People v. Basurto

1

2024 IL App (1st) 221570-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARIO BASURTO, Defendant-Appellant.

No. 1-22-1570

Court of Appeals of Illinois, First District, Third Division

July 17, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County. No. 19 CR 13101 Honorable Samuel Betar, Judge, presiding.

JUSTICE D.B. WALKER delivered the judgment of the court. Presiding Justice Reyes and Justice Lampkin concurred in the judgment.

ORDER

D.B WALKER JUSTICE

¶ 1 Held: Trial counsel did not render ineffective assistance for failure to (1) perfect the impeachment of the victim with his prior inconsistent statements to police and (2) request a jury instruction on the age of consent. We vacate defendant's conviction for intimidation under the one act, one crime rule. Affirmed as modified.

¶ 2 Following a jury trial, defendant Mario Basurto was found guilty of aggravated criminal sexual assault and intimidation, and the trial court sentenced him to concurrent terms of eight years' and three years' imprisonment respectively. On appeal, defendant contends that he received ineffective assistance of trial counsel because counsel failed to (1) perfect the impeachment of the victim with the victim's prior inconsistent statements to the police and (2) request a jury instruction on the age of consent. In the alternative, defendant asks that we vacate his conviction for intimidation under the one act, one crime rule. We affirm as modified.

¶ 3 BACKGROUND

¶ 4 Defendant was charged with one count of aggravated criminal sexual assault and one count of intimidation in connection with an incident occurring at a Macy's department store in Woodfield Mall on August 5, 2018. Count 1 of the indictment, which charged defendant with aggravated criminal sexual assault (720 ILCS 5/11-1.30(a)(4) (West 2020)) alleged that defendant knowingly committed an act of sexual penetration upon the victim (D.F.), i.e., "contact between [defendant's mouth and D.F.'s sex organ," "during the course of the commission of any other felony, to wit: intimidation, by [defendant]." Count 2 alleged that defendant committed the offense of intimidation (720 ILCS 5/12-6(a)(5) (West 2020)); namely, that defendant intentionally and without lawful authority communicated to D.F. "by Snapchat, a threat to *** expose D.F. to hatred, contempt, or ridicule," which caused D.F. to "receiv[e] oral sex." In his pretrial discovery response, defendant indicated, inter alia, that he would rely upon the defense of consent.

¶ 5 Testimony of D.F.

¶ 6 The following evidence was adduced at trial. D.F. testified that, in August 2018, he was 17 years old and living with his parents. At that time, he said that he used both "Facebook" and "Snapchat" social media applications. At that time, he received a "friend" request from an individual named "Vanessa" on Facebook. D.F. looked at Vanessa's various profile pictures (agreeing that she appeared to be a female) and believed that she looked familiar, so he accepted her friend request. D.F. stated that he and Vanessa began communicating privately via Facebook "Messenger." D.F. added that he and Vanessa also communicated via Snapchat. D.F. agreed that, with Snapchat, you can send a picture or text message, and then the application automatically deletes it after the recipient views it. D.F. confirmed that neither he nor Vanessa changed the application settings so as not to automatically delete text messages after viewing.

¶ 7 D.F. said that, at some point after they began communicating, Vanessa asked D.F. to send him a naked picture of himself. D.F. thought she was joking, did not take the request seriously, and initially refused to do so. Vanessa, however, continued "pressuring or pushing" D.F., so he sent her an upper body picture that he characterized as a "[p]rogress working out picture." Vanessa, however, "continued being pushy about the naked picture," so he sent her a random image of a naked individual that he found on Google. Vanessa did not believe that the photo was D.F., and she "continued being pushy" and told him to "quit stalling." D.F. eventually sent Vanessa a "snap," i.e., a five-second video showing his "face, body[,] and private parts." D.F. then recounted that, after sending the video, "I got a notification saying [I] got screen-shotted [sic]," which he explained meant that Vanessa had saved the video rather than letting it be automatically deleted. D.F. said he "freaked out" and sent multiple messages to Vanessa asking her to delete it. According to D.F., Vanessa refused and told him that the "fun just started."

¶ 8 Vanessa told D.F., "Let's see what you're willing to do to get me to delete it." Although Vanessa "brought up the option about money," D.F. said he did not have any money at that time, so Vanessa's other option was for him to "perform sexual favors." Specifically, Vanessa demanded that she take D.F.'s "V card" (i.e., his virginity), which he said meant penis-to-vagina sex. The other option Vanessa offered D.F. was for her "friend" to perform oral sex on him. D.F. said he was terrified and refused. D.F. asked Vanessa if there was another "option." She responded, "[B]ecause money is not an option, *** that's the only way." She further threatened to send the video to D.F.'s employer, family, and friends, and to also post it on various social media platforms. D.F. said he kept trying to compromise with Vanessa, but she said that "it all had to be done today." Vanessa gave D.F. an address in Schaumburg, Illinois, to go to, and she said if he did not go to that location quickly, she would send the video to his employer, family, friends, "and all those things." While en route, however, D.F. was stopped for speeding and was issued a ticket. D.F. identified the speeding ticket in court, which was dated August 5, 2018.

¶ 9 D.F. said that during his traffic stop, Vanessa sent him Snapchat messages asking why he was taking so long and telling him to hurry up. D.F. told her that he was pulled over. D.F. admitted that, while he was sitting in a car next to a police officer, he did not tell the officer that he was being blackmailed. D.F. explained that he was scared and terrified, and he added that the officer asked him "multiple times *** if I was okay because I was shaking too much." After D.F. arrived at the address in Schaumburg, Vanessa's friend was not there. Vanessa told D.F. to go and "meet her friend" in the furniture department on the ground floor of the Macy's Department Store at Woodfield Mall in Schaumburg. D.F. went to that location and sat on a bench.

¶ 10 At that point, defendant (whom D.F. identified in court) walked up to him. D.F. said that he offered to buy defendant anything if he would tell Vanessa to delete the "picture [sic]" and that D.F. was "begging and pleading" defendant to "tell Vanessa *** whatever she wanted to hear just so the pictures get deleted." According to D.F., however, defendant told him that "it wasn't his deal; it was Vanessa's." D.F. said that defendant did not agree to D.F.'s offer to either buy something for or give money to defendant, but defendant did agree to "put a time limit on it." D.F. spent 20-30 minutes trying to convince defendant not to engage in the sex act with him, even while following defendant into the bathroom and into one of the handicapped stalls.

¶ 11 In the stall, D.F. said a timer was started. D.F. did not agree to using a timer, but he said "it was the only way," explaining that, while the timer was running, defendant would perform oral sex on him. He estimated that the timer was set for about one minute.

¶ 12 Defendant took D.F.'s pants down and put his mouth on D.F.'s penis. D.F. said he never became erect and did not ejaculate at any point. D.F. told defendant to stop "10 times," but defendant refused because defendant set the timer. When the timer went off, defendant said, "[T]hat wasn't enough," but D.F. refused and told defendant to tell Vanessa to delete the pictures. Defendant then left the bathroom, and D.F. followed soon after while trying to reach Vanessa. D.F. could not reach Vanessa, so he contacted defendant to get Vanessa's phone number.^[1]

¶ 13 D.F. then drove to an "Ulta" store in Schaumburg because Vanessa had told him that she worked there. When he arrived, however, the store was closed and Vanessa did not answer his calls. D.F. then went home and contacted Vanessa through Facebook Messenger. D.F. wrote to Vanessa, "Promise me everything is done." Vanessa replied that it was and that she was "[s]orry for everything." D.F. responded, "You threatened me with everything and really hurt me. You threatened me with money. My dignity. Basically did anything because of you." Vanessa responded that D.F. had said "money was not an option," but she again said that she was sorry. D.F. told the court that Vanessa made him feel horrible, and he did not know that she was not real.

¶ 14 D.F. then went to his room and "laid down in sorrow" before going to the Elgin Police Department on that same day (August 5, 2018). According to D.F., however, the police station was "closed" when he arrived. He then returned the following day, spoke to a Detective Ziegler, and then went to Sherman Hospital where a sexual assault "kit" was performed. The investigation was subsequently transferred to the Schaumburg police department, where he spoke to a Detective Casey and later identified defendant from a photo array as the person who sexually assaulted him.

¶ 15 On cross-examination, D.F. admitted that he found Vanessa attractive. D.F. further conceded that, although he stated that he did not...