Petition for Writ of Certiorari — Miguel Alcantar, Petitioner v. Illinois

No. _________

_____________________________________

In The

Supreme Court of the United States

_____________________ ∆ _____________________

MIGUEL ALCANTAR,

`

v.

Petitioner,

STATE OF ILLINOIS,

Respondent.

_____________________ ∆ _____________________

Petition For A Writ Of Certiorari To

The Appellate Court Of Illinois,

First District, First Division

_____________________ ∆ _____________________

PETITION FOR WRIT OF CERTIORARI

_____________________ ∆ _____________________

Stephen L. Richards *

Joshua S.M. Richards

53 West Jackson, Suite 756

Chicago, IL 60604

773-817-6927

Sricha5461@aol.com

*Counsel of record

Attorneys for the Petitioner

Miguel Alcantar

i

QUESTION PRESENTED FOR REVIEW:

Whether the Compulsory Process Clause of the

Sixth Amendment guarantees to a criminal

defendant the right to issue subpoenas duces

tecum to private, third parties for the pretrial

production of relevant documentary evidence?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED…….....……..……….…….i

TABLE OF CONTENTS……………...........................ii

TABLE OF AUTHORITIES…….………….………...iii

OPINION BELOW………….…………..…….………...1

JURISDICTION……………..………………….............1

CONSTITUTIONAL

PROVISIONS INVOLVED…...………...……………..1

STATEMENT OF THE CASE……………….……....2

REASON FOR GRANTING THE

PETITION………………………………….…….……...4

THIS COURT SHOULD GRANT THE

PETITION TO DETERMINE WHETHER THE

SIXTH AMENDMENT GUARANTEE OF

COMPULSORY PROCESS REQUIRES A

COURT TO AT LEAST ALLOW A CRIMINAL

DEFENDANT TO SUBPOENA POTENTIALLY

EXCULPATORY MATERIAL FROM A THIRD

PARTY AND TO REVIEW SUCH MATERIAL

IN CAMERA………………………….…………..…….4

CONCLUSION…………………………………………9

iii

APPENDIX

APPENDIX A

January 31, 2019 (Denial of Petition for Leave

to Appeal by the Supreme Court of Illinois)...App.1

APPENDIX B

October 29, 2018 (Opinion of the Appellate Court

of Illinois, First District, First Division).........App.2

APPENDIX C

January 20, 2016 (Trial Court

Ruling)………………………………………….App. 15

TABLE OF AUTHORITIES

Supreme Court Cases

Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40 (1999)………………………………………7

Jencks v. United States,

353 U.S. 657 (1957)……………………………………..5

Palermo v. United States,

360 U.S. 343 (1959)……..………………………………5

Pennsylvania v. Ritchie,

480 U.S. 39 (1987)………………………………passim

Washington v. Texas,

388 U.S. 14 (1967)……………………………..…….….5

United States v. Nixon,

iv

418 U.S. 683 (1974)…….........................................5, 6

Other Federal Cases

Love v. Johnson,

57 F.3d 1305 (4th Cir. 1995)……………………..……8

United States v. Burr,

25 F.Cas. 30 (C.C.Va.1807) (No. 14,692d)……….5, 6

United States v. Schneiderman,

106 F.Supp. 731 (S.D.Cal.1952)………….…………...5

State Cases

Braham v. State,

571 P.2d 631 (Alaska 1977)………………………......8

Facebook, Inc. v. Superior Court,

240 Cal. App. 4th 203, 192 Cal. Rptr. 3d 443

(2015), review granted and opinion superseded

sub nom. Facebook v. S.C., 362 P.3d 430 (Cal.

2015), and vacated, 4 Cal. 5th 1245, 417 P.3d

725 (2018)………………………………………..…7, 8

Hathaway v. State,

2017 WY 92, 399 P.3d 625 (Wyo. 2017)……...…….8

People v. Baltazar,

241 P.3d 941 (Colo. 2010)………………..……………7

People v. Swygert,

57 Misc. 3d 913, 61 N.Y.S.3d 870, 878

v

(N.Y.Crim.Ct. 2017)….......……………………………..8

State v. Cartwright,

336 Or. 408, 85 P.3d 305 (2004)………………..……8

State v. DeCaro,

252 Conn. 229, 745 A.2d 800 (2000)………..………8

State v. McLaughlin,

514 A.2d 1139 (Del. Super. Ct. 1986)………………8

State v. Tetu, 139 Hawai'i

207,386 P.3d 844 (2016)………………………….….8

Rules

U.S. Sup. Ct. Rule 10(c)………………………….......4

1

OPINION BELOW

The opinion of the Appellate Court of Illinois, First

District, First Division affirming Miguel Alcantar’s

convictions is People v. Alcantar, 2018 IL App (1st)

162771.

JURISDICTION

The Appellate Court of Illinois, First District, First

Division entered its opinion on October 29, 2018. The

Supreme Court of Illinois denied the petition for

leave to appeal on January 31, 2019. A motion for an

extension of time to and including May 31, 2019 has

been granted by a Justice of this Court. This Court

has jurisdiction under 28 U.S.C. Sec. 1257.

STATUTES AND CONSTITUTIONAL PROVISIONS

INVOLVED

United States Constitution, amend. XIV:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, with-out due

process of law; nor deny to any per-son within

its jurisdiction the equal protection of the laws.

United States Constitution, amend. VI:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

2

wherein the crime shall have been committed,

which district shall have been previously

ascertained by law, and to be informed of the

nature and cause of the accusation; to be

confronted with the witnesses against him; to

have compulsory process for obtaining

witnesses in his favor, and to have the

Assistance of Counsel for his defence.

STATEMENT OF THE CASE

Petitioner, Miguel Alcantar was convicted after a

jury trial of the aggravated criminal sexual assault of

J.A., who at the time of the alleged assault was five

years old. He was sentenced to a total of 18 years in

the penitentiary.

On January 20, 2016, petitioner moved to issue a

subpoena duces tecum for the medical records of

N.A., J.A.’s sister, and also for the disclosure of those

records as exculpatory material under Brady v.

Maryland, 373 U.S. 83 (1963). (RC Vol. II, 482-84).

The trial court denied this motion. (R. Vol. I, 80).

Rosalba Nunez, the mother of N.A. and J.A. told

one of the detectives in April of 2014, nineteen

months after the alleged assault of J.A., that J.A.

told her that “Miguel Alcantar came into a bedroom

and ‘daddy did it to her and then to [N.A.] *** daddy

got close to [N.A.] and then put her finger in her

private part (vagina) and then , got on top of [N.A.]

and put his private (penis) in [N.A.]’s private part

(vagina) and that she/mom was sound asleep when

daddy did that and when she/mom moved then daddy

got up and left.” (RC Vol. II, 483). Following Nunez’s

report, N.A. was given a medical exam. (RC Vol. II,

482-83). J.A. was five years old at the time of the

molestation. N.A. was under one year old. (R. Vol. I,

73).

3

Further, according to the motion and counsel’s

argument, the defense was not provided any

information as to N.A.’s statements until September

of 2015 (R. Vol. I, 79-80), although the state was in

possession of the April 2014 statements and N.A.’s

medical records in April of 2014. (RC Vol. II, 483).

Hearings to determine the reliability of J.A.’s

statements under 725 ILCS 15-10 had been held in

June and August of 2014. (RC Vol. II, 482-83).

The defense argued that the statements were

relevant because they bore upon the reliability of

J.A.’ s 115-10 statements and because the physical

evidence from N.A.’s medical examination would

either refute or corroborate J.A.’s claim that Miguel

Alcantar had penetrated N.A. at the same time he

also had allegedly molested J.A. (RC Vol. II, 483-44).

In addition, the defense argued that the report of

N.A.’s

medical

examination

would

contain

statements of J.A.

that might contradict the

statements she had made in the past. (RC Vol. II, 7374).

In ruling on the motion, the trial judge indicated:

(1) He was not going to revisit the ruling of the

previous judge on the 115-10 hearing (R. Vol. I, 71),

(2) the claim that Alcantar molested N.A. was not

“part of the case” against J.A. (R. Vol. I, 74-75), and

(3) the case was four years old and the judge was not

going to “spend time waiting for these medical

records to be generated at this very, very, very late

date when the request for these medical records is

based on *** speculation, pure speculation.” (R. Vol.

I, 75).

On appeal, the Illinois appellate court agreed that

the trial court properly refused permission to issue

the subpoena for N.A.’s medical records because the

medical records “had no relevance to the charges

against defendant involving J.A.” (A-11-12, A-12).

4

REASON FOR GRANTING THE PETITION

THIS COURT SHOULD GRANT THE PETITION

TO DETERMINE WHETHER THE SIXTH AMENDMENT GUARANTEE OF COMPULSORY PROCESS

REQUIRES A COURT TO AT LEAST ALLOW A

CRIMINAL DEFENDANT TO SUBPOENA POTENTIALLY EXCULPATORY MATERIAL FROM A

THIRD PARTY AND TO REVIEW SUCH

MATERIAL IN CAMERA

Miguel Alcantar’s petition for certiorari should be

granted, for three separate reasons.

First, Miguel Alcantar’s petition raises an

“important question of federal law that has not been,

but should be, settled by this Court,” United States

Supreme Court Rule 10 (c): whether the Compulsory

Process Clause of the Sixth Amendment guarantees

to a criminal defendant the right to issue and enforce

pretrial subpoenas duces tecum to third parties for

relevant, and possibly, exculpatory evidence. This is

a question which was specifically left open by this

Court

in Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987).

Second, this a question upon which there is

longstanding and deepening split, both among the

highest courts of the States and among the federal

circuits. The case is of national importance, affecting

practice in every jurisdiction and nearly every

criminal case.

Third, Miguel Alcantar’s case presents an

excellent vehicle for resolution of this question,

because the court below refused to even allow the

issuance of subpoenas or conduct an in camera

inspection despite a substantial showing of relevance.

The text of the Sixth Amendment provides: that

every defendant is to have “compulsory process for

obtaining witnesses in his favor.” This right applies

5

to the States through the Due Process Clause of the

Fourteenth Amendment. Washington v. Texas, 388

U.S. 14, 18 (1967). However, as this Court noted in

Ritchie, the Court “has had little occasion to discuss

the contours of the Compulsory Process Clause.” 480

U.S. at 55.

Despite the lack of “discussion,” many re-Ritchie

cases held that the right to “compulsory process” to

obtain favorable “witnesses” included a right to issue

subpoenas duces tecum for the disclosure of possibly

relevant documentary material prior to trial,

particularly from third parties not bound by other

rules or constitutional obligations.

In the most famous early example, the treason

trial of former Vice President Aaron Burr, Chief

Justice Marshall, as circuit justice, ruled that a letter

in the custody of President Thomas Jefferson must be

produced for the defendant's inspection under the

Compulsory Process Clause. United States v. Burr,

25 F.Cas. 30, 33 (C.C.Va.1807) (No. 14,692d) This

historical ruling was given great weight in United

States v. Schneiderman, 106 F.Supp. 731

(S.D.Cal.1952), which discussed the clause at length

and concluded that it required the production of

investigative reports of government witnesses for use

by a defendant in a Smith Act prosecution. This case

was cited with approval in Jencks v. United States,

353 U.S. 657, 668 n. 13 (1957). The proposition that

the Compulsory Process Clause requires prior

statements of witnesses to be produced was also

noted by Justice Brennan, concurring in Palermo v.

United States, 360 U.S. 343, 362 (1959) (Brennan,

J., concurring), and was one basis for upholding a

subpoena duces tecum directed at President Richard

Nixon for production of tapes and documents prior to

trial

(and,

indeed,

prior

to

indictment).

United States v. Nixon, 418 U.S. 683 (1974).

6

In Ritchie, however, this Court shifted gears,

avoiding the question of whether the Compulsory

Process Clause requires compulsory production of

documents prior to trial. Ritchie involved the

production of a file of the Pennsylvania Children and

Youth

Services

which

allegedly

contained

exculpatory material, and which the trial judge had

refused to examine in camera. 480 U.S. at 44.

After discussing Burr and Nixon, the court held

that in camera review was mandated by the Due

Process clause of the Fourteenth, and not by

Compulsory Process Clause of the Sixth Amendment:

“This Court has never squarely held that the

Compulsory Process Clause guarantees the right to

discover the identity of witnesses, or to require the

government to produce exculpatory evidence. But

cf. United States v. Nixon, 418 U.S. 683, 709, 711, 94

S.Ct. 3090, 3108, 3109, 41 L.Ed.2d 1039 (1974)

(suggesting that the Clause may require the

production of evidence). Instead, the Court

traditionally has evaluated claims such as those

raised by Ritchie under the broader protections of the

Due Process Clause of the Fourteenth Amendment.

See United States v. Bagley, 473 U.S. 667, 105 S.Ct.

3375, 87 L.Ed.2d 481 (1985); Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See

also Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208,

37 L.Ed.2d 82 (1973). Because the applicability of the

Sixth Amendment to this type of case is unsettled,

and because our Fourteenth Amendment precedents

addressing the fundamental fairness of trials

establish a clear framework for review, we adopt a

due process analysis for purposes of this case.

Although we conclude that compulsory process

provides no greater protections in this area than

those afforded by due process, we need not decide

today whether and how the guarantees of the

7

Compulsory Process Clause differ from those of the

Fourteenth Amendment. It is enough to conclude

that on these facts, Ritchie's claims more properly

are considered by reference to dueprocess.”

Ritchie, 480 U.S. at 56.

Because Ritchie involved material in the “possession”

of the government, 480 U.S. at 57, traditional due

process principles mandated in camera review and

possible disclosure, despite the fact that the

relevance of the file’s contents was not known. 480

U.S. at 58.

Ritchie therefore explicitly leaves open the

question of whether a criminal defendant has the

right to obtain disclosure of documentary information

possessed, not by the government, but by third

parties. Such information may be equally critical to

the defense. But the question of documents in

private hands cannot be answered by reference to the

Due Process Clause, which, by definition, applies

only to government agencies, not private actors. See

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50

(1999).

This question is squarely posed here, because, at

least so far as the record shows, the hospital records

at issue were not in possession of the state

prosecutors. Therefore, this Court should grant the

petition to resolve the issue left open by Ritchie.

Moreover, since Ritchie, the lower courts have

been deeply divided as to whether the Compulsory

Process Clause mandates compelled production of

documents prior to trial. Compare People v. Baltazar,

241 P.3d 941, 944 (Colo. 2010)(Compulsory Process

Clause guarantees right to secure witnesses and

evidence for in-court presentation, not to issue ex

parte subpoenas duces tecum for documents or

information prior to trial), Facebook, Inc. v. Superior

8

Court, 240 Cal. App. 4th 203, 192 Cal. Rptr. 3d 443,

454 (2015), review granted and opinion superseded

sub nom. Facebook v. S.C., 362 P.3d 430 (Cal. 2015),

and vacated, 4 Cal. 5th 1245, 417 P.3d 725

(2018)(trial court’s refusal to quash subpoenas for

Facebook records was not justified based upon

Compulsory Process Clause); Cf.

State v.

McLaughlin, 514 A.2d 1139, 1141 (Del. Super. Ct.

1986)(Compulsory Process Clause does not provide

right to compel testimony of unretained expert

witness), State v. Cartwright, 336 Or. 408, 416, 85

P.3d 305, 310 (2004)(Compulsory Process Clause did

not require pretrial production of audiotapes of

eyewitnesses), Hathaway v. State, 2017 WY 92, ¶ 55,

399 P.3d 625, 640 (Wyo. 2017)(Compulsory Process

Clause did justify in camera review of DCFS records

where defense had “hunch” that records contained

exculpatory evidence) with State v. DeCaro, 252

Conn. 229, 258, 745 A.2d 800, 818 (2000)(trial court

may have violated defendant’s right to compulsory

process by quashing subpoena for documents, and

remanding for development of full factual record),

State v. Tetu, 139 Hawai'i 207, 214, 386 P.3d 844,

851 (2016)(recognizing constitutional right to access

crime scene located on private property), overruling

Honolulu Police Dept. v. Town, 122 Hawai'i 204, 214,

225 P.3d 646, 656 (2010)(the right to compel the

production of documents by subpoena is not a right to

obtain discovery), People v. Swygert, 57 Misc. 3d 913,

923, 61 N.Y.S.3d 870, 878 (N.Y.Crim.Ct. 017)(defense

had right under the Compulsory Process Clause to

subpoena surveillance tapes which constituted “nonprivileged, material and necessary evidence”), Love v.

Johnson, 57 F.3d 1305, 1312 (4th Cir. 1995)(state

court violated both due process clause and the

Compulsory Process Clause of the Sixth Amendment

by quashing subpoenas without conducting an in

camera inspection), Braham v. State, 571 P.2d 631,

9

644 (Alaska 1977)(Compulsory Process Clause

requires pretrial production of prior statements of

witnesses).

This Court should therefore grant the petition to

resolve the conflict and resolve, once and for all, the

question of whether the Compulsory Process Clause

mandates the compelled production of relevant

documents held by private persons.

Lastly, this case is the perfect vehicle to resolve

this question. Here, as in Ritchie the documents

related to the critical issue in the case, whether

Miguel Alcantar had molested J.A., because it was

likely, if not sure beyond doubt, that J.A. had

discussed her own case with medical personnel when

she disclosed the simultaneous alleged assault on

N.A. Moreover, it was very probable that N.A.’s

physical examination, if normal, would impact J.A.’s

claim that Miguel Alcantar had inserted his penis

into N.A.’s vagina at the age of five months. With a

child of five months of age, if N.A. had an intact

hymen 19 months later, it is very unlikely that J.A.’s

bizarre claim was actually true.

Moreover, here, as in Ritchie, no in camera

inspection was ever conducted --- in this case the trial

judge refused to allow the issuance of a subpoena and

the records were never produced, let alone inspected.

Therefore, this Court should grant the petition for

writ of certiorari.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

MIGUEL ALCANTAR

10

Dated: 6/11/2019

By:

s/_Stephen L. Richards

Stephen L. Richards *

Joshua S.M. Richards

53 West Jackson Suite 756

Chicago, IL 60604

773-817-6927

Sricha5461@aol.com

* Counsel of Record

i

APPENDIX

APPENDIX A

January 31, 2019 (Denial of Petition for Leave

to Appeal by the Supreme Court of Illinois)...App.1

APPENDIX B

October 29, 2018 (Opinion of the Appellate Court

of Illinois, First District, First Division).........App.2

APPENDIX C

January 20, 2016 (Trial Court

Ruling)………………………………………….App. 15

App. 1

APPENDIX A

IN THE SUPREME COURT OF ILLINOIS

________________

No. 124280

PEOPLE OF THE STATE OF ILLINOIS,

RESPONDENT

v.

MIGUEL ALCANTAR, PETITIONER

[January 31, 2019]

______________

Leave to appeal, Appellate Court, First District, 116-2771

________________

Petition for Leave to Appeal Denied.

App. 2

APPENDIX B

IN THE APPELLATE COURT OF ILLINOIS, FIRST

DISTRICT, FIRST DIVISION

________________

No. 1-16-2771

PEOPLE OF THE STATE OF ILLINOIS,

PLAINTIFF-APPELLEE

v.

MIGUEL ALCANTAR, DEFENDANT-APPELLANT

______________

[October 29, 2018]

______________

OPINION

JUSTICE WALKER delivered the judgment of the

court.

Justice Pierce and Justice Griffin concurred in the

judgment.

ORDER

1 Held: The evidence was sufficient to prove

defendant guilty of predatory criminal sexual assault

of a child and aggravated criminal sexual abuse

beyond a reasonable doubt because the evidence

presented was not so unreasonable; improbable, or

unsatisfactory that no reasonable jury could find

defendant guilty. The trial court did not abuse its

discretion in denying defendant's request for leave to

issue a subpoena duces tecum for medical records, in

limiting defendant's expert testimony, or in denying

the request for a new trial due to prosecutors

App. 3

repeated improper questions to which the trial court

sustained the objections.

2 Following a jury trial, defendant Miguel Alcantar

(Alcantar) was convicted of predatory criminal sexual

assault and aggravated criminal sexual abuse. The

trial court sentenced Alcantar to 15 years in prison

for predatory criminal sexual assault and to 3 years

for aggravated criminal sexual abuse, with the

sentences to run consecutively.

3 On appeal, Alcantar argues the evidence does not

prove him guilty beyond a reasonable doubt, the trail

court erred by denying his request to subpoena

medical records, limiting evidence at trial, and

refusing to grant a new trial.

4 BACKGROUND

5 A phone call on February 19, 2012, sent police to

the home Alcantar shared with Rosalba Nunez

(Nunez) and their children, 5-year-old J.A. and her

younger sister N.A. Alcantar was not at home when

police arrived. The officers took Nunez and J.A. to

the Children's Advocacy Center (CAC) and to a

hospital. Dr. Erika Castro (Castro) examined J.A.,

who told Castro that Alcantar touched her vaginal

area and her nipples. Rebekah Stevenson (Stevenson)

of CAC interviewed J.A. on February 20, 2012, and

Stevenson recorded the interview.

6 A grand jury charged Alcantar with predatory

criminal sexual assault and aggravated criminal

sexual abuse.

7 Stevenson interviewed J.A. again two years later.

In the second interview, unlike the first, J.A. said

Alcantar molested both J.A. and N.A. in February

2012. Defense counsel asked the court to order the

App. 4

production of N.A.'s medical records from an

examination performed in 2014. The trial court

denied the request.

8 Defense counsel sent J.A.'s medical records and

the statements of J.A. and Nunez to Dr. David

Levine. Dr. Levine wrote a report in which he said:

"The history of the alleged assault is very inconsistent in the multiple reports by both the

alleged victim, ***, and the mother *** [J.A.'s]

report is very inconsistent especially between

the initial report taken by Dr. Castro *** and

the victim sensitive report on 2/20/12. The

patient states the 2 alleged events happened

on Monday and Wednesday in the report of Dr.

Castro on 2/19 *** while the mother's reported

the events were a week apart. [J.A.] varies the

location of the alleged assaults. ***

The patient is inconsistent with who was in

the car when the second alleged incident

occurred.

***

The initial physical exam performed by first

year Family Practice Resident Dr. Castro ***

is difficult to interpret as non-standard, nonspecific

documentation

is

used.

***

All labs including the state crime lab report

are all normal. There was no semen identified

on vaginal, oral, anal swabs, or underwear.

There was no saliva identified on vaginal

swabs or on miscellaneous breast swabs.

App. 5

Conclusions:

In my expert medical opinion there is no

evidence of a sexual assault."

9 The prosecution filed a motion to bar Dr. Levine

from testifying. The trial court held Dr. Levine could

testify that the medical reports do not constitute

evidence of sexual abuse, but he could not testify

regarding the inconsistencies in J.A.'s accounts, and

he could not "testify that there was no evidence of

sexual abuse."

10 At the trial, J.A. testified that when she was five,

Alcantar touched her nipples and her vaginal area.

At first, she said she did not remember which part of

Alcantar's body touched her, but later she said he

used his finger. She saw blood on his finger when he

removed it from her vaginal area. Alcantar touched

J.A.'s nipples with his mouth. J.A. remembered that

after Alcantar touched her, she went to Nunez's room

for Nunez to change her diaper. She told Nunez that

Alcantar touched her. A few minutes later, she heard

Nunez and Alcantar screaming. Alcantar said J.A.

lied. Nunez wanted to take J.A. to a hospital, but

Alcantar refused.

11 J.A. testified that on another day, she rode with

Alcantar when Alcantar drove his friend Jorge

Chavez (Chavez) home. They went to a park and J.A.

swam. Chavez remained in the car. Alcantar fingered

J.A.'s vaginal area and put his mouth on her nipples.

When they returned home Nunez changed J.A.'s

diaper. Nunez asked J.A. whether Alcantar touched

her again. J.A. did not remember her answer, but she

App. 6

remembered that police came to their home the

following day.

12 Chavez testified he went to Alcantar's home on

February 18, 2012. Alcantar drove Chavez home

around 8 p.m., and J.A. rode in the car. Chavez did

not go to any park with Alcantar and J.A., and he did

not see Alcantar touch J.A. inappropriately.

13 Nunez testified about the incidents on February

12 and February 18. She said that on February 18,

Alcantar left to drive Chavez home around 6 p.m.,

not 8 p.m. She let Alcantar take J.A. with him in the

car because she feared Alcantar. He returned around

8 p.m. with bloodshot eyes, smelling of beer. When

Nunez put J.A. to bed, she noticed that J.A.'s vaginal

area and nipples looked red and swollen. J.A. told her

Alcantar put his finger in her vagina again, and he

"pulled her breasts." Nunez confronted Alcantar, and

Alcantar yelled that J.A. was a "fucking lying bitch."

But they all slept at home that night. When Nunez

woke up, Alcantar had already left for work. Nunez

called her sister, and then the police arrived.

14 Dr. Marjorie Fujara, medical director of CAC,

testified she examined J.A. on February 23, 2012.

J.A. had a normal hymen and her vulva appeared

somewhat red. Dr. Fujara said the redness could

result from a number of innocent causes. Dr. Fujara

could neither confirm nor refute J.A.'s assertions of

sexual abuse. The following exchange concluded Dr.

Fujara's direct examination:

"Q *** [B]ased on your education, your training, your

experience, did you come to an opinion within a

reasonable degree of medical certainty as to whether

App. 7

or not [J.A.'s] medical examination was consistent

with her statements during her exam on February

19th of 2012?

MR. BENSON [Defense counsel]: Objection.

THE COURT: Sustained.

BY MS. CARLISLE [Prosecutor]:

Q Let me try that question again.

Based on your education, your training and

experience, did you come to an opinion based on a

reasonable degree of medical certainty, as to whether

[J.A.'s]

medical examination was consistent, your medical

examination, that was consistent with what her

statement was back THE COURT: Sustained. That's not the proper

subject of an expert witness. Sustained.

BY MS. CARLISLE:

Q Dr. Fujara, based on your education, your training

and your experience, did you form an opinion with

regards to your examination of [J.A.] within a

reasonable degree of medical certainty that normal

findings are typical with a history of sexual abuse?

MR. BENSON: Objection.

App. 8

THE COURT: Sustained."

15 Dr. Levine testified many innocent acts could

explain the redness Dr. Castro and Dr. Fujara saw.

16 Stevenson introduced the video recording of her

February 20, 2012, interview of J.A. The jury

watched and listened to the recording. The trial court

also sent the recording and a transcript of the

interview to the jury during deliberations.

17 The jury found Alcantar guilty of both predatory

criminal sexual assault and aggravated criminal

sexual abuse. The trial court denied Alcantar's

posttrial motion and sentenced him to 15 years in

prison for predatory criminal sexual assault and to 3

years for aggravated criminal sexual abuse, with the

sentences to run consecutively. Alcantar now

appeals. The record on appeal includes neither the

video recording of Stevenson's 2012 interview of J.A.

nor the transcript of that interview.

18 ANALYSIS

19 Alcantar first argues that the evidence does not

prove him guilty beyond a reasonable doubt. When a

defendant challenges the sufficiency of the evidence

supporting his conviction, a reviewing court must

determine whether, viewing the evidence in the light

most favorable to the State, any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt. People v. Williams, 193

Ill. 2d 306, 338 (2000). It is the province of the judge

or jury as trier of fact "to determine the credibility of

witnesses, to weigh the testimony, to resolve conflicts

in the evidence, and to draw reasonable inferences

from the evidence." Williams, 193 Ill. 2d at 338. We

App. 9

will not disturb a defendant's conviction on grounds

of insufficient evidence unless the proof is so

unreasonable, improbable, or unsatisfactory that no

reasonable

jury

could

find

defendant

guilty. Williams, 193 Ill. 2d at 338.

20 Predatory criminal sexual assault of a child

occurs when an accused age 17 or older commits an

act of sexual penetration against a victim under the

age of 13. 720 ILCS 5/12-14.1(a)(1) (West 2004).

Sexual penetration is "any contact, however slight,

between the sex organ or anus of one person by the

sex organ, mouth or anus of another person." 720

ILCS 5/12-12(f) (West 2004); People v. Raymond, 404

Ill. App. 3d 1028, 1039, (2010). Evidence of the

emission of semen is not required to prove sexual

penetration. 720 ILCS 5/12-12(f) (West 2004); Raymond, 404 Ill. App. 3d at 1039 . The statutory

definition of penetration does not require physical

penetration, but merely requires contact. People

v. Moore, 199 Ill. App. 3d 747 (1990). Medical

evidence is not required to sustain a conviction of

criminal sexual assault. People v. Le, 346 Ill. App. 3d

41, 50 (2004).

21 Aggravated criminal sexual abuse occurs when a

"person commits an act of sexual conduct with a

victim who is under 18 years of age and the person is

a family member." 720 ILCS 5/12-16(b) (West

2008); People v. Ostrowski, 394 Ill. App. 3d 82, 91

(2009). The Code defines "sexual conduct" as "any

intentional or knowing touching or fondling by the

victim or the accused [of] *** any part of the body of a

child under 13 years of age, for the purpose of sexual

gratification or arousal of the victim or the accused."

App. 10

Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 - 12(e); People v. Creamer, 143 Ill. App. 3d 64, 70

(1986). The statute defines a "family member" as" a

parent, grandparent, or child, whether by whole

blood, half-blood[,] or adoption and includes a stepgrandparent, step-parent, or step-child." 720 ILCS

5/12-12(c) (West 2008); People v. Stull, 2014 IL App

4th 120704, ¶ 59.

22 In this case, the evidence, when viewed in the

light most favorable to the prosecution, proved

defendant guilty of predatory criminal sexual assault

and aggravated criminal sexual abuse. There was no

dispute at trial that defendant was over 17 years old

at the time of the offenses and that J.A. was his

daughter, and only five years old at the time of the

offense.

23 J.A., nine years old at the time of trial, testified

consistently about defendant's abuse of her when she

was five years old. J.A. positively identified

defendant, her father, in court as the person who

inserted his finger in her vagina and touched and

sucked on her breasts on two separate occasions. One

time was in the bedroom of their home and the other

time was when they drove Chavez home. J.A.

recalled that she was sleeping in the bedroom when

defendant came into the room, put a hand over her

mouth and said not to say anything or he would kill

her mother. Defendant then touched her "Cola"

which J.A. called her vagina area. J.A. testified it

hurt when defendant touched her "Cola" and it felt

"ugly." J.A. remembered seeing blood on defendant's

finger when he stopped touching her there. J.A.

further testified defendant also put his mouth on her

App. 11

"Chi-Chi," which J.A. called her breasts, and that

also hurt. J.A. told her mother about what defendant

had done later that evening when her mother was

changing her diaper.

24 J.A. also testified that the other time defendant

touched her was in a park when she went with

defendant to drive Chavez home. Defendant again

touched her "Cola" with his finger and her "Chi-Chi"

with his mouth. J.A. admitted she did not tell her

mother this time because defendant threatened to

kill her mother.

25 Here, there was more than J.A.'s testimony.

J.A.'s testimony was corroborated by her statements

to her mother, Detective Myrna Muniz, Dr. Castro,

and Stevenson. J.A. told each of these persons about

defendant touching her vagina and her breasts.

Based on this evidence, a reasonable jury could find

defendant guilty.

26 Defendant next argues the trial court abused its

discretion in denying his request for leave to issue a

subpoena duces tecum for the medical records of

J.A.'s younger sister, N.A. We will not overturn a

trial court's discovery ruling unless the trial court

abused its discretion and the ruling had prejudicial

effect. People v. Fairbanks, 141 Ill. App. 3d 909, 915

(1986); People v. Curtis, 48 Ill. App. 3d 375, 383

(1977).

27 To justify a pre-trial subpoena, a defendant must

show that (1) the documents are evidentiary and

relevant, (2) the documents are not otherwise

procurable reasonably in advance of trial by the

exercise of due diligence, (3) the party cannot

properly prepare for trial without production and

App. 12

inspection in advance of trial and the failure to

obtain an inspection may tend to unreasonably delay

the trial, and (4) the application is made in good faith

and is not intended as a general "fishing

expedition." United States v. Nixon, 418 U.S. 683,

699-700 (1974); People v. Shukovsky, 128 Ill. 2d 210,

225 (1988). The decision on whether to grant a pretrial subpoena duces tecum is committed to the

sound discretion of the trial court since the necessity

for the subpoena most often turns upon a

determination of factual issues. Nixon, 418 U.S. at

702. Unless, the trial court's ruling is arbitrary or

finds no support in the record, the reviewing court

should not disturb a trial court's finding. Id. This

court can sustain the decision of the trial court on

any grounds which are called for by the record,

regardless of whether the trial court relied on those

grounds and regardless of whether the trial court's

reasoning was correct. Leonardi v. Loyola University

of Chicago, 168 Ill. 2d 83, 97 (1995).

28 Here, the trial court denied defendant's request

for leave to issue a subpoena for medical records of

N.A. to see if she was also sexually abused when she

was less than a year old. The medical records had no

relevance to the charges against defendant involving

J.A. Based on this, the trial court did not abuse its

discretion.

29 Alcantar also argues the trial court abused its

discretion by limiting Dr. Levine's testimony and not

allowing him to testify (1) that in his opinion "there

was 'no evidence of sexual abuse' "; (2) that there

were "purported inconsistencies" in statements made

by J.A. and her mother; and (3) that J.A. "might have

App. 13

been influenced by suggestive testing, using

improper investigative techniques."

30 Motions in limine involve the inherent power of

the trial court to admit or exclude evidence. The trial

court's ruling is reviewed for an abuse of

discretion. People v. Williams, 188 Ill. 2d 365 (1999).

An abuse of discretion occurs only when a trial

court's ruling is arbitrary, fanciful, or unreasonable,

or when no reasonable person would adopt the trial

court's view. People v. Cerda, 2014 IL App. 1st

120484, ¶ 183.

31 "[E]videntiary motions, such as motions in

limine, are directed to the trial court's discretion. ***

[E]ven where an abuse of discretion has occurred, it

will not warrant reversal of the judgment unless the

record indicates *** substantial prejudice affecting

the outcome of the trial." In re Leona W., 228 Ill. 2d

439, 460 (2008). We find there was no substantial

prejudice affecting the outcome of the trial because

the evidence of Alcantar's guilt was overwhelming

and supported the convictions. The trial court

properly exercised its discretion in allowing Dr.

Levine to testify at trial on matters that fell within

the realm of expert opinion. We find no abuse of

discretion here.

32 Finally, Alcantar asserts the prosecutor

committed misconduct by repeated questions to Dr.

Fujara after the trial court correctly sustained

objections to the questions. Defendant claims the

State engaged in a "pattern of misconduct" when it

asked an improper question to Dr. Fujara, and

attempted to rephrase the question despite sustained

objections to the question. The prosecutor's

App. 14

ineffective attempts to re-phrase a question to Dr.

Fujara before moving on did not prejudice defendant

where the witness never answered, the objections

were sustained, and the jury was instructed to

disregard the questions to which objections were

sustained. A prosecutor's "[i]mproper remarks will

not merit reversal unless they result in substantial

prejudice to the defendant." People v. Smith, 141 Ill.

2d 40, 60 (1990). The trial court cured any error, and

defendant was not prejudiced. The prosecutor's

repeated questions do not warrant reversal in this

case.

33 CONCLUSION

34 Accordingly, we affirm the convictions and

sentences.

35 Affirmed.

App. 15

APPENDIX C

IN THE CIRCUIT COURT OF COOK COUNTY,

ILLINOIS COUNTY DEPARTMENT – CRIMINAL

DIVISION

_____________________

No. 12-CR-05407

PEOPLE OF THE STATE OF ILLINOIS,

PLAINTIFF

v.

MIGUEL ALCANTAR, DEFENDANT

_____________________

[June 13, 2014]

_____________________

THE COURT: It's a 2012 case. Let me ask the

defendant. How is this relevant? How is whether

medical records exist that do show or don't show that

Nancy's genitals or her vaginal area does or doesn't

show some injury that could be deemed consistent

with digital or penial presentation, how is that

relevant here?

MR. BENSON: I'll tell you.

THE COURT:

Because if it does, that doesn't prove that he did it. If

it doesn't, it doesn't prove that he didn't do anything

to Jennifer.

MR. BENSON: It leads to an inference, and inferences are what the law, 90 percent about -THE COURT: What's the inference?

App. 16

MR. BENSON: Judge, what Jennifer says in the new

statement, Jennifer says, I'm in my bed -- I'm in my

mom's bed. I'm in my mom's bed. Daddy comes in.

Daddy does it to me -THE INTERPRETER: Can you speak up a little bit?

MR. BENSON: Yeah. Daddy does it to me and does it

to Nancy. He puts his finger in Nancy and he puts

his penis in Nancy, private to private. Mom starts to

stir and he leaves. He does it to me and he does it to

Nancy. If he didn't do it to Nancy, he didn't do it to

her. And if there's no medical records, that is a fair

inference for any lawyer to argue.

THE COURT: How old was Jennifer at the time this

supposedly occurred?

MR. BENSON: Five. And there's another basis for

the relevancy, your Honor, is that medical report will

have a history and that history will have a statement

and these statements are contradicting the

statements that Jennifer has provided in the past, so

it turns into classic impeachment by prior inconsistent statements.

THE COURT: By inconsistent statements by whom?

By Nancy?

MR. BENSON: By the complaining witness. No. The

history is going to have -- the history is going to have

Jennifer telling the doctor what happened. That's

what the history is going to be. There's not going to

be a history of Nancy telling the doctor. The history

will be Jennifer telling the doctor. And those are

statements that -- I should have had these things.

THE COURT: Why would Jennifer's statements be in

Nancy's medical records?

MR. BENSON: Because Nancy can't provide a

App. 17

history and so Jennifer Is providing the history.

THE COURT: How do you know that?

MR. BENSON: I don't know that.

THE COURT: This is a fishing expedition.

MR. BENSON: It is not a fishing expedition.

THE COURT: Your motion is denied. It's denied. It's

denied because -- Nancy was one year old at the

time?

17 MR. BENSON: Probably less than that.

THE COURT: Jennifer was five years old at the

time?

MR. BENSON: But Jennifer is the complaining

witness, Judge.

THE COURT: Jennifer's statement that something

was done to Nancy and that she perceived that some

type of penetration was done to Nancy is, a, not part

of the ase against Mr. Alcantar; and the claimed

inference that Mr. Benson is putting forth that

because there may be no physical injuries to Nancy

that might be deemed consistent with some type of

vaginal penetration, digital or penial , that that

means it didn't happen. It doesn't mean it didn't

happen. That's is not an inference that lies as matter

of law. It just doesn't. This is beyond collateral.

Whether Mr. Alcantar did or didn't do anything to

Nancy that Jennifer did or did not perceive is simply

not an issue in this case, in this now four-year-old

case. I'm not going to spend time waiting for these

medical records to be generated at this very, very,

very late date when the request for these medical

records is based on, what I got to tell you -- and I

don't begrudge your well-stated arguments, but it's

speculation, pure speculation.