People v. Rodriguez-Palomino ( 2019 )

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Appellate Court Date: 2019.07.02
11:19:46 -05'00'
People v. Rodriguez-Palomino, 2019 IL App (2d) 160361-B
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption PABLO RODRIGUEZ-PALOMINO, Defendant-Appellant.
District & No. Second District
Docket No. 2-16-0361
Filed April 24, 2019
Rehearing denied May 23, 2019
Decision Under Appeal from the Circuit Court of Lake County, No. 13-CF-3036; the
Review Hon. George D. Strickland, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Thomas A. Lilien, and Kerry Goettsch, of State
Appeal Appellate Defender’s Office, of Elgin, for appellant.
Michael G. Nerheim, State’s Attorney, of Waukegan (Patrick Delfino,
David J. Robinson, and Victoria E. Jozef, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice Birkett and Justice Hudson concurred in the
judgment and opinion.
OPINION
¶1 Following a jury trial in the circuit court of Lake County, defendant, Pablo
Rodriguez-Palomino, was found guilty of three counts of predatory criminal sexual assault of
a child (720 ILCS 5/12-14.1(a)(1) (West 2002)) and nine counts of aggravated criminal
sexual abuse (id. § 12-16(c)(1)). The trial court sentenced defendant to life imprisonment for
each count of predatory criminal sexual assault of a child and seven years for each count of
aggravated criminal sexual abuse. The trial court ordered the sentences for predatory criminal
sexual assault of a child to be served consecutively. The trial court ordered the sentences for
aggravated criminal sexual abuse to be served consecutively to one another but concurrently
with the sentences for predatory criminal sexual assault of a child. The offenses were
committed against three female victims: G.M., K.S., and R.A. Two counts of predatory
criminal sexual assault of a child and three counts of aggravated criminal sexual abuse were
crimes against R.A. Defendant argues on appeal that the State failed to prove beyond a
reasonable doubt that he was guilty of those crimes. Defendant also argues that the trial court
erred in ordering the sentences for aggravated criminal sexual abuse to be served
consecutively. We affirm.
¶2 I. BACKGROUND
¶3 A Lake County grand jury returned a 15-count indictment against defendant. The charges
relating to R.A. originally alleged that the offenses occurred between October 11, 2007, and
October 10, 2008. Defendant later disclosed that he intended to introduce evidence that he
was in Mexico from April 2005 through 2009. The State subsequently secured an additional
indictment, which alleged that the offenses against R.A. occurred between October 11, 2004,
and October 10, 2006.
¶4 Defendant was tried twice in this matter. The first trial ended in a mistrial. Evidence at
defendant’s second trial established that T.M. was the victims’ mother and had been
defendant’s girlfriend. T.M. testified that K.S. was born on August 24, 1990, G.M. was born
on December 12, 1994, and R.A. was born on October 12, 1998. T.M.’s youngest child,
Ra. A., a boy, was born on September 6, 2001. T.M testified that she began dating defendant
in 2002. Defendant later bought a house, and T.M. and her children moved in with him
sometime after July 22, 2003. Defendant’s brother, Nevus, also lived with them.
¶5 Defendant worked during the first year he lived with T.M. and her children, but he then
retired. Before retiring, he worked for a construction or landscaping company, five days a
week. T.M. cleaned houses for a living. She started work at 7 a.m. and finished between 7
and 9 p.m. G.M. and K.S. attended school. R.A. and Ra. A. went to a babysitter across the
street from the house. G.M. and K.S. finished school at 3 or 4 p.m., at which point K.S.
would take R.A. and Ra. A. home. Defendant and Nevus would be home around that time.
During the second year that T.M. lived with defendant, she had a work accident requiring
spinal surgery and was hospitalized for 8 to 10 days. After being released from the hospital,
T.M. took pain medication for over a month. The medication made her drowsy.
¶6 T.M. testified that defendant traveled to Mexico for extended periods during the years
they were together. On one occasion in 2005, defendant returned on Thanksgiving from a trip
to Mexico. Defendant moved to Mexico permanently in January 2006. After defendant left,
T.M. got married. She did not see defendant again until October 2013, when she encountered
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him in a store. They spoke briefly. T.M. saw defendant again about a month later at a
restaurant where she was having breakfast with her husband and R.A.
¶7 G.M. testified about an incident in the fall of 2003 or 2004, when she was eight or nine
years old. While wrapped in a towel after taking a shower, G.M. encountered defendant, who
commented that G.M. was starting to look like her mother. Defendant told G.M. that she was
getting older and that it was time for her to learn how to kiss like a grownup. Defendant
kissed her on the mouth. He then laid her on the couch, unwrapped the towel, touched her
breast, and put his finger in her vagina. A few weeks later, G.M. was taking care of R.A. and
Ra. A. while T.M. was at the hospital visiting R.A.’s father, who had suffered a stroke. At
about midnight, G.M. was watching television by herself in the living room. Defendant sat
down next to her and touched her breast.
¶8 K.S. testified that on one occasion, while she was grabbing clothes from the laundry,
defendant came up from behind and started hugging her. He told her that her pants looked
good and that her breasts were growing. Defendant grabbed her breast and her vagina. K.S.
testified that she was around 13 years old when this occurred. Another incident occurred a
few months later. K.S. went to look for T.M. in the bedroom that T.M. shared with
defendant. Defendant was in the bedroom. He pushed K.S. against a wall and started kissing
her. K.S. testified that defendant tried to put his tongue in her mouth. He also touched her
vagina over her clothing and touched her breast. A few months later an incident occurred in
the living room while K.S. was watching television. She testified that defendant came up
behind her and put his hand on her breast over her clothing.
¶9 R.A. testified that on one occasion defendant exposed his erect penis to her and she ran
away. R.A. also testified about five additional incidents that occurred on separate occasions
in the bedroom that T.M. shared with defendant.
¶ 10 On the first of those occasions, R.A. went into the bedroom. T.M. was there, as were
defendant and Ra. A. T.M. was sleeping, and Ra. A., who was three or four years old, was on
the corner of the bed, playing a video game. Defendant was on the bed watching the game.
R.A. lay down between defendant and T.M. Defendant stood up and pulled his pants down.
He also took R.A.’s pants off. Defendant pulled R.A. to the side of the bed by her legs and
put his penis in her vagina. R.A. was six or seven years old at the time.
¶ 11 On the second occasion, defendant asked R.A. to bring him a glass of water in the
bedroom. When R.A. got to the bedroom, defendant and Ra. A. were there. Ra. A. was
watching television, and defendant was lying on the bed. R.A. sat on the bed, and defendant
started touching her vagina over her pants.
¶ 12 On the third occasion, R.A. went into the bedroom when defendant and Ra. A. were
there. Ra. A. was again playing a video game. R.A. sat on the corner of the bed. Defendant
grabbed her, pulled both of their pants down, and put his penis in her vagina.
¶ 13 On the fourth occasion, R.A. went into the bedroom. Defendant, T.M., and Ra. A. were
there. T.M. was sleeping, and Ra. A. was watching television. R.A. lay in the bed, and
defendant started touching her vagina under her pajama pants with his fingers.
¶ 14 The fifth occasion was after R.A. had a “Bratz”-themed party for either her sixth or
seventh birthday. R.A. went to the bedroom. Defendant and Ra. A. were there. Ra. A. was
watching television. R.A. sat on the bed, and defendant put his hand under her pants and
underwear and rubbed her vagina.
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¶ 15 At one point, defendant threatened to hurt R.A. and her family if she told anyone what he
had done to her.
¶ 16 R.A. testified that, after defendant moved out of the house, she saw him again around
October 2013 in a store that she and T.M. were visiting. Defendant and T.M. exchanged
greetings. R.A. testified that the encounter reminded her of all the things that defendant had
done to her. Months later, R.A. saw defendant at a restaurant. Again, she remembered what
defendant had done to her. She went to the bathroom and started crying.
¶ 17 Not long after seeing defendant at the restaurant, R.A. told T.M. what defendant had
done. T.M. contacted the police. R.A. acknowledged that, when she spoke to the police, she
told them that the incidents occurred when she was nine. She explained that the incidents
occurred around the time of her Bratz birthday party. She initially thought that that party was
for her ninth birthday. At some point while looking at old photographs, she realized that the
Bratz party was for her sixth or seventh birthday.
¶ 18 Defendant testified that, when he was employed, he worked long hours and arrived home
between 5:30 and 7 p.m. Defendant denied that he was home when T.M.’s children returned
from school or from the babysitter. Defendant testified that he retired in 2004 and that in
March or April 2005 he left the house he shared with T.M. and her children. Defendant
denied molesting any of T.M.’s daughters.
¶ 19 The jury found defendant guilty of one count of predatory criminal sexual assault of a
child against G.M. and two counts of predatory criminal sexual assault of a child against
R.A. The jury also found defendant guilty of two counts of aggravated criminal sexual abuse
against G.M., four counts of aggravated criminal sexual abuse against K.S., and three counts
of aggravated criminal sexual abuse against R.A. This appeal followed.1
¶ 20 II. ANALYSIS
¶ 21 Defendant argues that R.A.’s testimony was unreliable and thus insufficient to sustain the
convictions of the offenses of which she was the victim. Defendant asserts that (1) the crimes
were not reported until at least eight years after they occurred, (2) they all allegedly occurred
in the same room with at least one other person present, (3) R.A. admitted that, when she first
spoke to police, she was mistaken about her age when the offenses occurred, and (4) her
testimony as to when the offenses occurred was incorrect because defendant had already
moved to Mexico.
¶ 22 A reviewing court will not set aside a criminal conviction unless the evidence is so
improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.
People v. Collins, 106 Ill. 2d 237, 261 (1985). On a challenge to the sufficiency of the
evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Id. (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). The trier of fact is responsible for resolving conflicts in
the testimony, weighing the evidence, and determining what inferences to draw, and a
reviewing court ordinarily will not substitute its judgment on these matters for that of the
trier of fact. People v. Cooper, 194 Ill. 2d 419, 431 (2000).
1
We initially dismissed the appeal for lack of jurisdiction, but the supreme court directed us to
address the merits. Rodriguez-Palomino v. Burke, No. 124319 (Ill. Dec. 21, 2018) (supervisory order).
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¶ 23 Whether the offenses could have occurred in the manner that R.A. described them was a
matter for the jury to decide. It is not our role to substitute our judgment for the jury’s. It was
not unreasonable to believe that T.M. could have continued to sleep while defendant engaged
in acts of sexual conduct and sexual penetration with R.A. Nor was it unreasonable to believe
that Ra. A., who was about four years old and absorbed watching television or playing video
games, would not have noticed or understood defendant’s actions.
¶ 24 R.A.’s delay in reporting what had occurred did not render her testimony unworthy of
belief. She was quite young when the offenses occurred, and defendant threatened to harm
her and her family if she reported the offenses. After defendant moved away, she might have
seen no point in reporting what he had done. It was not unreasonable to believe that the
trauma of encountering defendant years later would have led R.A. to reveal to her mother
what defendant had done to her.
¶ 25 Nor are we convinced that the offenses could not have happened when R.A. said they did.
R.A. placed the incidents around the time of her Bratz-themed birthday party. Defendant
contends that the Bratz-themed party was for R.A.’s seventh birthday. After acknowledging
her initial confusion, R.A. agreed that she was six or seven, meaning that the party occurred
in either October 2004 or October 2005. Starting with the assumption that the party occurred
in October 2005, defendant argues that R.A.’s testimony was incorrect because he had moved
to Mexico in April 2005. However, there was conflicting testimony about when defendant
moved to Mexico. T.M. testified that defendant moved in January 2006.
¶ 26 In support of his argument that we should reject the jury’s determination that R.A. was a
credible witness, defendant cites People v. Schott, 145 Ill. 2d 188 (1991). In Schott, our
supreme court held that the complaining witness’s testimony was too inconsistent and
contradictory to sustain her stepfather’s conviction of indecent liberties with a child where
the witness had previously falsely accused a family member of sexual abuse; she admitted
that she lied frequently; she had told several police officers and a child-welfare specialist that
she had fabricated the allegations against her stepfather; and she had given inconsistent
testimony in a related juvenile-court proceeding about where and when the offense took
place, how often her stepfather had molested her, and other incidental matters. This case is in
no way comparable to Schott. We therefore conclude that the State presented evidence upon
which a rational trier of fact could have found the essential elements of the crimes beyond a
reasonable doubt. See Collins, 106 Ill. 2d at 261.
¶ 27 We turn now to defendant’s argument that it was error to impose consecutive sentences
for his aggravated-criminal-sexual-abuse convictions. We initially note that the State argues
that defendant forfeited the issue by failing to raise it below. “It is well settled that, to
preserve a claim of sentencing error, both a contemporaneous objection and a written
postsentencing motion raising the issue are required.” People v. Hillier, 237 Ill. 2d 539, 544
(2010). However, the issue is reviewable if the defendant establishes plain error. Id. at 545.
“The plain-error doctrine permits this court to address an unpreserved error ‘when either
(1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious,
regardless of the closeness of the evidence.’ ” People v. Miller, 2014 IL App (2d) 120873,
¶ 17 (quoting People v. Herron, 215 Ill. 2d 167, 186-87 (2005)). The State contends that,
because defendant does not argue that the imposition of consecutive sentences was plain
error, he has forfeited plain-error review. Although defendant did not raise plain error in his
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opening brief, he did raise it in his reply brief, which, as defendant notes, is sufficient to
allow us to engage in plain-error review. People v. Ramsey, 239 Ill. 2d 342, 412 (2010).
¶ 28 In determining whether the trial court committed plain error, the first step is to determine
whether any reversible error occurred. Miller, 2014 IL App (2d) 120873, ¶ 17. During the
relevant time frame, section 5-8-4(b) of the Unified Code of Corrections provided, in
pertinent part, that
“[t]he court shall not impose a consecutive sentence *** unless, having regard to the
nature and circumstances of the offense and the history and character of the
defendant, it is of the opinion that such a term is required to protect the public from
further criminal conduct by the defendant, the basis for which the court shall set forth
in the record.” 730 ILCS 5/5-8-4(b) (West 2002).
Defendant argues that it was error to impose consecutive sentences for the
aggravated-criminal-sexual-abuse convictions, because his three life sentences were
sufficient to protect the public from further criminal conduct.
¶ 29 We acknowledge that there is authority supporting defendant’s argument. People v.
Parker, 141 Ill. App. 3d 643, 646-47 (1986) (where defendant was adjudged a habitual
criminal and required to serve a life sentence for each of two Class X felonies, a single life
sentence was sufficient to protect the public, and it was not necessary for the two life
sentences to be served consecutively). However, there is authority to the contrary. In People
v. Hines, 165 Ill. App. 3d 289, 307 (1988), the court held that the trial court did not err in
ordering sentences for aggravated criminal sexual assault, criminal sexual assault, and
aggravated kidnapping to run consecutively to a life-imprisonment term for murder. The
Hines court reasoned as follows:
“Nowhere does the statute prohibit the court from imposing sentences consecutive to
a term of natural-life imprisonment. Numerous cases have allowed it. (People v.
Bush[, 103 Ill. App. 3d 5 (1981)]; People v. Wilson[, 138 Ill. App. 3d 513 (1985)]). In
addition, consecutive sentencing may well be beneficial even under these
circumstances should defendant’s life sentence be subsequently modified, commuted
or reduced.” Id.
See also People v. Leger, 208 Ill. App. 3d 333, 340 (1991).
¶ 30 We find the Hines court’s reasoning more persuasive than the Parker court’s.
Defendant’s life sentences for predatory criminal sexual assault of a child do not necessarily
eliminate the need for consecutive sentences for the less serious offenses. Here, the trial court
stated, “if the defendant was ever put in a position where he could reoffend, I cannot say that
these events would not take place again, and as a matter of fact, I find that these offenses
based on what he had already done are likely—would be likely to reoccur.” Although the
trial court did not use the precise language of section 5-8-4(b), it definitely conveyed the
opinion that consecutive sentences were “required to protect the public from further criminal
conduct by the defendant.” 730 ILCS 5/5-8-4(b) (West 2002).
¶ 31 III. CONCLUSION
¶ 32 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.
As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs
for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166,
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178 (1978).
¶ 33 Affirmed.
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