                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Escareno, 2013 IL App (3d) 110152




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     ENRIQUE G. ESCARENO, Defendant-Appellant.



District & No.              Third District
                            Docket No. 3-11-0152


Filed                       January 8, 2013


Held                        Although the evidence was sufficient to sustain defendant’s conviction
(Note: This syllabus        for aggravated criminal sexual abuse, the trial court should have reviewed
constitutes no part of      in camera the statutorily privileged records of the Department of Children
the opinion of the court    and Family Services concerning an unfounded report of an investigation
but has been prepared       against defendant before granting the State’s motion to quash the
by the Reporter of          subpoena defendant filed to obtain the records; therefore, the cause was
Decisions for the           remanded to allow such a review, and if the records contain information
convenience of the          that would change the result, defendant should be granted a new trial, but
reader.)
                            if not, his conviction should be upheld.


Decision Under              Appeal from the Circuit Court of Henry County, No. 10-CF-279; the
Review                      Hon. Charles H. Stengel, Judge, presiding.



Judgment                    Affirmed in part and remanded.
Counsel on                 Jay Wiegman, of State Appellate Defender’s Office, of Ottawa, for
Appeal                     appellant.

                           Terence M. Patton, State’s Attorney, of Cambridge (Terry A. Mertel and
                           Thomas D. Arado, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
                           Justices Lytton and O’Brien concurred in the judgment and opinion.




                                              OPINION

¶1          Defendant, Enrique G. Escareno, was convicted of two counts of aggravated criminal
        sexual abuse (720 ILCS 5/12-16(d) (West 2008)) and sentenced to two concurrent terms of
        eight years’ imprisonment. Defendant appeals, arguing that: (1) the evidence was not
        sufficient to prove him guilty beyond a reasonable doubt; and (2) he was deprived of his
        constitutional right to present a defense when the trial court denied his motion to subpoena
        records without first conducting an in camera review of the records. We find the evidence
        was sufficient to convict defendant but remand the cause for an in camera review of the
        records requested in defendant’s subpoena.

¶2                                               FACTS
¶3          On August 17, 2010, the State filed an information charging defendant with two counts
        of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2008)). During pretrial
        discovery, defendant issued a subpoena for all records and statements made by witnesses
        pertaining to the Department of Children and Family Services (DCFS) investigation against
        him. DCFS responded to the subpoena with a letter stating that it could not release the
        information because it was contained in an unfounded report. The letter included a citation
        to section 7.14 of the Abused and Neglected Child Reporting Act (the Act) (325 ILCS 5/7.14
        (West 2008)), which states that such information is privileged. Thereafter, defendant filed
        a demand for further discovery seeking, among other things, police and DCFS reports
        generated as the result of a previous allegation made by the victim against another individual,
        D.G., who was never criminally charged.
¶4          The Attorney General filed a motion to quash defendant’s subpoena, and the cause
        proceeded to a hearing. At the hearing, defendant’s attorney informed the court that the State
        had provided him documents as requested with regard to the allegation made by the victim
        against D.G. He stated that he was satisfied with the State’s response pursuant to that request.


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     Therefore, the remainder of the hearing focused on defendant’s request for DCFS records
     relating to the investigation against defendant. At the conclusion of the hearing, the court
     granted the State’s motion to quash. At no time did the court review the DCFS records in
     camera.
¶5        The cause proceeded to a jury trial. The victim testified that defendant asked her to
     babysit his three children on December 5, 2009, because he had wrestling practice. When the
     victim arrived, defendant did not leave. Defendant told his children to go into the other room,
     and he sat next to the victim. Defendant then sat on top of the victim’s legs and started
     touching her. He next got up and sat in front of her. While in this position, defendant began
     lifting up the victim’s shirt and touching her skin. He also attempted to pull down her pants.
     Defendant touched the victim’s stomach and then put his hand over her vagina two or three
     times. At one point, defendant placed his bare hand inside the victim’s clothing and directly
     on top of her vagina.
¶6        The victim testified that the touching lasted for approximately one hour. During that time,
     the victim told defendant “no,” but defendant told her, “It’s OK. It’s all right.” The victim
     also kept calling defendant’s children into the room because she knew defendant would not
     touch her in front of them. After she called them in, defendant would tell the children to
     leave. At some point, the victim was able to use her cellular telephone. She sent her cousin
     a text message asking her to come to defendant’s residence and get her so that she would
     have an excuse to leave. She stated that she was too afraid to leave on her own because she
     thought defendant would grab her and force her to stay. Eventually the victim’s cousin
     arrived, and the victim left with her.
¶7        The victim’s cousin testified that she arrived at defendant’s house after receiving a
     number of text messages from the victim. In the messages, the victim informed her cousin
     that defendant was “putting his tongue down her throat, groping her chest, going down her
     pants.” The victim also stated that she was scared, did not know what to do, and wanted to
     leave. When the cousin arrived at defendant’s house, the victim was crying. The victim’s
     mother also testified that the victim was crying when she called her after the incident.
¶8        Defendant stipulated that the victim’s birthday was February 25, 1993, and that she was
     between the ages of 13 and 17 when the incident occurred. He also stipulated that he was
     born on July 20, 1975. Defendant testified that he asked the victim to babysit on December 5,
     2009, because he had wrestling practice. However, when his ride to practice did not show
     up, he paid the victim and told her she could leave. The victim decided to stay. She remained
     at his house and played with defendant’s children. She also told defendant that she was out
     late partying the night before. During her time there, the victim left the residence twice to
     smoke a cigarette. The third time she left, she returned with her cousin and told defendant
     she had to help her cousin move. After the victim left, her father came to defendant’s house
     and confronted him. Defendant testified that he did not inappropriately touch the victim or
     commit any of the alleged acts.
¶9        The jury found defendant guilty of both counts of aggravated criminal sexual abuse. The
     trial court denied defendant’s motion for a new trial and sentenced defendant to concurrent
     terms of eight years’ imprisonment. Defendant appeals.


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¶ 10                                          ANALYSIS
¶ 11                                I. Sufficiency of the Evidence
¶ 12       Defendant first argues that the State failed to prove him guilty of aggravated criminal
       sexual abuse beyond a reasonable doubt. When presented with a challenge to the sufficiency
       of the evidence, it is not the function of this court to retry defendant; rather, the relevant
       question is whether, after viewing the evidence in the light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime beyond a
       reasonable doubt. People v. Collins, 106 Ill. 2d 237 (1985). A conviction will only be
       overturned where the evidence is so unreasonable, improbable, or unsatisfactory as to justify
       a reasonable doubt of defendant’s guilt. People v. Smith, 185 Ill. 2d 532 (1999).
¶ 13       Defendant claims that the case came down to the victim’s word against defendant’s and
       that the victim was not credible. We note that we are not in a position to make credibility
       determinations and that our task is to determine whether evidence, when viewed in a light
       most favorable to the prosecution, could allow a rational trier of fact to find the essential
       elements of aggravated criminal sexual abuse beyond a reasonable doubt. To convict
       defendant of aggravated criminal sexual abuse, the State had to prove that defendant
       committed an act of sexual conduct with a victim who was at least 13 years of age but under
       17 years of age and that defendant was at least 5 years older than the victim. See 720 ILCS
       5/12-16(d) (West 2008). Sexual conduct includes the knowing touching, either directly or
       through clothing, of the victim’s breast or sex organ by the defendant. 720 ILCS 5/12-12
       (West 2008).
¶ 14       In this case, defendant stipulated that the victim was between the ages of 13 and 17 at the
       time of the incident and that he was more than 5 years older than her. The victim testified
       that defendant touched her inappropriately a number of times. Her testimony included
       statements that defendant tried to put his hand up her shirt and placed his bare hand under
       her clothing and directly on top of her vagina. The victim’s cousin testified that she received
       text messages from the victim during the incident that informed her that defendant was
       touching the victim’s chest and placing his hand down her pants. The victim’s mother
       testified that the victim called her and was crying after the incident. This evidence, viewed
       under the Collins standard, was sufficient to establish beyond a reasonable doubt that
       defendant committed the offense of aggravated criminal sexual abuse.

¶ 15                                   II. In Camera Review
¶ 16       Defendant next argues that he was denied his constitutional right to present a defense
       when the trial court quashed his subpoena to DCFS without first conducting an in camera
       review of the privileged material. It is well settled that the government is obligated to turn
       over evidence in its possession that is both favorable to the accused and material to guilt or
       punishment. Pennsylvania v. Ritchie, 480 U.S. 39 (1987). Therefore, it follows that a
       defendant has a limited right to examine otherwise statutorily privileged information if the
       evidence is relevant and material, and if its relevance is not outweighed by other factors.
       People v. Bean, 137 Ill. 2d 65 (1990). A defendant’s right to discover exculpatory evidence

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       does not include the unsupervised authority to search through the State’s files. Ritchie, 480
       U.S. 39.
¶ 17       In Ritchie, the United States Supreme Court established a procedure to deal with a
       defendant’s request for privileged information. The Court found that it could protect a
       defendant’s rights to a fair trial and the State’s interest in confidentiality by submitting the
       requested files to the trial court for an in camera review. Id. at 60. If, after its review, the trial
       court determines that information contained within the file is material, the court must turn
       over that information to the defendant. Id.
¶ 18       In this case, defendant requests that we remand the cause to the trial court for an in
       camera review of confidential DCFS records relating to the victim’s accusations against
       defendant and a separate allegation against a third party, D.G. The State first argues that
       defendant has forfeited the issue because he did not specifically request that the trial court
       review the documents in camera prior to its ruling to quash defendant’s subpoena. The State
       cites no authority, and we have failed to find any, that requires a defendant to make a request
       for an in camera review of subpoenaed privileged records. Due process demands that a trial
       court determine if information contained within privileged records is material before ruling
       on a motion to quash a request for records. See Ritchie, 480 U.S. at 60. Therefore, while we
       note that it would be wise for a defendant to request an in camera review, we conclude that
       the request for relevant privileged records triggers the court’s duty to review those records
       in camera before ruling on a motion to quash the subpoena. We hold the failure to
       specifically request in camera review did not constitute forfeiture of this issue.
¶ 19       The State next argues that defendant has forfeited his right to request an in camera
       review of the DCFS documents related to the victim’s allegation against D.G. It is important
       to note that defendant’s subpoena only requested information relating to the allegations
       against defendant. Defendant’s request for information relating to the D.G. accusation came
       in a separate demand for further discovery. At the hearing on the State’s motion to quash
       defendant’s subpoena, defense counsel informed the trial court that he had received the
       information he requested in his demand for further discovery with regard to the D.G.
       accusation. Therefore, because defense counsel stated he was satisfied with the State’s
       response to his request regarding the D.G. accusation, it cannot be said that the trial court
       was under any obligation to review the DCFS records relating to D.G. prior to quashing the
       subpoena. The subpoena did not request those records.
¶ 20       The question then becomes whether the trial court was under an obligation to review the
       DCFS records requested in the subpoena before ruling on the State’s motion to quash. We
       note that the statute involved in this case is different than the statute in Ritchie. Still, we
       cannot ignore the due process concerns raised by failing to determine whether material
       information is contained within statutorily privileged records. Therefore, even though
       unfounded DCFS reports are made privileged by section 7.14 of the Act (325 ILCS 5/7.14
       (West 2008)), defendant has a constitutional right to all material information contained
       within the report. See Bean, 137 Ill. 2d at 97. However, as noted above, that right does not
       include the ability to review the full records alone. Id.
¶ 21       As the Court concluded in Ritchie, we hold that the trial court should have reviewed the


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       DCFS records requested in defendant’s subpoena in camera and then disclosed any material
       information contained therein. Because the trial court failed to review the records in camera,
       we remand the cause to the trial court. If, after an in camera review, the court determines that
       the records contain information that, if disclosed to the defense, probably would have
       changed the outcome of the trial, defendant should be granted a new trial. See Ritchie, 480
       U.S. 39. If the records do not contain any such information, defendant’s conviction should
       not be disturbed.

¶ 22                                   CONCLUSION
¶ 23      The judgment of the circuit court of Henry County is affirmed in part, and the cause is
       remanded for further proceedings.

¶ 24       Affirmed in part and remanded.




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