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People v. Encalado

Court of Appeals of Illinois, First District, Second Division

February 14, 2017

THEOPHIL ENCALADO, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 10 CR 4270 The Honorable Matthew E. Coghlan, Judge Presiding.

          JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justice Pierce concurred in the judgment and opinion. Justice Mason concurred in part and dissented in part, with opinion.



         ¶ 1 A jury found Theophil Encalado guilty on three counts of aggravated criminal sexual assault. In this appeal, we find that the trial court did not abuse its discretion when it permitted the prosecution to impeach Encalado's testimony by showing that he had a prior conviction for predatory criminal sexual assault. However, we find that the trial court abused its discretion when it refused to ask venire members questions about potential bias against persons who participate in prostitution. Accordingly, we reverse the convictions and remand for a new trial.

         ¶ 2 BACKGROUND

         ¶ 3 Around 7 a.m. on March 5, 2006, Deputy Fernando Rodriguez of the Cook County sheriff's department brought Y.C. to St. Elizabeth's Hospital, where Y.C. told medical personnel that she had been raped and punched in the face. A doctor collected oral, vaginal, and anal swabs for testing. In 2008, tests showed that DNA in the fluid on the vaginal swab matched Encalado's DNA. Prosecutors charged Encalado with three counts of aggravated criminal sexual assault in that he threatened Y.C. with a weapon, and forced contact between (1) his penis and her mouth, (2) his penis and her vagina, and (3) his penis and her anus.

         ¶ 4 Before the jury trial, the prosecution filed a motion for leave to present evidence that Encalado had committed similar sexual assaults against C.C., S.A., and J.H., a minor. The trial court held the crime against J.H. too dissimilar, but it permitted the State to present evidence of the assaults against C.C. and S.A. The court separately ruled that if Encalado chose to testify, the prosecution could impeach him with evidence that he was convicted of predatory criminal sexual assault for the offense committed against J.H.

         ¶ 5 The prosecutor filed a motion in limine based on the rape shield statute (725 ILCS 5/115- 7(a) (West 2004)), asking the court to bar any evidence of prior sexual contact between Encalado and Y.C. Encalado did not object, and the trial court granted the motion. The prosecutor also asked the court to bar evidence that the anal swab of Y.C. held the semen of Y.C.'s boyfriend and not the semen of Encalado. Again, Encalado did not object, and the court granted the motion. Encalado's attorneys adhered to the rape shield rulings, as they offered no evidence concerning the anal swab and any prior sexual contact between Y.C. and Encalado.

         ¶ 6 Encalado informed the court that he intended to testify that Y.C., as well as C.C. and S.A., consented to the sexual contact in exchange for the payment of cash and drugs, but after they delivered the agreed services, he decided to take back the payments he made. He asked the court to question the venire as to whether they could evaluate the evidence of assault without bias if they knew Encalado had narcotics with him at the time of the alleged offenses. He also asked the court to say to the venire, "you will hear evidence about prostitution. Would that fact alone prevent you from being fair to either side?" The court refused to ask the venire any questions relating to drugs or prostitution.

         ¶ 7 Y.C. testified that around 6 a.m. on March 5, 2006, as she walked towards a bakery near her home, a man she did not recognize leaned out of a car and said to her, "yo, your cousin Jose, he was looking for you." Y.C., who had a cousin Jose who lived a few blocks away, went over to the car and asked what Jose wanted. The driver, Encalado, offered to take her to Jose. Y.C. asked to stop by the bakery first. Encalado said, "yeah," and she got into the car. Encalado started driving the wrong direction for going to either the bakery or Jose's home. Y.C. asked where they were going. Encalado said, "[Y]ou know what this is." Encalado stopped in an alley. Y.C. tried to open the door but found it locked. Encalado struck Y.C. repeatedly in the face. Encalado opened the glove compartment and took out a pistol. He called Y.C. a bitch, a whore, and a slut. He unzipped his pants and pushed Y.C.'s head onto his penis. He covered Y.C.'s head with his coat, got on top of her, pulled down her pants, and penetrated her vaginally and anally. When he stopped, he pushed her out of the car and threw her shoe at her. Y.C. ran screaming until she saw Rodriguez, who brought her first to the police station and then to the hospital.

         ¶ 8 Rodriguez testified that he saw Y.C. in the street, trying to persuade passing cars to stop, crying hysterically, with blood on her mouth. Y.C. told him she had been raped. The nurse who saw Y.C. noted the bruise on her lip.

         ¶ 9 The prosecution then presented its evidence that Encalado committed a similar crime against C.C. The prosecution elected not to present evidence of the crime committed against S.A.

         ¶ 10 C.C. testified that on September 10, 2002, she went to a club with her sister. C.C. decided to leave the club and wait for her sister in her sister's car. As she walked down an alley, a man drove up and asked if she needed a ride. She said no and kept walking, but she did not remember correctly where her sister had parked. A few minutes later the same man drove up again and asked if she needed help. She got into his car. She then noticed that the driver wore a bandana that covered most of his face. He locked the car doors, punched C.C. in the face, and covered her face with her clothes. He forced his penis into her vagina. When he finished, he robbed her of some jewelry before driving her back to the club. C.C.'s sister took her to a nearby hospital. C.C. admitted to police that she did not see clearly the man who raped her, and she made no identification of her rapist. But swabs in the rape kit taken at the hospital held DNA that matched Encalado's DNA.

         ¶ 11 On cross-examination, C.C. admitted that in 2009, when she first told police about the assault, she said the rapist held a knife when he assaulted her. She explained that he held it to her neck when she got into the car, but she did not see it again after that.

         ¶ 12 Encalado admitted that he had sex with Y.C. and C.C., and he also admitted that he had a prior conviction for predatory criminal assault. Encalado testified that on March 5, 2006, after 5 a.m., he went to an area of Chicago known for prostitution, looking to find someone willing to trade sex for cash. He saw Y.C., and he asked if she was working. She said yes and got into his car. He asked for oral and vaginal sex in exchange for $65 and some marijuana. She agreed. He parked in an alley, and they engaged in oral and vaginal intercourse. During the vaginal intercourse, his penis came out of the vaginal canal and made contact with Y.C.'s anus. She said, "[T]oo low, wrong hole." He said, "I am sorry," but then he lost his erection and could not regain it. He testified that "like an idiot," he took back the money he had paid her. Y.C. started yelling at him, demanding the cash. He pushed her out of the car and drove off. He never punched her or said anything about a cousin Jose.

         ¶ 13 Encalado testified that he picked up C.C. on September 1, 2002, in another area known for prostitution. Encalado saw C.C. on the street, and she waved him to an alley. He asked if she was working, and she said yes and got into his car. He offered her $60 and told her he could get some cocaine. In exchange for the cash plus the cocaine, she agreed to have oral and vaginal sex with him. After he ejaculated, he took out of her pocket the money he had paid her. She yelled at him and called him names, but she got out of the car without her payment. He did not punch her or steal her jewelry.

         ¶ 14 The jury found Encalado guilty on all three counts. In his motion for a new trial, Encalado again objected to the decision disallowing the questions he sought to ask the venire, and the decision to permit the prosecution to use his prior conviction for predatory criminal sexual assault to impeach his testimony. The trial court denied the motion for a new trial.

         ¶ 15 At the sentencing hearing, the prosecution chose to present evidence of the crime against S.A. S.A. testified that around 1 a.m. on August 11, 2007, while she worked as a prostitute, Encalado drove up and waved her to his car. She got in. She told him the price for her work. He said he had only $40. She refused the proposed transaction. Encalado then punched her in the face and demanded that she pull her shirt over her eyes. He forced his penis into her mouth and her vagina. After she got out of the car, she returned to the area where she worked, and she saw Encalado across the street. She also saw some police officers. As she started to approach the officers, Encalado ran off. She told the officers about the assault. She did not tell them that she had been working as a prostitute. She explained:

"I wanted to be taken seriously, I didn't want them to shrug it off and say, oh, it was just a prostitution gone bad, and I wanted to be treated like a human."

         ¶ 16 At first S.A. refused medical treatment, but after she took narcotics to calm herself down, she went to a nearby hospital where she underwent standard treatment for a criminal sexual assault victim. Two years later, police brought her to the police station to show her a lineup. She identified Encalado as the man who raped her in 2007. She also told police that she had been working as a prostitute when she got into Encalado's car.

         ¶ 17 The trial court sentenced Encalado to three terms of 20 years each, with the sentences to run consecutively. Encalado now appeals.

         ¶ 18 ANALYSIS

         ¶ 19 Encalado contends that this court should remand for a new trial because the trial court mistakenly permitted the prosecution to use his prior conviction for impeachment, and because the trial court refused to question ...

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