People v. Herrera

1

2024 IL App (1st) 230488-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PABLO HERRERA, Defendant-Appellant.

No. 1-23-0488

Court of Appeals of Illinois, First District, First Division

August 12, 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. 16 CR 8091 Honorable Lauren Gottainer Edidin, Judge, presiding.

JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.

ORDER

COGHLAN, JUSTICE

¶ 1 Held: Defendant's conviction for criminal sexual assault is affirmed over his contentions that (1) the victim's testimony did not establish beyond a reasonable doubt that he should have known his penetration of her was by force or the threat of force and (2) the trial court erred in crediting the State's closing argument that his failure to schedule an interview with a detective suggested consciousness of guilt.

¶ 2 Following a bench trial, defendant Pablo Herrera was found guilty of criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2012)) and sentenced to six years in prison. On appeal defendant challenges the sufficiency of the evidence contending that the victim's testimony did not establish beyond a reasonable doubt that his penetration of her was by force or the threat of force. Defendant further contends that the trial court plainly erred in crediting the State's closing argument that his failure to submit to an interview with a detective suggested consciousness of guilt. For the reasons that follow, we affirm.

¶ 3 Defendant's conviction arose from the events of April 7, 2012. Following his arrest, defendant was charged by indictment with aggravated criminal sexual assault, criminal sexual assault, and aggravated criminal sexual abuse. All of the charges alleged that defendant knowingly committed an act of sexual contact between his penis and D.M.'s anus "by the use of force or threat of force."

¶ 4 At trial, D.M. testified that, on September 5, 2011, her father drove her to the West Chicago Metra station and waited for her to board a commuter train into Chicago for a regional sorority meeting. After D.M. arrived at the platform, she realized she had missed her train. Defendant approached her and introduced himself as "Paolo Faviani." He told her he attended her church and had gone to her high school. Defendant offered D.M. a ride to Chicago, indicating his female cousin was on her way to pick him up. D.M. felt comfortable with the idea because the cousin was female.

¶ 5 While D.M. was telling her father that defendant had offered her a ride, he approached and introduced himself to her father as "Paolo Faviani." Defendant shook her father's hand, gave him a business card, and assured him D.M. would be safe. D.M. agreed to go with defendant and his cousin arrived about five minutes later.

¶ 6 Defendant's cousin drove defendant and D.M. to Chicago and dropped D.M. off at a Chicago Transit Authority (CTA) station. Before D.M. got out of the car, she and defendant exchanged Facebook contact information. His profile listed his name as "Paolo FaViani."

¶ 7 After her sorority meeting, D.M. messaged defendant on Facebook, commenting that it was a "small world" because they had missed the same train at the same time to the same destination. Defendant asked whether she had made it to her meeting on time and suggested that they meet for "coffee or apple juice." D.M. responded that maybe they would run into each other again on the Metra.

¶ 8 Over the next several months, defendant and D.M. sporadically exchanged messages on Facebook. She gave defendant her phone number but they did "[n]ot really" communicate via phone. They "bumped into" each other several times on the Metra, but their in-person exchanges were "[n]othing more than a hi, bye." In March 2012, D.M.'s sorority was holding its annual fundraiser banquet. In a "last push" to sell her quota of tickets, she sent a mass text to her phone contacts, including defendant. Defendant attended the banquet, but they did not sit together or interact that night. Afterwards, she reached out to thank him for attending, as she was extremely grateful that he had gone out of his way for her twice.

¶ 9 Defendant continued asking D.M. if she wanted to get together. She eventually agreed to meet defendant at the Addison CTA station on April 6, 2012. Defendant said he could not meet until 11 p.m. D.M. asked several friends to join them because she "still really didn't know this guy." When none of her friends were available, D.M. went alone because she had already committed to doing so. ¶ 10 Defendant arrived at the CTA platform carrying a "bulky" bag. He tried to greet D.M. by kissing her on the lips, but she ducked because she did not want to kiss him. She thought the gesture was "weird" because they were on a "friendly meet-up," not a date. They walked to a nearby bar and defendant asked D.M. what she wanted to drink. She requested an amaretto sour, but he ordered her a Long Island iced tea. Before they left, defendant bought D.M. an amaretto sour. Later, they went to a second bar and defendant bought D.M. a "bright blue drink."

¶ 11 D.M. avoided multiple attempts by defendant to kiss her throughout the evening. She let him kiss her after she drank the blue drink because she thought he would stop if she just let him give her a "peck" on the lips.

¶ 12 Shortly after 2 a.m., defendant and D.M. left the second bar. D.M. intended to return to her Northwestern University dormitory alone. Defendant told her that the Metra trains had stopped running and he had nowhere to go. After an awkward silence, D.M. said defendant could stay at her dormitory. Although she did not want defendant to stay there, she "was trying to be nice *** [figuring] if he's got nowhere else to go, *** [she] didn't want to be rude."

¶ 13 When they arrived at her dormitory, defendant checked in as a guest with the security guard using an identification card. D.M. had a single-person dormitory room, containing a bed that was smaller than a twin size. The bathroom, which she shared with other residents, was in the hallway. When they got to her room, defendant put his bag down and pushed her onto the bed. D.M. got up, telling herself, "[D]on't be rude, don't call attention to it. It's okay. He's harmless. He's fine."

¶ 14 After D.M. gave defendant a t-shirt and shorts, he started changing in front of her. D.M. was a "little shocked" and looked away. She left her room and changed into a t-shirt and yoga pants in the bathroom. When she returned, she gave defendant a pillow and a blanket, which he put on the floor. After setting the alarm for defendant, D.M. said good night. Defendant was on the floor when D.M. went to sleep alone in her bed.

¶ 15 Later that night, D.M. woke up when she felt "defendant lying right behind [her]" thrusting his body into her. She realized that her "yoga pants and [her] underwear were at knee level." D.M. was confused, "trying to figure out what was going on." After telling defendant to stop, D.M. took her hand and "tried to push against his hips to move him away from [her], but [she] wasn't strong enough. He kept thrusting." D.M. felt pain from defendant inserting his penis in and out of her butt. As D.M. kept trying to push defendant away, he grabbed her hand and "repositioned it for [her] to feel the base of his penis." Defendant made D.M. feel his penis while she was telling him to stop. Defendant stopped eventually, but not immediately. D.M. was in "complete shock trying to figure out what the heck is going on." Defendant told her she "was lucky because some of his friends wouldn't have stopped."

¶ 16 As she laid in bed "trying to process what had just happened," defendant started apologizing. Defendant kept "saying he was sorry and *** [she] didn't respond. [She] was just lying there just stunned." Defendant told D.M. he "just couldn't help [himself]." D.M. felt numb, overloaded, and "in absolute shock." She remembered staring at the ceiling and then rolling over because all she wanted to do was go back to sleep. She moved as close as she could to the wall, pulled up her blanket, and fell asleep.

¶ 17 The next thing D.M. remembered was the alarm going off. She sat up and looked at the ground as defendant, who had changed and picked up his bag, asked for directions to the CTA. D.M. walked defendant to the dormitory exit and told him how to get to the purple line. After defendant left, D.M. texted him, "I hope you understand when I ask that we never speak again. I have lost the trust that I had in you." He wrote back, "So we are not to ever speak again...?" D.M. responded, "I don't think I'd want to, no."

¶ 18 D.M. went back to her dorm and went to sleep. When she woke up, it was dark, and she realized she had slept all day. Her anus was sore and bleeding when she went to the bathroom. She realized she could not continue pretending nothing had happened and needed to "do something." ¶ 19 D.M. Googled the phrase "sexual assault," called a confidential crisis hotline and the Northwestern Health Clinic emergency line. She also contacted Northwestern University police and asked what to do if she had been sexually assaulted. She was told she could come to the station or they could send a squad car to pick her up.

¶ 20 While walking to the police station, D.M. sent defendant two text messages. The first was, "I can't believe you took advantage of me like that. You are lucky you stopped when you did." In the second, she asked defendant if he realized what he did. Defendant did not respond to either text. After talking to detective Katarzyna...