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People v. Encalado

Supreme Court of Illinois

March 22, 2018


          JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and Theis concurred in the judgment and opinion.


          BURKE JUSTICE.

         ¶ 1 The defendant in the case at bar, Theophil Encalado, asked the trial court during voir dire to question the venire about whether evidence that he had engaged the services of a prostitute would influence the prospective jurors' judgment in any way. The circuit court of Cook County refused defendant's request, and he was subsequently found guilty on three counts of aggravated criminal sexual assault.

         ¶ 2 On appeal, the appellate court, with one justice dissenting, reversed defendant's convictions and remanded for a new trial, holding that the trial court "abused its discretion when it refused to ask venire members questions about potential bias against persons who participate in prostitution." 2017 IL App (1st) 142548, ¶ 1.

         ¶ 3 For the reasons that follow, we reverse the judgment of the appellate court.

         ¶ 4 Background

         ¶ 5 Defendant was indicted on 15 charges of aggravated criminal sexual assault and 3 charges of criminal sexual assault. In the indictment, it was alleged that, on the morning of March 5, 2006, defendant knowingly, and by the use of force or threat of force, committed acts of oral, vaginal, and anal sexual penetration upon Y.C.

         ¶ 6 Prior to defendant's trial, the State filed a motion to admit other crimes evidence to show that defendant committed similar sexual assaults against J.H., C.C., and S.A. Following a hearing, the trial court granted the State's request with respect to C.C. and S.A., allowing admittance of other crimes evidence to show intent, lack of consent, and propensity. The court denied the State's request with respect to J.H. but ruled that the State could impeach defendant with his conviction for predatory criminal sexual assault against J.H. if he chose to testify.

         ¶ 7 After the trial court ruled to allow the admission of other crimes evidence, defense counsel advised the court that defendant intended to testify that Y.C., C.C., and S.A. all consented to having sex with defendant in exchange for the payment of cash and drugs but that, after they provided the agreed services, defendant took back the payments he made. Counsel stated that the jurors "are going to hear evidence that [defendant] did engage in soliciting and using prostitutes." Accordingly, defense counsel asked the court to inquire of the venire whether "[t]he fact that you will hear evidence about-and just put it mildly-to not try to indoctrinate them at all-you will hear evidence about prostitution. Would that fact alone prevent you from being fair to either side?" The court refused the request, finding that the question was improper because it would be "asking them to comment on particular types of evidence that they may hear."

         ¶ 8 The matter proceeded to trial on 6 of the 18 counts of aggravated criminal sexual assault committed against Y.C. At trial, Y.C. testified that around 6 a.m. on March 5, 2006, as she was walking on Sawyer Street in Chicago to go to a bakery, she saw a car parked across the street with a man inside. The man, whom she did not recognize but later identified as defendant, called to her. Y.C. crossed the street on her way to the bakery, bringing her closer to the car. Defendant then called out to her again, saying "[Y]o, your cousin Jose, he was looking for you." Because Y.C. had a cousin Jose who lived a few blocks away, she went over to the car and asked what Jose wanted. Defendant, said, "He needs you." Y.C. then got into defendant's car.

         ¶ 9 Once Y.C. was in defendant's car, he began driving in the opposite direction. Y.C. asked where they were going and defendant said, "[Y]ou know what this is." Y.C. testified she did not know what he meant but thought perhaps she was going to be robbed. Defendant then proceeded to an alley where there were no other cars or people. At this point, Y.C. testified, she became very frightened. She told defendant that she was pregnant and begged defendant not to do anything to harm her or her unborn child. Defendant, however, cursed at her and told her to shut up.

         ¶ 10 Y.C. testified that she tried to open the car door, but it was locked. Defendant became angry and began to strike her repeatedly in the face. Also, he opened the glove compartment, showed her a pistol, and threatened to kill her. Defendant then forced Y.C. to perform oral sex on him, after which he sexually penetrated her vaginally and anally. When defendant was finished, he ordered Y.C. out of the car. As Y.C. tried to "fix" herself because her pants and underwear fell off her feet, defendant threw her shoe and underwear out of the car. Also, defendant began pushing Y.C. out of the car and told her that if she did not leave his car immediately, he would kill her.

         ¶ 11 After defendant drove away, Y.C. ran into the street and tried to wave down cars. At this point, Deputy Fernando Rodriguez of the Cook County Sheriff's Office happened along, saw Y.C., and stopped to help her. He took Y.C. to the police station and then to the hospital where a sexual assault kit was collected. Subsequent analysis of the kit showed the presence of semen in the vaginal and anal swabs. Forensic testing matched defendant's DNA to the vaginal sample but not to the anal sample.

         ¶ 12 Y.C. testified that she moved to South Carolina in 2007 and, in 2009, she went to a South Carolina police department to view a photo array. From this photo array, she was able to identify defendant as her assailant. In addition, in May 2009, she came to ...

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