                                  Illinois Official Reports

                                          Appellate Court



                              People v. Zapata, 2014 IL App (2d) 120825



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      RODOLFO ZAPATA, Defendant-Appellant.


District & No.               Second District
                             Docket No. 2-12-0825


Filed                        April 15, 2014


Held                         Defendant’s conviction for criminal sexual assault was upheld on
(Note: This syllabus         appeal over his contention that under the plain-error rule, the trial
constitutes no part of the   court erred in admitting testimony about Y-STR analysis of DNA
opinion of the court but     found on complainant’s underwear without a Frye hearing to
has been prepared by the     determine whether the methodology or scientific principle involved
Reporter of Decisions        was sufficiently established to have gained general acceptance, since a
for the convenience of       Frye hearing was unnecessary in view of the unequivocal and
the reader.)                 undisputed prior judicial decisions and technical writings on the
                             subject.


Decision Under               Appeal from the Circuit Court of Kendall County, No. 11-CF-28; the
Review                       Hon. John A. Barsanti, Judge, presiding.



Judgment                     Affirmed.


Counsel on                   Thomas A. Lilien and Barbara R. Paschen, both of State Appellate
Appeal                       Defender’s Office, of Elgin, for appellant.

                             Eric C. Weis, State’s Attorney, of Yorkville (Lawrence M. Bauer and
                             Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s
                             Office, of counsel), for the People.
     Panel                     PRESIDING JUSTICE BURKE delivered the judgment of the court,
                               with opinion.
                               Justices McLaren and Hudson concurred in the judgment and opinion.




                                                OPINION

¶1         Following a jury trial in the circuit court of Kendall County, defendant, Rodolfo Zapata,
       was found guilty of criminal sexual assault (720 ILCS 5/12-13(a)(2) (West 2010)) and was
       sentenced to an eight-year prison term. On appeal, defendant argues that it was error to admit
       testimony about Y-STR analysis of a specimen of DNA found on the complaining witness’s
       underwear. We affirm.
¶2         At trial, the State presented evidence that on June 27, 2010, the complaining witness,
       Corinne M., and her friend, Pedro Garcia, were drinking at a bar in Yorkville with a group of
       people that included, among others, defendant, Lino Garcia, and Chris Garcia. Lino and Chris
       Garcia were brothers and defendant was their cousin on their mother’s side. Pedro was not
       related to Lino and Chris. Corinne testified that she drank beer and shots of Red Bull and some
       type of liquor. After the bar closed, the group went to a house in Yorkville where Lino, Chris,
       and defendant resided. The group continued to drink, played cards, and socialized. Corinne and
       Pedro planned to sleep over at the house that night, and Corinne borrowed a pair of shorts to
       sleep in. After changing into the shorts, Corinne joined Pedro, Lino, and defendant in the
       family room. At some point, Lino and defendant left to go to bed. Corinne and Pedro stayed up
       talking and playing cards. They also continued drinking. Corinne testified that she started to
       feel dizzy after having some wine. She went into the bathroom and threw up into the toilet. She
       then lay down on the bathroom floor and fell asleep.
¶3         Corinne testified that, when she awoke, she felt someone’s penis in her vagina. She
       observed that defendant was “spooning” her. Her shorts and underwear had been pulled down.
       She started yelling at defendant and he ran out of the bathroom. Lino and Pedro woke up and
       Lino helped Corinne look for defendant in the house. Corinne testified that she did not find
       defendant. Corinne took a shower, and Pedro then drove her to the emergency room at an
       Aurora hospital. When Corinne got dressed after her shower, she did not put on the pair of
       underwear she had been wearing when the sexual assault occurred. She took that pair of
       underwear to the hospital and it was preserved for forensic analysis.
¶4         At the hospital, a rape kit was performed. William Enselme, a forensic scientist employed
       by the Illinois State Police, testified that he tested vaginal, oral, and rectal swabs collected in
       the rape kit for the presence of semen and saliva. The tests were negative for both substances.
       Enselme visually examined head and pubic hair combings, but found nothing that would
       warrant further analysis. He noted “spec[k]s of debris” on scrapings from underneath
       Corinne’s fingernails. Enselme also examined Corinne’s underwear. He noted that the crotch
       area was stained with a slightly yellowish substance. The stain measured 5½ inches long by 1
       inch wide. Tests performed on the substance indicated (but did not confirm) the presence of
       semen. Enselme did not detect sperm in the substance.



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¶5       Two other forensic scientists employed by the Illinois State Police–Lyle Boicken and
     Katherine Sullivan–testified about DNA testing performed on the substance found on
     Corinne’s underwear. Boicken testified that the specimen of the substance was not suitable
     polymerase chain reaction short tandem repeat (PCR-STR) analysis. PCR-STR analysis
     generates a DNA profile based on short tandem repeats. Boicken testified that short tandem
     repeats are “short segments of DNA which are repeated in different individuals.” Boicken
     explained that the sequence “ACTG” 1 might repeat 10 times at a particular location in one
     individual’s DNA and 15 times at the same location in the DNA of another individual. By
     determining the number of repeats at a number of different loci, a profile can be compiled.
     Boicken testified that 14 to 16 loci are used, if possible. However, in order to be suitable for
     PCR-STR analysis, a specimen must contain either a certain amount of DNA or a certain
     ratio of male DNA to female DNA. When a specimen does not meet the applicable criteria
     for PCR-STR analysis, a different type of analysis–Y-STR–might be possible. According to
     Boicken, the specimen in this case was suitable for Y-STR analysis.
¶6       Sullivan testified that she performed a Y-STR analysis on the specimen from Corinne’s
     underwear. She described the Y-STR analysis as “short tandem repeat or STR testing that’s
     done exclusively on sites on just the Y chromosome.” Asked how the “Y chromosome or
     Y-STR differ[s] from male to male,” Sullivan responded that “it would be expected to differ
     from male to male except in cases where the individuals are paternally related.” Sullivan
     explained that “[b]ecause the Y chromosome is passed in its entirety from father to son, I
     would expect that any male would have the same Y-STR profile as his father, any of his
     brothers from the same father, and so on through the family tree.” She further explained that
     the profile developed by determining the number of repeats at each tested Y chromosome
     locus describes a haplotype. Sullivan’s testimony indicated that detection of more than one
     haplotype in a given specimen could occur when the specimen contains the DNA of more
     than one male or where, due to a genetic anomaly, the DNA of a female contributor to the
     specimen contains Y chromosomes.
¶7       According to Sullivan, Y-STR testing on the DNA specimen from Corinne’s underwear
     indicated the presence of a single haplotype. Sullivan also performed Y-STR testing on a
     sample of Corinne’s blood. As Sullivan expected, the testing indicated “no Y-STR haplotype
     results at all.” Sullivan also performed Y-STR testing on DNA from a buccal swab
     performed on defendant. The test indicated a single haplotype, which matched the haplotype
     identified in the test performed on the specimen from Corinne’s underwear. Sullivan’s direct
     testimony concluded with the following exchange:
                 “Q. Was the defendant therefore included or excluded from contributing his DNA
             to the stain in [Corinne’s underwear]?
                 A. He would be included.
                 Q. He was not excluded?
                 A. That’s correct.”
¶8       Defendant’s sole argument on appeal is that, before permitting the State to offer
     testimony about the results of the Y-STR test conducted on a DNA specimen from the
         1
          These letters refer to the different nucleotides–adenine, cytosine, thymine, and guanine–that link
     together sequentially to form a strand of DNA. See People v. Williams, 238 Ill. 2d 125, 130 n.1 (2010),
     aff’d sub nom. Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012).

                                                    -3-
       victim’s panties, the trial court was obligated to conduct a hearing to determine whether the
       testimony satisfied the test set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),
       which governs the admissibility of new or novel scientific evidence in Illinois. See Ill. R.
       Evid. 702 (eff. Jan. 1, 2011). Pursuant to Frye, a witness may offer an opinion based on such
       evidence “only if the methodology or scientific principle upon which the opinion is based is
       ‘sufficiently established to have gained general acceptance in the particular field in which it
       belongs.’ ” In re Commitment of Simons, 213 Ill. 2d 523, 529-30 (2004) (quoting Frye, 293 F.
       at 1014).
¶9          Defendant acknowledges that, because he did not object at trial to the admissibility of the
       testimony or raise the issue in his posttrial motion, he has forfeited review of the issue that he
       now raises on appeal. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (objection both at trial
       and in a posttrial motion required to preserve an issue for appeal). Defendant contends,
       however, that the issue is reviewable under the plain-error rule. The plain-error rule permits
       appellate review, notwithstanding forfeiture, where “(1) a clear or obvious error occurred and
       the evidence is so closely balanced that the error alone threatened to tip the scales of justice
       against the defendant; or (2) a clear or obvious error occurred, and the error is so serious that
       it affected the fairness of the defendant’s trial and the integrity of the judicial process,
       regardless of the closeness of the evidence.” In re Jonathon C.B., 2011 IL 107750, ¶ 70. “[I]n
       addressing a plain-error argument, this court first considers whether error occurred at all.” Id.
       As explained below, we conclude that a Frye hearing to determine whether Y-STR testing
       has gained general acceptance was not necessary. Accordingly no error occurred.
¶ 10        Our supreme court has held that “[a] court may determine the general acceptance of a
       scientific principle or methodology in either of two ways: (1) based on the results of a Frye
       hearing; or (2) by taking judicial notice of unequivocal and undisputed prior judicial
       decisions or technical writings on the subject.” (Emphasis added.) People v. McKown, 226
       Ill. 2d 245, 254 (2007). The question of whether evidence is admissible under Frye is subject
       to de novo review. Furthermore, “[i]n conducting such de novo review, the reviewing court
       may consider not only the trial court record but also, where appropriate, sources outside the
       record, including legal and scientific articles, as well as court opinions from other
       jurisdictions.” Simons, 213 Ill. 2d at 531.
¶ 11        Before proceeding, a brief overview of DNA profiling techniques is in order. In People v.
       Barker, 403 Ill. App. 3d 515, 527-28 (2010), the court observed as follows:
                “In its earliest form, DNA forensic technology focused on those parts of the DNA
                molecule where there is a significant variation of base pair patterns. [Citation.] Over
                the years, the technology evolved and now focuses on a class of polymorphisms in
                DNA called ‘short tandem repeats’ (STRs), which are shorter in base pair length.
                STRs are readily amplified by a process known as ‘polymerase chain reacion’ [sic]
                (PCR) technology. The number of repeats in STR markers can be highly variable
                among individuals, which make them particularly desirable for identification
                determinations. [Citation.] The current technology of STRs focuses on the small
                noncoding regions of the DNA molecule. The number of repeats of a specific STR
                sequence present at a given locus, combined over a designated number of loci, creates
                a unique DNA ‘profile’ of an individual. [Citation.]
                    ***


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                    Y-STR testing examines the Y chromosome that passed from father to son.
                Y-STRs are short repeats found solely in the male-specific Y chromosome that code
                for male sex determination, spermatogenesis, and other male-related functions. ‘The
                technique was developed in part to identify a male contributor or contributors in cases
                of sexual assault, where DNA from both the female and male[ ] is present in a vaginal
                swab.’ [Citation.]”
¶ 12        In Barker, the defendant, who had been convicted of first-degree murder and aggravated
       criminal sexual assault, later petitioned the trial court to order DNA testing. The defendant
       asked for three types of tests to be performed: short tandem repeat (STR), polymerase chain
       reaction (PCR), and restriction fragment length polymorphism (RFLP). Id. at 521-22. On
       appeal from the denial of the request, the defendant additionally asked for Y-STR and
       mitochondrial DNA testing. Id. at 524. In the course of its analysis, the Barker court quoted
       one commentator’s observation that Y-STR testing has “ ‘received mixed responses
       judicially in terms of its admissibility at trial’ ” (id. at 528 (quoting Jules Epstein, “Genetic
       Surveillance”–The Bogeyman Response to Familial DNA Investigations, 2009 U. Ill. J.L.
       Tech. & Pol’y 141, 148)). However, the only negative judicial response cited by that
       commentator was an unpublished decision of Minnesota’s court of appeals holding that the
       trial testimony of the forensic scientist who conducted Y-STR testing was insufficient to
       establish general acceptance of the methodology. Epstein, supra at 148 n.58 (citing Yeboah v.
       State, No. A07-0739, 2008 WL 2020449, at *1 (Minn. Ct. App. Aug. 5, 2009)). The
       Minnesota court did not draw any ultimate conclusion about whether Y-STR analysis is
       generally accepted.
¶ 13        In the present case, although defendant notes the Barker court’s somewhat oblique
       suggestion that Y-STR testing is controversial, he completely ignores the Barker court’s
       more salient observation that “defendant’s trial took place in March of 2005, at which point
       all three of the DNA procedures requested in defendant’s original motion, plus the two tests
       he now requests on appeal, had been judicially recognized as generally accepted by the
       relevant scientific community.” (Emphasis added.) Barker, 403 Ill. App. 3d at 525. As noted,
       the Y-STR test was one of the two additional tests that the defendant in Barker requested on
       appeal.
¶ 14        A recent decision from the California Court of Appeal, People v. Stevey, 148 Cal. Rptr.
       3d 1, 9-11 (Cal. Ct. App. 2012), confirms that Y-STR testing has gained general acceptance:
                “Although Y-STR testing *** [has] been generally accepted by the scientific
                community as reported by courts across the country, defendant contends the trial
                court erred by refusing to hold an evidentiary hearing to establish that Y-STR testing
                is generally accepted. (See, e.g., State v. Calleia (2010) 414 N.J. Super. 125, 148-149,
                997 A.2d 1051 (Calleia), reversed on other grounds in State v. Calleia (2011) 206
                N.J. 274, 20 A.3d 402; Curtis v. State (2006) 205 S.W.3d 656, 660-661 (Curtis); State
                v. Murray (2008) 285 Kan. 503, 512-514, 174 P.3d 407; State v. Lee (2007) 964 So.
                2d 967, 983; Wagner v. State (2005) 160 Md. App. 531, 547-548, 864 A.2d 1037
                (Wagner); People v. Klinger (2000) 185 Misc. 2d 574, 580-581, 713 N.Y.S.2d 823
                (Klinger).) He is mistaken. Y-STR testing does not embrace new scientific
                techniques. [Citation.]




                                                   -5-
                   ‘[T]he use of polymerase chain reaction and short tandem repeats technology to
               analyze a mixed-source forensic sample is neither a new or novel technique or
               methodology.’ [Citations.] ***
                   Recent cases in New Jersey and Washington are particularly helpful in
               understanding the basic science, the similarity between PCR/STR and Y-STR testing,
               and the scientific response to Y-STR testing. In Calleia, supra, 997 A.2d 1051, the
               court explained: ‘The analytical procedure followed in Y-STR DNA testing is
               identical to that followed in autosomal STR DNA testing. The sample is extracted in
               the same manner, amplified by the PCR method, tagged with a primer, and detected
               in the genetic analyzer. The data is collected and represented in exactly the same way.
               The only procedural distinction is that the primer included in the test kit for Y-STR
               DNA analysis contains markers for the Y-STR loci specified by SWGDAM [a
               scientific advisory board]; the primer included in the test kit for autosomal STR DNA
               analysis contains markers for loci on all twenty-three chromosome pairs. The major
               difference between autosomal STR DNA analysis and Y-STR DNA analysis is in the
               interpretation and application of the test results.’ [Citation.]
                   The similarity between PCR/STR testing and Y-STR testing was also observed in
               State v. Bander (2009) 150 Wash. App. 690, 208 P.3d 1242 (Bander). ‘ReliaGene
               used a PCR-based process known as YSTR testing to type the DNA samples it tested.
               YSTR amplification is essentially the same as the PCR-STR process that [the state
               crime lab DNA analyst] used, except that it permits the analysis of only male DNA in
               a mixed-source sample that also contains DNA from a female contributor.’ [Citation.]
                                                     ***
                   Most importantly for our purposes, it was ‘established that Y-STR DNA analysis
               is a “non-experimental, demonstrable technique” that is widely accepted by forensic
               scientists.’ [Citation.] The [Calleia] court concluded that ‘there is a general
               acceptance of Y-STR DNA analysis in the scientific community.’ [Citation.]
               Similarly, in Curtis [citation], the appellate court affirmed the trial court’s finding that
               ‘the YSTR methodology had been validated “internally and externally” and subjected
               to peer review, that it was generally accepted in the scientific community, and that the
               YSTR evidence was reliable and relevant.’ [Citation.]”
¶ 15       Defendant cautions us against reliance on the principal cases that the Stevey court cited in
       the above excerpt: Bander and Calleia. Defendant questions the significance of the Bander
       court’s observation that Y-STR analysis is “essentially the same” as the PCR-STR process,
       except that Y-STR analysis permits isolation of male DNA in a mixed source sample.
       Bander, 208 P.3d at 1246. According to defendant, that observation “[raises] many questions,
       the most basic of which is ‘How (and why) does Y-STR permit a different analysis from
       PCR-STR.’ ” The argument is meritless. The Bander court explained that “[t]he DNA
       segments that are the focus of YSTR testing are inherited as a block through an individual’s
       paternal lineage.” Id. According to Bander:
               “This block is known as a haplotype–‘a set of closely linked genetic markers present
               on one chromosome which tend to be inherited together.’ National Forensic Science
               Technology Center, President’s DNA Initiative: DNA Analyst Training Glossary,
               http:// www.nfstc.org/pdi/glossary.htm#H (last visited May 12, 2009). All men in the


                                                    -6-
                same paternal lineage have the same DNA profile at these markers on their Y
                chromosomes.” Id.
       In other words, Y-STR testing enables a DNA analyst to determine whether a known male
       whose DNA has been profiled can be excluded as the source of Y chromosomes in a
       specimen consisting of a mixture of DNA from a female source and an unknown male
       source.
¶ 16       With respect to Calleia, defendant argues that, because a Frye hearing was held in that
       case, the Calleia court’s determination that Y-STR testing satisfies the general acceptance
       test is not authority that we may dispense with a Frye hearing in this case. As discussed,
       however, under Illinois law, general acceptance of a given type of scientific evidence need
       not be litigated separately in each case in which the evidence is offered. Moreover, given the
       considerable additional support (as described above) for the proposition that Y-STR testing
       has gained general acceptance in the relevant field, we need not decide whether Calleia, by
       itself, would be sufficient authority for admission of Y-STR test evidence in an Illinois court.
¶ 17       For the foregoing reasons, the judgment of the circuit court of Kendall County is
       affirmed.

¶ 18      Affirmed.




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