Appeal from the Circuit Court of Cook County No. 08 CR 3829 Honorable Thomas Hennelly, Judge Presiding.
The opinion of the court was delivered by: Justice Connors
JUSTICE CONNORS delivered the judgment of the court, with opinion. Justices Karnezis and Harris concurred in the judgment and opinion.
¶1 Following a jury trial, defendant Ernesto Giraud was convicted of one count of aggravated criminal sexual assault, two counts of criminal sexual assault, and one count of criminal transmission of HIV. He was sentenced to 30 years in prison for aggravated criminal sexual assault, two 15-year terms for the criminal sexual assault convictions, and 7 years for the criminal transmission of HIV conviction, all to run concurrently. Defendant now appeals alleging that (1) the State failed to prove him guilty beyond a reasonable doubt of aggravated criminal sexual assault because it failed to prove that defendant threatened or endangered the victim's life during the sexual assault, and (2) the prosecutor's comments during rebuttal closing arguments improperly shifted the burden of proof to defendant. We reduce defendant's aggravated criminal sexual assault conviction to criminal sexual assault and remand the case for resentencing based on the reduced conviction. We also find that defendant's sentence for criminal transmission of HIV should run consecutively, rather than concurrently, to the criminal sexual assault sentences, and we find that the prosecutor's comments in rebuttal closing arguments did not constitute reversible error.
¶3 Defendant was charged with numerous counts stemming from allegations that he engaged in sexual intercourse with his teenage daughter on multiple occasions while he was infected with human immunodeficiency virus (HIV). One of the charges enumerated in defendant's indictment was aggravated criminal sexual assault, which stated that while he was committing the offense of criminal sexual assault, he "acted in such a manner as to threaten or endanger the life of [T.G.], to wit: [defendant] is HIV positive and had unprotected sex with [T.G.], in violation of *** section 12--14(a)(3) [(720 ILCS 5/12--14(a)(3) (West 2010))]."
¶4 The following facts were gleaned at trial. T.G., the victim, testified that at the time of trial she was 16 years old. When she was five years old her mother died, so she lived with her grandmother until the summer of 2006. When she was 13 years old, she moved in with her father (defendant), and his wife in their two-bedroom apartment in Chicago. Both T.G. and defendant knew that defendant was HIV positive and that he took medication to treat the disease.
¶5 A couple of days before Thanksgiving of 2007, when she was 14 years old, T.G. was alone in her bedroom. Defendant said he wanted to show her something and entered her room and locked the door behind him. He told her to take off her clothes, and she resisted. He grabbed her by the hands and pushed her on the bed where she fell on her back. He held her down with one arm and used his free arm to unbuckle her jeans. She pushed him off and attempted to run to the door, but defendant blocked her. He reached into the dresser for a condom, got back on the bed and grabbed T.G., and tried to put on the condom. T.G. looked away because she "didn't want to be there at that moment." She testified that she did not know whether defendant ever put on the condom. Defendant then put his penis into her vagina and started having sex with her. After about a minute, T.G. pushed defendant off and ran into the bathroom, locking the door. Defendant told her to "get the f***k out" and threatened that if she ever told anyone what happened, she and her family would be hurt. T.G. got in the shower and felt wetness on her body. She kept scrubbing herself with soap to get rid of the feeling.
¶6 Approximately two weeks later, T.G. was inside her locked bedroom when defendant began knocking and then picked the lock. He told T.G. to take off her clothes but T.G. refused and tried to walk out of the room. Defendant grabbed her by her hair and forced her down on the bed. He pulled off her pants and held her down while he forced his penis into her vagina. T.G. did not know if defendant wore a condom.
¶7 There were approximately four more times where defendant forced his penis into T.G.'s vagina between Thanksgiving and Christmas of 2007. After T.G.'s fifteenth birthday in December, and into early January 2008, defendant forced T.G. to have sex with him about two additional times. Each act occurred in either T.G's bedroom or defendant's bedroom. The last occurrence took place in January 2008. Defendant came in her room and grabbed her and started to unbuckle her pants. T.G. started crying after defendant inserted his penis in her vagina, so he pulled out and walked away. T.G. was not sure if he used a condom that time.
¶8 On January 24, 2008, T.G. went to her grandmother's house and ingested an entire bottle of Tylenol pills. She passed out on the bathroom floor, where T.G.'s grandmother found her.
T.G.'s sister then brought her to the hospital where her stomach was pumped. At the hospital, T.G. was hysterical and begged her sister not to call her father. T.G's sister demanded to know why, and T.G. "told her everything." T.G.'s sister then called the police and defendant was arrested.
¶9 Chicago police detective De La Torre spoke to defendant at the police station, whereupon defendant told De La Torre that he had sex with T.G. on four occasions, the first in November 2007, and the last time about two or three weeks earlier. Defendant claimed that T.G. enjoyed having sex with him. He stated that he used a condom most of the time except for the first occasion.
¶10 Assistant State's Attorney Antara Nath spoke with defendant and obtained a written statement from him. In that statement, defendant stated that in November 2007, he and T.G. had sex for about five minutes. He did not wear a condom, but ejaculated outside of her vagina. During the other occurrences, defendant claimed to have worn a condom. Defendant further claimed that T.G. enjoyed the sexual encounters and provoked them.
¶11 At trial, defendant testified that he suffered from diabetes, high blood pressure, and HIV. He must take medications for these conditions after breakfast. When he left with the officer on the morning of his arrest, he had not eaten breakfast and had not taken his medication. He had last eaten soup the day before at around 5 p.m. Once at the police station, he was placed into the lockup until 5 or 6 p.m. and was not given food during this time. Defendant denied ever admitting any sexual contact with T.G. during his conversation with the detectives. Defendant testified that he did not know he could ask for medication, and he was feeling bad and his vision was blurry. He did not recall signing a form with his rights in English and Spanish. When confronted with the signatures on the pages of the statement, defendant said that several of them did not look like his signature. He denied telling the State's Attorney that he had engaged in sexual acts with T.G.
¶12 During closing arguments, defense counsel highlighted the fact that defendant testified as to his having diabetes, his poor eyesight, and his lack of food prior to giving his written statement. In rebuttal closing arguments, the prosecutor commented that although defendant testified as to all his medical conditions, he did not call his doctors to corroborate his testimony or lend credibility to his testimony.
¶13 The jury convicted defendant of one count of aggravated criminal sexual assault, two counts of criminal sexual assault, and one count of criminal transmission of HIV. The trial judge sentenced defendant to 30 years for aggravated criminal sexual assault, 15 years for each of the criminal sexual assault convictions, and 7 years for the criminal transmission of HIV conviction, all to run concurrently. Defendant now appeals.
¶15 On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt of aggravated criminal sexual assault because it failed to prove the aggravating factor of threatening or endangering the victim's life during the commission of the offense, and that the prosecutor's comments ...