People v. Hermosillo

628 N.E.2d 413, 256 Ill. App. 3d 1020, 194 Ill. Dec. 916, 1993 Ill. App. LEXIS 1730
CourtAppellate Court of Illinois
DecidedNovember 19, 1993
Docket1-92-1449, 1-92-1450 cons.
StatusPublished
Cited by5 cases

This text of 628 N.E.2d 413 (People v. Hermosillo) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Hermosillo, 628 N.E.2d 413, 256 Ill. App. 3d 1020, 194 Ill. Dec. 916, 1993 Ill. App. LEXIS 1730 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendants, Ralph Hermosillo and Ruben Zamora, were charged with aggravated criminal sexual assault, criminal sexual assault and unlawful restraint. After a bench trial, defendants were found guilty of criminal sexual assault and unlawful restraint, but not guilty of aggravated criminal sexual assault. The trial court sentenced defendants to a term of six years for criminal sexual assault and to a concurrent one-year term for unlawful restraint. Defendants appeal, contending that: (1) the State failed to prove them guilty beyond a reasonable doubt; (2) the trial court erred in allowing the State to introduce prejudicial hearsay evidence and in precluding them from introducing relevant evidence to support their theory of consent; and (3) they were deprived of effective assistance of counsel.

The relevant facts are as follows. On April 22, 1990, the victim, Annette C., attended a party at Hermosillo’s house located in Stickney Township. She arrived at the party at approximately 8 p.m. Annette knew Hermosillo prior to the night of the party and admitted to having sexual intercourse with him on a former occasion. Annette met Zamora for the first time at the party.

Annette testified that sometime between 11 p.m. and midnight, she went into the living room and sat down on the couch between defendants when they grabbed her arms. Annette looked up and saw another man, whose name she did not know, turn off the lights and approach her. Annette kicked the man, and he in turn punched her and pulled off her pants. Defendants turned Annette over and pushed her facedown on the couch. During this time one of her arms was released, but the other arm remained held throughout the assault. As she was in this position, Annette felt her vagina penetrated three separate times. After the third time, Annette was released and the lights were turned on. Annette became hysterical, grabbed her. pants and ran out the door. A man naméd "Andy” drove her to her house. Annette stated that she confused the names when she testified on direct examination that a man named "Adam” drove her home. No one else was in the car. Prior to taking her home, Andy drove to a nearby town because Annette told him she wanted to purchase a gun. Andy then drove Annette home. Annette had consumed approximately 15 beers prior to the incident.

When she arrived home, Annette was crying and embarrassed over what had happened, and was too depressed to sleep. She waited until her mother left for work and then called Helena Lesniak, a nurse’s aide at St. Anthony’s Hospital, where she had been a patient. Annette told Lesniak what had occurred the night before and asked Lesniak what she should do. Up to this point, Annette had told no one about the assault. Annette then called Rich Kowalski, her alcoholism sponsor, whom she had known for seven years. Annette informed Kowalski about the incident and told him that she was feeling suicidal. After Annette talked to Kowalski, she drank cough syrup and swallowed some pills. Kowalski arrived shortly thereafter and took her to the hospital, where she stayed for a few days. W^hile at the hospital, Annette spoke with police about the incident.

Kowalski testified for the State that on the afternoon of April 23, he received a telephone call from Annette, who told him that she had been "gang raped” the night before. Kowalski asked Annette what she was talking about, and she responded, "Well, I was at these people’s house and ... they raped me.” Kowalski asked how many people were involved in the assault, and she responded that there were four or five. Annette was very emotional during the phone conversation. Approximately one hour later, Kowalski picked her up at her home and took her to the hospital.

Lesniak testified for the State that on April 23, Annette telephoned her at approximately 1 p.m. Annette was hysterical and told Lesniak that "she [didn’t] know what to do.” Lesniak asked Annette what had happened, and Annette replied that she was at a party the night before and some men raped her. Annette asked Lesniak what to do, and said that she felt like hurting herself. Lesniak told Annette to go to the hospital and make out a police report.

Defendants called several witnesses to testify on their behalf. Andy Fragoso testified that on the night in question, sometime between 9 or 10 p.m., he and Annette went to a liquor store to purchase beer. On the way back from the store, Annette attempted to perform oral sex with him. Afterwards, they returned to the party, where at some point Fragoso fell asleep on a living room couch. When he awoke, he observed four or five men standing around the couch where Annette was sitting. Annette was naked and was engaged in sexual intercourse with a man, whose name Fragoso did not know. Defendants were standing around watching. No one was holding Annette’s arms, and Annette was not fighting back.

After Annette and the unnamed man were finished having sex, a man by the name of Jeff began to have intercourse with Annette, followed by Zamora. Fragoso then attempted to have intercourse with Annette, but she told him to get off of her because he was too heavy. Zamora told Annette to "get on all fours,” and she performed oral sex with Fragoso while having intercourse again with Zamora. Hermosillo then attempted to have intercourse with her, followed by another individual. At no time did Annette tell the men to stop or attempt to leave the room.

When the sexual activity ceased, Annette sat up on the couch, smoked a cigarette and drank a beer. The men then told her to leave and told Fragoso to give her a ride home. Fragoso also dropped Zamora off and then took Annette home. During the ride, Annette told Fragoso that in her mind she had been raped at the party. Annette told Fragoso that she wanted to get a gun and kill all of them, and said she was going to get a gang to go after them.

Fragoso was interviewed by the police on May 1, 3, and 6, 1990. During the May 1 interview, Fragoso told Detective Patrick Foley that he saw "Jeff” and then defendants have intercourse with Annette. At trial, Fragoso denied telling Foley that Annette was hysterical throughout the entire incident, and that he drove her home in an attempt to calm her down. Fragoso admitted at trial telling Foley during the May 1 interview that he could not believe what the men, including defendants, had done to Annette, and that he was afraid of what defendants might do if they knew he had talked to the police.

Fragoso spoke with Foley on May 3. Fragoso again told Foley that he saw "Jeff” having intercourse with Annette while the others stood around, but this time stated that Annette appeared to be willing and showed no resistance. Fragoso also told Foley that Annette performed oral sex with him.

At the May 6 interview with Foley, Fragoso recanted what he had told Foley on May 3 regarding his participation in the sexual activity with Annette. He denied engaging in oral sex or sexual intercourse with Annette. At trial, Fragoso denied telling Foley during this third interview that Annette was hysterical during the drive home. Instead, Fragoso testified he told Foley that when he and Annette left the party, she was quiet.

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Cite This Page — Counsel Stack

Bluebook (online)
628 N.E.2d 413, 256 Ill. App. 3d 1020, 194 Ill. Dec. 916, 1993 Ill. App. LEXIS 1730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hermosillo-illappct-1993.