Opinion
No. 1-13-3570
03-08-2016
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELIPIDIO OJEDA, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court Of Cook County.
No. 10 CR 09819
The Honorable Angela Munari Petrone, Judge Presiding.
JUSTICE NEVILLE delivered the judgment of the court.
Presiding Justice Pierce and Justice Simon concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not abuse its discretion when it limited defense counsel's examination of the witnesses to questions designed to elicit relevant, admissible evidence. The prosecutor may ask the defendant, on cross-examination, questions that have an adequate basis in the evidence. When the evidence supported the finding that the defendant repeatedly used a specific room to rape his daughters, the trial court did not abuse its discretion when it overruled objections to the prosecutor's reference to the room as a "rape dungeon." The trial court did not abuse its discretion when it sentenced the defendant to a term near the middle of the statutory range.
¶ 2 A jury found Elipidio O. guilty on two counts of predatory criminal sexual assault of a child. The trial court sentenced Elipidio to serve 30 years in prison on each count, with the
sentences to run consecutively. Elipidio argues on appeal that the court (1) improperly limited the questioning of several witnesses; (2) allowed the prosecutor to elicit hearsay and ask inflammatory questions; (3) permitted inappropriate closing argument; and (4) imposed an unwarranted sentence. We find no abuse of discretion in the evidentiary rulings, the evidence supported the prosecutor's closing argument, and the crimes proven warranted the sentence. Therefore, we affirm the trial court's judgment.
¶ 3 BACKGROUND
¶ 4 On February 20, 2010, Jocabed S. saw a hickey on the neck of her ten-year-old niece, Mi. O. Mi.'s eleven-year-old sister, Me. O. told Jocabed that her father, Elipidio, gave Mi. the hickey. Jocabed called police. That day, Mi., Me., and their mother, Celia S. (Jocabed's sister), left the home they had shared with Elipidio and moved into Jocabed's home.
¶ 5 When police spoke with Mi. on February 20, 2010, Mi. did not report any sexual contact with Elipidio. Me. spoke to an officer on February 22, 2010, and also reported no sexual contact with Elipidio. But on February 25, 2010, Me. told police that Elipidio had touched her sexually on many occasions.
¶ 6 A grand jury indicted Elipidio on 42 counts of crimes against Me., including 4 counts of predatory criminal sexual assault of a child. See 720 ILCS 5/11-1.40(a)(1) (West 2012). The grand jury separately indicted Elipidio on charges of similar conduct committed against Mi.
¶ 7 Prosecutors elected to proceed against Elipidio on only two of the many charges, both involving conduct only with Me. In the first count, the grand jury charged that from about January 2002, when Me. was 3, through January 2008, when Me. was 9, Elipidio committed
a series of acts of sexual penetration, by bringing his penis into contact with Me.'s vagina. The second count related to the same time period, but alleged contact between Elipidio's penis and Me.'s anus.
¶ 8 At the trial, Me., then 14, testified that as one of her earliest memories, she recalled that Elipidio changed her diaper when she was 3 or 4, and he put his penis near her vagina. Later, but still before Me. turned 5, Elipidio pulled his pants down when he changed Me.'s diaper and rubbed his penis around her vagina.
¶ 9 The parties stipulated that throughout the time at issue, Elipidio rented a storage unit where he kept a scaffold and other equipment he used for his work as a contractor.
¶ 10 Me. testified that when she was 5, Elipidio started taking Me. once or twice a week to the storage unit. On many occasions in the storage unit, Elipidio told Me. to pull down her pants, and then he pulled down his pants and rubbed his penis against her vagina. He told Me. that it was their "little game," and that she should not tell anyone about it, not even Celia.
¶ 11 Around the same time, Elipidio started regularly coming in the middle of the night into the bedroom Me. and Mi. shared. He would get in bed with Me. and rub his penis against her pajamas. One time, he pulled Me.'s pants down and touched her vagina while she lay in bed.
¶ 12 Me. testified that when she started school, Elipidio "kind of calmed down," and "wouldn't bother [Me.] as much." When Me. was in second grade, Elipidio brought Me. and Mi. to the storage unit. Me. testified that she "told [Mi.] to grab any rocks around the storage unit. And then throw it at him. And then run [to] the restaurant." Elipidio tried to bring one of the girls
into the storage unit, but they both ran off. Elipidio picked up some tools and they all left. Later, Elipidio brought Me. to the storage unit, squeezed her breasts, rubbed his penis against her anus, and pinched and licked her vagina. Me. saw sperm come out of Elipidio's penis.
¶ 13 When Me. was 9, she joined a new church. Some persons at the church talked to the children about being molested, and advised the children to talk to an adult when any inappropriate contact occurred. Me. realized that her "own father was doing that" to her. After that, one day, Elipidio started hugging her "and putting [her] butt in his penis." She had a pencil in her hand. She stabbed his cheek with the pencil. After that, Elipidio did not touch Me. inappropriately.
¶ 14 Because Me. had seen Elipidio climb into bed with Mi., she said to Mi. that they could switch beds, and if Elipidio came in, she would stab him again. Me. said that after the incident on February 20, 2010, when Me., Mi., and Celia moved to Jocabed's home, she never saw Elipidio again until the trial.
¶ 15 On cross-examination, defense counsel asked Me. about an occasion after February 20, 2010, when Elipidio's sister, Rosario, came to Jocabed's home and spoke with Me. The prosecutor objected and the court sustained the objection. The prosecutor did not explain the objection, the court did not explain the ruling, and defense counsel did not make an offer of proof.
¶ 16 Mi., 13 at the time of trial, testified that when she was 8, in the middle of the night, or near dawn, Elipidio would come into the bedroom she shared with Me. He would get in bed with Mi., french kiss her, squeeze her breasts, and touch her vagina and buttocks. He also
started taking Mi. regularly to the storage unit, where he would tell her to take off her pants. If she did not, he would hit her. He would then put his penis in Mi.'s vagina. Mi. saw him clean sperm from his penis.
¶ 17 Over defense counsel's objection, the court permitted Mi. to testify that Me. suggested that at the storage unit, they could throw rocks at Elipidio and run away. Mi. said she was too scared to do it. Mi. also testified, over objection, about Me.'s plan to switch beds at night. Mi. said she did not make the switch because she did not want anything bad to happen to Me. Mi. also said that after February 20, 2010, she never saw Elipidio again. Mi. admitted that she did not, at first, tell police about Elipidio's sexual contact with her, because she "didn't have confidence."
¶ 18 Celia testified that after Mi. turned 8, Celia often saw Elipidio touching Mi. inappropriately on her chest, buttocks and vagina. Celia did not call police because she feared Elipidio and his violent temper. In one fight he took a rock and broke their plasma television set. He also broke a table. Celia said that after February 20, 2010, she had seen Elipidio, but she never went with her children and Elipidio to a park or to dinner.
¶ 19 Elipidio's brother, Aaron, testified that because of something Aaron's wife said in November 2009, Aaron confronted Elipidio in Elipidio's home and asked whether Elipidio had molested Me. and Mi. Aaron testified that Elipidio "was surprised, and he said no, that nothing like that was happening." Later in the same conversation Elipidio "said he didn't think he was going to be discovered." Aaron's testimony continued:
"I asked him how was it possible that his daughters would provoke womenly desires to him.
Q. And did he respond?
A. Well, he felt ashamed.
[Defense counsel]: Objection.
THE COURT: Overruled.
You may answer.
THE WITNESS: He felt ashamed. He didn't know what to tell me.
* * *
Q. What color did you see his face turn when you had this conversation?
A. Well, like, white, like when the blood fades."
¶ 20 A doctor testified that she examined Me. on March 4, 2010. Me. told the doctor about her extensive sexual contact over a period of years. The doctor's physical examination of Me. revealed no abnormalities. The doctor explained that even abused children usually have normal physical examinations, because children's bodies heal quickly.
¶ 21 Elipidio testified that he never touched his daughters in a sexual way. He remembered the conversation in November 2009, when Aaron said that Me. and Mi. had told Aaron's wife that Elipidio had molested them. Elipidio testified that he told Aaron he had not touched the children, and he never said that he thought he would get away with it. Elipidio admitted that he playfully nibbled Mi.'s neck and left a hickey on February 20, 2010. He admitted that at times he took Me. or Mi. with him to his storage unit.
¶ 22 Elipidio testified that starting in 2006, he had financial problems and he and Celia fought. Although Elipidio struck Celia only once, and not hard, he scared her when he threw a rock
at the television set and broke it. He also struck his daughters sometimes to discipline them. Police came to their home at least four times because of the disturbances. Me. and Mi. never said anything to police about molestation. In October 2009, Elipidio saw Mi. with a screwdriver unscrewing his computer. He told Mi. to give him the screwdriver. As he reached for the tool, he accidentally hit Mi. in the stomach.
¶ 23 After Celia and the children moved out of his home in February 2010, he found out which school his daughters attended, and met Celia and the children at the school. Celia said he should not be there, but she let him talk with his daughters. He met them after school nearly every day, taking them to parks and restaurants.
¶ 24 Defense counsel asked Elipidio about a conversation he had with his daughters and Celia after school one of those days. The prosecutor objected that defense counsel had not provided notice of the evidence. After counsel made an offer of proof, the court said, "I will let the defense ask these questions over the State's objection ***, but as I said before the defendant could not *** say that he previously said that these statements were false."
¶ 25 Elipidio testified that Me. said Celia and Jocabed told her to lie. Mi. agreed with Me. Celia said that "she had said that because she was upset." She added that because of the serious accusations, the family (including Elipidio) should move to Mexico.
¶ 26 On cross-examination, Elipidio admitted that he had gotten into bed, naked, with Mi. He also admitted that he often kissed Mi. in the morning before he left for work. The prosecutor asked whether that was when he french kissed Mi. The court overruled Elipidio's objection. Elipidio said he had not french kissed his daughter.
¶ 27 The prosecutor asked, "Did you ever take your sister to the storage unit and ask her to take her pants down?" The court sustained defense counsel's objection, but permitted the prosecutor to ask whether Elipidio ever took his sister to the storage unit. Elipidio said he did not.
¶ 28 Rosario testified that Elipidio had an excellent relationship with his daughters. Defense counsel asked Rosario about a conversation she had with Me. sometime after February 20, 2010. The prosecutor objected that counsel had not laid a proper foundation for the testimony. In an offer of proof, defense counsel said that Rosario asked Me., "Did [Elipidio] have sex with you." Me. answered no and said, "when I get older, I will get him out of jail." The court permitted defense counsel to recall Me. to the stand to lay the foundation for part of the testimony he sought to elicit. But the court said that the reference to getting Elipidio out of jail "certainly doesn't go to the issue of any impeachment [of Me.] ***. That doesn't have anything to do with whether this crime happened or not ***. So I'm going to deny your request to ask that additional part."
¶ 29 Me. testified that Rosario asked about the conduct, and Me. told her that Elipidio had molested Me. Rosario then told Me. to lie about it.
¶ 30 Rosario's testimony about the conversation directly contradicted Me.'s testimony. The testimony proceeded as follows:
"Q. Could you please tell us what you asked her and how she responded to you?
A. I asked her the first time if her father did bad things with her. And it's like she did not understand and I asked [Me.] ---
[Prosecutor]: Objection.
[THE COURT]: I'm going to sustain it as to what it's like she did not understand that's sustained. That's a conclusion. You can ask what was said.
BY [Defense counsel]:
Q. Did she respond to that first question?
A. No, she listened.
Q. So, did you ask her another question?
A. Yes. I asked her clearly, if your father had ha[d] sex with you and she said no, aunt. And she responded as surprised.
[THE COURT]: Wait a minute. All right that will be stricken. The jury is instructed to disregard that.
Ma'am, don't add things. Just answer the question asked, please. I said you could ask what was said not any conclusions."
¶ 31 Defense counsel did not seek any clarification as to what the court struck. Rosario testified that she never told Me. to lie about the allegations.
¶ 32 One of Elipidio's business associates testified that he had seen Elipidio with his family on several occasions, and Elipidio always acted appropriately and lovingly with his children.
¶ 33 Reyna Palma, a friend of Rosario, testified that once in 2009 she saw Elipidio with his daughters going from a store to Rosario's house, and the family seemed normal. The court sustained the prosecutor's objections to questions as to whether the children seemed to fear Elipidio, whether Elipidio yelled at the children, whether Elipidio behaved inappropriately in
the brief time she observed the family, and whether the family seemed happy. The prosecution asked Palma on cross-examination whether she had ever gone to Elipidio's storage unit. She had not.
¶ 34 In closing argument, the prosecutor thrice referred to the storage unit as Elipidio's "rape dungeon." The court overruled defense counsel's objections to each use.
¶ 35 The jury found Elipidio guilty on both counts of predatory criminal sexual assault of a child. Elipidio filed a detailed motion for a new trial. The trial court wrote out its ruling on the motion. The court said, "it would have been improper to let Palma testify as to the state of mind of another. It was not relevant whether Palma, when she saw defendant with his girls momentarily *** four years previously while they walked on a street ***, observed yelling or inappropriate behavior." Rosario's proffered testimony that Me. said she would get Elipidio out of jail "which was tendered by the defense after [Me.] testified and the state rested, was not impeaching and was irrelevant to whether the crime happened or not." The court found that, in context, the jury would not have misunderstood the ruling that struck part of Rosario's testimony. The court did not allow Elipidio to say he asked Me., Mi. and Celia about the "false" allegations because that way of phrasing the testimony would permit Elipidio to tell the jury about his prior consistent statement that the allegations were false. Moreover, defense counsel elicited substantially the same testimony, as Elipidio testified that Me. and Mi. said Celia and Jocabed told them to lie. The court also found the prosecutor's questions and remarks "not inflammatory and disrespectful to defendant at all but based on the evidence." The court denied the motion for a new trial.
¶ 36 At the sentencing hearing, the court went through the statutory factors in aggravation and mitigation one by one. The court expressly considered Mi.'s testimony in aggravation, and said, "the facts *** showed unconscionable treatment by this defendant of his daughter[s]." The court noted that the statute required a sentence on each count of 6 to 60 years, and required consecutive sentencing. See 720 ILCS 5/11-1.40(b)(1) (West 2012); 730 ILCS 5/5-8-4(d)(2) (West 2014). The court sentenced Elipidio to 30 years on each count. Elipidio now appeals.
¶ 37 ANALYSIS
¶ 38 Elipidio argues on appeal that (1) the trial court improperly limited the questions counsel could ask Me., Rosario, Palma and Elipidio; (2) the trial court improperly permitted the prosecutor to elicit hearsay from Mi., and to rudely question Elipidio; (3) the trial court should have stricken the prosecutor's comments calling the storage unit a "rape dungeon;" and (4) the court sentenced Elipidio for uncharged offenses.
¶ 39 Restrictions on the Case for the Defense
¶ 40 In an offer of proof, defense counsel presented Rosario's testimony that Me. said to her, "when I get older, I will get [Elipidio] out of jail." The trial court permitted defense counsel to ask about other parts of the conversation between Me. and Rosario, but the court did not permit either Rosario or Me. to tell the jury about the promise to get Elipidio out of jail.
¶ 41 The appellate court reviews the trial court's evidentiary rulings for abuse of discretion. In re Commitment of Gavin, 2014 IL App (1st) 122918 ¶ 67. The trial court found the proffered testimony irrelevant. Even if the trier of fact could infer that Me. meant she would later
recant the testimony she gave in court, the statement does not show that Me. lied under oath about Elipidio's conduct. See People v. Johnson, 52 Ill. App. 3d 843, 846 (1977). The court noted that it could justly exclude all of Rosario's conversation with Me. because defense counsel did not timely disclose the statement. See People v. Mullen, 313 Ill. App. 3d 718, 736-37 (2000). We cannot say that the trial court abused its discretion when it limited the evidence to Rosario's testimony that Me., out of court, said Elipidio had not had sex with her.
¶ 42 Rosario also testified, "I asked [Me.] clearly, if [her] father had ha[d] sex with [her] and she said no, aunt. And she responded as surprised." The trial court immediately interjected, "Wait a minute. All right that will be stricken. The jury is instructed to disregard that. Ma'am, don't add things. Just answer the question asked, please. I said you could ask what was said not any conclusions."
¶ 43 Elipidio argues that the court's ruling prevented him from presenting even the evidence the court said it would permit. The trial court found that, in the context of the prior sustained objection to Rosario's testimony about what Me. understood, the jury would correctly interpret the court's ruling as an instruction to disregard Rosario's testimony that Me. was surprised. The trial court did not abuse its discretion when it excluded Rosario's opinion about Me.'s reactions. See People v. Linkogle, 54 Ill. App. 3d 830, 833 (1977) (As a general rule, testimony as to a witness' opinion is not admissible in evidence). In view of the trial court's explanation for striking part of Rosario's testimony, we cannot say that the trial court abused its discretion or misled the jury when it struck part of Rosario's opinion testimony. See State v. Myers, 21 A.3d 499, 510-12 (Conn. App. 2011).
¶ 44 Elipidio claims that the court's rulings show its prejudice against Elipidio, because the court did not strike Aaron's similar testimony that Elipidio appeared surprised and embarrassed when Aaron questioned him. But Aaron testified about how Elipidio's physical appearance changed in response to his questions. Defense counsel never asked Rosario about any change in Me.'s appearance that may have led Rosario to conclude that Me. was surprised or did not understand Rosario's questions. We find that the trial court's failure to restrict Aaron's testimony does not show bias against Elipidio. See In re Marriage of Carrillo, 372 Ill. App. 3d 803, 814 (2007).
¶ 45 Defense counsel asked Palma whether she saw Elipidio yell at his children, whether his children seemed to fear him, and whether she saw inappropriate behavior. The trial court sustained the prosecutor's objections to all three questions. Elipidio now argues that the rulings require reversal. As the trial court pointed out in its ruling on Elipidio's posttrial motion, Palma's testimony concerned only a momentary observation of Elipidio, a man she did not know personally, interacting with his children on the street. No one alleged or testified that Elipidio constantly yelled at his children, and yelling had nothing to do with the criminal charges, so the momentary absence of yelling had no value as evidence concerning the charges. See People v. Molsby, 66 Ill. App. 3d 647, 657-58 (1978). The court permitted Palma to testify that Elipidio and his children seemed normal, thereby effectively answering the vague question about inappropriate behavior and whether the children seemed fearful. The restriction on Palma's testimony did not keep Elipidio from eliciting all of the relevant
testimony he sought from her. Thus, we find that the trial court did not abuse its discretion by sustaining objections to several questions asked of Palma.
¶ 46 The trial court also precluded Elipidio from testifying that he asked Celia, Me. and Mi. why they made "false" accusations about him. The court allowed Elipidio instead to testify that he asked why they made the allegations; that Me. said Celia and Jocabed told her to lie; Mi. confirmed what Me. said; and Celia explained that she had been upset with Elipidio, and they should all move to Mexico. The court's rulings allowed Elipidio to present to the jury his testimony that Me. and Mi. admitted that they lied, while avoiding Elipidio's inadmissible testimony that, out of court, he made a prior consistent assertion that Me.'s and Mi.'s allegations were false. See People v. Williams, 147 Ill. 2d 173, 227 (1991). Again, we find that the trial court did not abuse its discretion by so ruling.
¶ 47 Rulings on the Prosecutor's Questions
¶ 48 The trial court permitted the prosecutor to elicit from Mi. testimony that, when Elipidio took both Me. and Mi. to the storage unit, Me. suggested they could throw rocks at Elipidio and run away. Mi. also testified, over objection, that Me. suggested switching beds, echoing Me.'s testimony. Elipidio argues that Mi.'s testimony constitutes inadmissible hearsay.
¶ 49 The prosecution did not use either of Me.'s out of court statements to prove the substance of the statements. See People v. Rogers, 81 Ill. 2d 571, 577-78 (1980). That is, the prosecution did not seek to show that Me. threw rocks at Elipidio or that Me. and Mi. switched places. Instead, the prosecution used the testimony appropriately to show that Me.'s
testimony accurately recounted what she said to Mi., and how Me. reacted to Elipidio's abuse of her. See People v. Richardson, 21 Ill. App. 3d 859, 861 (1974).
¶ 50 Elipidio contends that we should reverse the conviction because the trial court overruled objections to several of the questions the prosecutor asked Elipidio. When Elipidio testified that sometimes he kissed Mi. in the morning, the prosecutor asked, "[I]s that when you were french kissing [Mi.]?" The prosecutor also asked, "Did you ever take your sister to the storage unit and ask her to take her pants down?" and "Reyna Palma *** did you take her to the storage unit?"
¶ 51 Mi.'s testimony that Elipidio french kissed her justified the first question. See People v. Torres, 130 Ill. App. 3d 775, 781 (1985). The court sustained Elipidio's objection to the question as to whether Elipidio ever asked Rosario to take down her pants in the storage unit. Generally, appellate courts presume that the trial court can correct any error from an improper question by sustaining a timely objection to the question. See People v. Morgan, 112 Ill. 2d 111, 135 (1986); People v. Carlson, 79 Ill. 2d 564, 577 (1980). The two questions as to whether Elipidio asked Rosario or Palma to accompany him to the storage unit emphasized that Elipidio did not take to the storage unit persons who could help with the equipment. Instead, he invited mostly his two young daughters, who lacked the strength to help with the construction equipment. While the questions have little relevance, we find no indication in this record that Elipidio suffered any prejudice due to the questioning. We find that the rulings on the cross-examination of Elipidio do not warrant reversal of the convictions.
¶ 52 Closing Argument
¶ 53 Three times during closing argument, the prosecutor referred to the storage unit as a "rape dungeon." Three times Elipidio objected, and three times the trial court overruled the objections. Elipidio now argues that the comments deprived him of a fair trial.
¶ 54 Me. testified that Elipidio took her to the storage unit one or two times each week when Me. was 5, and on many further occasions when Me. was older. Me. testified that when Elipidio took her to the storage unit, he told her to take down her pants, and he rubbed his penis against her vagina or anus. Mi. echoed Me.'s testimony, and added that she said "no" and cried when Elipidio told her to take down her pants, but she eventually complied. The evidence supports the inference that Elipidio raped his daughters repeatedly in the storage unit. The prosecutor may properly comment on reasonable inferences from the evidence. People v. Hudson, 157 Ill. 2d 401, 441 (1993); People v. Halteman, 10 Ill. 2d 74, 83-84 (1956). We find that the evidence justified the prosecutor's comments. See Halteman , 10 Ill. 2d at 83-84; Williams v. State, 704 S.W.2d 156, 159-60 (Tx. Ct. App. 1986).
¶ 55 Sentencing
¶ 56 Finally, Elipidio claims that the trial court sentenced him for uncharged crimes committed against Mi., and not solely for the crimes against Me., for which he stood trial. The trial court's comments show that the court considered Mi.'s testimony in aggravation. The court properly considered the evidence, despite the absence of criminal convictions on those charges, as part of "a full presentation of facts surrounding defendant's conduct and
related to his potential for rehabilitation." People v. Jones, 36 Ill. App. 3d 491, 494 (1976); see People v. Fair, 159 Ill. 2d 51, 89-91 (1994).
¶ 57 Elipidio points out that he had no criminal background and some potential for rehabilitation. The trial court noted that the applicable statutes permitted any sentence between 6 and 60 years for each count (see 720 ILCS 5/11-1.40(b)(1) (West 2012)), with the sentences to run consecutively (730 ILCS 5/5-8-4(d)(2) (West 2014)). In sentencing Elipidio to a term near the middle of the statutory range, the court emphasized that Elipidio committed crimes against Me. many times over the course of several years, and he also sexually assaulted Mi. In light of Me.'s testimony, corroborated by Mi.'s testimony, that Elipidio repeated the offenses many times over the course of several years, we cannot say that the sentence near the midpoint of the statutory range shows an abuse of discretion. See People v. Fern, 189 Ill. 2d 48, 53-54 (1999).
¶ 58 CONCLUSION
¶ 59 The trial court did not abuse its discretion when it limited defense counsel's examination of the witnesses to questions designed to elicit relevant, admissible evidence. The court also did not abuse its discretion when it permitted the prosecutor to question Mi. about statements Me. made, and when it permitted the prosecutor to question Elipidio about the persons he took to the storage unit and about french kissing Mi. The evidence in the record provided a basis for the prosecutor's reference to the storage unit as a "rape dungeon." The trial court did not abuse its discretion by imposing a sentence of 30 years on each count of predatory
criminal sexual assault, where the criminal code requires the court to impose consecutive sentences. Accordingly, we affirm the trial court's judgment.
¶ 60 Affirmed.