Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois, Circuit No. 10-CF-279 Honorable Charles H. Stengel, Judge, Presiding.
The opinion of the court was delivered by: Justice Schmidt
JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Lytton and O'Brien concurred in the judgment and opinion.
¶ 1 Defendant, Enrique G. Escareno, was convicted of two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2008)) and sentenced to two concurrent terms of eight years' imprisonment. Defendant appeals, arguing that: (1) the evidence was not sufficient to prove him guilty beyond a reasonable doubt; and (2) he was deprived of his constitutional right to present a defense when the trial court denied his motion to subpoena records without first conducting an in camera review of the records. We find the evidence was sufficient to convict defendant but remand the cause for an in camera review of the records requested in defendant's subpoena.
¶ 3 On August 17, 2010, the State filed an information charging defendant with two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2008)). During pretrial discovery, defendant issued a subpoena for all records and statements made by witnesses pertaining to the Department of Children and Family Services (DCFS) investigation against him. DCFS responded to the subpoena with a letter stating that it could not release the information because it was contained in an unfounded report. The letter included a citation to section 7.14 of the Abused and Neglected Child Reporting Act (the Act) (325 ILCS 5/7.14 (West 2008)), which states that such information is privileged. Thereafter, defendant filed a demand for further discovery seeking, among other things, police and DCFS reports generated as the result of a previous allegation made by the victim against another individual, D.G., who was never criminally charged.
¶ 4 The Attorney General filed a motion to quash defendant's subpoena, and the cause proceeded to a hearing. At the hearing, defendant's attorney informed the court that the State had provided him documents as requested with regard to the allegation made by the victim against D.G. He stated that he was satisfied with the State's response pursuant to that request. Therefore, the remainder of the hearing focused on defendant's request for DCFS records relating to the investigation against defendant. At the conclusion of the hearing, the court granted the State's motion to quash. At no time did the court review the DCFS records in camera.
¶ 5 The cause proceeded to a jury trial. The victim testified that defendant asked her to baby-sit his three children on December 5, 2009, because he had wrestling practice. When the victim arrived, defendant did not leave. Defendant told his children to go into the other room, and he sat next to the victim. Defendant then sat on top of the victim's legs and started touching her. He next got up and sat in front of her. While in this position, defendant began lifting up the victim's shirt and touching her skin. He also attempted to pull down her pants. Defendant touched the victim's stomach and then put his hand over her vagina two or three times. At one point, defendant placed his bare hand inside the victim's clothing and directly on top of her vagina.
¶ 6 The victim testified that the touching lasted for approximately one hour. During that time, the victim told defendant "no," but defendant told her, "It's OK. It's all right." The victim also kept calling defendant's children into the room because she knew defendant would not touch her in front of them. After she called them in, defendant would tell the children to leave. At some point, the victim was able to use her cellular telephone. She sent her cousin a text message asking her to come to defendant's residence and get her so that she would have an excuse to leave. She stated that she was too afraid to leave on her own because she thought defendant would grab her and force her to stay. Eventually the victim's cousin arrived, and the victim left with her.
¶ 7 The victim's cousin testified that she arrived at defendant's house after receiving a number of text messages from the victim. In the messages, the victim informed her cousin that defendant was "putting his tongue down her throat, groping her chest, going down her pants." The victim also stated that she was scared, did not know what to do, and wanted to leave. When the cousin arrived at defendant's house, the victim was crying. The victim's mother also testified that the victim was crying when she called her after the incident.
¶ 8 Defendant stipulated that the victim's birthday was February 25, 1993, and that she was between the ages of 13 and 17 when the incident occurred. He also stipulated that he was born on July 20, 1975. Defendant testified that he asked the victim to baby-sit on December 5, 2009, because he had wrestling practice. However, when his ride to practice did not show up, he paid the victim and told her she could leave. The victim decided to stay. She remained at his house and played with defendant's children. She also told defendant that she was out late partying the night before. During her time there, the victim left the residence twice to smoke a cigarette. The third time she left, she returned with her cousin and told defendant she had to help her cousin move. After the victim left, her father came to defendant's house and confronted him. Defendant testified that he did not inappropriately touch the victim or commit any of the alleged acts.
¶ 9 The jury found defendant guilty of both counts of aggravated criminal sexual abuse. The trial court denied defendant's motion for a new trial and sentenced defendant to concurrent terms of eight years' imprisonment. Defendant appeals.
¶ 11 I. Sufficiency of ...