People v. Null , 991 N.E.2d 875 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Null, 2013 IL App (2d) 110189
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption AARON W. NULL, Defendant-Appellant.
District & No. Second District
Docket No. 2-11-0189
Filed June 20, 2013
Rehearing denied July 19, 2013
Held Defendant’s conviction and sentence for the first-degree murder of his
(Note: This syllabus wife were upheld over his contentions that the trial court erred in
constitutes no part of admitting evidence of his prior acts of domestic violence and that the 50-
the opinion of the court year sentence was excessive, since the evidence of defendant’s prior acts
but has been prepared was properly admitted to show defendant’s intent, motive, and lack of
by the Reporter of mistake, and the sentence was not an abuse of discretion, especially in
Decisions for the view of the evidence that defendant’s violent conduct continued, despite
convenience of the the opportunities he was given to change.
reader.)
Decision Under Appeal from the Circuit Court of Boone County, No. 08-CF-121; the
Review Hon. Fernando L. Engelsma, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas A. Lilien and R. Christopher White, both of State Appellate
Appeal Defender’s Office, of Elgin, for appellant.
Michelle J. Courier, State’s Attorney, of Belvidere (Lawrence M. Bauer
and Marshall M. Stevens, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices Jorgensen and Hudson concurred in the judgment and opinion.
OPINION
¶1 Defendant, Aaron W. Null, was convicted by a jury of first-degree murder (720 ILCS 5/9-
1(a)(2) (West 2002)) for the November 2002 killing of his wife Brynn Null. The trial court
sentenced defendant to 50 years in the Illinois Department of Corrections. Defendant timely
appealed, arguing that the trial court abused its discretion in admitting evidence of prior acts
of domestic violence and in sentencing defendant to 50 years’ imprisonment. For the
following reasons we reject both arguments and affirm defendant’s conviction and sentence.
¶2 I. BACKGROUND
¶3 Defendant was charged by indictment on March 28, 2008, with the offense of first-degree
murder (720 ILCS 5/9-1(a)(2) (West 2002)). In the indictment the State alleged that on or
about November 17, 2002, defendant “struck Brynn Null in and about the body with an
object, knowing such act created a strong probability of great bodily harm to Brynn Null,
thereby causing the death of Brynn Null, in violation of 720 ILCS 5/9-1(a)(2) (West 2002).”
Brynn Null’s body has never been found.
¶4 Prior to trial defendant filed several motions. The trial court denied defendant’s motion
to suppress his 2002 statements to the police and his motion to quash a search warrant. It also
granted in part and denied in part defendant’s motion in limine to exclude evidence of prior
“domestic discord.” The State argued that it was offering the other-crimes evidence to give
the fact finder an opportunity to understand “their relationship and the hostilities between the
two of them.” During the hearing, the State proceeded by way of proffer, submitting to the
trial court 10 exhibits that included police reports, petitions for orders of protection, and
Brynn’s petition for dissolution of marriage, which had been dismissed before Brynn’s
disappearance. The trial court barred testimony of police officers regarding Brynn’s
statements to them concerning her allegations of abuse, finding that the statements were
testimonial and therefore not admissible under Crawford v. Washington, 541 U.S. 36 (2004).
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However, the trial court allowed into evidence the officers’ testimony concerning their
observations of Brynn’s injuries and photographs of same. The court next considered Brynn’s
written statements in two petitions for orders of protection. In a September 5, 2001, petition,
Brynn alleged that defendant choked her. She alleged that “[t]his is the second time he’s done
this. He gets mad at me and breaks things around the house.” She alleged that she made a
police report but that the police were not able to arrest defendant at his home. In a January 4,
2002, petition, Brynn alleged that on January 2, 2002, she and defendant got into an
argument after she picked him up from work. She alleged that:
“We get home and he started hitting me. Then he kept me locked in the house all
night. The next day he threatened me with a baseball bat, told me he had to put me in my
place, told me I deserved it, and told me he could make me disappear. Then when he left,
I called the police and made out a report and they arrested him.”
The trial court ruled that these statements were not admissible, because they were prepared
in anticipation of court proceedings and were therefore testimonial.1
¶5 The trial court also excluded as testimonial Brynn’s statements in her petition for
dissolution of marriage. The trial court excluded defendant’s conviction of domestic battery
involving another victim. At the time of Brynn’s disappearance defendant was on probation
resulting from his June 19, 2002, plea of guilty to two domestic batteries he committed
against Brynn. The trial court excluded evidence of the convictions. The trial court also
barred the testimony of John Havens, a friend of Brynn’s to whom she had confided that
defendant beat her and kept her tied up for three days. Havens said that the last time he saw
Brynn she had two black eyes and she told him that if she ever went missing it meant that
defendant killed her.
¶6 The trial court allowed live testimony of observations of prior domestic violence and
spousal abuse, as well as statements made to nonpolice witnesses that fit within a hearsay
exception. The court ruled that this evidence was relevant and probative to show defendant’s
“intent, motive, and lack of mistake.” This evidence came from nine different witnesses who
testified that they saw acts of domestic violence, observed injuries on Brynn, or provided
shelter for Brynn when she fled from defendant. The more substantial evidence consisted of
testimony of police officers, crime scene investigators, background witnesses, and forensic
scientists, specifically, blood spatter and DNA experts.
¶7 During the State’s opening statement it made no mention of prior acts of domestic
violence. The State focused on the blood evidence as well as defendant’s failure to
participate in efforts to find his missing wife. Defense counsel referred to the relationship
between defendant and Brynn as “rocky” and “anything but smooth” and acknowledged that
there were “physical as well as verbal” arguments.
¶8 Edward Lamb testified that he owned the home in Capron, Illinois, where defendant and
Brynn were living at the time of Brynn’s disappearance. Defendant rented a room in Lamb’s
1
The State did not argue that these statements to the police and in petitions for orders of
protection should be admissible under the doctrine of forfeiture by wrongdoing. See Giles v.
California, 554 U.S. 353, 377 (2008).
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house and moved in early in 2002, about six months before Brynn moved in. Everyone had
access to the common areas of the house but bedrooms were private. Lamb testified that he
gave defendant a California king-sized bed. The mattress had no stains or tears on it when
Lamb gave it to defendant.
¶9 Lamb testified that he last saw Brynn the night of November 16, 2002, when he left her
and defendant alone in the house, except for Lamb’s two dogs. Lamb spent the night with
an acquaintance, who verified Lamb’s alibi. When Lamb returned the next day Brynn was
gone. Defendant told Lamb that Brynn left, leaving behind her keys and ring on the kitchen
table.
¶ 10 Lamb testified that defendant appeared agitated. He asked defendant if he had called
anyone and defendant said no. Lamb told defendant that Brynn would come back like she had
in the past, and defendant responded that “she had done left him for good this time.” Both
Brynn’s Jeep and defendant’s Audi were still parked at the residence. Lamb testified that in
the past Brynn would leave for a day or two and then return.
¶ 11 A few days after Brynn’s disappearance Lamb offered to wash defendant’s bedsheets
while he was doing his laundry but defendant said no. Lamb testified that on December 20,
2002, detectives showed him a bloodstain on the mattress he had given to defendant. Lamb
later asked defendant about the stain and defendant said he did not know anything about it.
He told Lamb that if there was a stain on it then Brynn must have flipped the mattress over.
Lamb told the police that on December 23, 2002, he noticed that a blue tarp and a sheet were
missing from his residence. In February 2003 defendant told Lamb that Brynn had an
accident in the bed, referring to her menstrual period. Eventually, defendant moved out after
getting into an argument with Lamb. Defendant left Brynn’s belongings behind. He told
Lamb that he did not care what he did with “the bitch’s stuff.”
¶ 12 Brynn’s mother, Linda Olson, testified that Brynn was born on April 26, 1977. Brynn met
defendant in January 2000 and married him on November 3, 2000. At the time of her
disappearance Brynn lived with defendant in Capron, Illinois, and worked with Olson at
U.S.A. Marketing in Loves Park, Illinois. Olson saw Brynn for the last time on
November 16, 2002, a Saturday on which Brynn worked a half day. When Brynn did not
show up for work on November 18 and 19, Olson thought that Brynn was probably resting
from work that had been done on her teeth. On November 21, Olson called defendant and
asked him where Brynn was. Defendant told Olson that he thought that Brynn had gone to
stay with her. Olson then reported her daughter missing to the Winnebago County sheriff’s
office and then the Boone County sheriff’s office. Olson testified that prior to November 16,
2002, she had hidden Brynn from defendant once, in late November 2001. Olson described
the efforts to find Brynn, which included printed posters for distribution. When Olson went
to defendant’s home he allowed her into the kitchen area only and he declined to take any of
the posters. Defendant also refused to let Olson take any of Brynn’s belongings. Brynn was
never seen or heard from again. She never collected her last paycheck. Defendant never
volunteered to help find Brynn. On cross-examination Olson testified that Brynn’s drug of
choice was crack cocaine, which Olson and Brynn shared.
¶ 13 Arnold Mariani, a Boone County sheriff’s deputy, testified that on November 20, 2002,
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he went to defendant’s home in Capron on a missing person’s report. Defendant met with
him in the kitchen area of the home. Defendant said that when he woke up Sunday morning
his wife was missing. Defendant told the deputy that Brynn’s keys and her wedding ring were
on the kitchen table and would have her fingerprints on them. He also said that Brynn’s car
was still there. Defendant said that Brynn had a crack problem. He said that in the past “she
has been at her family’s house and they have hidden her.” Defendant said that in the past he
had been arrested for domestic battery. Mariani testified that he accepted defendant’s story
and did not file a missing person’s report. The next day Mariani spoke to Olson and after that
he did file a missing person’s report. He also entered Brynn’s name and identifiers into a
national computer database.
¶ 14 Daniel Smith testified that he lived in Rockford on Darwood Street, in the same
apartment complex where Brynn and defendant lived previously. On September 4, 2001,
shortly before noon, Smith heard someone yelling for help outside his apartment. When he
opened the door Brynn ran inside. She was scared, nervous, and dressed only in a T-shirt.
Brynn told Smith that her husband was going to kill her. When Smith began to close the
door, defendant put his hand between the door and the wall. Smith held the door to prevent
defendant from getting inside the apartment. Defendant removed his hand from the door and
returned to his own apartment. Smith and Brynn waited until they saw defendant leave his
apartment before Smith would let Brynn call the police, who then came to Smith’s apartment
to interview him and Brynn. The next day, defendant came to Smith’s apartment and
apologized.
¶ 15 Ronald Cole, a retired Rockford police officer, testified that on September 4, 2001, at
about 12:30 p.m., he went to Smith’s apartment to take a domestic battery complaint from
Brynn. Cole was not permitted to repeat Brynn’s statements but he was allowed to describe
Brynn’s appearance. He said that Brynn was upset, crying, and frightened. He told Brynn that
if redness or swelling developed she should come to the police department to be
photographed. Cole made arrangements for Brynn to stay with a friend as a temporary safe
house.
¶ 16 Rockford police officer Lieutenant Mark Welsh testified that he photographed Brynn on
September 5, 2001. The photographs were admitted into evidence, depicting injuries on the
backs of both shoulders, which consisted of slight bruising and some lacerations. Welsh
testified that the injuries were from an incident that took place on September 4, 2001.
¶ 17 Lieutenant Jerry Ashens of the Boone County sheriff’s office testified that on
November 22, 2002, he conducted a “walk around” of defendant’s house, looking for Brynn.
Defendant explained that he and Brynn were renting a bedroom in the single-family house,
which was owned by Lamb. Defendant pointed out Brynn’s keys and her ring on the kitchen
table. Defendant told Ashens that he and Brynn ate dinner at a restaurant the night of
November 16, 2002, and then returned home, where they wrapped a present, watched a
movie, drank beer, had sex, and went to bed around 1 a.m. Defendant said that when he woke
up the next morning Brynn was gone. According to defendant Brynn took no personal
belongings with her, not even a toothbrush or birth control pills. On December 13, 2002,
Ashens returned to defendant’s home and asked defendant to give him Brynn’s birth control
pills; defendant consented.
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¶ 18 On December 19, 2002, Ashens, along with Detective Gay and Detective Burk, visited
defendant’s home to obtain personal hygiene items that belonged to Brynn. Defendant signed
a written consent to search. The officers looked throughout the house. While Ashens and
Burk were speaking to defendant in the bedroom he had shared with Brynn, Gay was looking
around the area of the bed. Gay announced that the consent search was over and that it was
time to leave to get a search warrant. Defendant refused to leave initially but after speaking
to his grandfather he agreed to leave. The house was secured and a search warrant was issued
for the house, Brynn’s Jeep, and defendant’s Audi. The Boone County sheriff’s office, along
with the Illinois State Police, executed the search warrant. On December 20, 2002, Ashens
had contact with defendant at defendant’s mother’s home. Defendant told Ashens that he was
shocked when he learned that the police had found blood in the house. Defendant then
provided keys to his Audi. On January 13, 2003, Ashens asked defendant to sign a release
for Brynn’s dental records. Defendant refused.
¶ 19 Detective Perry Gay testified that during the consent search of defendant’s bedroom on
December 19, 2002, he noticed what appeared to be bloodstains in the form of “blood spatter
on the west wall of the bedroom.” He explained that “blood spatter is created after an object
[is] struck, say, upon a person one or more times.” Gay participated in the execution of the
search warrant on the house and defendant’s Audi.
¶ 20 Former State Police Sergeant Anthony Heindel and former crime scene investigator Jose
Rangel provided extensive testimony regarding the search of defendant’s bedroom and the
Audi. Photographs of the Audi and the bloodstains on the walls of defendant’s bedroom were
identified and received in evidence. Heindel explained that, if someone is being struck
repeatedly and blood starts flowing, blood will project outward and the instrument used will
also cast off blood. Heindel said that he observed bloodstains on the walls and ceiling in the
northwest corner of the bedroom. He testified that the points of convergence were on the bed.
Upon seeing that there did not appear to be any stains on defendant’s mattress, they turned
the mattress over and saw a large bloodstain that measured 18 by 22 inches, which was
soaked into the mattress. The mattress also had bloodstains in the form of dog tracks, which
were created by a dog stepping in fresh blood and then onto the mattress. The mattress cover
and padding were cut out and preserved for testing. Stains from the wall were swabbed for
later analysis, along with items taken from the Audi. Brynn’s driver’s license was lying on
the dresser in defendant’s bedroom.
¶ 21 Retired Rockford police officer Brandon McGaw testified that on January 1, 2002, he
went to Springfield and Auburn Streets in Rockford in response to a domestic dispute.
McGaw met with Brynn. She had some bruising and knots on her head, which McGaw felt
with his hands. The left side of Brynn’s face, around her left ear, was bruised. A photograph
of this injury was received in evidence.
¶ 22 Brett Workman, a former Boone County sheriff’s deputy, testified that on September 8,
2002, he responded to defendant’s home in Capron to take a missing person’s report.
Defendant told Workman he wanted to report his wife missing. He said she was a “crack
head” and had been missing for a day. After taking the report, Workman was notified 20
minutes later that Brynn was home. Workman returned to the home and confirmed that she
was there.
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¶ 23 Tracie Mullen, a family friend of Brynn’s, testified that when she saw Brynn on
January 3, 2002, she looked “beat up.” Mullen testified that Brynn lived with her from
January 2002 until about five days before her divorce was to be finalized. Brynn filed for
divorce in March 2002. During the last week of April 2002 Brynn told Mullen that she was
moving back to Capron to live with defendant. While Brynn was living with Mullen,
defendant called Mullen and told her that if Brynn did not come home now he would call the
police and report the car she was driving as stolen.
¶ 24 Jennifer Hullinger, Brynn’s cousin, testified that in 2001 she lived about one block away
from Brynn and defendant. On one occasion, Brynn came to Hullinger’s home on foot. She
was scared, crying, and screaming. Brynn said that she was in a fight with defendant, that he
was going to hit her and so she ran. Brynn stayed with Hullinger for the day until defendant
left for work. A week after Brynn’s disappearance, Hullinger and Paula Kirchner went to
defendant’s house and asked him if he wanted some missing-persons fliers about Brynn.
Defendant said no, he had his own. Hullinger also asked defendant if she and Kirchner could
gather some of Brynn’s personal belongings and defendant said no.
¶ 25 Judith Wilson was defendant’s neighbor in Capron. She testified that during the summer
of 2002 she saw defendant and Brynn arguing on at least four occasions. Once, while
defendant and Brynn were in the backyard, Wilson saw defendant push Brynn. Wilson was
mowing her lawn at the time and could hear defendant yelling at Brynn over the lawn mower
noise. On another occasion Wilson saw defendant holding onto the door handle of Brynn’s
Jeep as she was backing down the driveway. Defendant and Brynn were hollering at each
other. Defendant finally let go of the handle and Brynn left. On a few occasions Wilson saw
Brynn walk by her home crying and defendant would walk past soon thereafter. Wilson
testified that during the second or third week of November 2002, in the early morning hours,
she heard dogs barking and then the sound of glass breaking coming from Lamb’s house.
¶ 26 Tanya Wilson, Judith’s daughter, testified that she saw several verbal arguments between
defendant and Brynn in 2002. When defendant and Brynn argued, the dogs in Lamb’s house
would bark. Tanya also testified to being awakened at about 3 a.m. sometime after
Halloween and before Thanksgiving 2002 by the sounds of barking dogs, loud voices, and
a door slamming coming from Lamb’s house. A week later, Wilson found out that Brynn was
missing.
¶ 27 Kirchner, Brynn’s neighbor at the Darwood Street apartments and her cousin, testified
that defendant and Brynn argued frequently. One night Kirchner was awakened by Brynn
calling her name and asking her to open the door and help her. Defendant caught up to Brynn
and grabbed her around the waist. Brynn grabbed the railing of Kirchner’s porch, and
defendant told her to let go and then dragged her back to their apartment. On another
occasion Kirchner saw Brynn at her bedroom window. Brynn ripped the screen out and tried
to get out but defendant grabbed her and dragged her away from the window. On another
occasion Brynn came running into Kirchner’s apartment saying not to let defendant in and
that he had just hit her with a baseball bat. Brynn had bruises on the right side of her head.
She was scared and trembling. Kirchner identified photographs of the injuries, which were
taken the next day, January 4, 2001. Brynn obtained an order of protection that day against
defendant. Brynn moved to a friend’s house. Kirchner later learned that Brynn moved to
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Capron to live with defendant despite getting an order of protection against him. Kirchner
also described her efforts to help hide Brynn from defendant.
¶ 28 Sheila Belt, a neighbor, testified that on Valentine’s Day 2001 she witnessed defendant
and Brynn fighting. Brynn was on the ground and defendant was “pulling her hair like he was
trying to pick her up off the ground by her hair.” Belt also saw defendant kick Brynn in the
thigh and in the side of her ribs. Brynn “was trying to push him off of her so she could get
out of the snow and he continually kept knocking her back down.” The two were yelling and
screaming at each other. This went on for about 10 minutes. Brynn was finally able to get up
and walk, with defendant a few steps behind her. In early March 2001 Belt visited Brynn at
Mullen’s home. Brynn was lying on a couch. She had a black eye and had trouble breathing.
She also had bruises on her arm as well as a “goose egg bump” on the side of her head.
¶ 29 On November 9, 2007, Detective Shane Woody of the Belvidere police department
obtained a DNA sample from defendant with a buccal swab. Defendant told Woody that he
did not like surprises and could not wait for two more years. Defendant explained that “after
seven years she can be declared legally dead” and he could get on with his life without
dealing with people like the police anymore.
¶ 30 Cynthia Cole, a forensic DNA analyst at Strand Analytical Laboratory in Indianapolis,
Indiana, testified that in November 2007 she received items recovered from the 2002 search
of defendant’s home and vehicle along with the buccal swab taken from defendant. Cole
generated a DNA profile for Brynn from Brynn’s toothbrush. A towel taken from the trunk
of the Audi had bloodstains that matched Brynn’s DNA profile. Blood on the mattress and
pillow matched Brynn. Swabs taken from the stains on the wall also matched Brynn.
¶ 31 Blake Aper, a forensic DNA analyst for the Illinois State Police Forensic Science
Laboratory, testified that the foam from the mattress padding contained bloodstains that
matched Brynn’s DNA profile.
¶ 32 Jeffrey Gurvis, an independent bloodstain-pattern analyst, testified that the bloodstains
on the walls in the bedroom were the result of at least two impacts onto a blood source itself.
¶ 33 Carol Lieber from Rockford Dental Care testified that Brynn had an appointment for
November 18, 2002. She did not show up and did not cancel or reschedule.
¶ 34 Defendant’s motion for a directed verdict was denied. Defendant called Joseph Robbins
of the Boone County sheriff’s office. Robbins testified that on January 8, 2003, he placed a
phone call to defendant to tell him the police had found a body. The police then conducted
surveillance on defendant’s house to see how he would respond. After four or five hours
defendant left his home, drove to an address in Rockford, and returned home.
¶ 35 Defendant called his sister, Kari Ann Moye, who testified that she became aware of the
domestic battery charges that were filed against defendant when he and Brynn were living
in the Darwood Street apartment. She said that she attended the court appearance by
defendant on those charges. She said that defendant and Brynn were “making out” and
“cuddling” while seated on a bench near an elevator.
¶ 36 Defendant’s mother, Debra Fletcher, testified that she gave defendant and Brynn her and
her husband’s wedding rings. She testified that Brynn once pawned the rings but she could
not recall when or where. Fletcher testified that she was aware of one domestic battery charge
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filed against defendant while he was married to Brynn. She testified that she posted bail for
defendant. She also attended his court appearances, which Brynn also attended. She
described the couple as looking “very happy” and “playing kissy-pooh.” Fletcher testified
that defendant called her the morning of Brynn’s disappearance. Brynn had gone missing in
the past, on four occasions that Fletcher was aware of. Later in the day Fletcher saw
defendant at her grandson’s birthday party. Defendant appeared fine and had no cuts or
injuries.
¶ 37 The State presented no rebuttal. The State’s closing argument primarily focused on the
forensic evidence and defendant’s explanations for Brynn’s disappearance. The State argued
that the only reasonable explanation for the bloodstains on the walls and the large stain on
the mattress was injuries inflicted on Brynn the night of November 16, 2002. Defense
counsel argued that the absence of even a drop of Brynn’s blood on the floor or stairs was
not consistent with the State’s theory and that there were other reasons for Brynn’s
disappearance. Counsel argued that “[t]here is no proof of any death except what [the
assistant State’s Attorney] would like to call circumstantial evidence.” The jury returned a
verdict of guilty on the charge of first-degree murder and the trial court sentenced defendant
to 50 years in the Illinois Department of Corrections.
¶ 38 Defendant filed a motion to reconsider in which he argued that “study after study is
pointing out that severity of the sentence has no deterrence [sic] effect” on domestic
violence. The court, in denying the motion, explained that this case “goes well beyond
statistics.” It said that deterrence was important, but not the sole factor, and again noted
defendant’s rehabilitative potential. Finally, the court noted that deterrence is about deterring
others and the individual being sentenced.
¶ 39 II. ANALYSIS
¶ 40 On appeal, defendant contends that the trial court abused its discretion when it denied,
in part, his motion in limine to exclude other-crimes evidence. He argues that the alleged
hearsay statements by Brynn regarding prior acts of abuse “have minimal probative value”
and “fail to demonstrate either a motive or intent for murder.” Defendant argues that the
testimony of those hearsay witnesses was “wholly unrelated to the present case” and that
“such extensive testimony and argument about the prior incidents was of dubious probative
value and unduly prejudicial and should have been excluded.” (Emphasis added.) As support
for this contention defendant cites to People v. Walston, 386 Ill. App. 3d 598, 621-22 (2008).
Defendant also argues that the trial court abused its discretion in imposing a 50-year prison
sentence where defendant’s prior criminal history consisted of those domestic battery
convictions, a conviction of resisting a police officer, and a deceptive practices conviction,
all of which resulted in sentences of probation or conditional discharge that he successfully
completed.
¶ 41 The State argues that the trial court properly admitted the evidence of prior abuse as the
evidence was relevant to demonstrate defendant’s intent, motive, and lack of mistake. The
State notes that, with respect to the hearsay statements, the trial court ruled that they qualified
as excited utterances. The State also argues that the trial court did not abuse its discretion in
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sentencing defendant to 50 years, citing defendant’s pattern of violence as well as his lack
of remorse.
¶ 42 A. Other-Crimes Evidence
¶ 43 The State relied on the common law to support its argument that evidence of defendant’s
prior acts of domestic violence was admissible to show defendant’s intent, motive, and lack
of mistake. Under the common law, it is well settled that evidence of other crimes is
admissible if relevant for any purpose other than to show a defendant’s propensity to commit
crime. People v. Chapman, 2012 IL 111896, ¶ 19. Those purposes include, but are not
limited to, motive, intent, identity, lack of mistake, and modus operandi. People v. Dabbs,
239 Ill. 2d 277, 283 (2010). Under the common law, where evidence of other crimes “is
offered for a permissible purpose and not solely for propensity, such evidence will not be
admitted if its prejudicial impact substantially outweighs its probative value.” Chapman,
2012 IL 111896, ¶ 19 (citing People v. Moss, 205 Ill. 2d 139, 156 (2001)). The admissibility
of other-crimes evidence is committed to the sound discretion of the trial court, and its
decision will not be disturbed absent a clear abuse of discretion. People v. Wilson, 214 Ill.
2d 127, 136 (2005). An abuse of discretion occurs when the trial court’s ruling is arbitrary,
fanciful, or unreasonable, or where no reasonable person would take the view adopted by the
trial court. People v. Sutherland, 223 Ill. 2d 187, 272-73 (2006) (citing People v. Hall, 195
Ill. 2d 1, 20 (2000)). On appeal, the State argues that, aside from the traditional grounds for
allowing other-crimes evidence, the trial court’s ruling is supported by statute, specifically,
section 115-7.4 of the Code of Criminal Procedure of 1963 (Code), and Illinois Rule of
Evidence 404(b). 725 ILCS 5/115-7.4 (West 2008)2 (evidence in domestic violence cases);
Ill. R. Evid. 404(b) (eff. Jan. 1, 2011) (other crimes, wrongs, or acts).
¶ 44 Defendant’s argument that the admission of other-crimes evidence became the focus of
the trial, instead of whether Brynn was in fact dead and whether defendant was responsible
for her death, is not supported by the record. We first note that the other-crimes evidence
accounted for a mere 250 pages of the trial record, whereas the testimony of witnesses
relating to the events that occurred on the day of the murder and to the crime scene accounted
for 1,200 pages of the trial record. Many of the other-crimes witnesses also provided
background information concerning their relationship with Brynn and the efforts to find
Brynn.
¶ 45 Defendant cites People v. McKibbins, 96 Ill. 2d 176, 186-87 (1983), for the proposition
that other-crimes evidence should not lead to a “mini-trial” on the other offenses. Defendant
provides no example of such a mini-trial in this case. Indeed, the trial court carefully limited
the testimony and excluded Brynn’s testimonial statements to the police, her statements in
the petitions for orders of protection, and her divorce filings. As the State points out, the
other-crimes evidence was targeted and brief.
2
Although section 115-7.4 of the Code did not exist at the time of the offense, we can
consider the State’s argument because that statutory section existed at the time of trial. See 725 ILCS
5/115-7.4 (West 2008).
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¶ 46 Defendant argues without citation to authority that the “circuit court erred in admitting
allegations of prior discord between Brynn and the defendant not personally observed by the
witness.” Defendant also argues that the incidents of prior abuse introduced through hearsay
statements had minimal probative value because they were “unsubstantiated.” Defendant
cites no authority for this proposition. The weight to be accorded to this testimony was for
the jury to decide. We also disagree with defendant’s characterization that the statements
were unsubstantiated. Each of the statements was corroborated by Brynn’s physical
appearance and demeanor. Photographs were also introduced to corroborate two of the
incidents. Defendant was seen chasing after Brynn on two occasions. He was also seen trying
to prevent Brynn from driving away. The evidence as to each incident was “beyond a mere
suspicion.” People v. Thingvold, 145 Ill. 2d 441, 456 (1991).
¶ 47 Defendant’s argument that the testimony concerning prior acts of domestic violence was
“wholly unrelated” to the present case is belied by the record. It was defendant who first tied
his prior arrest for domestic battery to Brynn’s disappearance. He told Mariani that in the
past Brynn had a crack cocaine problem, that he had been arrested in the past for domestic
battery, and that Brynn had been hidden from him by her family. It has long been recognized
that evidence of “a defendant’s prior acts of violence against the victim may also provide
evidence of motive, in this case, a hostility showing him likely to do further violence.”
People v. Illgen, 145 Ill. 2d 353, 367 (1991). Our supreme court recently held that under
section 115-7.4 of the Code “evidence of a defendant’s commission of other acts of domestic
violence may be admitted in a prosecution for one of the offenses enumerated in the statute,
so long as the evidence is relevant and its probative value is not substantially outweighed by
the risk of undue prejudice.” Dabbs, 239 Ill. 2d at 291; see 725 ILCS 5/115-7.4 (West 2008).
Such evidence may be considered for its bearing on any matter to which it is relevant,
including propensity. Dabbs, 239 Ill. 2d at 291-92. Defendant argues that the hearsay nature
of much of the other-crimes evidence caused it to have “minimal probative value” and was
therefore “unduly prejudicial.” In an apparent attempt to highlight the weakness of the other-
crimes evidence, defendant maintains that “[n]one of the alleged conduct by the defendant
to which the witnesses testified resulted in either charges or a conviction against the
defendant.” In order for other-crimes evidence to be admissible, the accused need not have
been convicted of the earlier offense. See People v. Roberson, 401 Ill. App. 3d 758, 771
(2010). In order to be admissible, proof of the other acts need not be beyond a reasonable
doubt, but must be beyond a mere suspicion. Thingvold, 145 Ill. 2d at 456. While it certainly
may be preferable to have live eyewitnesses testify to the prior acts, there is no such
requirement in the law. Defendant cites to People v. Heard, 187 Ill. 2d 36 (1999), where the
supreme court upheld the admission of other-crimes evidence from witnesses who
“personally observed” the prior acts. In Heard, the defendant was convicted of murdering his
ex-girlfriend. The victim’s 10-year-old son testified to several prior episodes of violence by
the defendant against the victim. The supreme court held that the other-crimes evidence was
admissible to show the defendant’s “motive and intent.” Id. at 59. The court did not limit the
admissibility of other-crimes evidence to those acts that are personally observed by the
witnesses who testify.
¶ 48 Defendant cites McKibbins and Walston for the proposition that the caution against
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conducting “mini-trials” on collateral offenses “remains even where there are statutory
provisions allowing the admission of propensity evidence in certain cases.” We do not
disagree. But in this case the focus of the trial was on Brynn’s disappearance, the efforts to
find her, and the substantial blood and DNA evidence.
¶ 49 Defendant cites People v. Brown, 319 Ill. App. 3d 89, 96-97 (2001), for the proposition
that “[c]umulative evidence of other conduct can overpersuade the jury to convict the
defendant as a bad person, rather than because he was guilty of the crime charged.” In
Brown, 6 of the State’s 12 witnesses testified about a single prior event, much of which
testimony was repetitive. No such error occurred in this case. For each prior act, the evidence
was targeted with only one or two witnesses. Many of those witnesses also testified to their
relationship with Brynn and the efforts to find her. The prosecution did not even mention the
prior offenses in its opening statement and made only a few references to the other offenses
in its closing argument. Defendant cites to only one page in the record where the State argued
other-crimes evidence. We have examined the entire argument and find nothing improper.
The prosecutor made reference to the testimony of Smith, who witnessed Brynn’s flight from
defendant and stated that Brynn told him “he’s trying to kill me.” The court overruled the
defense objection. The prosecutor continued by recounting some of Kirchner’s testimony.
The statements by the prosecutor merely referred to and summarized the testimony that we
hold was admissible; therefore, no error occurred. McKibbins, 96 Ill. 2d at 187.
¶ 50 Defendant makes no argument that the trial court misapplied the excited-utterance
exception to the hearsay rule. Ill. R. Evid. 803(2) (eff. Jan. 1, 2011). Likewise, he does not
challenge the admissibility of the other-crimes evidence on grounds of remoteness or lack
of factual similarity. See 725 ILCS 5/115-7.4(b)(1), (2) (West 2008). Instead, defendant
argues that the volume of the evidence of other crimes rendered it prejudicial because it
focused the jury’s attention “as much or more on those prior incidents as on the present
charge” and cites to Walston, 386 Ill. App. 3d at 621-22. Walston involved other-crimes
evidence admitted for propensity pursuant to section 115-7.3 of the Code against a defendant
charged with aggravated criminal sexual assaults against two victims. In upholding the
defendant’s convictions in Walston, we said that “the actual limits on the trial court’s
decisions on the quantity of propensity evidence to be admitted under section 115-7.3 are
relatively modest, especially when combined with the highly deferential abuse of discretion
standard.” Id. at 621. This is also true of other-crimes evidence introduced in cases involving
domestic violence. For example, in People v. Burgess, 176 Ill. 2d 289 (1997), the defendant
was convicted of first-degree murder and aggravated battery of a 3½-year-old child. Multiple
witnesses testified that on prior occasions they had heard or seen the defendant strike the
child, or they saw marks on the child’s skin. One witness who lived next door testified that
the defendant would spank the child four or five times a day. The supreme court rejected an
argument that the evidence of prior acts of abuse was not sufficiently probative because none
of the witnesses actually saw the defendant commit any act of abuse toward the victim. Id.
at 307. Instead, the supreme court held that the trial court did not abuse its discretion in
allowing the evidence. Id. at 308. The defense’s theory in that case was that the child suffered
the injuries in a series of accidents the day of his death. The supreme court held that the prior
acts of abuse were relevant to show the presence of intent and the absence of accident. Id.
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¶ 51 In Illgen, the defendant was convicted of the murder of his wife. The supreme court
upheld the trial court’s ruling that allowed evidence of physical abuse by the defendant
against the victim throughout the marriage, including his striking the victim on multiple
occasions and the observation of black and blue marks on the victim’s face. The prior acts
took place between 1972 and 1989. Illgen, 145 Ill. 2d at 362. The defense in Illgen was that
the gunshot wound inflicted by the defendant on the victim was the result of an accident. The
court said that “the evidence that the defendant physically assaulted his wife throughout their
marriage was relevant to show their antagonistic relationship and, thus, tended to establish
the defendant’s motive to kill her.” Id. at 367. The same is true in this case. At trial, the
defense argued that the State had not even proven a murder had occurred and that there may
be other explanations for the blood. The State was entitled to establish intent, motive, and
the lack of an accident or a mistake, such as from Brynn’s menstrual period as defendant told
Lamb, and thus to establish that the blood was the result of a final act of domestic violence
inflicted upon Brynn by defendant.
¶ 52 Having determined that the evidence of other crimes was clearly admissible for the
purposes identified by the trial court, we need not consider the State’s alternative argument
that the evidence was also admissible under section 115-7.4 of the Code to show propensity.
725 ILCS 5/115-7.4 (West 2008).
¶ 53 B. The 50-Year Sentence
¶ 54 Next, defendant argues that the trial court abused its discretion in sentencing him to 50
years in the Illinois Department of Corrections.
¶ 55 While Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967) gives reviewing courts
the power to reduce a sentence, that power should be used carefully and sparingly. People
v. Alexander, 239 Ill. 2d 205, 212 (2010). Trial courts have broad discretion in sentencing
and a sentence that is within the statutory limits may not be disturbed on review absent an
abuse of discretion, i.e., where the sentence is “ ‘greatly at variance with the spirit and
purpose of the law, or manifestly disproportionate to the nature of the offense.’ ” Id. (quoting
People v. Stacey, 193 Ill. 2d 203, 210 (2000)). Defendant’s sentence falls within the 20- to
60-year sentencing range. Thus, we must give the trial court’s decision great deference.
People v. Coleman, 166 Ill. 2d 247, 258 (1995).
¶ 56 All sentences should consider the seriousness of the crime and the objective of returning
the offender to useful citizenship. Ill. Const. 1970, art. I, § 11. Careful consideration must
be given to all mitigating and aggravating factors including the defendant’s age, demeanor,
habits, and mentality, deterrence, and rehabilitation. People v. Raymond, 404 Ill. App. 3d
1028, 1049-50 (2010). A sentencing court may consider evidence of criminal conduct for
which no prosecution or conviction ensued, provided that the evidence is both relevant and
reliable. People v. Richardson, 123 Ill. 2d 322, 361 (1988). Even though a reviewing court
may have weighed these factors differently than the trial court, an alteration in the sentence
may not be warranted. Raymond, 404 Ill. App. 3d at 1047-48.
¶ 57 Defendant does not argue that the trial court failed to consider any mitigating factors. He
argues instead that, despite the seriousness of the crime, the sentence is excessive given his
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“minimal” criminal history. Defendant states that all of his prior criminal convictions
resulted in sentences of either probation or conditional discharge, noting that he successfully
completed those sentences.
¶ 58 At the time of sentencing, defendant was 39 years old. The record reveals that in 1996
defendant was convicted of resisting a peace officer and domestic battery. In September 2001
he was convicted of deceptive practices. In June 2002, defendant was convicted of two
domestic batteries in which Brynn was the victim. We do not agree with defendant’s
characterization of this record as “minimal.” Defendant somehow escaped being prosecuted
for felonies for the domestic batteries to Brynn. In Illinois, a second conviction of domestic
battery is a Class 4 felony. 720 ILCS 5/12-3.2(b) (West 2002). Defendant was given a second
and a third chance by the court that sentenced him to probation, less than half of which was
completed when he murdered Brynn. According to the Illinois Domestic Violence Act of
1986, domestic violence is a serious crime that often escalates, culminating in intrafamily
homicide. 750 ILCS 60/102(1) (West 2002). Further, the trial court here could properly
consider the evidence of defendant’s uncharged conduct because it was relevant and reliable.
The court carefully considered all relevant factors, including the circumstances of the
offense.
¶ 59 During his sentencing argument, counsel for defendant argued that defendant was “an
average Joe, minds his own business–goes to work–plays video games–raises birds–plays
with his nephews.” Defense counsel also argued that Brynn allowed the two emergency
orders of protection that she obtained against defendant to expire. With respect to the facts
of this case, counsel argued that “we don’t really know what happened.”
¶ 60 The trial court disagreed with counsel’s statement that “we don’t really know.” The court
considered the circumstances of the offense, including defendant’s acts of concealment,
which were so successful that Brynn’s body “hasn’t been found.” The court considered
defendant’s education and his history as an excellent worker. The court also gave weight to
its ability to “deter others.” In addition, the court noted that although defendant was not a
“hardened criminal” he was a violent person. It gave consideration to defendant’s potential
for rehabilitation and the aim to restore defendant to useful citizenship, but found that the
murder of Brynn was “a culmination of events.” In announcing the sentence the court also
commented that “deterrence is the most necessary element in this case.”
¶ 61 Defendant filed a motion to reconsider in which he argued that “study after study is
pointing out that severity of the sentence has no deterrence [sic] effect” on domestic
violence. The court, in denying the motion, explained that this case “goes well beyond
statistics.” It said that deterrence was important, but not the sole factor. The court again noted
defendant’s rehabilitative potential. However, although defendant had been given an
opportunity to change, the violence continued, culminating in murder. Finally, the court
noted that deterrence is about deterring others and the individual being sentenced.
¶ 62 Having carefully reviewed the record and the arguments on appeal, we find nothing that
convinces us that the sentence imposed resulted from an abuse of discretion.
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¶ 63 III. CONCLUSION
¶ 64 For the foregoing reasons we hold that the trial court did not abuse its discretion in
admitting evidence of prior acts of domestic violence. Further, the trial court did not abuse
its discretion in sentencing defendant to 50 years in the Illinois Department of Corrections.
Defendant’s conviction and sentence are affirmed.
¶ 65 The judgment of the circuit court of Boone County is affirmed.
¶ 66 Affirmed.
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