Court of Appeals of Illinois, First District, Second Division
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.
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
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
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 ...