June 01, 2001

JUSTICE LYTTON delivered the opinion of the court:

Defendant, Charles M. Swanson, was indicted for the offense ofcriminal sexual assault, in violation of the section 12-13 of theCriminal Code. 720 ILCS 5/12-13(a)(1) (West 1998). The Statefiled a motion for an extension of the speedy trial deadline undersection 103 of the Code of Criminal Procedure to allow for completeDNA testing. 725 ILCS 5/103-5(c) (West 1998). The trial judgegranted the motion. After a jury trial, the defendant was foundguilty. Defendant appeals the granting of the State's motion. Weaffirm.

Debbie Aylward was visiting defendant's mother, Judy Hufton,at a vacation home Hufton rented in the summer of 1999. Defendantwas also staying at the rental home.

On July 10, Aylward accompanied defendant to a family wedding,while Hufton was babysitting overnight at the home of a relative. After the wedding, Aylward and defendant returned to the home,watched a video and talked. Aylward fell asleep and when sheawoke, the defendant was on top of her. Aylward told defendant,"No," and asked that he leave and go to his room. Defendant toldAylward that if she allowed him to have sexual intercourse withher, he would leave her alone. Aylward testified that after sheinitially balked, she acquiesced because she was frightened anddefendant promised to stop harassing her if she agreed to sleepwith him. Defendant testified, however, that Aylward initiated theintercourse and never resisted. In any case, defendant and Aylwardthen had sexual intercourse in the late evening of July 10.

On the morning of July 11, defendant asked Aylward if sheintended to tell Hufton about their sexual encounter. Aylward tolddefendant that she did and testified that defendant then becameangry, pinned her down, and attempted to have sexual intercourseagain. The telephone rang, and when defendant went to answer it,Aylward broke free, ran to a neighbor's house and called thepolice.

Officer Michael Renner of the LaSalle County Sheriff'sDepartment investigated the incident and spoke with Defendant onJuly 12. Renner testified that defendant told him that he forcedAylward to have sex with him on the night of July 10. Based onthis information, defendant was arrested and charged with domesticbattery, a misdemeanor. On July 21, defendant was charged withcriminal sexual assault for the incident on the morning of July 11. The same day, Aylward was taken to the hospital where a physicalevidence kit was taken. A blood sample was taken from thedefendant on July 12. The evidence kit and blood sample were sentto the Illinois State Police crime lab on July 27 for testing.

The crime lab analyzed the evidence kit and notified the Stateon September 30 that it had identified DNA on the vaginal swab. The State then asked the crime lab to place the sample on the ASAPlist to perform DNA testing. On October 6, the State filed amotion for a 30-day extension of the speedy trial deadline pursuantto section 103 the Code of Criminal Procedure. 725 ILCS 5/103-5(c)(West 1998). The trial court granted a 21-day continuance. Aftera jury trial, defendant was convicted of criminal sexual assault. The Illinois speedy trial statute requires the State to try adefendant, who is held in custody, within 120 days. In 1990, thelegislature amended the statute to accommodate the use of DNAevidence that might otherwise be lost to a speedy trial deadlinedue to the time demands of DNA testing. Pub. Act 86-1210, eff.August 30, 1990. The amendment provides that a defendant can beheld for an additional 120 days without trial if a trial courtfinds that 1) the State exercised diligence in obtaining the DNAevidence within 120 days, and 2) the results of the DNA testing arematerial to the case. See 725 ILCS 5/103-5(c) (West 1998).

Defendant contends that the trial court abused its discretionby granting the State's motion both because the State failed toprove diligence and the DNA evidence was not material.

I. Diligence

The speedy trial statute must be liberally construed indefendant's favor because it enforces a constitutional right. SeePeople v. Reimolds, 92 Ill. 2d 101, 106, 440 N.E.2d 872, 874(1982). A reviewing court will not overturn a trial court's rulingon due diligence unless it amounts to a clear abuse of discretion. People v. Hughes, 274 Ill. App. 3d 107, 111, 653 N.E.2d 818, 822(1995). Whether the State has exercised due diligence is aquestion which must be determined on a case-by-case basis aftercareful review of the particular circumstances presented. Peoplev. Brown, 47 Ill. App. 3d 616, 621, 365 N.E.2d 15, 19 (1977). TheState bears the burden of proof on the question of due diligence. People v. Smith, 275 Ill. App. 3d 207, 215, 655 N.E.2d 1129, 1136(1995).

Both parties rely on the case of People v. Battles, 311 Ill.App. 3d 991, 724 N.E.2d 997 (2000). In that case, the State fileda motion to continue trial for an additional 120 days to obtain DNAtest results under section 103-5(c). The trial court allowed themotion and entered the ruling without findings.

On appeal, defendant challenged the ruling on the grounds thatthe State had failed to show due diligence in the procurement ofthe DNA testing results. The appellate court prescribed threerequirements to assess prosecutorial diligence in obtaining testresults within the initial speedy trial period: first, the Stateshould provide a full explanation of each and every step taken tocomplete DNA testing within the 120-day term; second, takentogether, these steps must comprise a course of action that areasonable and prudent person intent upon completing tests within120 days would follow; and third, the State should explain whythose efforts fell short and resulted in an unavoidable delay. Battles, 311 Ill. App. 3d at 998, 724 N.E.2d at 1002.

In Battles, the court found that the State did not meet itsburden of showing that it made a serious attempt to complete DNAtesting within the 120-day speedy trial term. The court noted thatthe State took 72 days to decide whether it should even perform DNAtesting; sent the sample to the wrong lab; had not yet sent thesample to the correct lab at the time of the hearing; and neverfollowed up with the lab or expedited the testing by placing it onthe ASAP list. The court concluded that "[t]he State did not usesection 103-5(c) as a refuge from an approaching deadline after adiligent but failed effort to obtain tests in time for use attrial," but as a "vehicle to cure the time problem created by itslack of effort." (Emphasis in original.) Battles, 311 Ill. App.3d at 1004, 724 N.E.2d at 1007. The court concluded that grantingthe State's motion for a continuance was an abuse of discretion.

In this case, the State presented different circumstances tothe trial court. A blood sample was taken from defendant on July12, the day he was taken into custody. However, defendant was notcharged with criminal sexual assault for the July 11 incident untilJuly 21. The blood sample and evidence collection kit were sent tothe crime lab July 27 to determine if DNA was present for testing. Since the State did not know whether the evidence collection kitcontained DNA because Aylward had taken a shower after theintercourse on the evening of July 10, the evidence collection kitfirst had to be tested for the presence of DNA.

Due to a backlog, the lab did not perform the tests untilSeptember 28; two days later, the lab notified the State that theevidence collection kit contained material suitable for testing. The State immediately requested DNA testing and placement on theASAP list.

At the hearing on the motion for a continuance, the trialcourt noted that defendant had been in custody less than 90 days,30 days of the original speedy trial term remained, and the purposeof the statute was to allow an extension where time-consumingscientific analysis is required. The court granted the motion andset a trial date of November 29, only 21 days past the originalspeedy trial deadline.

Defendant contends that the State knew that material wasavailable for DNA testing when it took defendant's blood sample. He further argues that after the sample was taken, the State didnot follow up with the crime lab or try to expedite the initialtesting and now relies on the lab's backlog as an excuse for thedelay.

"In light of the due diligence requirement, a belated decisionto test for DNA evidence must be reasonable in its particulars." Battles, 311 Ill. App. 3d at 1004, 724 N.E.2d at 1007.

The ability to perform DNA testing depends on whether a DNAsample is present to test. Here, eighty days passed before theState knew if there was DNA available for testing. For the first21 days, the State did not know whether it would need to test, asDNA was unnecessary for prosecution of the original domesticbattery charge. Once defendant was charged with criminal sexualassault, samples were sent to the lab for the initial testing. When the lab advised that DNA was present, the State immediatelyrequested placement on the ASAP list and six days later filed itsmotion for continuance. The trial judge granted the continuance,but for only 21 days, nine days less than the prosecutor sought.

After analyzing the specific facts and circumstances presentin this case, we believe that the State fully explained the stepstaken to complete DNA testing within the 120-day term. The State'sattempts to complete the testing within 120 days, while not asexpedient as, perhaps, they might have been, were reasonable, andadequately explained why there was an unavoidable delay. Considering the decisions it had to make, the State's actions werenot "unreasonable in [their] particulars." We cannot say that thetrial court abused its discretion by granting the motion.

II. Materiality

Defendant also argues that the DNA evidence was not materialbecause 1) the first sexual encounter was not the basis for thecharge, and 2) DNA evidence was not necessary to prove the sexualconduct the night before because he did not contest it at trial. Thus, the evidence could only prejudice the jury. On the otherhand, the State theorizes that the DNA evidence makes defendant'stestimony less credible because it supports Aylward's version ofthe incident.

Evidence is material when it is probative of a question beforethe trier of fact. People v. Favors, 254 Ill. App. 3d 876, 888,626 N.E.2d 1265, 1275 (1993).

Here, the DNA evidence was material to what occurred the nextmorning; it supported Aylward's testimony that defendant tried tosexually assault her when she threatened to tell Hufton. Sincethis evidence tends to corroborate Aylward's version of the courseof events, it was not an abuse of discretion to grant the State'smotion for a continuance.

Defendant also argues that since he did not contest the July10 sexual encounter at trial, the test results were not material. When a grant of a section 103-5(c) motion is challenged, thereviewing court must consider the record as it existed at the timethe motion for continuance was considered. People v. Hughes, 274Ill. App. 3d 107, 111, 653 N.E.2d 818, 822 (1995). At the time ofthe hearing on the motion, defendant had not yet conceded sexualintercourse took place on July 10. We cannot determine if thetrial court erred because defendant's argument was not and couldnot have been an issue before the court at that time.

The judgment of the circuit court of LaSalle County isaffirmed.

Affirmed.

HOMER, P.J., and SLATER, J., concur.