People v. Browder

2022 IL App (1st) 210466-UNo. 1-21-0466
Order filed September 15, 2022
Fourth Division
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).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 18 DV 71393
)
MARVIN BROWDER, ) Honorable
) Diana L. Kenworthy,
Defendant-Appellant. ) Judge, presiding.
JUSTICE MARTIN delivered the judgment of the court.
Presiding Justice Lampkin and Justice Hoffman concurred in the judgment.
ORDER
¶1 Held: Defendant forfeited his claim that the trial court erred in granting the State’s pretrial
motion to admit proof of a prior violation of an order of protection.
¶2 Following a jury trial, defendant Marvin Browder was found guilty of violating an order
of protection and was sentenced to concurrent terms of 150 days in jail and 1 year of probation.
On appeal, he argues the trial court erred in allowing the State to present evidence of a past act of
No. 1-21-0466
domestic violence where the undue prejudicial effect in admitting the evidence outweighed its
probative value. We affirm. 1
¶3 I. BACKGROUND
¶4 The record reflects that Juaquita Jackson and Browder were former domestic partners and
share a child, M.B. On December 6, 2017, the trial court issued a two-year civil plenary order of
protection, listing Jackson and her four minor children, including J.J., J.D., and M.B., as protected
persons. The order of protection instructed Browder to “stay away” from Jackson and the other
protected persons. On March 29, 2018, Browder was charged by misdemeanor complaint with two
counts of violating the order of protection (720 ILCS 5/12-3.4(a)(1) (West 2018)), premised on an
incident occurring on March 7, 2018, in which Browder approached and spoke to J.J. and J.D.
¶5 Prior to trial, the State filed a motion to admit proof of other crimes, namely, Browder’s
prior act of domestic abuse and three prior violations of an order of protection that occurred in
2012 and 2017. The State argued that the four separate past acts demonstrate Browder’s
“propensity to commit domestic violence and his knowledge, intent, motive, and continuing
hostility.”
¶6 First, the State proffered an incident that occurred on March 7, 2012, when Browder
violated an order of protection. Browder confronted Jackson inside her apartment while J.J. and
J.D. were present and refused to leave. Jackson fled her apartment with her children.
¶7 The second prior act involved a domestic battery on May 19, 2012, in which Browder
argued with Jackson, slapped her face in front of J.J. and J.D., and slammed a door on her finger,
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
appeal has been resolved without oral argument upon the entry of a separate written order.
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No. 1-21-0466
cutting it.
¶8 The third act involved Browder’s violation of an order of protection on February 1, 2017.
Browder parked his vehicle outside Jackson’s apartment while she and her children were home.
Five minutes later, the police arrived and arrested him as he sat in his vehicle.
¶9 Last, the State proffered a fourth prior act that occurred on February 3, 2017, when Browder
violated an order of protection while at the courthouse. During a hearing where Jackson and
Browder were both present, the court extended its order of protection against Browder. Jackson
exited the courtroom about 10 minutes after Browder had left, and while she was in the hall,
Browder walked toward her, “shoulder-checked” her, and warned her that “ ‘[T]he judge ain’t here
right now. I’ll smack [your] a*** and you gotta go home.’ ” Jackson retreated to the courtroom
and informed the deputies. The Chicago Police Department (CPD) responded to the incident and
searched the area but could not find Browder.
¶ 10 Browder filed a response to the State’s motion, arguing that allowing the prior acts into
evidence would be overly prejudicial, as they were too remote in time, lacked corroboration, and
were substantially different from the present case.
¶ 11 After hearing arguments, the trial court granted the State’s motion as to the two 2017
incidents but denied the motion as to the two 2012 incidents, explaining that admitting all four past
acts would be unduly prejudicial. The court reasoned it “ma[de] more sense” to exclude the two
2012 convictions as they were less proximate in time, and the domestic battery incident was less
similar to the current pending charge. The court found that the 2017 incidents were “proximate in
time,” and factually similar, as they involved the “same family.” The court additionally found the
2017 incidents were sufficiently corroborated as (1) the February 1 incident resulted in an arrest
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outside the protected address, where Browder occupied the same vehicle he occupied in this case
and (2) the CPD responded to the February 3 incident at the domestic relations court, and a report
was made. The court therefore found admission was “highly relevant” to the current charges and
not unduly prejudicial.
¶ 12 We summarize the facts adduced at trial. We note the State ultimately did not present
evidence of the February 1, 2017, incident.
¶ 13 At trial, J.J. testified that on March 7, 2018, she was walking home from school with her
younger sister J.D. Browder drove up to them in a black truck with the windows down and stopped.
J.J. called her mother, Jackson, and followed Jackson’s instructions to wait at her aunt’s house
until Browder was gone. After waiting about 5 to 10 minutes, J.J. and J.D. continued walking
home. Browder pulled up again alongside them as they walked, repeatedly yelled their names, and
called J.J. a “ ‘little [b***].’ ” J.D. started crying. J.J. called her mother again, and Browder said,
“ ‘I don’t care about you calling your mother.’ ” Browder also drove his truck in front of J.J. and
J.D. as they attempted to cross the street. J.J. and J.D. ran home and called Jackson. After Jackson
arrived home, J.J. talked to the police.
¶ 14 J.D. testified consistently with J.J. regarding the March 7, 2018, incident involving
Browder.
¶ 15 Jackson testified that she lived with her four children, including J.J., J.D., and the child
Browder fathered. In 2015, Jackson filed a case involving “[p]arentage and child support.” The
court determined M.B. was Browder’s son, and Jackson requested an order of protection against
Browder.
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¶ 16 Jackson testified that on February 3, 2017, she and Browder were in court for a hearing on
the order of protection. The court “exten[ded]” the order and directed Browder to “stay away”
from Jackson. At the conclusion of the hearing, the sheriff instructed her and Browder to leave at
different times. Jackson left about 10 or 15 minutes after Browder left, but she ran into Browder
in the hallway. While she attempted to ignore him, Browder walked toward her, “bumped” her
shoulder, pushed her, and said, “ ‘The Judge ain’t here now, I will still smack your a***, you do
got to go home.’ ” Jackson reentered the courtroom, informed the sheriff about the encounter, and
called the police. The police arrived but could not find Browder. The police took Jackson’s
statement.
¶ 17 On December 6, 2017, Jackson and Browder attended a hearing regarding Jackson’s
second request for an “extension” of the order of protection.2 The court granted a two-year
extension and ordered Browder to “stay away” from Jackson and her children.
¶ 18 Jackson testified that on March 7, 2018, at about 3 p.m., she received a call at work from
J.J. and could hear J.D. crying in the background. Jackson told J.J. to wait at her aunt’s house until
“he leaves” and then “hurry” home. About 10 to 15 minutes later, Jackson received a second phone
call from J.J., and she then called 311 to report what happened. Jackson called the police when she
arrived home. When the police arrived, they could not find Browder in the area and no arrests were
made.
¶ 19 A Chicago police officer testified that she and her partner responded to a call of an order
of protection violation at the courthouse on February 3, 2017. The offender was not located but a
2
While Jackson testified that the order of protection was extended on December 6, 2017, the order
of protection included in the record reflects that the order was “issued” on that date.
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No. 1-21-0466
report for the violation of the order of protection was completed.
¶ 20 Nikkio Williams, who had been in and out of a relationship with Browder for about six
years, testified for the defense. She testified that on March 7, 2018, she went to Browder’s home
at around 3 or 3:30 p.m. Browder was home, and he did not leave until approximately 9 p.m.
¶ 21 On January 17, 2019, the jury found Browder guilty of violating an order of protection. By
agreement of the parties, the court immediately proceeded to a sentencing hearing. Browder was
sentenced to concurrent terms of 150 days in jail and 1 year of probation. The court noted that
Browder approached the minors and yelled at them, in violation of a court order. It found Jackson’s
testimony as to Browder’s prior violation at the courthouse credible.
¶ 22 On February 7, 2019, Browder filed a motion for new trial, arguing that the State failed to
prove him guilty beyond a reasonable doubt. He further argued that the trial court improperly
permitted the State to amend the complaint during trial to include an incident date that was missing
from one of the charges. The trial court denied his motion.
¶ 23 II. ANALYSIS
¶ 24 On appeal, Browder argues that the trial court erred in admitting evidence of his February
3, 2017 violation of the order of protection, as its undue prejudicial effect substantially outweighed
its probative value. Specifically, Browder argues that the facts of the prior violation differ
markedly from the instant violations, were far more serious, and involved a different
modus operandi.
¶ 25 As an initial matter, the State argues, and we agree, that Browder has forfeited our review
of his claim for failing to raise it in his written posttrial motion. See People v. Reese, 2017 IL
120011, ¶ 60 (“To preserve an issue for review, a defendant must object at trial and raise the
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alleged error in a written posttrial motion.”). Under certain circumstances, the plain-error doctrine
permits review of an otherwise forfeited claim of error. People v. Johnson, 238 Ill. 2d 478, 484
(2010). Here, however, Browder has both failed to acknowledge the procedural default and fails
to argue on appeal that his claim may be considered under the plain-error doctrine. Browder
therefore has also forfeited plain-error review and we must honor the procedural default. See
People v. Hillier, 237 Ill. 2d 539, 545 (2010) (“A defendant who fails to argue for plain-error
review obviously cannot meet his burden of persuasion.”); see also Ill. S. Ct. R. 341(h)(7) (eff.
Oct. 1, 2020) (“Points not argued are forfeited and shall not be raised in the reply brief, in oral
argument, or on petition for rehearing.”). Forfeiture aside, plain-error review would not excuse the
procedural default here.
¶ 26 Under the plain-error doctrine, a reviewing court may address a forfeited claim where a
“clear or obvious error occurred,” and either (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 the closeness of the evidence.”
(Internal quotation marks omitted.) Reese, 2017 IL 120011, ¶ 60. The defendant bears the burden
of persuasion under both prongs of the plain-error doctrine. Hillier, 237 Ill. 2d at 539. The initial
step in any plain-error analysis is to determine whether a clear or obvious error occurred. Reese,
2017 IL 120011, ¶ 60. For the following reasons, we conclude that, even had Browder raised a
claim of plain error, the claim would fail as the court committed no clear or obvious error in
allowing Browder’s past act into evidence at trial.
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¶ 27 Generally, relevant evidence of other crimes is admissible “for any purpose other than to
show a defendant’s propensity to commit crimes” (People v. Chapman, 2012 IL 111896, ¶ 19),
and may be admitted to prove modus operandi, intent, identity, motive, or absence of mistake
(People v. Illgen, 145 Ill. 2d 353, 364-65 (1991)). However, section 115-7.4 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/115-7.4 (West 2018)), provides an exception regarding
the admissibility of other crimes to show propensity in domestic violence cases. See People v.
Dabbs, 239 Ill. 2d 277, 284-85 (2010).
¶ 28 Under section 115-7.4(a), where a defendant is accused of an “offense of domestic
violence,” evidence of the defendant’s other domestic violence offenses is admissible to show the
defendant’s propensity to commit crimes of domestic violence. 725 ILCS 5/115-7.4(a) (West
2018). Prior to admitting the other-crimes evidence, the trial court must weigh the probative value
against any undue prejudice. 725 ILCS 5/115-7.4(b) (West 2018); see Dabbs, 239 Ill. 2d at 290-
91. In conducting the relevant balancing test, the court may consider “(1) the proximity in time to
the charged or predicate offense; (2) the degree of factual similarity to the charged or predicate
offense; or (3) other relevant facts and circumstances.” 725 ILCS 5/115-7.4(b) (West 2018). If the
prejudicial effect of the evidence substantially outweighs its probative value, the court should
exclude the evidence. Illgen, 145 Ill. 2d at 365.
¶ 29 A trial court’s decision to admit other-crimes evidence 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, unreasonable, or where no reasonable person
would take the view adopted by the trial court.” (Internal quotation marks omitted.) People v.
Sutherland, 223 Ill. 2d 187, 272-73 (2006).
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¶ 30 Based on our review of the record, the trial court did not commit a clear or obvious error
in admitting evidence of Browder’s February 3, 2017 violation of an order of protection. The court
found the prior act “highly relevant” and conducted the balancing test required pursuant to section
115-7.4(b), concluding the probative value of admitting into evidence Browder’s 2017 violation
outweighed the danger of undue prejudice. We agree.
¶ 31 First, the trial court correctly observed that the date of the February 2017 incident was in
close proximity to the date of the May 2018 charged offense, as the two incidents were just over
one year apart. See People v. Jackson, 2014 IL App (1st) 123258, ¶ 42 (prior assault was proximate
in time to the charged offense, where it took place about 1½ years before the offense).
¶ 32 Next, the court considered the second factor of the balancing test and determined the 2017
incident was factually similar to the charged offense. Both incidents involved Browder violating
an order of protection by aggressively pursuing and verbally confronting members of the family
protected by the order. See People v. Nash, 2013 IL App (1st) 113366, ¶ 23 (past acts were
factually similar to the charged offense, where each incident involved the defendant physically
attacking the same victim after an argument).
¶ 33 The trial court last considered other relevant facts and circumstances. It explicitly found
that admitting all four prior acts, as requested by the State, would be unduly prejudicial. Obviously,
the court here meaningfully considered any undue prejudicial effect of admitting the requested
evidence. Dabbs, 239 Ill. 2d at 290-91. The court further noted that the February 3, 2017, act was
corroborated, as Jackson reported the act to police soon after it occurred, and therefore reliable.
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¶ 34 Accordingly, the record supports the court’s conclusion that Browder’s prior bad act was
relevant to and probative of his propensity to violate an order of protection, as charged here (725
ILCS 5/115-7.4(a) (West 2018)) and its prejudicial effect did not outweigh its probative value.
¶ 35 Under these circumstances, had this issue been preserved, we could not conclude the trial
court’s decision to admit evidence of Browder’s prior violation of an order of protection was an
abuse of discretion. The trial court thus committed no clear or obvious error in finding the February
2017 incident admissible “for its bearing on any matter to which it is relevant.” 725 ILCS 5/115-
7.4(a) (West 2018). That said, we must honor Browder’s forfeiture of a plain-error claim and the
underlying issue on appeal.
¶ 36 III. CONCLUSION
¶ 37 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 38 Affirmed.
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