Appeal from the Circuit Court of Cook County Honorable Robert M. Smierciak, Judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard
Robert Delgado was convicted of aggravated criminal sexual abuse after a jury trial and sentenced to four years in prison. Delgado raises four issues on appeal: The first two directly challenge his conviction. Delgado argues the State failed to prove him guilty beyond a reasonable doubt and the court failed to instruct the jury on the definition of "sexual conduct." Delgado's final two arguments challenge the fines he was ordered to pay as part of his sentence.
The Illinois Supreme Court has entered a supervisory order (People v. Delgado, No. 103815 (March 28, 2007)) directing this court to vacate our previous opinion (People v. Delgado, 368 Ill. App. 3d 985 (2006)) and reconsider our judgment under a plain error analysis.
Defendant was charged with criminal sexual assault, aggravated criminal sexual abuse, criminal sexual abuse, and unlawful restraint. The State before trial entered a nolle prosequi on all of the charges except criminal sexual assault and aggravated criminal sexual abuse. The jury found defendant not guilty of criminal sexual assault, but guilty of aggravated criminal sexual abuse.
At trial, the State presented two witnesses to testify against defendant: the victim, J.L., and Detective Michael Tardi. J.L. testified that in September 2002, when she was in sixth grade, she began going to her mother's car at night to use the CB radio. J.L. used the handle "Sweetie," and she often spoke to a man whose handle was "No. 1 Asshole." J.L. was 13 years old at the time, but when No. 1 Asshole asked her age, she lied and said she was 16.
J.L. testified that on the night of October 4, 2002, she spoke briefly to No. 1 Asshole, then gave him her telephone number and asked him to call her in five minutes. Around 10 p.m., he called and they arranged to meet later that night at a public park a few blocks from J.L.'s home. J.L. asked her mother if she could go out, but her mother said no. Contrary to her mother's wishes, J.L. left the house and went to the park around 11:30 p.m.
Shortly after she arrived, a man pulled up on a bicycle. J.L. identified the man in court as the defendant. The man asked if she was J.L., she asked if he was No. 1 Asshole, and they both said yes. Defendant asked J.L. whether she had a boyfriend and whether she was a virgin, and J.L. answered yes to both questions. Defendant then asked J.L. if she wanted to "do it," which she understood to mean have sex, and she said no.
Defendant provided marijuana which they both shared. He began rubbing J.L.'s back and kissing her neck, but she asked him to stop and he did. J.L. testified that she began to feel uncomfortable and tried to leave, but defendant grabbed her arm and told her he was not ready to leave yet. She sat down and they resumed talking for 10 to 20 minutes. Defendant began rubbing J.L.'s back and kissing her neck again, and he asked her again if she wanted to "do it." Once again, she said no.
At that point, J.L. testified, "somehow we ended up on the ground," with defendant on top of her. J.L. testified that defendant pinned her wrists above her head with one hand, while using his other hand to unzip her jeans and pull them down. She also testified that he put his other hand over her mouth. Defendant unzipped his pants, and inserted his penis into her vagina. After 5 to 10 minutes, J.L. testified that she felt "something warm" on her stomach, which defendant wiped off. She testified that she did not see defendant ejaculate, and she did not see what he used to wipe her stomach.
On cross-examination, J.L. said she tried to scream but defendant's hand was covering her mouth. When asked how defendant could have pinned her arms above her head and pulled down her pants, with his hand over her mouth, J.L. said he removed his hand from her mouth to undress her for, "like, two seconds," then put his hand back over her mouth.
After the incident, J.L. pulled up her pants, saw that it was 2 a.m. and left. When she returned home, her mother was furious and told her that she had called the police and that they had been to the home earlier. When the police officer returned later that night, J.L. told him defendant did not touch her. Three days later, however, on October 8, 2002, J.L. told the police and her mother that she had been raped.
The police asked J.L. to use the CB radio again to contact defendant, but he was unavailable. Eventually she was successful in setting up the meeting. J.L. did not go to the meeting, but the police did and arrested defendant. The following day she identified defendant in a lineup.
J.L. went to MacNeal Hospital on October 9, 2002, for a medical examination. She testified that she waited nine hours but was not examined. She returned the following day and was examined. Results of the examination were normal and neither confirmed nor excluded the possibility that J.L. had been assaulted. J.L. had no bruises, marks or scratches on her body after the incident and her clothes were not stained or torn.
Detective Tardi also testified for the State, and he confirmed J.L.'s account of their attempts to contact defendant via the CB radio. On October 9, after J.L. had set up a meeting, police saw a man riding a bicycle in the meeting area at the appointed time. The man, identified in court as defendant, matched the description J.L. had earlier given to police. Officers approached and arrested him.
The parties stipulated to the ages of J.L. (13) and Delgado (26) at the time of the incident. The defense did not present any evidence at trial.
The jury found defendant not guilty of criminal sexual assault but guilty of aggravated criminal sexual abuse. The trial court sentenced defendant to 4 years in prison, found he was entitled to 363 days of sentencing credit, and assessed fines, costs and fees totaling $719.
Defendant's first contention on appeal is that the State failed to prove him guilty beyond a reasonable doubt because there was no physical evidence of any sexual conduct and the complainant's inconsistent and improbable testimony was overshadowed by her motive to lie.
When reviewing a conviction to determine whether the prosecution has satisfied the reasonable doubt standard, the court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis omitted.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L.Ed. 2d 560, 573, 99 S.Ct. 2781, 2788-89 (1979). The Jackson standard applies in all criminal cases, regardless of the nature of the evidence. People v. Pollock, 202 Ill. 2d 189, 217 (2002). "In conducting this inquiry, the reviewing court must not retry the defendant." People v. Cunningham, 212 Ill. 2d 274, 279 (2004). Rather, the reviewing court must examine the record, keeping in mind that it was the trier of fact who saw and heard the witness. Cunningham, 212 Ill. 2d at 280. Testimony may be found insufficient under the Jackson standard only where it is clear from the record that no reasonable person could accept it beyond a reasonable doubt. Cunningham, 212 Ill. 2d at 280.
Defendant relies on People v. Ford, 195 Ill. App. 3d 673, 675 (1990), for the proposition that the testimony of a single witness is not sufficient to support a conviction if the testimony is either vague or doubtful; however, Ford dealt narrowly with identification of an accused, not with witness testimony generally. In People v. Smith, 185 Ill. 2d 532, 541 (1999), the court recognized that the testimony of a single witness, if credible, is sufficient to convict. Moreover, it is well settled that a lack of physical evidence does not establish that a sexual assault did not occur. People v. Shum, 117 Ill. 2d 317, 356 (1987).
Where a conviction is based upon testimony that is "improbable, unconvincing and contrary to human experience," however, the conviction must be reversed. People v. Vasquez, 233 Ill. App. 3d 517, 527 (1992). In Smith, the Illinois Supreme Court reversed a murder conviction where the only witness to link the defendant to the crime was contradicted at trial by other witnesses and was ...