People v. Watson , 2022 IL App (3d) 190315-U ( 2022 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 190315-UOrder filed February 25, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-19-0315
v. ) Circuit No. 17-CF-344
)
FANTASIA MICHELLE WATSON, ) Honorable
) Kevin W. Lyons,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court.
Presiding Justice O’Brien and Justice Hauptman concurred in the judgment.
___________________________________________________________________________
ORDER
¶1 Held: The admission of the defendant’s retail theft offense was not reversible plain
error, and the defendant did not receive ineffective assistance of counsel.
¶2 The defendant, Fantasia Michelle Watson, appeals from her conviction for aggravated
domestic battery. The defendant argues that the Peoria County circuit court erred where it
allowed the State to impeach her with a prior retail theft offense. She also argues her trial counsel
was ineffective for failing to properly object to the admission of the retail theft offense.
¶3 I. BACKGROUND
¶4 The defendant was charged with attempted first degree murder (720 ILCS 5/8-4(a), 9-
1(a)(1) (West 2016)) and aggravated domestic battery (id. § 12-3.3(a-5)).
¶5 At the bond hearing on April 20, 2017, the prosecutor informed the court that he did not
believe that the defendant had a criminal record. During a subsequent hearing on the defendant’s
motion to reduce bond, the defendant testified that she had a 2014 misdemeanor retail theft
charge from Sangamon County.
¶6 The morning of the defendant’s jury trial, the State made an oral motion to use the
defendant’s prior retail theft charge as impeachment evidence. The State informed the court and
defense counsel that it had reviewed a certified copy of conviction from Sangamon County.
Though the State initially thought the defendant received court supervision and no conviction
was entered, the State explained that the supervision was revoked, “which means it would be a
conviction.” Defense counsel stated that he did not know that the Sangamon County case
resulted in a conviction, and that he would need to discuss the matter with the defendant.
¶7 Detective Seth Landwehr of the Peoria Police Department testified that he was dispatched
to Unity Point Methodist Hospital on April 18, 2017, regarding a woman who had attempted to
smother a baby. Landwehr learned that the victim was the defendant’s son, D.N., who was born
on May 3, 2016. The defendant was a patient at the hospital and had given birth to another child,
Z.N., on April 17, 2017.
¶8 Peoria Police Officer Cristian Munoz testified that on April 18, 2017, he was dispatched
to Unity Point Methodist Hospital. After speaking with a nurse about what had occurred, Munoz
placed the defendant under arrest and transported her to the police department.
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¶9 Melissa Cipolla, a registered nurse, testified that she was working at Unity Point
Methodist Hospital on April 18, 2017. Cipolla was assigned to care for the defendant and Z.N.
At approximately 12 p.m., Z.N.’s father brought D.N. to the defendant’s hospital room. 1 Z.N.’s
father left at approximately 4 p.m., leaving D.N. in the room with the defendant. D.N. was in the
patient bed each time Cipolla went to the defendant’s room. Cipolla received clearance to
discharge the defendant. While discussing the discharge with the defendant, Cipolla observed the
defendant “[f]irmly grasp” D.N.’s upper arms, shove him back into the hospital bed and tell him
to be quiet. Cipolla was concerned and left the room to tell the charge nurse what had happened.
¶ 10 Cipolla went back to the defendant’s room to discuss the discharge paperwork with the
defendant. Uncomfortable with the decision to discharge the defendant, Cipolla left the room to
speak with the charge nurse again. After realizing that she had forgotten paperwork in the room,
Cipolla returned to the defendant’s room. Upon entering the room, Cipolla saw the defendant
leaning over D.N., holding a pillow over his face. D.N. was laying sideways on the bed and the
pillow “completely covered” his face. The defendant’s elbows were locked and she was applying
pressure with both hands. D.N. was not making any noise. There were two other pillows at the
head of the bed. The defendant was startled when she saw Cipolla and then she lifted and threw
the pillow. D.N. took a big breath and started screaming. Cipolla asked the defendant what she
was doing. Although Cipolla could not remember the defendant’s initial response, the defendant
indicated that D.N. would not be quiet. Cipolla asked the defendant, “So you decided to take a
pillow to his face?” The defendant replied, “The little bitch wouldn’t be quiet.” Cipolla told the
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Cipolla referred to D.N. as the 11-month-old child throughout her testimony because the
defendant refused to tell her the child’s name.
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defendant that she was not being discharged and left the room to call security. Cipolla returned to
the room with a security guard and stayed until other security and hospital personnel arrived.
¶ 11 Before the defendant’s testimony, the court asked the parties what their understanding
was as to the defendant’s criminal history. Defense counsel responded that he believed that the
defendant had a prior “retail theft misdemeanor that she was—appears to be convicted of;
originally received court supervision, but that appears to have been revoked.” Defense counsel
objected to the State impeaching the defendant with her prior retail theft because the crime was a
misdemeanor which did not apply to her truthfulness and was more prejudicial than probative.
The court decided that the retail theft would be allowed for impeachment purposes.
¶ 12 The defendant testified that she gave birth to Z.N. at Unity Point Methodist Hospital on
April 17, 2017. The following day, the defendant met Cipolla. The defendant’s husband, Denota
Nichols, came to the hospital with their son, D.N. Nichols spent several hours at the hospital
before leaving. Nichols left D.N. in the hospital room with the defendant. The defendant did not
recall grabbing D.N.’s arms or pushing him back into the bed. While Cipolla read the
defendant’s discharge papers, the defendant arranged the pillows on the side of the bed so that
D.N. would not roll over and fall through the holes on the bed. D.N. was laying at the top of the
hospital bed. After Cipolla left the room, D.N. rolled over to grab the defendant’s arm and a
pillow fell on top of him. The defendant was removing the pillow when Cipolla returned. The
defendant threw the pillow and Cipolla ran out of the room. The defendant denied telling Cipolla
that “the bitch wouldn’t be quiet.” The defendant denied trying to hurt or kill D.N. The defendant
remembered speaking to Landwehr on April 18, 2017. The defendant did not remember
responding “yeah” after Landwehr asked if she had placed the pillow on top of D.N.’s face. The
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defendant also did not remember telling Landwehr that she did not have the pillow on D.N.’s
face for very long or that she had just put it on when Cipolla walked in.
¶ 13 In rebuttal, the State tendered an exhibit of the retail theft offense. To the jury, the court
stated, “it appears to be a certified copy of a conviction of the defendant *** in 2014 for the
offense of retail theft” and asked the State if that was correct. The State responded affirmatively.
The court admitted the exhibit over the defendant’s prior objection and informed the jury that it
would receive an instruction as to how to consider the conviction. The nine-page document
indicated that the defendant was charged with retail theft on June 30, 2014, in Sangamon County.
The defendant pled guilty and was sentenced to six months’ court supervision. The October 28,
2014, docket entry stated that the disposition in the defendant’s case was
“Revocation/Vacate/Supervision RETAIL THEFT,” and that “No Sentence” was entered. The
document also contained an order signed by a judge which stated, “Convert to Civil Judgment”
and “Revoke Supervision.”
¶ 14 The State recalled Landwehr, who testified that he interviewed the defendant at the police
department on April 18, 2017. The interview was recorded, and Landwehr reviewed the video
before the trial. Landwehr stated that he asked the defendant, “did you just put the pillow on top
of his face?” The defendant replied, “yeah.” When Landwehr asked the defendant how long she
had the pillow on D.N.’s face, she replied, “I didn’t have it on there long; I had just put it on and
she walked in.” The questions and responses occurred approximately 90 to 120 minutes into the
interview when the defendant was in an emotional state and crying.
¶ 15 In closing argument, the prosecutor commented that the jury would have to decide the
believability of the witnesses and asked the jury to consider the defendant’s demeanor while
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testifying, to compare the motives and biases of the witnesses, and to consider the reasonableness
of the testimony.
¶ 16 The court instructed the jury that it could consider evidence of the defendant’s prior
conviction “only as it may affect her believability as a witness and must not be considered by
you as evidence of [her] guilt of the offense with which she is charged.”
¶ 17 The jury found the defendant guilty of aggravated domestic battery and not guilty of
attempted first degree murder. The court sentenced the defendant to nine years’ imprisonment.
The defendant appeals.
¶ 18 II. ANALYSIS
¶ 19 A. Retail Theft Admission
¶ 20 The defendant argues that the circuit court erred when it admitted her retail theft offense
for impeachment purposes because the offense did not result in a conviction and thus, was
improperly used to impeach her testimony at trial. The defendant acknowledges that she forfeited
review of this issue by failing to include it in a posttrial motion, but asks for review under both
prongs of the plain error doctrine.
¶ 21 The first step of the plain error doctrine is determining whether a “plain error” occurred.
People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007). “The word ‘plain’ here is synonymous with
‘clear’ and is the equivalent of ‘obvious.’ ” Id. at 565 n.2. If a reviewing court determines that
the circuit court committed a clear or obvious error, the next step is to determine whether that
plain error is reversible. Id. at 566. A plain error is reversible when (1) “the evidence is so
closely balanced that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error,” or (2) the error is “so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of
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the closeness of the evidence.” Id. at 565. We begin by determining whether the admission of
evidence of the defendant’s prior retail theft offense was a plain error.
¶ 22 Generally, evidence of a witness’s prior conviction is admissible to impeach the witness’s
credibility where: (1) the prior crime was punishable by death or imprisonment in excess of one
year, or involved dishonesty or false statement regardless of the punishment; (2) less than 10
years elapsed since the date of the prior conviction or release of the witness from confinement,
whichever is later; and (3) the probative value of admitting the prior conviction is substantially
outweighed by the danger of unfair prejudice. People v. Montgomery, 47 Ill. 2d 510, 516 (1971);
see also Ill. R. Evid. 609 (eff. Jan. 6, 2015); Ill. R. Evid. 403 (eff. Jan. 1, 2011).
¶ 23 At issue in this case is whether the defendant’s prior retail theft offense constituted a
conviction for purposes of impeachment. The State’s exhibit established that the defendant was
charged with retail theft in 2014. The June 30, 2014, docket entry included in the exhibit
indicated that the defendant pled guilty to this offense and was sentenced to six months of court
supervision. If the defendant successfully completed this period of court supervision, a
conviction would not have been entered, and the offense could not be used for impeachment. See
People v. Schuning, 106 Ill. 2d 41, 48 (1985). The October 28, 2014, docket entry states
“Revocation/Vacate/Supervision RETAIL THEFT” and “No Sentence.” An order from the same
date states “Convert to Civil Judgment” and “Revoke Supervision.” None of the pages in the
exhibit indicate that following the revocation of the defendant’s supervision, the court entered a
conviction. Because the record fails to establish that the defendant’s retail theft offense resulted
in a conviction, the court erroneously allowed the State to impeach the defendant with this
evidence.
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¶ 24 Having found the court committed a clear or obvious error, we must next determine
whether this error is reversible under either prong of the plain error doctrine. Under the first
prong, we must determine whether the evidence is closely balanced by “evaluat[ing] the totality
of the evidence and conduct[ing] a qualitative, commonsense assessment of it within the context
of the case.” People v. Sebby, 2017 IL 119445, ¶ 53. This inquiry “involves an assessment of the
evidence on the elements of the charged offense ***, along with any evidence regarding the
witnesses’ credibility.” Id. Evidence is closely balanced where both parties present plausible
opposing versions of events, neither of which was corroborated by extrinsic evidence. People v.
Olla, 2018 IL App (2d) 160118, ¶ 34.
¶ 25 In this case, the defendant was convicted of aggravated domestic battery. To prove the
defendant guilty, the State needed to establish that the defendant (1) knowingly caused bodily
harm to the victim or made physical contact of an insulting or provoking nature; (2) that she did
so by strangling him 2; (3) that the minor was family or household member; and (4) that the
defendant was not justified in using the force she used. See 720 ILCS 5/12-3.2(a), 12-3.3(a-5)
(West 2016).
¶ 26 The defendant contends that the evidence was closely balanced because the trial’s
outcome turned on a credibility contest between the defendant and Cipolla. Although the parties
did present opposing versions of events, we find the defendant’s version implausible. According
to the defendant, a pillow fell on top of D.N.’s face as he rolled over and grabbed her arm. The
defendant was removing the pillow when Cipolla entered the room. Not only was the defendant’s
2
Here, “strangle” means intentionally impeding the normal breathing of an individual by blocking
the nose or mouth. See 720 ILCS 5/12-3.3(a-5) (West 2016).
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testimony vague; it was also unbelievable that an 11-month-old child would be smothered by a
pillow as the defendant described.
¶ 27 On the other hand, the State’s evidence was strong. Cipolla’s testimony was consistent,
and her version of events was credible. Cipolla testified that she observed the defendant holding
the pillow over D.N.’s face. The defendant’s elbows were locked and she was applying pressure
with both hands. After the pillow was removed from D.N.’s face, he took a big breath and started
to cry. Moreover, Cipolla’s testimony was bolstered by Landwehr’s testimony regarding the
defendant’s statements made during the recorded interview. Landwehr testified that the
defendant admitted to putting the pillow on top of D.N.’s face. The defendant also said “I didn’t
have it on there long; I had just put it on and she walked in.” Applying a commonsense
assessment, we conclude that the evidence was not closely balanced.
¶ 28 Reversible error under the second prong of the plain error doctrine has been equated with
“structural error.” People v. Thompson, 238 Ill. 2d 598, 613-14 (2010). The supreme court has
defined “structural error” as “a systemic error which serves to ‘erode the integrity of the judicial
process and undermine the fairness of the defendant’s trial.’ ” Id. (quoting People v. Glasper,
234 Ill. 2d 173, 197-98 (2009), quoting People v. Herron, 215 Ill. 2d 167, 186 (2005)). Where a
defendant shows the error was so serious that it affected the fairness of the trial and challenged
the integrity of the judicial process, “ ‘[p]rejudice *** is presumed because of the importance of
the right involved.’ ” Sebby, 2017 IL 119445, ¶ 50 (quoting Herron, 215 Ill. 2d at 187).
Structural error occurs in a limited class of cases such as, “a complete denial of counsel, denial
of self-representation at trial, trial before a biased judge, denial of a public trial, racial
discrimination in the selection of a grand jury, and a defective reasonable doubt instruction.”
People v. Averett, 237 Ill. 2d 1, 13 (2010).
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¶ 29 The alleged error in the instant case does not fall within one of the structural error
examples described above nor is it of the same magnitude as a structural error. Simply put, the
evidentiary error did not challenge the integrity of the judicial process or deprive the defendant
of her right to a fair trial. Moreover, any prejudice that may have resulted from the admission of
the defendant’s prior retail theft offense was limited as the prior offense was not emphasized at
trial and was not mentioned by the State in its closing argument.
¶ 30 B. Ineffective Assistance
¶ 31 The defendant also argues that she received ineffective assistance where her counsel
failed to properly object to the admission of the retail theft offense. Although defense counsel
objected to its admission, the defendant contends that defense counsel should have objected on
other grounds as “it should have been obvious to counsel that the retail theft case did not result in
a conviction.”
¶ 32 To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate
that counsel’s performance was deficient, and that the defendant was prejudiced as a result.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, the defendant must
show that, but for counsel’s deficient performance, there is a reasonably probability that the
outcome of the proceeding would have been different. Id. at 694.
¶ 33 Our supreme court has held that the prejudice prong for ineffective assistance is similar to
the first prong of plain error. People v. White, 2011 IL 109689, ¶ 134. Thus, “where a defendant
fails to show prejudice, a defendant’s allegations of ineffective assistance of counsel and plain
error under the closely-balanced-evidence prong both fail.” People v. Hensley, 2014 IL App (1st)
120802, ¶ 47 (citing White, 2011 IL 109689, ¶ 134). Because we have already found that the
defendant was not prejudiced by the admission of the retail theft under the first prong of plain
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error, we also find that the defendant’s ineffective assistance of counsel claim fails. There is no
reasonable probability that the outcome of the proceeding would have been different had defense
counsel objected to the admission of the retail theft on the basis that it was not a conviction.
¶ 34 III. CONCLUSION
¶ 35 The judgment of the circuit court of Peoria County is affirmed.
¶ 36 Affirmed.
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