People v. Arze

52 N.E.3d 746

402 Ill.Dec. 825

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Ricardo ARZE, Defendant–Appellant.

No. 1–13–1959.

Appellate Court of Illinois, First District, Fifth Division.

April 29, 2016.

Edward M. Genson, Edward M. Genson & Associates, and Sara R. McClain, Kralovec Meenan, LLP, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg and Mary L. Boland, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice REYES delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial in the circuit court of Cook County, defendant Ricardo Arze was found guilty of two counts of criminal sexual assault (720 ILCS 5/12–13(a)(1), (2) (West 2004))¹ and sentenced to 13 years in the Illinois Department of Corrections. On appeal, defendant argues the trial court erred in: (1) granting the State's motion to reconsider and reinstating the verdict, after admitting other-crimes evidence; (2) failing to admit subpoenaed medical records or publish certain medical records to the jury; (3) precluding or limiting the examination of witnesses; and (4) imposing an improper sentence based in part on limiting the cross-examination of a witness. For the following reasons, we affirm the judgment of the circuit court.

¶ 2 I. BACKGROUND

¶ 3 On September 11, 2008, defendant was indicted on two counts of criminal sexual assault (id. ) and one count of unlawful restraint (720 ILCS 5/10–3 (West 2004) ) for the March 24, 2005, sexual assault of a woman named M.S., who was a patient of defendant.² The State subsequently elected to proceed to trial on the two counts alleging criminal sexual assault.

¶ 4 A. Pretrial Proceedings

¶ 5 On December 16, 2008, the State filed a motion to admit evidence of other crimes during defendant's trial, pursuant to section 115–7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115–7.3 (West 2008) ). The State asserted defendant's sexual conduct or sexual assaults of four women other than the complainant should be considered relevant on the issues of defendant's identity, intent, motive, common scheme or design, lack of consent, modus operandi, and propensity. Specifically, the State sought to admit testimony from N.R., B.S., Y.G., and R.V.,³ four of defendant's former female patients who claimed defendant engaged in nonconsensual sexual conduct with them in his examination room during the time period from 2005 through 2007. The State noted defendant had been the family physician of the complainant, M.S., from 1999 through 2002, and was accused of forcibly having sexual intercourse with M.S. in 2005, while administering treatment for “the flu.”⁴ The State further argued defendant's alleged misconduct with his other patients was similar to and proximate in time to the charged offense and would also rebut a potential defense of consent.

¶ 6 Defendant apparently filed a response to the motion,⁵ arguing that: (1) the other-crimes evidence must fall within a common law exception before it may be introduced as evidence of propensity to commit sexual assault; (2) none of the common law exceptions for admitting other-crimes evidence applied to this case; (3) the alleged other misconduct was not similar to or proximate in time to the charged offense; and (4) admission of the other cases of alleged misconduct would result in mini-trials which would become the focal point of the proceedings against defendant.

¶ 7 On August 16, 2010, the trial court entered an order granting the State's motion. Although the order is not included in the record on appeal, the parties agree the record otherwise indicates the trial court ruled the evidence was admissible on the issues of intent, lack of innocent frame of mind, and propensity. The court denied the admission of the evidence for the purpose of establishing modus operandi.

¶ 8 On September 24, 2010, defendant filed a motion seeking discovery in part of the names of all treating physicians of M.S., N.R., B.S., Y.G., and R.V., including psychologists and psychiatrists. Defendant also sought records concerning medical, psychological, and neuropsychological examinations of these witnesses. On December 21, 2010, the State filed a response objecting to these discovery requests, arguing the mental health records were privileged by statute (see 740 ILCS 110/10 (West 2010) ). On June 30, 2011, defendant filed a reply in support of the motion for discovery, arguing the records at issue were discoverable even if they were privileged, and requesting the trial court to order production of the records for an in camera inspection.

¶ 9 On July 12, 2011, the trial court granted defendant's motion for disclosure of the medical records, subject to an in camera inspection. On September 6, 2011, the State filed a supplemental answer to discovery, tendering records the State received relating to N.R., B.S., Y.G., and R.V., to the trial court for in camera review. The State also answered it was awaiting the receipt of records relating to these individuals from other certain medical providers. On December 21, 2011, the trial court issued a series of orders to additional medical providers directing them to provide records relating to M.S. for in camera review. On May 1, 2012, the trial court entered an order directing that “the medical records previously reviewed in camera shall be included in the record in [sic ] as sealed documents instanter. ”

¶ 10 B. Trial

¶ 11 1. M.S.'s Testimony

¶ 12 At trial, M.S., the complainant, testified through an interpreter that she was currently 55 years old. Defendant had been her mother's physician before her mother's death in 2002. M.S. was first examined by defendant at the end of 2001, in part because defendant spoke Spanish.

At that time, she informed defendant she felt depressed, felt pressure from her two jobs, and was not feeling well. Defendant prescribed her medicine for depression, which made her feel “[n]ot too much” better. Thereafter, M.S. met with defendant when she took her mother to him for treatment.

¶ 13 Thereafter, M.S. was examined by defendant on March 15, 2005, when she had contracted pneumonia. Defendant diagnosed M.S., prescribed medication, provided a note for M.S. to give to her employer, and directed her to return for a follow-up examination. When M.S. returned to defendant's office on March 21, 2005, she was feeling better. Defendant requested that M.S. return for another follow-up appointment.

¶ 14 On March 24, 2005, M.S. returned to defendant's office. During the appointment, defendant directed her to sit on the examination table, and to remove her blouse and sweater. M.S. remained in her brassiere, thinking defendant was going to examine her lungs. Defendant then grabbed his penis and touched “everywhere” on her body. M.S. wanted to scream, but defendant “would tell [her] not to do anything, to be quiet” and reminded her there were many people outside.

¶ 15 Defendant moved M.S.'s body toward the front of the examination table. M.S. testified her jogging pants were pulled down, but she did not recall whether defendant pulled them down. When defendant was next to M.S., she could observe defendant's penis was “big [and] fat.” According to M.S., defendant pulled her legs apart while informing her she “was going to like it.” Defendant inserted his penis into her vagina while standing in front of her. M.S. did not recall whether defendant ejaculated, but he gave her something with which to clean herself. Defendant then provided M.S. a note to give to her employer.

¶ 16 M.S. “didn't feel right” and “just wanted to leave” defendant's office. She paid her bill, cried for an hour in her automobile, and returned home. M.S. did not notify anyone at defendant's office because there were many people there including defendant's wife, and she thought no one would believe her. She did not inform her husband or son because she believed they would have murdered defendant and would have been incarcerated. She did not inform her sister because she and her brother-in-law were defendant's patients and believed in defendant. She never returned to defendant's office.

¶ 17 M.S. received a telephone call from her sister in September 2007, and learned that someone had filed a complaint against defendant. When M.S. returned home from work that day, she observed defendant on a news broadcast. M.S. then informed her sister and her husband of the 2005 incident. M.S. and her husband proceeded to the police station in Berwyn, Illinois. M.S. informed the police regarding the 2005 incident and thereafter identified defendant in a police lineup.

¶ 18 On cross-examination, M.S. acknowledged it was not uncommon for defendant's employees to enter the examination room during an appointment. M.S. further testified during cross-examination that defendant pulled down her pants. She acknowledged her sister visited defendant 10 times after the incident, but she did not inform her sister of the incident. M.S. further testified this was the “fifth different story” she had provided about the alleged assault. The trial judge sustained the State's objection to the cross-examination of M.S. on whether she had lied to the State about visiting other doctors in the United States after the incident.

¶ 19 2. N.R.'s Testimony

¶ 20 N.R. testified through an interpreter that she was 46 years old at the time of the trial. She testified that in 2006 and 2007, she lived in Cicero, Illinois, with her sons and her then-husband. N.R. further testified she stopped seeing her previous doctor because he tried to kiss her during her last appointment. At this juncture in N.R.'s testimony, the jury was instructed by the trial judge that N.R.'s testimony was being presented on the issues of defendant's intent, lack of innocent frame of mind, and propensity. During her initial visit on September 5, 2006, N.R. informed defendant of her depression and her problems with her then-husband including an unspecified traumatic sexual...