Opinion
No. 1-16-3375
03-22-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELIAS RODRIGUEZ, 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. 14 CR 18847
Honorable Allen F. Murphy, Judge, presiding.
JUSTICE McBRIDE delivered the judgment of the court.
Justices Gordon and Ellis concurred in the judgment.
ORDER
¶ 1 Held: Defendant's convictions for aggravated criminal sexual abuse and aggravated domestic battery affirmed over his challenge that the evidence was insufficient to prove that he caused bodily harm to the victim.
¶ 2 Following a bench trial, defendant Elias Rodriguez was convicted of aggravated criminal sexual abuse and aggravated domestic battery. For each conviction, the trial court sentenced defendant to 60 days in the Cook County Department of Corrections and 24 months of sex offender probation, to be served concurrently. On appeal, defendant contends that the State failed
to prove him guilty beyond a reasonable doubt because the evidence was insufficient to prove that he caused bodily harm to the victim. We affirm.
¶ 3 Defendant was tried on charges of aggravated criminal sexual assault, aggravated criminal sexual abuse, aggravated domestic battery, and home invasion. At trial, T.O.H. testified that defendant was her former boss and ex-boyfriend. In November 2012, T.O.H. began working for defendant at a restaurant he owned in Blue Island. A few months later, they began dating. Their relationship lasted about two years, until the middle of September 2014. T.O.H. ended their relationship because defendant was too controlling and still married. She continued working for him.
¶ 4 About two weeks later, T.O.H. was working at the restaurant when defendant's children came there to eat. They had found out about the relationship and were rude to T.O.H. Defendant's daughter pushed her. T.O.H. quit her job at the restaurant that day and notified defendant via a text message.
¶ 5 In October 2014, T.O.H. and her seven-year-old daughter were living in a second-floor apartment of a two-flat in Blue Island. She did not know the people who lived on the first floor, but they were friends with defendant. T.O.H. never gave defendant keys to her apartment. Defendant had previously visited her apartment with her permission. Her apartment could be entered through either of two doors. The lock on one of the doors was broken and could be opened by using a credit card, which was how defendant routinely entered her apartment.
¶ 6 On the morning of October 5, 2014, defendant texted T.O.H. and asked if he could use her shower. T.O.H. thought defendant was making an excuse to contact her and replied "okay." Defendant did not come while she was home, and she did not expect him to come while she was
out. T.O.H. and her daughter left the apartment at 8:30 a.m., and returned home between 10 and 10:30 p.m. When she arrived home, T.O.H. observed flower petals on the stairs leading up to her apartment. Inside, her apartment was filled with flowers and gifts for her and her daughter.
¶ 7 T.O.H. became angry and immediately texted a picture of the flower display to defendant with the comment "really?" Defendant replied "oh, you didn't like it?" Shortly thereafter, defendant called T.O.H. Her daughter answered the phone, told him that T.O.H. did not want to speak with him, and hung up. T.O.H. took a shower, and she and her daughter fell asleep together in T.O.H.'s bed. T.O.H. was wearing "onesie" pajamas that covered from her neck to her toes, and had a zipper in the front. She was not wearing anything underneath.
¶ 8 T.O.H. awoke in the middle of the night when she heard footsteps and saw a shadow coming towards her. She then realized it was defendant. She asked him what he was doing there, and in response, he asked her where she had been. She replied "[n]owhere, why?" Defendant became angry and accused T.O.H. of lying to him. They began arguing, and T.O.H. told him to lower his voice because her daughter was sleeping. Defendant called T.O.H. a "bitch" and a "whore," and told her that she was nothing without him. He took her phone, and when she demanded it back, defendant became "out of control" and began screaming at her. When she reached for her phone, defendant grabbed her wrist, and they began physically fighting.
¶ 9 T.O.H. testified that defendant tried to kiss her, and he bit her cheek. When asked if it hurt, T.O.H. testified "[y]es, he was pulling my hair." Defendant held T.O.H. against the kitchen door so she could not move. He then unzipped the zipper on her pajamas and touched her breast. T.O.H. started to cry and told defendant "[y]ou're hurting me. Stop." Defendant then put his
fingers inside her vagina and called her a "whore." T.O.H. again told defendant to stop. She began screaming loudly for help and yelled for her daughter.
¶ 10 T.O.H. heard her neighbor hit the wall outside her apartment and yell "[k]nock it off" twice. T.O.H. told defendant "[g]et out of here." Defendant stopped for a second, and T.O.H. ran into her bedroom. She tried to wake up her daughter so they could leave the apartment, but was unsuccessful. Defendant followed T.O.H. into the bedroom and told her to stop screaming. T.O.H. replied that she was not going to stop and told him to leave her house.
¶ 11 Defendant tried to hold T.O.H., and they fell to the floor. T.O.H. was on her knees and was screaming continuously. Defendant got on top of T.O.H., placed his hand over her mouth and nose, and told her to "shut up." T.O.H. demonstrated for the court how defendant covered her mouth and nose with his hand, and testified that she could not breathe. Defendant finally got off of T.O.H. and walked out of the apartment.
¶ 12 After defendant left, T.O.H.'s friend called her, and she told him what happened. He advised her to call the police, but she did not. She explained that she was afraid to do so due to her immigration status, and because defendant knew the mayor and police. The next morning, T.O.H. went to a domestic violence shelter, and the staff there called the police.
¶ 13 On cross-examination, T.O.H. acknowledged that she did not seek medical treatment for the bite, nor did she photograph it, but the police did. T.O.H. denied that she was angry with defendant because he owed her money for working at the restaurant. She acknowledged that on the day of the incident, defendant bought her a mattress and brought it into her apartment. She noted, however, that he did so without her permission. While they were dating, defendant visited
her apartment twice a week. After they broke up, defendant repeatedly called T.O.H., asked her where she was, followed her, and appeared in various locations.
¶ 14 Samuel Gonzalez testified for the defense that in September and October of 2014, he was living in the first-floor apartment of the two-flat, and T.O.H. lived above him. Gonzalez knew defendant and saw him coming and going from T.O.H.'s apartment on a daily basis. Gonzalez assumed that defendant used a key to access the apartment.
¶ 15 In the early morning hours of October 6, Gonzalez's wife woke him, and he heard noise upstairs. Gonzalez went upstairs and heard arguing. He hit the side of the wall with his flashlight. Someone responded "[g]o away." Gonzalez returned downstairs and spoke with his wife. He then heard footsteps and saw a truck leave.
¶ 16 On cross-examination, Gonzalez acknowledged that he has known defendant for more than 20 years, and defendant was a friend of the family. He further acknowledged that he never saw defendant with a key, and did not know how he entered the apartment. On the night of the incident, his wife woke him because she heard loud voices. When Gonzalez went upstairs, he heard a man and woman arguing. It was the female voice that said "go away." Gonzalez acknowledged that he did not know if she was talking to him or the man inside the apartment.
¶ 17 The trial court found defendant not guilty of home invasion, noting that the evidence showed that defendant came and went from the apartment as he pleased. The court also found defendant not guilty of aggravated criminal sexual assault. The court noted that T.O.H. gave a "very, very graphic account of what the defendant did," and that she testified that it hurt when defendant bit her on the face. However, the court found that the injury did not support finding aggravated criminal sexual assault beyond a reasonable doubt. Nevertheless, the court stated that
T.O.H.'s testimony was "compelling" and credible, and found defendant guilty of aggravated criminal sexual abuse. The court also found defendant guilty of aggravated domestic battery for placing his hand over T.O.H.'s mouth.
¶ 18 In denying defendant's motion for a new trial, the court stated that in regards to the conviction for aggravated criminal sexual abuse, T.O.H. gave compelling testimony that defendant touched her breasts by force and against her will, and that "she did suffer bodily harm at the time of that event." For each conviction, the court sentenced defendant to 60 days in the Cook County Department of Corrections and 24 months of sex offender probation, to be served concurrently.
¶ 19 On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt of either aggravated criminal sexual abuse or aggravated domestic battery because the evidence was insufficient to prove that he caused bodily harm to T.O.H.
¶ 20 When defendant claims that the evidence is insufficient to sustain his conviction, this court must determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the offense proved beyond a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48, citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). This standard applies whether the evidence is direct or circumstantial, and does not allow this court to substitute its judgment for that of the fact finder on issues involving witness credibility and the weight of the evidence. People v. Jackson, 232 Ill. 2d 246, 280-81 (2009). Under this standard, all reasonable inferences from the evidence must be allowed in favor of the State. People v. Lloyd, 2013 IL 113510, ¶ 42.
¶ 21 In a bench trial, the trial court is responsible for determining the credibility of the witnesses, weighing the evidence, resolving conflicts in the evidence, and drawing reasonable inferences from therein. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). We will not reverse a criminal conviction based upon insufficient evidence unless the evidence is so improbable or unsatisfactory that there is reasonable doubt as to defendant's guilt (People v. Beauchamp, 241 Ill. 2d 1, 8 (2011)), nor simply because defendant claims that a witness was not credible or that the evidence was contradictory (Siguenza-Brito, 235 Ill. 2d at 228). The testimony of a single witness, if positive and credible, is sufficient to sustain a conviction. Siguenza-Brito, 235 Ill. 2d at 228.
¶ 22 Defendant first contends that he was not proven guilty of aggravated criminal sexual abuse because it would have been impossible for him to bite T.O.H. on the cheek while he was trying to kiss her and she was trying to push him away. Defendant argues that there was no evidence of a forceful, painful bite mark, other than T.O.H.'s testimony. He also points out that she never received medical treatment, nor did she take a photograph of the bite mark.
¶ 23 To prove defendant guilty of aggravated criminal sexual abuse in this case, the State was required to show that he touched T.O.H.'s breast with his hand for the purpose of sexual arousal or gratification, by the use of force or threat of force, and that while doing so, he caused bodily harm to T.O.H. by biting her. 720 ILCS 5/11-1.60(a)(2) (West 2014).
¶ 24 "Bodily harm" has been defined as physical pain or damage to the body, such as lacerations, bruises or abrasions, whether temporary or permanent. People v. Mandarino, 2013 IL App (1st) 111772, ¶ 63. When determining whether a defendant caused bodily harm, direct evidence of an injury may be considered, but is not required. People v. Bishop, 218 Ill. 2d 232,
250 (2006). Instead, "the trier of fact may infer injury based upon circumstantial evidence in light of common experience." Id. The question is not what the victim did or did not do to treat his or her injury, but what injury he or she received. Mandarino, 2013 IL App (1st) 111772, ¶ 63.
¶ 25 Viewed in the light most favorable to the State, we find that the evidence established that T.O.H. suffered bodily harm when defendant bit her. T.O.H. testified that she and defendant became engaged in a physical fight. Defendant tried to kiss her, and when he did so, he bit her cheek. When asked if it hurt, T.O.H. testified "[y]es," and added that he also pulled her hair. T.O.H. further testified that at this same time, defendant held her against the kitchen door so she could not move, unzipped her pajamas, and touched her breast.
¶ 26 The determination of the veracity of T.O.H.'s testimony was a matter within the province of the trial court which heard and observed her testify. The trial court expressly stated that it found T.O.H.'s testimony compelling and credible. Consequently, her testimony alone was sufficient to sustain defendant's conviction. Siguenza-Brito, 235 Ill. 2d at 228. The fact that T.O.H. did not seek medical treatment or take a photograph of the bite mark is of no import. Bishop, 218 Ill. 2d at 250; Mandarino, 2013 IL App (1st) 111772, ¶ 63. We therefore find no reason to disturb the trial court's finding that defendant was proven guilty beyond a reasonable doubt of aggravated criminal sexual abuse.
¶ 27 Defendant next contends that the State failed to prove him guilty of aggravated domestic battery based on strangling T.O.H. Defendant argues that there was no evidence as to how long his hand was covering her mouth, and she never testified that she was in pain at that time.
¶ 28 To prove defendant guilty of aggravated domestic battery, the State was required to show that defendant strangled T.O.H. while committing a domestic battery. 720 ILCS 5/12-3.3(a-5)
(West 2014). The statute defines "strangle" as "intentionally impeding the normal breathing or circulation of the blood of an individual by applying pressure on the throat or neck of that individual or by blocking the nose or mouth of that individual." Id.
¶ 29 We find that the evidence was sufficient for the trial court to find defendant guilty of aggravated domestic battery. T.O.H. testified that she and defendant had previously been in a dating relationship for about two years. She further testified that during the attack, defendant tried to hold her, and they fell to the floor. T.O.H. was on her knees and screaming. Defendant then got on top of her, placed his hand over her mouth and nose, and told her to "shut up." T.O.H. demonstrated for the court how defendant covered her mouth and nose with his hand, and testified that she could not breathe.
¶ 30 Contrary to defendant's assertion, the statute does not require any evidence regarding how long the victim's breathing was impeded, or that the victim suffered pain during the offense. The State merely needed to show that defendant intentionally impeded her breathing by covering her nose and mouth. The record reveals that T.O.H. specifically testified to that very act. The trial court found T.O.H.'s testimony credible. Thus, her testimony alone was sufficient for the court to sustain the aggravated domestic battery conviction. Siguenza-Brito, 235 Ill. 2d at 228. We discern no reason to disturb the court's determination.
¶ 31 For these reasons, we affirm the judgment of the circuit court of Cook County.
¶ 32 Affirmed.