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People v. Anaya

Court of Appeals of Illinois, First District, Fourth Division

December 21, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ADALBERTO ANAYA, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 12 CR 806201 The Honorable Stanley J. Sacks, Judge Presiding.

          JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Ellis concurred in the judgment and opinion.

          OPINION

          GORDON JUSTICE

         ¶ 1 After a jury trial, defendant Adalberto Anaya was convicted of nine counts of aggravated criminal sexual assault and sentenced to 100 years with the Illinois Department of Corrections (IDOC). On this appeal, defendant claims that he was denied a fair trial by (1) the State's suggestion, during its questioning of defendant during cross-examination, that defendant had the burden to produce his phone records and (2) the State's allegedly prejudicial closing argument, during which the prosecutor (a) referred to the lack of phone records, (b) asked the jury to put themselves in the victim's shoes, and (c) argued that "everyone" in the courtroom "knows" the victim was raped. Defendant also claims that the trial court abused its discretion by sentencing him to a total of 100 years in prison with IDOC by failing to adequately consider factors in mitigation, including defendant's lack of prior criminal history involving sex crimes, the hardship to his family, and his potential for rehabilitation.

         ¶ 2 For the following reasons, we affirm.

         ¶ 3 BACKGROUND

         ¶ 4 The police arrested defendant on April 4, 2012, after his DNA matched the male DNA profile found in the victim's vagina.

         ¶ 5 I. Pretrial Proceedings

         ¶ 6 On May 14, 2012, defendant, age 32, was charged with 18 counts of aggravated criminal sexual assault and three counts of criminal sexual assault. Ultimately, the State proceeded to a jury trial on nine counts of aggravated criminal sexual assault. The parties stipulated that the statute of limitation was extended pursuant to section 3-5(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/3-5(a)(2) (West 2004))[1] for the nine counts of aggravated criminal sexual assault because (1) the victim reported the offense to law enforcement authorities within two years of the date of its commission and (2) defendant's DNA profile was entered into a DNA database within 10 years of the date of the commission of the offense.[2] The trial court granted the State's motion to introduce defendant's prior conviction for aggravated battery for impeachment purposes because defendant planned to offer testimony challenging the victim's version of events. The trial court indicated that it would give a limiting instruction "on how they can consider it *** for credibility and no other purpose."

         ¶ 7 II. The State's Evidence at Trial

         ¶ 8 The victim, age 30, testified that on February 12, 2007, at 6 a.m., she was walking to work when a masked man pressed a sharp object against her side and forced her into an alley near North Parkside Avenue in Chicago (Location 1), where he sexually assaulted her vaginally, anally, and orally. He also put his mouth on her breast. After he told her to dress, the victim attempted to flee but the offender grabbed her and led her to an area across the street (Location 2) and sexually assaulted her vaginally and orally a second time. At both locations, the offender wore a ski mask, so she never observed his face. After the assaults ended, he ordered the victim to face the wall and count to 50 while he stole her keys, watch, and some coins from her backpack and then fled. After realizing she was alone, the victim traveled to her workplace, where her manager contacted the Chicago police.

         ¶ 9 The victim's manager testified that he was at work at 6:30 a.m. on February 12, 2007, when the victim arrived at work and told him that she had been raped. He tried to calm her down and then he called the police.

         ¶ 10 Chicago Police Officer Monica Reyes testified that on February 12, 2007, she responded to the manager's call and arrived at the victim's workplace. Other responding officers arrived a few minutes later. Officer Reyes spoke with the victim and received the following description of the offender: "a male Hispanic, approximately 5'8", thin build, black shirt, pants, with a mask." A fire department ambulance transported the victim to a hospital emergency room at 7:15 a.m.

         ¶ 11 Kelly Sanabria, the attending nurse at the hospital, testified that she interviewed the victim, who told her that the offender ejaculated inside the victim's body. The nurse performed a Vitullo kit (rape kit) on the victim to collect DNA and other evidence of the offender's identity. Specifically, she swabbed the areas where the offender penetrated and touched the victim. The nurse marked and sealed the rape kit in envelopes and turned them over to the custody of Chicago Police Officer Willard Streff at 10:20 a.m.

         ¶ 12 Officer Streff testified that he transported the kit to a police station, where he inventoried it and stored it in a secure office within the station.

         ¶ 13 Dr. Edward Bunney, an emergency room physician, testified that he conducted a physical and gynecological exam and observed that there was grass and debris in the opening to the victim's vagina and a thin white discharge in the anal area. He testified that semen can be present in the anal area even if there is only vaginal intercourse. He also observed "erythema" around the victim's anal area, which he explained was an irritation to the skin generally caused by rubbing. He did not find any lacerations, scratches, or bruises on the victim's body, but also noted that it is not uncommon for someone who has been sexually assaulted to have no injuries or genital trauma.

         ¶ 14 Andrea Paulsen and Kelly Biggs, forensic scientists for the Illinois State Police Forensic Science Services, testified as experts in the field of forensic biology and DNA. Paulsen tested the vaginal, anal, oral, and breast swabs taken from the victim for semen. Paulsen testified that semen was indicated on the vaginal and anal swabs. Paulsen also tested the breast swab for the presence of saliva and found that saliva was indicated on the breast swab. Paulsen then preserved the swabs for future DNA analysis.

         ¶ 15 Biggs testified that she conducted DNA analysis of the vaginal swabs collected from the victim and determined the presence of a male DNA profile from the semen portion. She entered the male DNA profile from the vaginal swab into a state database on June 8, 2007. At that time, the DNA profile did not match any of the database's profiles. On cross-examination, she further testified that semen tends to stay in the vaginal vault for up to approximately 72 hours and that the male DNA profile could have come from a consensual partner that had been deposited before the assault. She testified that there is a possibility that the DNA of the offender may not be present if he wore a condom.

         ¶ 16 The parties stipulated that, if called to testify, Investigator Walsh[3] would testify that, on September 4, 2012, he was employed with the Cook County state's attorney's office as an investigator. On that day, he was assigned to collect a buccal swab standard from defendant's mouth and followed proper protocol in collecting, packaging, and sealing the buccal swab standard from defendant's mouth.

         ¶ 17 Lynette Wilson, a forensic scientist with the Illinois State Police, testified as an expert in the field of forensic DNA analysis. Wilson compared the male DNA profile from the vaginal swabs to defendant's DNA profile and concluded that the profiles "matched." She calculated that the male DNA profile was consistent with defendant's profile.[4]

         ¶ 18 Detective Susan Barrett testified that she was first assigned to this case on the date of the assault in 2007, and did not have any leads until March 2012, when the database linked the male DNA profile from the victim's vaginal swabs to defendant's DNA profile. Once Detective Barrett identified defendant as a potential suspect, she contacted the victim and showed her a photo of defendant. The victim told her that she did not know the man in the photograph and that she had never had sexual relations with him. On April 4, 2012, Detective Barrett located and placed defendant under arrest and then transported him to a police station. She testified that defendant's physical appearance matched the description given by the victim to the original officer seven years earlier. Detective Barrett testified that, after defendant received his Miranda warnings and waived his privilege against self-incrimination and right to counsel, he agreed to speak with her. Defendant told her that he did not recall his whereabouts at the time of the rape but he denied ever sexually assaulting anyone. He stated that he had been with his wife since they were 16 years old, that he does not cheat on his wife, and that he never had sex with anyone but his wife. Detective Barrett testified that she then told defendant that defendant's DNA was found inside of an alleged rape victim. In response, defendant repeated that he had never had sex with anyone but his wife, and therefore he did not understand how this was possible. Detective Barrett then stated the victim's name and asked if defendant knew her. Defendant stated that he did not.

         ¶ 19 III. Defendant's Testimony

         ¶ 20 After the State rested its case-in-chief and the trial court denied the defense's motion for a directed verdict, defendant testified that he recognized the victim from 2007 and that she called herself "Gloria." Defendant and the victim met on February 1, 2007, and exchanged telephone numbers after a conversation. A week and a half after their first encounter, they went on a date at a restaurant and spoke numerous times on the phone. On February 11, 2007, he met the victim between 10:45 p.m. and 11 p.m. at a restaurant, and they started walking through a small park at "about 11:05 p.m." After a long conversation, during the morning of February 12, 2007, they began kissing which led to intercourse. He testified that it was consensual vaginal intercourse, and he was not wearing a condom. Afterward, he told her he was married, at which point she became upset and told him that she did not want to be with a married man before walking away. He denied any involvement in the rape incident that the victim testified began at 6 a.m. later that same day. Defendant also explained that Detective Barrett had asked only if he knew the victim by her legal name and did not provide a picture. Since defendant knew her as "Gloria, " he was truthful in his response. However, defendant admitted to lying to Detective Barrett about never cheating on his wife.

         ¶ 21 On cross-examination, the State asked about the phone conversations between defendant and the victim in 2007, and specifically what his phone number was:

"ASSISTANT STATE'S ATTORNEY (ASA): What was your phone number back then?
DEFENDANT: I don't remember.
ASA: You don't remember what your phone number was?
DEFENDANT: No. I went through so many phones."

         ¶ 22 Defendant then recounted how he and Gloria met and how he offered to give her his phone number to call him any time she wanted. Defendant testified that she took him up on his offer, and they had nine conversations on the telephone. The State then asked about defendant's phone carrier:

"ASA: Who was your phone carrier back then?
DEFENDANT: U.S. Cellular.
ASA: U.S. Cellular?
DEFENDANT: Yeah.
ASA: They would have a record of the phone calls?
DEFENDANT: I believe so.
ASA: Do you have any phone records with you today sir?
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
DEFENDANT: No, I don't, because it was prepaid."

         ¶ 23 IV. Closing Arguments

         ¶ 24 On this appeal, defendant makes claims about certain remarks made by the prosecutor during the State's closing argument, so we quote those remarks here.

         ¶ 25 A. Defense Counsel's Closing Argument

         ¶ 26 In defendant's closing argument, counsel began by stating that:

"[T]here is no question [the victim] was raped on February 12, 2007. And there is no question that at some time during the three days prior, [defendant] had vaginal sex with [the victim]. And there is no question and there is no doubt and there is no easy way around the fact that [the victim] is a singularly unreliable witness."

         ¶ 27 The defense then sought to cast doubt on the use of force stating:

"[W]ithin the vagina, within the anus where [Dr. Bunney] looked, there was no tearing, no bruises, no scratches, no lacerations on [the victim's] entire body, ladies and gentlemen. Remember [the victim] had to get naked to go through this examination. There were no bruises, no scratches, ...

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