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People v. ulmer, 2012 il app (3d) 110202-u
: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
) Appeal from the Circuit Court ) of the 12th Judicial Circuit,
) Appeal No. 3–11–0202 ) Circuit No. 09–CF–2393
) Richard C. Schoenstedt, ) Judge, Presiding.
JUSTICE O'BRIEN delivered the judgment of the court.
Justice Wright concurred in the judgment.
Presiding Justice Schmidt dissented.
: The trial court did not abuse its discretion in granting the defendant's motion in
to exclude evidence of a possible erectile dysfunction pill found on thedefendant's person at his trial for sexual assault when the pill was found sixmonths after the alleged sex offense, there was no evidence that the defendant hada prescription for such pills at the time of the assault, and the evidence showedthat the defendant had just purchased the pill.
The defendant, Nakita Ulmer, who was charged with home invasion, aggravated criminal
sexual assault, robbery, and aggravated criminal sexual abuse, filed a motion in limine
evidence of a pill found during a search of his person six months after the charged crimes. The
trial court granted the motion, and the State appealed. We affirm.
The defendant was indicted for crimes that occurred on or about April 1, 2009, involving
a female victim over 60 years of age. The defendant was charged with home invasion (720 ILCS
5/12-11(a)(3) (West 2008)), two counts of aggravated criminal sexual assault (720 ILCS 5/12-
14(a)(4), (5) (West 2008)), robbery (720 ILCS 5/18-1(a) (West 2008)), and two counts of
aggravated criminal sexual abuse (720 ILCS 5/12-16(a)(3), (6) (West 2008)). Prior to the
defendant’s trial, the parties agreed on the disposition of a number of motions in limine
motion was not agreed: the defendant’s motion to exclude evidence of a package labeled “Stiff
Nights” that contained one pill, which was found during a search of the defendant’s person on
October 14, 2009, six months after the alleged crimes for which he was indicted. The
defendant’s motion argued that the pill was irrelevant, and its prejudicial effect outweighed its
probative value. The State argued that the pill was relevant because the victim had made a
statement that the person who had committed the crimes against her had trouble getting an
erection. The State argued that the pill was designed to help someone achieve an erection, so its
probative value in identifying the defendant was not substantially outweighed by any prejudicial
The trial court granted the defendant’s motion, without prejudice, finding that there was
not a sufficient nexus between the pill and the charged crimes to find that it was more probative
than prejudicial because more than six months had elapsed. The trial court noted that there was
no indication that the victim saw the defendant ingest a pill, nor any indication that the defendant
had a prescription that could be traced back to the time of the crime. The trial court denied the
State’s motion to reconsider, which added the information that the defendant had just purchased
the pill at a gas station when it was discovered by the police officers. The State appealed.
The State argues that the pill is relevant as circumstantial corroboration of the victim’s
identification of the defendant, and its probative value is not substantially outweighed by its
prejudicial effect. The defendant contends that the trial court acted within its discretion in
Any evidence that tends to make a fact of consequence to the determination of the action
more probable than not is relevant. People v. Harvey
, 211 Ill. 2d 368 (2004). However, even if
evidence is relevant, a trial court may reject the evidence if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
People v. Dabbs
, 239 Ill. 2d 277 (2010). Rulings on evidentiary matters, including motions in
, are within the discretion of the trial court, and we will not disturb a trial court's
evidentiary ruling absent an abuse of that discretion. Harvey
, 211 Ill. 2d at 392.
In this case, identification of the defendant as the perpetrator of the crimes was a fact in
controversy. The discovery of a pill designed to help a person achieve an erection in the
defendant’s possession, and the victim’s statement that the perpetrator had trouble getting an
erection during the crimes, was relevant to the determination of that fact.
However, the pill was not found on the defendant’s person until six months after the
charged crimes. As the trial court noted, there was a lack of information regarding whether the
victim saw the perpetrator take any pills, or whether the defendant had a prescription for the pill
that was filled at the time of the crimes. In fact, in its motion to reconsider, the State noted that
the pill was purchased over-the-counter by the defendant on the day that it was found on his
person. Due to the lack of nexus between the crimes and the defendant’s purchase of a single pill
six months later, we cannot say that the trial court abused its discretion by granting the
The judgment of the circuit court of Will County is affirmed.
The trial court and majority misapprehend, and misapply, the principle of law allowing
exclusion of evidence which is more prejudicial than probative in this instance. As such, I
The majority acknowledges that the trial court suppressed evidence of the pill finding
"there was not a sufficient nexus between the pill and the charged crimes to find that it was more
probative than prejudicial because more than six months had elapsed." Supra ¶ 5. Citing Dabbs,
the majority claims that a trial court "may reject the evidence if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
Justice Steigmann recently addressed a similar misapprehension and misapplication of the
"prejudicial versus probative" test in People v. Pelo, 404 Ill. App. 3d 839 (2010).
"The question is not whether relevant evidence is more prejudicial
than probative; instead, relevant evidence is inadmissible only if
the prejudicial effect of admitting that evidence substantially
outweighs any probative value. [Citation.] *** 'Prejudicial effect'
in this context of admitting that evidence means that the evidence
in question will somehow cast a negative light upon a defendant
for reasons that have nothing to do with the case on trial.
[Citation.] In other words, the jury would be deciding the case on
an improper basis, such as sympathy, hatred, contempt, or horror.
[Citation.]" (Emphasis in original.) Id. at 867.
The trial court and majority agree that defendant's possession of the pill and the victim's
statement that the perpetrator had trouble achieving an erection render possession of the pill
relevant evidence. Supra ¶ 9. I agree.
Nevertheless, they conclude that evidence of defendant's possession of the pill is too
remote in time to the commission of the crime rendering such evidence more prejudicial than
probative. To prove unfair prejudicial effect, however, it is necessary to show that a jury would
"somehow cast a negative light upon defendant" for his possession of an erection pill. In today's
society, one cannot watch a major sporting event without observing stories and commercials for
Cialis or Viagra, given their sponsorships. There is nothing in the evidence or in the collective
common knowledge to suggest that this evidence would likely cause a jury to decide the case on
an improper basis. Since there is no prejudicial effect, it cannot outweigh the probative value.
The fact that defendant possessed the pill six months after the rape, and that he had no
prescription for other aides, simply goes to the weight of the evidence not its admissibility.
Having found that possession of the pill is relevant and admissible given the victim's testimony
that her assailant could not achieve an erection, I find no authority to support the conclusion that
a jury would decide the matter on an improper basis attached to men carrying erectile aides. As
such, I find the trial court erred in suppressing evidence of defendant's possession of the Stiff
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