People v. Rodriguez-Palomino ( 2019 )

2019 IL App (2d) 160361-BNo. 2-16-0361
Order filed April 24, 2019
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 13-CF-3036
)
PABLO RODRIGUEZ-PALOMINO, ) Honorable
) George D. Strickland,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
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
2019 IL App (2d) 160361-Bthree 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
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2019 IL App (2d) 160361-Bhouse. 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 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
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2019 IL App (2d) 160361-Bthat 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.
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2019 IL App (2d) 160361-B¶ 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.
¶ 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
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2019 IL App (2d) 160361-Bor 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
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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2019 IL App (2d) 160361-Bbeyond 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).
¶ 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
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2019 IL App (2d) 160361-BApril 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,
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2019 IL App (2d) 160361-B215 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 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
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2019 IL App (2d) 160361-Baggravated 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, 178
(1978).
¶ 33 Affirmed.
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