Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 10-CR-107. The Honorable Evelyn B. Clay, Judge, presiding.
FOR PLAINTIFF-APPELLEE: Alan J. Spellberg, Mary L. Boland, Tasha-Marie Kelly, Office of the State's Attorney, County of Cook, Chicago, IL.
FOR DEFENDANT-APPELLANT: Carson R. Griffis, Office of the State Appellate Defender, Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.
[¶1] Defendant Pablo Torres was charged by indictment with attempted murder (720 ILCS 5/8-4(a), 9-1 (West 2008)); four counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2), 12-14(a)(3), 12-14(a)(4) (West 2008)); and aggravated kidnapping (720 ILCS 5/10-2(a)(3) (West 2008)). The charges stemmed from events that occurred between November 25 and 27, 2009, at a motel in Chicago. A jury found Torres not guilty of attempted murder but convicted him of aggravated battery as a lesser-included offense of attempted murder, four counts of aggravated criminal sexual assault, and one count of aggravated kidnapping. The trial court merged the four counts of aggravated criminal sexual assault and sentenced Torres to concurrent terms of 21 years in prison for aggravated criminal sexual assault and 6 years for aggravated kidnapping, with a consecutive 6-year term for aggravated battery.
[¶2] Torres argues three grounds for reversing his convictions and remanding for a new trial: (1) the trial court improperly allowed testimony regarding two prior acts of domestic violence by Torres against Maria P.; (2) the State inadequately summarized, as required by statute (725 ILCS 5/115-7.4(c) (West 2012)), a prior act of domestic violence; and (3) the trial court erred when it failed to instruct the jury as to the State's burden of proving lack of consent beyond a reasonable doubt.
[¶3] We affirm Torres' convictions and sentences. First, the trial court properly allowed the State to adduce evidence of two earlier attacks by Torres against Maria that occurred within two months of the
charges. Second, the State's supplemental motion to allow the other-crimes evidence provided an adequate summary of the evidence as required by statute. 725 ILCS 5/115-7.4(c) (West 2008). Third, Torres neither tendered an instruction regarding his consent defense during the conference nor did he raise the issue in his motion for a new trial; thus, he forfeited the issue of jury instructions as to consent. Furthermore, no error occurred where the jury was instructed as to the elements of the offense of aggravated criminal sexual assault, the State's burden of proof, and the presumption of innocence.
[¶5] Before the events in November 2009, Torres and Maria P. dated for a couple of months, but Maria ended the relationship in late October after he beat her while they were on a date. Maria obtained an order of protection against Torres. Nevertheless, shortly afterward, on November 25, despite the order of protection, Maria P. accompanied Torres to a motel where Torres refused to allow Maria to leave; punched her in the face, arms, and legs; and had sex with her once. On November 27, Torres drove her home. Maria called the police and was interviewed and photographed on November 30 and December 1. The police then arrested Torres and charged him with several offenses. At trial, he raised a defense of consent, asserting that Maria willingly accompanied him to the motel and acquiesced to sexual intercourse.
[¶6] Before trial began, the State moved in limine to allow evidence of prior unrelated acts committed by Torres in 1995 and 1999 against two women with whom he had romantic relationships, and the October 2009 incident involving Maria which resulted in an order of protection. The trial court denied the State's motion pertaining to the other women as being remote in time, but allowed the State's motion regarding the October 2009 incident.
[¶7] In a supplemental motion in limine, the State sought to admit evidence of another incident that occurred at a restaurant in September 2009. The State's summary included the following: Torres " became enraged" when Maria received a phone call from her employer, " call[ing] her names and hit[ting] her in the face." They left the restaurant and went to Torres' house. Although Maria told him she wanted to go home, she stayed overnight because he " did not want her to leave." The State learned of this incident after the investigator for the defense interviewed Maria. Defense counsel did not object to this evidence. The trial court allowed the State's motion.
[¶8] State's Evidence
[¶9] Maria, who testified through an interpreter, dated Torres during September and October 2009. They met at a bar on the south side of Chicago where she was a waitress. On their first date at a restaurant, Torres looked at her " in a very strange way" like he wanted to kill her. Maria described their second date, a walk together in a park, as " normal." In September 2009, during their third date while at a restaurant, Maria received a call on her cell phone from her boss who wanted her to come to the bar to work. She declined, after which her boss put a customer on the phone to say hello. This angered Torres. He started calling Maria insulting names which made her cry and attracted the attention of a waitress who came over to see if Maria was " okay." Torres and Maria then left the restaurant and went to Torres' car. There, Torres slapped her, pulled her hair, and choked her while he drove. He told her she would " pay for this when we get home," and that she must do everything he told her or " he could hurt [her] badly." Torres drove to
his house where she stayed overnight after he refused to let her go home. Maria did not call the police out of fear.
[¶10] Maria continued to date Torres because " he told me to forgive him." Maria testified that she did forgive him. Later in October, Torres took her to a tattoo parlor and had his name " Pablo" tattooed on her wrist even though Maria did not want the tattoo. Torres hugged her tightly, which Maria understood to mean she " better" obey his wishes.
[¶11] In the early hours of October 25, 2009, Torres picked up Maria after work and brought her to his house. She went into the bathroom to wash her face. When she came out, he attacked her, hitting her many times on her face and legs. He choked her and told her not to scream. She realized that he had seen a call from a male friend on her cell phone. After a long time, he stopped and calmed down. He asked for forgiveness. He would not let her leave until much later. Again, she did not call the police. On October 28, she went to the hospital.
[¶12] At this point in her testimony, the trial court called for a side bar and admonished the State to discontinue questions about October 25 because Maria was relating too much detail about the uncharged offense. Defense counsel moved for a mistrial, which the trial court denied.
[¶13] Maria testified that after meeting with police officers at the hospital, she obtained an order of protection. Torres continued calling her cell phone and home phone. On November 21, she went to a hotel with him where they spent the night and had sex. Maria explained that she went with Torres that night because she was " scared" and " terrified." Torres apologized and she forgave him.
[¶14] Charged Offenses
[¶15] On November 25, the day before Thanksgiving, Maria agreed to go to a restaurant with Torres to talk. Torres sent his brother, Javier, for Maria. Javier drove her to a supermarket parking lot where they met Torres. Maria got into Torres' car. Instead of going to a restaurant, he drove to a far away motel on the north side of Chicago. Maria had only a jacket and purse with her. On the way, Torres bought Maria hot tea at a McDonald's because she was coughing. Torres checked into the motel and came out " pretty fast." When they went inside their room, which was in the back of the motel, Torres grabbed Maria's purse and used her cell phone to call Maria's daughter, Maritza. He told Maritza that " your mother's with me and she's okay. She's fine." Torres then broke Maria's cell phone and threw it away. He also disconnected the motel telephone; however, he reconnected it after an employee came to their room and told him it could not remain disconnected.
[¶16] Maria sat down at the end of the bed and drank the tea. She told Torres that she was going back to work on November 27, the day after Thanksgiving. She had been unable to work for a month due to injuries from the " beating that [she] got." Torres became angry and started to beat her, threw the hot tea on her, spit on her face, and threw her on the bed by her hair. He started to squeeze her neck and she fainted. When she regained consciousness, she went to sit in a chair and he began to punch her in the face and kick her. After a long time, he stopped and told her to take her clothes off. She did so slowly because she hurt and then lay down on the bed. Torres punched her in the mouth and blood began to " spurt everywhere." He threw a towel at her, grabbed her and threw her up against the mirror in the bathroom. She saw that her face was swollen and disfigured. He told her to wash her face and take the blood off, and then said " let's go to bed." She again lay down and pretended to sleep while he held
her tightly. Whenever she moved slightly, he would check to see if she was sleeping. Torres slept on and off but Maria could not sleep.
[¶17] The next morning, November 26 (Thanksgiving), Torres' landlady called his cell phone to let him know that the police were looking for him. Torres told Maria that he wanted her to " drop the charges." In the early afternoon, a maid knocked on the door and asked if they wanted clean towels. Torres instructed Maria to sit in the chair near the door. He opened the door a little but Maria could not ...