Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County, No. 12-CR-806201; the
Hon. Stanley J. Sacks, Judge, presiding.
L. Smith, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J.
Spellberg, Annette Collins, Christine Cook, and Margaret A.
Hayes, Assistant State's Attorneys, of counsel), for the
JUSTICE GORDON delivered the judgment of the court, with
opinion. Justices McBride and Ellis concurred in the judgment
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.
4 The police arrested defendant on April 4, 2012, after his
DNA matched the male DNA profile found in the victim's
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)) 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. 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
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
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 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
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 that 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?
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 In 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
"[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
"[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, none, no lacerations, no
bites, no burns, no ...