{ "id": 680701, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. YESHUA JONES et al., Defendants-Appellants", "name_abbreviation": "People v. Jones", "decision_date": "1993-02-02", "docket_number": "Nos. 1\u201491\u20140038, 1\u201491\u20140070 cons.", "first_page": "556", "last_page": "569", "citations": [ { "type": "official", "cite": "264 Ill. App. 3d 556" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "380 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525264 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/380/0400-01" ] }, { "cite": "495 N.E.2d 1207", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1213" }, { "page": "1223" } ], "opinion_index": 0 }, { "cite": "145 Ill. 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App. 3d", "case_ids": [ 3111209 ], "year": 1980, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0728-01" ] }, { "cite": "442 N.E.2d 154", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "92 Ill. 2d 490", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3098298 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/92/0490-01" ] }, { "cite": "425 N.E.2d 562", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "page": "571-72" } ], "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 540", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3099832 ], "year": 1982, "pin_cites": [ { "page": "553-54" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0540-01" ] }, { "cite": "389 N.E.2d 670", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "676" } ], "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 267", "category": "reporters:state", "reporter": "Ill. 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App. 3d 407", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2542420 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0407-01" ] }, { "cite": "362 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "66 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5465234 ], "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0317-01" ] }, { "cite": "415 U.S. 308", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174956 ], "weight": 6, "pin_cites": [ { "page": "316" }, { "page": "353-54" }, { "page": "1110" } ], "opinion_index": 0, "case_paths": [ "/us/415/0308-01" ] }, { "cite": "15 J. Marshall L. Rev. 157", "category": "journals:journal", "reporter": "J. Marshall L. Rev.", "year": 1982, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 0 }, { "cite": "463 N.E.2d 175", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 615", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5677824 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0615-01" ] }, { "cite": "469 N.E.2d 167", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "172" } ], "opinion_index": 0 }, { "cite": "103 Ill. 2d 266", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152411 ], "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0266-01" ] }, { "cite": "537 N.E.2d 284", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "288" } ], "opinion_index": 0 }, { "cite": "127 Ill. 2d 230", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564663 ], "year": 1984, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0230-01" ] }, { "cite": "547 N.E.2d 437", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "444" }, { "page": "444" } ], "opinion_index": 0 }, { "cite": "132 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5588617 ], "weight": 2, "pin_cites": [ { "page": "318" }, { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/132/0304-01" ] }, { "cite": "445 N.E.2d 1174", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1175" } ], "opinion_index": 0 }, { "cite": "94 Ill. 2d 138", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106963 ], "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0138-01" ] }, { "cite": "361 N.E.2d 585", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "586" } ], "opinion_index": 0 }, { "cite": "66 Ill. 2d 136", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5465119 ], "year": 1983, "pin_cites": [ { "page": "139-40" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0136-01" ] }, { "cite": "493 N.E.2d 1071", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "1074" } ], "opinion_index": 0 }, { "cite": "112 Ill. 2d 486", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5538270 ], "year": 1977, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0486-01" ] }, { "cite": "552 N.E.2d 726", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "pin_cites": [ { "page": "731" }, { "page": "731" }, { "page": "731" }, { "page": "733" }, { "page": "733" } ], "opinion_index": 0 }, { "cite": "135 Ill. 2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256443 ], "weight": 6, "pin_cites": [ { "page": "171" }, { "page": "171" }, { "page": "171" }, { "page": "174-75" }, { "page": "174-75" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0159-01" ] } ], "analysis": { "cardinality": 1404, "char_count": 34615, "ocr_confidence": 0.821, "pagerank": { "raw": 5.989406066647367e-08, "percentile": 0.3722012364427424 }, "sha256": "0d8abf4161824f82d7971476601015954019a9507c892c0c09ea57d12aa9fd60", "simhash": "1:8bbf9f9c6f4c08d5", "word_count": 5709 }, "last_updated": "2023-07-14T18:49:29.319239+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. YE-SHUA JONES et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nDefendants Yeshua Jones and Robert Salazar appeal from their conviction after a bench trial on two counts of criminal sexual assault. (111. Rev. Stat. 1989, ch. 38, par. 12 \u2014 13.) They were each sentenced to five years in the custody of the Illinois Department of Corrections.\nIn their appeal defendants raise two issues. First, whether the trial court erred in granting the State\u2019s motion in limine to exclude evidence that Jones had observed the victim engage in consensual sexual activities approximately one month before the sexual assault that forms the subject matter of this case. Second, whether the court abused its discretion by sentencing defendants to five years incarceration, while a co-participant in the assault, Marcus Battice, in a negotiated plea, received only 30 months\u2019 probation and 800 hours of community service.\nDefendants were charged with four counts of criminal sexual assault for events which transpired on January 25, 1989. Initially, the indictment charged Battice with the same four counts; however, as noted above, prior to trial, and pursuant to an agreement with the State, Battice pled guilty to four counts of misdemeanor sexual abuse (111. Rev. Stat. 1989, ch. 38, par. 12 \u2014 15), and one count of unlawful restraint (111. Rev. Stat. 1989, ch. 38, par. 10 \u2014 3). He was placed on probation for 30 months and compelled to perform 800 hours of community service, while another participant in the sexual assault, Herman Lofton, a minor, was adjudged delinquent in a juvenile proceeding and placed on six months\u2019 probation.\nThe State, invoking the rape shield statute (111. Rev. Stat. 1989, ch. 38, par. 115 \u2014 7), moved in limine to exclude any evidence concerning the complainant\u2019s sexual reputation or her prior sexual activity with anyone other than defendants. In response, Jones informed the court that he had observed the victim engage in consensual sexual intercourse and oral copulation with Battice sometime between Christmas 1988 and January 24, 1989, the date of the incident at issue here. Both defendants argued that this evidence was relevant and vital to their defense that the victim consented to the sexual encounter with, all four of the accused. Jones further contended that the fact that he had watched the victim perform sexual acts was relevant to his state of mind at the time of the assault.\nThe trial court, reasoning that the legislature enacted the rape shield statute to address the precise situation presented in this case, rejected these arguments and granted the State\u2019s motion. It also deemed Jones\u2019 state of mind as to the victim\u2019s willingness to participate in sexual activity to be irrelevant under the Illinois criminal sexual assault statute. 111. Rev. Stat. 1989, ch. 38, par. 12 \u2014 13(b).\nAt trial, the complainant, A.B., a 15-year-old student at Evanston Township High School, testified that on January 24, 1989, at approximately 5:20 in the afternoon, she went to her locker after finishing practice with the school\u2019s track team. When she arrived at her locker, Salazar and Lofton approached her and Salazar asked for her phone number, but she refused to give it to him.\nA.B. testified that after she denied Salazar\u2019s request for her phone number, he forced her against the locker and roughly fondled her breasts. He then grasped her wrist and pulled her towards the men\u2019s washroom. Once inside the lavatory, he took her into a bathroom stall, asked her \"to do him\u201d and attempted to remove her pants. The victim told the court that Salazar stopped only when she informed him that a janitor was in the washroom with them.\nLofton also testified as a prosecution witness, but related a slightly different version of the events at A.B.\u2019s locker. He informed the court that Salazar did not grasp at the victim\u2019s breasts, but that his hand only brushed against them while he put his arm around her shoulders. He also stated that the victim willingly went with Salazar to the bathroom.\nThe complainant testified that after leaving the washroom, she headed for the field house to leave the school; Lofton and Salazar followed her. Lofton recalled that Salazar and A.B. held hands on the way to the field house. The victim passed a security guard who had to let her through a gate to gain access to the women\u2019s locker room. When asked why she did not tell the security guard about the alleged assault by Salazar in the washroom, she stated that she did not want to cause trouble and that she did not think it was that important.\nA.B. informed the court that she exited the locker room and met Battice, who was then her boyfriend; he was waiting outside the gymnasium with Salazar, Lofton and Jones. She testified that she knew Battice, Lofton and Salazar, but that she did not recognize Jones. However, during cross-examination it was established that in a statement made to police days after the incident, A.B. had stated that she knew Jones from the neighborhood.\nAfter conferring for a short period of time, the victim and Battice reentered the school followed by Jones, Salazar and Lofton. Lofton testified that Battice asked him to open the auditorium with the pass-key he had from his job as a school janitor, so Battice and A.B. could have sexual intercourse. Lofton told the court that at that point Battice informed Jones, Salazar and him that A.B. would \"give [them] sex.\u201d\nA.B. and the four accused entered the auditorium. Battice took her backstage into a storage area where the two engaged in consensual sexual intercourse. Lofton informed the court that he, Jones and Salazar waited in the auditorium\u2019s seating area while Bat-tice and A.B. engaged in sexual intercourse, after which the victim dressed herself, gathered her belongings and prepared to leave. Contemporaneously, the three from the auditorium appeared backstage, and along with Battice, loosely surrounded A.B. When she made an attempt to leave, Salazar confronted her, asked her where she thought she was going, and began to remove her clothing. When she resisted, Battice joined Salazar and the two disrobed her, despite her resistance. Salazar, Jones and Battice pulled her to the ground and held her there. Jones then removed his clothing and attempted to penetrate her vagina with his penis. A.B. testified that she attempted to prevent penetration by struggling and wriggling on the ground.\nSalazar and Battice then pulled A.B.\u2019s legs behind her head, and Jones penetrated her vagina with his fingers. She testified that soon thereafter Salazar and Battice did so as well. While Salazar attempted to have the victim perform fellatio, Battice attempted to penetrate her vagina. She prevented this by kicking him in the head. In retaliation, Battice \"jammed\u201d his hand into her vagina.\nLofton and Battice then departed, leaving Jones and Salazar with A.B. The two then restrained the victim by putting her in a \"sandwich\u201d with Jones behind, attempting to sodomize her, and Salazar in front inserting his penis in her vagina. They stopped only after A.B. heard someone enter the auditorium, and she loudly asked who was there. The three dressed and exited the school. She admitted that Jones walked her home.\nUpon arriving home at 9:40 p.m., A.B. did not inform her mother of the assault. She explained that she did not say anything because her mother was already angry that she came home late, and she feared that news of the assault would only anger her mother more.\nThe next day A.B. told a counsellor at school what happened the previous evening. He instructed her to write down the events, which she did. Her report related the events described above, except that she omitted reference to Battice as one of her attackers because at that time she did not want to get him in trouble. She later informed the police that Battice participated in the assault.\nDr. Teresita Hogan, an expert in the area of emergency medicine, testified for the State that she examined A.B. on January 26, 1989. Dr. Hogan stated that the victim\u2019s body contained the types of abrasions and hematomas which would be consistent with vaginal penetration by fingers and scratches from fingernails. Dr. Hogan also informed the court that the \"rug burn\u201d abrasions on the victim\u2019s back were also consistent with bruises and scrapes that would result from being roughly dragged along a carpet, such as the one in the storage area of the auditorium where A.B. testified she was assaulted.\nOfficer Robert Mayer of the Evanston police department testified for the State and related the substance of an interview he had with Jones on February 2, 1989, in which Jones essentially corroborated the testimony of A.B. Jones confessed that while the victim struggled beneath him, he attempted to sodomize her. He also admitted that he, along with the other three, digitally penetrated the victim\u2019s vagina.\nOfficer Robert Hendricks testified to a conversation he had with Salazar on January 27, 1989, during which Salazar admitted that he met A.B. at her locker, took her into the men\u2019s washroom, and once in a bathroom stall, he attempted to undress her, despite her protestations. He confessed to Hendricks that he had made a concerted effort to persuade A.B. to engage in sexual intercourse with him, and that his efforts were rebuffed. He also told Hendricks that in the auditorium, he participated in removing the victim\u2019s clothes and that his penis came into contact with the victim\u2019s sexual organs. He denied penetrating the victim\u2019s vagina with his fingers.\nThe court found Jones and Salazar guilty of two counts of criminal sexual assault, and after expressly considering factors in mitigation and aggravation, sentenced both defendants to five years in the custody of the Illinois Department of Corrections.\nI\nIn Jones\u2019 first allegation of error, he argues that the court improperly excluded evidence that he had observed the victim engage in sexual conduct with Battice one month before the assault at issue here. He asserts that either his voyeurism on the earlier occasion falls within the exception to the rape shield statute or that if it did not, then the statute as applied unconstitutionally interfered with his right to confront his accuser and present his defense. We reject both of these contentions and affirm the trial court\u2019s ruling to exclude as evidence the victim\u2019s irrelevant prior sexual conduct.\nA\nSection 115 \u2014 7 of the Illinois Code of Criminal Procedure of 1963, commonly referred to as the rape shield statute, provides in pertinent part: \"In prosecutions for ***criminal sexual assault *** the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.\u201d (111. Rev. Stat. 1989, ch. 38, par. 115 \u2014 7.) Jones contends that his voyeurism on the earlier occasion constituted \"past sexual conduct of the alleged victim with the accused.\u201d (111. Rev. Stat. 1989, ch. 38, par. 115 \u2014 7.) In support of this argument, Jones, in his brief, asserts: ''the statute prohibits the introduction of evidence of the complainant\u2019s sexual history 'unless it relates to the relationship between the victim and the accused.\u2019 \u201d (Quoting People v. Sandoval (1990), 135 Ill. 2d 159, 171, 552 N.E.2d 726, 731.) He concludes that he had a \"relationship\u201d with the victim because he watched her engage in consensual intercourse with Battice and that this \"relationship\u201d with the victim properly falls within the exception to the statute. In response, the State maintains that the statute prohibits introduction of the prior sexual conduct between Battice and the victim even if Jones watched the acts; it does not address Jones\u2019 argument that voyeurism could amount to prior sexual conduct with the victim.\nNo Illinois court has, as yet, construed the provisions of the rape shield statute at issue here. Jones\u2019 insinuation to the contrary, namely, that the supreme court has construed \"past sexual conduct\u201d for the purposes of the rape shield statute, does not survive scrutiny. He implies that in Sandoval, the court held that prior sexual conduct amounts merely to a \" 'relationship between the victim and the accused.\u2019 \u201d (Quoting Sandoval, 135 Ill. 2d at 171, 552 N.E.2d at 731.) But, the Sandoval court simply had no cause to construe \"past sexual conduct\u201d; Jones unabashedly quotes the court\u2019s language out of context in a Procrustean attempt to reach the desired conclusion.\nIn Sandoval, the defendant was convicted of two counts of criminal sexual assault, as well as one count of battery, for repeated acts of nonconsensual anal and oral sodomy with his former girl friend. At trial, the victim admitted that she had engaged in anal intercourse in the past with the defendant, but stated that she had never willingly submitted to it with anyone other than him. Sandoval attempted to impeach that statement with evidence that she had participated in anal sex with others. The trial court refused to allow the impeachment, citing the rape shield statute. 111. Rev. Stat. 1987, ch. 38, par. 115 \u2014 7.\nClearly, given the facts of the case, Sandoval did not address the proper construction of \"past sexual conduct\u201d for the purposes of the rape shield statute, as no party contested the proposition that anal intercourse would constitute past sexual conduct. Instead, at issue there was the procedural question of whether the rape shield statute prevented the prosecution as well as defendant from introducing evidence of the victim\u2019s prior sexual history. (Sandoval, 135 Ill. 2d at 171, 552 N.E.2d at 731.) The court used the general language \u2014 \"a relationship between the victim and the accused\u201d \u2014 only to illustrate that the rape shield statute applies to the State as well as the defendant.\nConsequently, we consider the issue of what constitutes \"past sexual conduct\u201d as that term is used in section 115 \u2014 7 on a clean slate, in which task we find guidance in the legislature\u2019s definition of \"sexual conduct\u201d as contained elsewhere in the Criminal Code. That term, as an element of certain of the offenses proscribed in sections 12 \u2014 13 though 12 \u2014 18 of the Criminal Code, is defined as follows: \" '[sjexual conduct\u2019 means any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused *** for the purpose of sexual gratification or arousal of the victim or the accused.\u201d (111. Rev. Stat. 1989, ch. 38, par. 12 \u2014 12(e).) While the legislature\u2019s application of this definition to sections 12 \u2014 13 through 12 \u2014 18 may suggest an impediment to our considering sections 115 \u2014 7 and 12 \u2014 12 as being in pari materia, we perceive no difficulty in interpreting the two provisions as being consistent as to meaning.\n\"The primary rule of statutory construction is to ascertain and give effect to the intention of the legislature ***.\u201d (Metropolitan Life Insurance Co. v. Washburn (1986), 112 Ill. 2d 486, 492, 493 N.E.2d 1071, 1074, citing Franzese v. Trinko (1977), 66 Ill. 2d 136, 139-40, 361 N.E.2d 585, 586; see also People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174, 1175 (\"The cardinal rule of statutory construction, to which all other canons are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature. [Citations]).) And to ascertain the legislature\u2019s intent, we must first look to the language of the statute that we are attempting to construe. (Castaneda v. Illinois Human Rights Comm\u2019n (1989), 132 Ill. 2d 304, 318, 547 N.E.2d 437, 444.) If the court cannot divine the meaning of a statute from its plain language, we may infer the meaning of the legislation from its purpose or the evils the enactment was intended to remedy. (Castaneda, 132 Ill. 2d at 318, 547 N.E.2d at 444; American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 239, 537 N.E.2d 284, 288.) To clarify an ambiguity in the language, we may also rely on the legislative history of the act in question. In re Marriage of Logston (1984), 103 Ill. 2d 266, 279, 469 N.E.2d 167, 172.\nLooking only to the language of section 115 \u2014 7, we cannot say that it commands any particular construction of \"past sexual conduct.\u201d A broad construction, which would include voyeurism, would be as reasonable as a narrow one; in such a case, since the language of the statute does not manifest the one true construction of the phrase \"prior sexual conduct,\u201d we look to the statute\u2019s purpose and the evils it was enacted to remedy.\nThe legislative history of our rape shield statute (111. Rev. Stat. 1989, ch. 38, par. 115 \u2014 7) demonstrates that the legislature had a twofold purpose for its enactment. First, to protect the victims of sexual assaults from the ignominy of having their irrelevant yet embarrassing prior sexual habits paraded before them at a defendant\u2019s trial. Second, the legislature reasonably concluded that if victims were free from the concern that certain episodes in their sexual history might be dredged up, they would be more forthcoming about sexual abuse, thereby promoting more effective law enforcement. See People v. Ellison (1984), 123 Ill. App. 3d 615, 463 N.E.2d 175 (providing a comprehensive analysis of the legislative history of the rape shield act); see also Loftus, Comment, The Illinois Rape Shield Statute: Privacy at any Cost, 15 J. Marshall L. Rev. 157 (1982) (same).\nGiven the clear dual purpose of the act, we hold that the exception to the act must be construed as narrowly, yet as fairly as possible. A broad construction, such as the one Jones proposes, would defeat the legislative intent that motivated enactment of the statute by potentially exposing victims to harassment and embarrassment even in instances where, as here, she may not have been cognizant that another was observing her sexual activity. Jones argues on appeal that the victim knew that he spied upon her while she performed fellatio on Battice because Battice laughed and called Jones over to watch. However, the record indicates only that Battice laughed, not that Battice called to Jones by name or that the victim knew of Jones\u2019 presence. We therefore decline to adopt, as we must, a construction which would frustrate the General Assembly\u2019s goals of protecting the victims of criminal sexual conduct and promoting effective law enforcement.\nAccordingly, we consider the narrow definition of \"sexual conduct\u201d contained in section 12 \u2014 12(e) (111. Rev. Stat. 1991, ch. 38, par. 12 \u2014 12(e)) to be appropriate in the context of the rape shield statute. Consistent with that definition, we hold that \"prior sexual conduct\u201d between the victim and the accused will be admissible only where there is a \"[an] intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused *** for the purpose of sexual gratification or arousal of the victim or the accused.\u201d 111. Rev. Stat. 1991, ch. 38, par. 12 \u2014 12(e).\nApplying section 12 \u2014 12(e)\u2019s definition of sexual conduct to the case at bar, we hold that Jones\u2019 voyeurism does not fall within the exception to the rape shield statute. That definition plainly calls for some physical interaction between the victim and the accused. Here, Jones alleges only that he viewed the victim while she physically interacted with a third person. Consequently, Jones did not participate in any \"past sexual conduct\u201d with the victim within the meaning of that term as contained in the rape shield statute; the trial court therefore correctly excluded the evidence.\nB\nJones next argues that if his voyeurism does not fall within the exception to the rape shield statute (111. Rev. Stat. 1989, ch. 38, par. 115 \u2014 7), then the statute as applied impermissibly interfered with his sixth amendment right to confront his accuser and present a defense. Jones offers the self-evident argument that a statute which is inconsistent with a constitutional right must yield, or that a court must construe the statute in a way which gives effect to the constitutional right. He contends that the trial court, by excluding the evidence of the victim\u2019s earlier sexual encounter with Battice, prevented him from establishing his defense that the victim consented to the encounter with him as well. Moreover, he claims that the excluded evidence was essential to impeach her as to her testimony that she did not know Jones prior to the incident at issue here.\nIn People v. Sandoval (1990), 135 Ill. 2d 159, 552 N.E.2d 726, our supreme court addressed an argument very much like the one advanced here. There, the defendant sought to introduce evidence of prior sexual conduct to impeach the victim\u2019s assertion that prior to the sexual assault at issue in the case, she had engaged in anal intercourse only at the behest of the defendant. The defendant offered to produce other males who would contradict that assertion and would state under oath that they had sodomized her in the past at her urging. The trial court in Sandoval disallowed the proposed impeachment, invoking the rape shield statute. On appeal, the supreme court held that the trial court did not violate Sandoval\u2019s confrontation rights secured by the Illinois Constitution (111. Const. 1970, art. I, \u00a7 8) and the United States Constitution (U.S. Const., amend. VI). The court analyzed the constitutionality of the rape shield statute by placing it within the framework set forth in Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.\nIn Davis, the United States Supreme Court held that an otherwise valid State evidentiary law runs counter to the sixth amendment when it does not permit the defendant to show bias, prejudice or motive which may affect the witnesses\u2019 testimony. (Davis, 415 U.S. at 316, 39 L. Ed. 2d at 353-54, 94 S. Ct. at 1110.) The Sandoval court found that Davis did not grant a defendant a license to harass, abuse or generally attack his accusers (Sandoval, 135 Ill. 2d at 174-75, 552 N.E.2d at 733); it only ensures that the defendant will be able to confront his accuser \"where the confrontation is both relevant and based on a showing of bias, prejudice or motive.\u201d Sandoval, 135 Ill. 2d at 174-75, 552 N.E.2d at 733.\nJones asserts that he sought to offer this evidence precisely for these reasons, and argues that the victim here had several motives to accuse Jones and Salazar falsely. Jones suggests that she feared her mother\u2019s reaction to her sexual experiences and that she was attempting to protect her boyfriend, Battice.\nWe reject Jones\u2019 constitutionally based argument for several reasons. First, the prior sexual encounter with Battice that Jones watched is not legally or even logically relevant to the possible motive that the victim feared her mother\u2019s reaction. A fact is legally relevant if it has \"any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d (People v. Monroe (1977), 66 Ill. 2d 317, 322, 362 N.E.2d 295, 297.) Here, the fact that Jones observed the victim having consensual intercourse with a codefendant approximately one month prior to the sexual assault at issue here fails to shed any light on the issue of whether the victim feared her mother would castigate her for having sexual intercourse on the night of the assault.\nThe defendant attempts to analogize this case to People v. Gray (1991), 209 Ill. App. 3d 407, 568 N.E.2d 219, appeal denied (1991), 139 Ill. 2d 600, 575 N.E.2d 919, where the appellate court held that the defendant\u2019s confrontation rights superseded the State\u2019s interest in protecting the victim under the provisions of the rape shield statute and that therefore the defendant should have been allowed to question the victim on her fear of being pregnant by another man.\nHowever, Gray presents a situation where the prior sexual activity was relevant to the criminal assault being tried. There, the victim admitted outside the jury\u2019s presence that in the summer of 1985 she feared she was pregnant by her friend, Keith; that her mother did not initially know about her relationship with Keith; and that when the victim\u2019s mother merely saw her with Keith, she was punished. (Gray, 209 Ill. App. 3d at 411, 568 N.E.2d at 222.) The trier of fact there could reasonably decide that the victim invented the sexual assault, given her fear of her mother\u2019s previously demonstrated wrath, which would only be inflamed by the pregnancy.\nThis case shares some superficial similarities with Gray. Both cases involve an allegation that the victim falsely accused the defendant of sexually assaulting her. Additionally, the defendant in Gray and Jones here argue that fear of reprisal from the victims\u2019 respective mothers motivated the false accusation. Those two facts alone, however, did not render the past sexual history of Gray\u2019s victim relevant. It derived its relevance only from the fact that she feared she was pregnant, and, therefore, her mother would necessarily discover that she was sexually active.\nThe feared pregnancy in Gray provided the logical basis from which a trier of fact could reasonably infer that the victim invented the alleged sexual assault. That predicate is absent here. Jones does not allege that the victim feared pregnancy; nor does he present any other plausible reason to demonstrate why the victim suddenly feared her mother would learn of the group sexual encounter in the high school auditorium but not the one she had a month earlier with Bat-tice. More significant, nothing logically links the victim\u2019s prior instance of sexual conduct with the alleged motive to lie. Jones\u2019 argument, when stripped bare, advances the theory that a defendant may circumvent the rape shield statute and explore the victim\u2019s prior sexual history whenever he asserts that the victim has any motive to lie, which is, of course, absurd.\nJones also asserts that the excluded evidence was admissible because it was necessary to impeach the victim\u2019s testimony that she did not know him prior to the sexual assault. However, as stated earlier, the record does not establish that the victim knew anyone watched her with Battice, much less that she knew that Jones, in particular, watched. Consequently, exploring the victim\u2019s past sexual incident with Battice would not impeach her testimony that she did not know Jones before the assault.\nMoreover, and more important, Jones successfully impeached by other means the victim\u2019s direct testimony that she did not know him prior to the assault. On cross-examination, counsel for Jones confronted her with a statement she made to the police two days after the incident wherein she admitted that she recognized Jones from the neighborhood. Jones gained as much benefit as possible from the victim\u2019s inconsistent testimony without allowing him to delve into the victim\u2019s irrelevant prior sexual experiences. The right to confront one\u2019s accusers does not include the right to explore the irrelevant prior conduct of a victim. Accordingly, we hold that the rape shield act, as applied, did not violate Jones\u2019 right to confront his accusers or to present a defense.\nII\nDefendants\u2019 final contention is that the trial court erred in sentencing them. They ask this court to compare their five-year sentences to the sentence given to their codefendant Battice. Battice pled guilty to unlawful restraint and misdemeanor criminal sexual abuse and the court placed him on 30-months\u2019 probation. The defendants argue that the disparity in sentencing between Battice and them violates due process in view of their shared culpability and the fact that Battice allegedly served to instigate the sexual assault. In the words of the defendants: \"[Battice] 'gave his girl friend [the victim] away.\u2019 But for [Battice], the defendants may have just gone 'home that afternoon.\u2019 \u201d In addition, defendants seem to suggest that the trial court did not consider the defendants\u2019 mitigating factors prior to passing sentence.\nThe State responds that the trial court did not abuse its discretion by sentencing Jones and Salazar to five years\u2019 incarceration. In support of its contention, the State points out that under the Unified Code of Corrections, the statutory minimum sentence for criminal sexual assault, a Class 1 felony, is four years. (111. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u20141(a)(4).) The State concludes that the trial court considered the factors in mitigation but determined that given the heinous nature of the crime, the aggravating factors outweighed those in mitigation. The State therefore maintains that the court did not err in imposing a sentence one year over the minimum allowable time.\nAfter applying the appropriate standard of review, we are compelled to agree with the trial court on the appropriateness of the sentences it imposed. Our supreme court has held consistently that the imposition of sentence is within the trial court\u2019s discretion and that a sentence imposed will not be altered by a reviewing court unless the trial court abused its discretion. (See People v. Ashford (1988), 121 Ill. 2d 55, 88, 520 N.E.2d 332, 346; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 883; People v. Butler (1976), 64 Ill. 2d 485, 356 N.E.2d 330.) Moreover, a sentencing court\u2019s decision is cloaked with a presumption of correctness. People v. Choate (1979), 71 Ill. App. 3d 267, 275-76, 389 N.E.2d 670, 676.\nA trial court abuses its discretion when it sentences similarly situated defendants to grossly disparate punishments. (People v. Kline (1981), 99 Ill. App. 3d 540, 553-54, 425 N.E.2d 562, 571-72, rev\u2019d on other grounds (1982), 92 Ill. 2d 490, 442 N.E.2d 154; People v. Bares (1981), 97 Ill. App. 3d 728, 738, 423 N.E.2d 538, 545.) Fundamental fairness commands that a court not punish one defendant more severely than his equally culpable codefendant, absent a valid reason. People v. Martin (1980), 81 Ill. App. 3d 238, 245, 401 N.E.2d 13, 18.\nAt first blush it would appear that Battice, Jones and Salazar are equally culpable. They all participated in the sexual assault of the victim. Furthermore, Battice, according to defendants\u2019 brief, instigated the episode. However, the defendants\u2019 argument ignores the fact that Battice and the appellants here are not similarly situated. Battice pled guilty to charges of misdemeanor criminal abuse, a Class A misdemeanor and felony unlawful restraint, a Class 4 felony. (111. Rev. Stat. 1989, ch. 38, pars. 12 \u2014 15, 10 \u2014 3.) Jones and Salazar were convicted of criminal sexual assault, a Class 1 felony. 111. Rev. Stat. 1989, ch. 38, par. 12 \u2014 13.\nWe have repeatedly held that a negotiated plea does not serve as a valid basis of comparison for a sentence imposed after trial. (People v. White (1985), 134 Ill. App. 3d 262, 283, 479 N.E.2d 1121; People v. Bennett (1980), 90 Ill. App. 3d 64, 412 N.E.2d 1001.) The defendants cite two cases in which the reviewing court reduced disparate sentences between codefendants where the lesser sentences were the product of a negotiated plea. (People v. Franklin (1987), 159 Ill. App. 3d 923, 512 N.E.2d 1318; People v. Jackson (1986), 145 Ill. App. 3d 626, 495 N.E.2d 1207.) Defendants, although relying on Franklin and Jackson, ignore the one aspect of those cases which renders their decisions inapplicable to the facts sub judice. In both cases, the defendant who received the lesser sentence nevertheless pled guilty to the same offense as the appellant.\nIn Jackson, the appellant received an 80-year sentence after being found guilty of armed robbery, murder and conspiracy to commit murder, while his codefendant pled guilty to armed robbery and murder and received a 30-year sentence. (Jackson, 145 Ill. App. 3d at 632-33, 495 N.E.2d at 1213.) In Franklin, the trial court imposed a 15-year sentence on Franklin for the manufacture of a controlled substance. (Franklin, 159 Ill. App. 3d at 933, 512 N.E.2d at 1320.) His codefendant, as the result of a negotiated plea, received six years for the same offense. Franklin, 159 Ill. App. 3d at 933, 512 N.E.2d at 1320.\nSince the codefendants in Franklin and Jackson were charged with the same crimes, they were \"similarly situated.\u201d The reviewing courts there had a valid basis of comparison. Here, in contrast, the disparate sentences were the result of the charges the State chose to bring against the respective parties; defendants were not similarly situated, and thus, the trial court did not abuse its discretion. Accordingly, the decision of the trial court is affirmed.\nAffirmed.\nMcCORMICK, P.J., and DiVITO, J\u201e concur.\nArticle I, section 8, of the 1970 Illinois Constitution provides: \"In criminal prosecutions, the accused shall have the right *** to meet the witnesses face to face ***.\u201d 111. Const. 1970, art. I, \u00a7 8.\nThe sixth amendment to the United States Constitution made applicable to the States through the fourteenth amendment in Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 similarly states: \"In all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him ***.\u201d U.S. Const., amend. VI.\nThe defendants\u2019 asserted alternative motive that the victim falsely accused Jones and Salazar to protect her one-time boyfriend Battice is equally absurd given that the victim ultimately implicated Battice at the trial of Jones and Salazar. Moreover, if the victim truly wanted to protect Battice, her best approach would be not to tell anyone of her sexual encounter with the four men. The least effective means would be to accuse Jones and Salazar falsely, giving them the incentive to implicate Battice.\nThe appellate court also set aside Jackson\u2019s conviction for conspiracy to commit murder because it violated section 8 \u2014 5 of the Criminal Code of 1961. (Jackson, 145 Ill. App. 3d at 647, 495 N.E.2d at 1223, citing Ill. Rev. Stat. 1981, ch. 38, par. 8 \u2014 5.) Thus, both Jackson and his codefendant were sentenced for murder and armed robbery.", "type": "majority", "author": "JUSTICE SCARIANO" } ], "attorneys": [ "Michael J. Pelletier and Maria A. Harrigan, both of State Appellate Defender\u2019s Office, of Chicago, for appellants.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Jane Liechty Loeb, and Elizabeth A. McDevitt, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. YE-SHUA JONES et al., Defendants-Appellants.\nFirst District (2nd Division)\nNos. 1\u201491\u20140038, 1\u201491\u20140070 cons.\nOpinion filed February 2, 1993.\nMichael J. Pelletier and Maria A. Harrigan, both of State Appellate Defender\u2019s Office, of Chicago, for appellants.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Jane Liechty Loeb, and Elizabeth A. McDevitt, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0556-01", "first_page_order": 574, "last_page_order": 587 }