out of court, and he wanted to use the evidenc e to persua de the jury that she lied ag ain in court. The Santos court held that the defe ndant had

no constitutional right to introduce the evidenc e of impeachme nt on a matter collater al to the victim’s testimony at trial. The c ourt distinguished Anthony on grounds that the defenda nt in Anthony had a constitutional right to prese nt evidenc e of prior sex u al intercour se with

someone other than the defe ndant to explain the phy sical eviden ce o f t he victim’s clef t hy men. In Freem an , the State introduced evidenc e at trial that the victim had not had intercour se befor e the defe ndant assaulted her. The Freem an court found that no exception
to the rape shield law permitted the introduction into evidenc e of this information about the victim’s sexual history

. Neither party argued th at the defe ndant’s constitutional rights require d the court to allow the testimony about the victim’s virg inity into evidenc e. Be cause this case involves the defe ndant’s right to s h ow an alternate explanation for phy sical evide n ce t h e State introduced as part of its proof of sexual assault, we find this case most simil ar to Anthonyand not like Santos and Freem an

. ¶ 47 The State in its peti t i o n fo r re h ea ri n g argue s that Anthony applies only when the complainant is a minor. That is, the State contends that the rape shield law require s the trial
court to admit evidenc e that a minor complainant had a sexual encounte r that could explain phy sical evidenc e of intercour se, but it bars the court from admitting the same evidenc e when an adult complains of a sexual assault. Nothi ng in Anthonyor the ra pe shield law suppor

ts t h e ru l e the State seeks to apply

. Whenever the State seeks to use phy sical evidenc e o f i n t er course to support the infere nce that the alleg ed victim had intercour se with t h e defe ndant, the court must permit the defe ndant to introduce evidenc e of the alleg ed victim’s sexual history insofar as that history could provide a plausible alternative explanation for the phy sical evide nce. Anthony , 324 I ll. App. 3d at 186. ¶ 48 The State also argues that the evidenc e of intercour se with another man lacks rele vance , beca use o f “my

riad other–e qually plausible–medica l explanations for the exis tence of

-10-cer vical inflam m at i o n , including infec tion, allergy , disease, birth control device s, etc.” I f thes e p ossibili ties actua lly show the irrele vance of intercour se to explain the redne ss of E.C.’s cer vix
, the court must exclude the doctor’s testimony that the redne ss shows that she had intercour se not long before the examination, to support the infere nce that Patterson had intercour se with E.C. See People v . Enis , 139 I ll. 2d 264, 281 (1990). ¶ 49 Following Anthony
, we find that the trial court abused its discretion when it ex cl u d ed evidenc e that E.C. had intercour se with someone other than P at t er son, beca use E.C.’s intercour se with her boyfriend could acc o u n t for the redne ss of her cer vix

. There fore
, on retria l, if the State introduces any evidenc e of E.C.’s phy sical condition to show that she had intercour se within a day or two of the medical ex amination, the court must permit the defe ndant to introduce evidenc e that doctors found semen from E.C.’s boyfriend in her vag ina at the time of the medical e x amination. ¶ 50 In this case, be cause we r emand for a new trial, we vacate the sentenc e and e x press no opinion on Patterson’s challeng e to the length of his sentence

.

¶ 51 CONCLUSI ON ¶ 52 We reje ct Patterson’s challeng e to the constitutionality of the statute that provides for the automatic transfe r to the criminal court of all charg es of ag gravated criminal sexual assault brought ag ainst minors ag ed 15 or older. Howeve r, we find that the trial court erred when it admitted into evidenc e a statement Patterson signe d at the police station, beca use Patterson,

a minor with little exposure to the criminal justice sy stem, had no conce rned adult to a ssist him during questioning at the police station. On rema nd, if the prosec ution ag ain prese nts testimony that the doctor who examined E.C. found phy sical indications that E.C. had sexual intercour se shortly befor e t he examination, the court must permit the defe nse to prese nt evidenc e that semen from E.C.’s boyfriend rema ined in her vag i n a at the time of the examination.

¶ 53 Reverse d and re manded.

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