People v. Jenk

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Illinois Official Reports Reporter of Decisions
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accuracy and integrity
Appellate Court of this document
Date: 2016.11.14
11:55:04 -06'00'
People v. Jenk, 2016 IL App (1st) 143177
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DAVID JENK, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-14-3177
Filed August 15, 2016
Rehearing denied September 20, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 13-DV-74550;
Review the Hon. Laura Bertucci-Smith, Judge, presiding.
Judgment Affirmed.
Counsel on Allan A. Ackerman, of Chicago, for appellant.
Appeal
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
John E. Nowak, and John J. Sviokla II, Assistant State’s Attorneys, of
counsel), for the People.
Panel PRESIDING JUSTICE CUNNINGHAM delivered the judgment of
the court, with opinion.
Justices Connors and Harris concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, the circuit court of Cook County found defendant David Jenk
guilty of misdemeanor domestic battery and sentenced him to one year of probation. On direct
appeal, the defendant argues that (1) the statute allowing for the admission of his prior offenses
of domestic violence (725 ILCS 5/115-7.4 (West 2012)) was unconstitutional, (2) the trial
court erred in admitting into evidence his prior acts of domestic violence against the victim,
and (3) the trial court erred in finding the victim credible at trial. For the following reasons
after allowing the defendant’s posttrial argument motion to cite additional authority and
having included that authority in our analysis, we affirm the judgment of the circuit court of
Cook County.
¶2 BACKGROUND
¶3 On August 7, 2013, the defendant was charged with misdemeanor domestic battery against
his girlfriend, A.C.R., in connection with an incident that occurred on June 9, 2013. On
January 21, 2014, the State filed a motion for proof of prior bad acts (motion to admit), seeking
to introduce evidence of the defendant’s six prior bad acts of domestic violence against A.C.R.
Specifically, the State alleged that, pursuant to section 115-7.4 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/115-7.4 (West 2012)), evidence of the prior bad acts
was admissible at trial because they occurred close in proximity of time to the charged offense;
the prior bad acts were sufficiently similar to the charged offense; and they were relevant to
show motive, intent, absence of mistake, and defendant’s propensity to commit crimes of
domestic violence. On January 30, 2014, the defendant filed a combined response to the State’s
motion and a motion in limine, arguing that the alleged six prior bad acts of domestic violence,
for which he was never charged, were inadmissible on the basis that the statute was
unconstitutional in violation of his equal protection and due process rights.
¶4 On March 18, 2014, prior to the start of trial, a hearing on the State’s motion to admit was
held during which the State described the six incidents of prior bad acts involving the
defendant and A.C.R. that occurred on July 20, 2011; February 10, 2012; February 26, 2012;
August 18, 2012; January 11, 2013; and May 2, 2013. The State asserted that evidence in the
form of photographs was available to corroborate the February 10, February 26, and August 18
incidents. Medical testimony was also available to corroborate the February 26 incident.
Defense counsel argued against the admissibility of the six prior bad acts on the basis that they
were more prejudicial than probative and that the statute under which these prior bad acts may
be admissible was unconstitutional in violation of equal protection and due process rights. The
trial court, after considering the parties’ arguments, found that all of the prior bad acts were
close in time to the charged offense; that all of the prior incidents, except for the January 11
and May 2 incidents, were factually similar; and that the July 20, January 11, and May 2
incidents lacked any corroborating evidence to warrant inclusion. However, the trial court
found the three remaining incidents dated February 10, February 26, and August 18 to be
admissible at trial because they were supported by corroborating evidence, and the probative
value of the evidence outweighed the prejudicial effect. The case then proceeded to a bench
trial.
¶5 At trial, A.C.R. testified that she was 27 years old and had dated the defendant from 2011
to July 2013. On June 8, 2013, she and the defendant were at a graduation party for a friend,
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which was held at the defendant’s condominium. She arrived at the party at about 7:30 p.m.
The defendant and A.C.R. consumed alcohol at the party and both became intoxicated that
evening. At some point, they, along with their friends, left the graduation party and went to an
upscale bar called the Paris Club, where they continued to drink alcohol. When they left the
Paris Club at 3 a.m. on June 9, 2013, she and the defendant took a taxicab to her apartment at
1434 North Greenview Avenue in Chicago, where she lived alone. En route, the couple began
to argue inside the taxicab and continued to argue when they arrived at their destination and
walked through a courtyard leading to her apartment unit. Once inside, the couple engaged in a
physical fight. A.C.R. recalled seeing a “hand come at the left side of [her] face,” after which
she lost consciousness. When she awoke on the ground covered in blood, the defendant was
cleaning the blood on the floor with a paper towel. A.C.R. looked in the mirror and noticed that
her face was severely swollen with a large gash over her right eye. After A.C.R. changed into
loose-fitting clothing, the defendant cleaned her bloody clothes. A.C.R. felt pain above her
right eye and begged the defendant to take her to the emergency room, but the defendant told
her that she deserved everything that happened to her. Eventually, the defendant took A.C.R. to
Rush University Medical Center (Rush Hospital), where she was admitted into the emergency
room and received five stitches above her right eye. The defendant was present during her
hospital treatment, and A.C.R. gave a false account to hospital personnel regarding what had
occurred, telling them that she was “jumped” on her way home. A.C.R. testified that both she
and the defendant agreed to give this fictitious account. A police officer later arrived at the
hospital to speak with A.C.R., who lied by saying that she was attacked getting out of a taxicab
on her way home. The defendant was also present during A.C.R.’s conversation with the
officer. As soon as the police officer exited the room, A.C.R. and the defendant left the hospital
against the advice of A.C.R.’s treating physician, who had recommended a CAT scan as a
result of the trauma to her face. A.C.R. felt terrified and, despite being in pain, returned to her
apartment with the defendant. At that time, she was still in love with the defendant. She did not
contact her friends and family for a few days because she was embarrassed and did not know
what to say. Eventually, she lied to her parents by telling them that she was in a car accident, a
story that was fabricated by the defendant. Two days later, on June 11, 2013, A.C.R., who was
still unable to use her left arm and was in excruciating pain, received further treatment for her
injuries at St. Joseph Hospital. At St. Joseph Hospital, A.C.R., who was accompanied by the
defendant, received X-rays which revealed a fracture of her left arm. Her arm was then put into
a cast. She told the medical staff at St. Joseph Hospital that her injuries resulted from being in
a car accident. At trial, she testified that she and the defendant both took photographs of her
injuries after the June 9, 2013, incident and after a subsequent visit to an orthopedic surgeon.
She identified the photographs depicting her injuries as People’s Exhibit Nos. 1 to 13, which
were then admitted into evidence without objection at trial. Although A.C.R. had health
insurance through her employer, she received a hospital bill in July 2013 for thousands of
dollars, for which she was responsible for $150 in out-of-pocket expenses. She contacted the
defendant, who agreed to pay for her medical expenses and gave her a check dated July 15,
2013, with the following written on the memo line of the check: “settlement of medical bills.”
Subsequently, A.C.R. received a second medical bill, for which she requested payment from
the defendant. However, the defendant requested an electronic copy of the second bill and
acknowledged receipt after A.C.R. sent it, but never paid the bill. A.C.R. further testified that
after June 11, 2013, she remained in a dating relationship with the defendant because she was
still in love with him, claiming that they continued to share some “happy days.” On July 25,
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2013, A.C.R. ended her relationship with the defendant after he failed to show up for her
doctor’s appointment to have her cast removed. She testified that she felt betrayed by the
defendant’s absence at that time. In August 2013, A.C.R. traveled to New York with her
mother, where A.C.R. finally revealed to her mother the truth about the June 9, 2013, incident.
Upon their return to Chicago, A.C.R. reported the June 9, 2013, incident in person to the
police. This marked the first time she had ever reported the defendant’s abuse to the police.
When questioned why she waited until August 2013 before reporting the physical abuse to the
police, A.C.R. explained the delay by stating that she was scared, fearful, afraid for her life,
and still in love with the defendant.
¶6 At trial, A.C.R. also testified to three prior instances of abuse by the defendant. She
recalled that on February 10, 2012, she went out with the defendant and his mother after work.
Afterwards, while walking to the defendant’s car, A.C.R. and the defendant got into an
argument about their shared dog. They pushed and pulled each other before the defendant
dragged A.C.R. and pounded her head into the cement floor of the parking garage. He also
ripped out her ear piercings from the cartilage and broke her purse. A.C.R. sustained welts on
the back of her head. She then managed to grab the defendant’s car keys, ran toward his car,
and started the car. The defendant then opened the driver’s side door of the car and began
choking her with the seat belt by wrapping it around her neck. As both struggled for the wheel,
A.C.R. stepped on the gas pedal and ran his car into a pole in the parking garage. After the
crash, A.C.R. ran toward the elevator with the defendant in pursuit. He ultimately caught up to
her, forcefully pulled her back into his car, threw her into the passenger seat, and drove her
home. During the ride home, the defendant became hysterical and began punching and
smashing his forehead into the steering wheel. When A.C.R. started to call his mother, the
defendant punched her in the face. A.C.R. began to bleed and thought she had a broken nose.
As a result of this incident, A.C.R. sustained a bloody nose, black and blue marks above her
eye, welts on her back, and had her earrings torn out. After the February 10, 2012, incident,
A.C.R. documented these injuries by taking photographs, which were admitted without
objection at trial as People’s Exhibit Nos. 18, 19, and 20.
¶7 A.C.R. further testified to another prior incident on February 26, 2012, when the defendant
and A.C.R. invited friends over to his parents’ condominium where the defendant lived at that
time. They were drinking that evening, and after the guests left, A.C.R. stayed up to clean
while the defendant slept in his bedroom. At about 3 a.m., A.C.R. kissed the defendant while
he was sleeping and woke him up. The defendant became enraged and screamed at her, while
A.C.R. locked herself in a nearby guest bedroom. The defendant broke down the guest
bedroom door and entered the room, where he grabbed the back of her head by her hair and
repeatedly slammed her face into the wood flooring. A.C.R. felt pain in her chin and screamed.
Neighbors heard A.C.R.’s screams and notified the police, who then arrived at the scene.
A.C.R. had “massive hemorrhaging” to her chin, but wore a “zip up” to cover her injury.
Although A.C.R. was pulled aside by one of the two officers, she did not tell him the truth and
only told him that she and the defendant were arguing. A few hours later, A.C.R., accompanied
by the defendant, sought medical treatment at Rush Hospital, where the medical staff took
X-rays of her chin. She lied to the medical staff by telling them that she fell while getting out of
the shower. At the time of trial, A.C.R.’s chin was still deformed and a scar remained as a
result of the February 26, 2012, incident. Photographs of those injuries, taken by A.C.R. and
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the defendant, were admitted into evidence without objection at trial as People’s Exhibit Nos.
21 to 25.
¶8 A.C.R. also testified to a third prior incident that occurred on August 18, 2012, during
which the couple got into an argument that escalated into pushing and shoving before A.C.R.
ended up on her knees in front of the defendant. The defendant then grabbed her head and
kneed her in the face. A.C.R. sustained a scratch on her right cheek, as well as swelling and
bruising. Although A.C.R. did not seek medical treatment for these injuries, she took off a
week from work by lying to her coworkers that she had been hit in the face by a softball—a
sport she had never played. Immediately after this incident, A.C.R. documented her injuries in
photographs which showed scabs, a black and blue eye, and a swollen cheek and which were
admitted without objection at trial as People’s Exhibit Nos. 26 to 30.
¶9 Nurse Robert Wuthenow (Nurse Wuthenow), who treated A.C.R. in the emergency
department at Rush Hospital, testified that A.C.R. and the defendant arrived at the hospital at
about 10 a.m. on June 9, 2013. A.C.R. had swelling to the left jaw, a laceration to the right
eyebrow, and some bruising on the right forearm, which A.C.R. attributed to injuries she
sustained from an unknown assailant on her way home from a bar that evening. A.C.R.
indicated to Nurse Wuthenow that she was intoxicated at the time of the attack. Rush Hospital
then notified the police, who interviewed A.C.R. at the hospital. A.C.R. then left the hospital
against the advice of the medical staff and failed to finish the recommended CAT scan. On
cross-examination, Nurse Wuthenow testified that A.C.R. told him that she never lost
consciousness during the incident, but that he could not recall whether the defendant was in the
treatment room with A.C.R. when the police spoke with her.
¶ 10 Nurse Candida Nunez (Nurse Nunez) testified that she worked in the emergency
department at St. Joseph Hospital on June 11, 2013, when A.C.R. arrived at the hospital.
Although Nurse Nunez could not recall why A.C.R. needed treatment, she applied a cast and
sling on A.C.R.’s arm based on a doctor’s directives.
¶ 11 Nurse Practitioner Erica Gaddy (Nurse Gaddy) testified that she worked in the emergency
department of Rush Hospital on February 26, 2012, when A.C.R. was admitted for chin pain,
headache, and jaw pain. Nurse Gaddy observed a large bruise on A.C.R.’s chin, which was
swollen and had a pocket of blood. A.C.R., who then received pain medication and an X-ray,
told Nurse Gaddy that her injuries resulted from slipping and falling in the shower. Nurse
Gaddy recalled that someone else was present when she spoke with A.C.R., but that she did not
know the identity of that person.
¶ 12 Officer Debbie Stolfe (Officer Stolfe) testified that at about 10:30 a.m. on June 9, 2013, she
was dispatched to an emergency treatment room at Rush Hospital where she spoke with A.C.R.
Officer Stolfe observed a cut to A.C.R.’s right eyebrow, bruising on her arms and left cheek,
and red marks on the front of her neck. Officer Stolfe could not remember whether anyone else
was present during her conversation with A.C.R., who informed the officer that at about 3:30
a.m., she was coming home from a night of partying and drinking when an unknown male
assailant tried to grab her purse and struck her in the face. The unknown assailant ran away
when A.C.R. started kicking and screaming, after which A.C.R. notified her boyfriend about
the incident. A.C.R. also informed Officer Stolfe that it was not until several hours later, at
about 10:30 a.m., that the defendant drove her to Rush Hospital. Although Officer Stolfe found
this delay to be odd, she did not ask any follow-up questions about it. A.C.R. did not receive
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any medical treatment prior to arriving at Rush Hospital. During the conversation, Officer
Stolfe noticed that A.C.R. was fully aware of her surroundings and did not slur her words.
¶ 13 Officer Richard Revolorio (Officer Revolorio) testified that on August 6, 2013, A.C.R. and
her parents arrived at the police station to file a police report against the defendant regarding
the June 9, 2013, incident. A.C.R. was crying and her parents were also emotional. Officer
Revolorio noticed that A.C.R. had a bandaged wrist and laceration or injury on one side of her
face.
¶ 14 Following Officer Revolorio’s testimony at trial, the State rested. The trial court then
denied defense counsel’s motion for a directed finding of acquittal. The defense elected not to
call any witnesses, and the trial court admitted into evidence several defense exhibits
(Defendant’s Exhibit Nos. 1 to 9), which were text messages and photographs introduced
during A.C.R.’s cross-examination testimony. Following closing arguments, the trial court
found the defendant guilty of the charged crime, finding A.C.R.’s testimony to be credible.
Thereafter, the defendant was sentenced to one year of probation, along with mandated
domestic violence counseling classes and an order of protection against him.
¶ 15 On August 20, 2014, the trial court denied the defendant’s motion for a new trial. On
September 26, 2014, the defendant filed a timely notice of appeal, which conferred jurisdiction
upon this court pursuant to Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013), and Rule 606
(eff. Jan. 1, 2013).
¶ 16 ANALYSIS
¶ 17 We determine the following relevant issues on appeal: (1) whether the statute allowing for
the admission of the defendant’s prior offenses of domestic violence against A.C.R. was
unconstitutional; (2) whether the trial court erred in admitting into evidence the defendant’s
three prior acts of domestic violence against A.C.R.; and (3) whether the trial court erred in
finding the defendant guilty of the charged offense on the basis that the court believed A.C.R.’s
trial testimony to be credible.
¶ 18 We first determine whether section 115-7.4 of the Code, the statute allowing for the
admission of the defendant’s prior offenses of domestic violence against A.C.R., was
unconstitutional.
¶ 19 The defendant challenges the constitutionality of section 115-7.4 of the Code by arguing
that it violated the equal protection and due process clauses of the Illinois and United States
Constitutions. He argues that there was no rational basis for the admission of other-crimes
evidence where he has no prior criminal record, was not charged with these alleged prior bad
acts, and was only charged with a misdemeanor domestic battery offense in the instant case. He
further argues that other defendants charged with more serious crimes such as murder,
drug-trafficking, and weapon-related offenses are afforded greater protections by Illinois
courts concerning the admissibility of other-crimes evidence than he who was charged only
with a misdemeanor.
¶ 20 The State argues that section 115-7.4 of the Code is constitutional, arguing that it is
rationally related to the legitimate governmental purpose of promoting the prosecution of
domestic violence, a family of crimes that have historically been difficult to prosecute. The
State argues that our supreme court’s decision in People v. Dabbs, 239 Ill. 2d 277 (2010), has
already rejected as meritless the defendant’s due process arguments with respect to the statute.
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Further, the State argues that the defendant’s equal protection claims fail also because the
statute is rationally related to the prosecution of recidivist abusers, whose victims are often
reluctant to testify.
¶ 21 A constitutional challenge to a statute may be raised at any time and is subject to de novo
review. People v. Robinson, 2011 IL App (1st) 100078, ¶ 12. Statutes carry a strong
presumption of constitutionality and a party challenging the constitutionality of a statute has
the burden of rebutting that presumption. People v. Cornelius, 213 Ill. 2d 178, 189 (2004). To
rebut the presumption, the challenging party must clearly establish a constitutional violation.
People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 200 (2009). We must construe a statute so as
to uphold its constitutionality, if reasonably possible to do so. People v. Dinelli, 217 Ill. 2d 387,
397 (2005). Thus, any doubt as to the construction of a statute will be resolved in favor of its
validity. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 307 (2008).
¶ 22 Section 115-7.4 of the Code states in relevant part the following:
“(a) In a criminal prosecution in which the defendant is accused of an offense of
domestic violence ***, evidence of the defendant’s commission of another offense or
offenses of domestic violence is admissible, and may be considered for its bearing on
any matter to which it is relevant.
(b) In weighing the probative value of the evidence against undue prejudice to the
defendant, 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 (West 2012).
¶ 23 In Illinois, it is well settled that as a common-law rule of evidence, evidence of other
crimes is admissible if relevant for any purpose other than to show a defendant’s propensity to
commit crimes. Dabbs, 239 Ill. 2d at 283. Such purposes include, but are not limited to, to
show motive, intent, identity, and accident or absence of mistake. Id. Even if offered for a
permissible purpose, such evidence will not be admitted if its prejudicial effect substantially
outweighs its probative value. Id. at 284. The rationale for this rule is not that a defendant’s bad
character, as evinced by other bad acts, is irrelevant when he is charged with a crime; rather,
the rule is grounded in the concern that such evidence proves too much. Id. By enacting section
115-7.4 of the Code, however, the legislature has abrogated, in part, this common-law
propensity rule as it creates an exception by allowing the admission of propensity evidence in
domestic violence cases. Id. at 284-85, 288; People v. Chapman, 2012 IL 111896, ¶ 32 (citing
Dabbs holding that section 115-7.4 of the Code allows for the admission of propensity
evidence).
¶ 24 In the case at bar, the defendant specifically argues that section 115-7.4 is unconstitutional
as it violates his right to due process because it allows for evidence of prior bad acts to be
“presumptively admissible” under the statute. We find the defendant’s argument to be without
merit as it has already been squarely rejected by our supreme court in Dabbs.
¶ 25 In Dabbs, following a jury trial wherein the defendant’s ex-wife testified that he had
abused her, the defendant was convicted of domestic battery against his girlfriend. Dabbs, 239
Ill. 2d at 280. The ex-wife’s testimony was admitted pursuant to section 115-7.4 of the Code,
which allows the admission of evidence of a defendant’s other acts of domestic violence in a
domestic violence prosecution. Id. On appeal, the Dabbs defendant, like the defendant in the
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case at bar, argued that section 115-7.4 was unconstitutional. Id. Before our supreme court, the
Dabbs defendant argued that, in enacting section 115-7.4, the legislature made evidence of a
defendant’s other acts of domestic violence admissible “without regard to its relevance or to
the balance of probative value and risk of undue prejudice.” Id. at 288. The Dabbs court
rejected this argument, finding that section 115-7.4 had abrogated, in part, the Illinois
common-law evidentiary rule that evidence of other crimes is inadmissible to show a
defendant’s propensity to commit crimes. Id. at 284. Furthermore, our supreme court noted
that the legislature “specifically provided that other-crimes evidence ‘may be considered for its
bearing on any matter to which it is relevant’ ” (id. at 290 (quoting 725 ILCS 5/115-7.4(a)
(West 2012))) and that “the statute lists three factors to be considered in weighing the probative
value of the evidence against undue prejudice to the defendant [citation] in addition to any
other factors that the court might ordinarily consider.” (Internal quotation marks omitted.) Id.
at 290-91. Because of this, the Dabbs court held that “the plain meaning of section 115-7.4 of
the Code is that the 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.” Id. at 291. The Dabbs court further held that, under the rational basis test, the
statute does not violate a defendant’s due process rights because it serves a legitimate
governmental purpose of promoting effective prosecution of domestic violence crimes in
which victims are often reluctant to testify against abusers or their court testimony may be
affected by fear or anxiety and the admission of evidence that the defendant has committed
other crimes of domestic violence is rationally related to that purpose. Id. at 293-94; accord
Chapman, 2012 IL 111896, ¶ 32 (citing Dabbs holding that section 115-7.4 did not violate due
process and that “the propensity rule is of common law origin and not of constitutional
dimension”). Thus, in the case at bar, under the controlling precedent of Dabbs, the
defendant’s due process claim cannot stand, and we reject his argument that evidence of prior
acts of domestic violence is “presumptively admissible” under the statute—as the plain
language of the statute dictates that a court may only admit such evidence if it is relevant and
the risk of prejudice does not outweigh its probative value. Further, although the defendant
points out that he has no prior criminal record, was never charged with these alleged prior bad
acts, and was only charged with a misdemeanor domestic battery offense in the instant case, we
find that the argument he makes does not address the admissibility of prior acts under section
115-7.4 of the Code.
¶ 26 The defendant urges this court not to follow Dabbs, arguing that there is “some authority”
supporting his argument that admission of other-crimes evidence can rise to the level of a due
process violation, by citing United States v. Morena, 547 F.3d 191 (3d Cir. 2008), and Bigby v.
Cockrell, 340 F.3d 259 (5th Cir. 2003). We reject the defendant’s argument. First, aside from
decisions by the United States Supreme Court, decisions by lower federal courts are persuasive
but not binding on Illinois reviewing courts. See Mekertichian v. Mercedes-Benz U.S.A.,
L.L.C., 347 Ill. App. 3d 828, 834-36 (2004). We, however, are bound by the decisions of the
Illinois Supreme Court. Id. at 836. Second, neither Morena nor Cockrell is persuasive, as these
cases do not concern section 115-7.4 of the Code and both predate Dabbs. Morena involved a
reversal of defendant’s weapon convictions on the basis of prosecutorial misconduct in
violation of due process, where although the court had initially ruled that evidence of
defendant’s drug use and dealing was admissible to show motive, the State repeatedly crossed
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the line at trial by systematically injecting the drug evidence with no apparent proper purpose,
despite explicit warnings by the trial court not to do so. Morena, 547 F.2d at 194-96. The
Cockrell decision is no longer good law as it was withdrawn and replaced by a subsequent
decision, Bigby v. Dretke, 402 F.2d 551 (5th Cir. 2005), which held that prejudicial evidence
admitted during defendant’s capital murder trial regarding his attack on the trial judge, even if
it violated defendant’s due process rights, did not have “substantial and injurious” effect on the
jury’s guilty verdict in light of the overwhelming evidence of his guilt for murder. Id. at 564.
Neither Morena nor Dretke is applicable to the facts of the case at bar. Therefore, we see no
reason to deviate from our supreme court’s holding in Dabbs that the admission of
other-crimes evidence pursuant to section 115-7.4 does not violate due process. Accordingly,
the defendant’s due process claim must fail.
¶ 27 The defendant further argues that section 115-7.4 of the Code is also unconstitutional
because it violates equal protection guarantees in that other defendants charged with more
serious crimes such as murder, drug-trafficking, and weapon-related offenses are afforded
greater protections concerning the admissibility of other-crimes evidence than he who was
charged only with misdemeanor domestic battery. He contends that the admission of his prior
acts of domestic violence for propensity purposes violated his equal protection rights.
¶ 28 The State counters that the defendant’s equal protection claim fails because section 115-7.4
is rationally related to the prosecution of recidivist abusers, whose victims are often reluctant
to testify. The State argues that while our supreme court in Dabbs did not address the merits of
the defendant’s equal protection challenge to section 115-7.4 under state and federal
constitutions because the defendant had only raised this point before the appellate court but
had abandoned the argument by the time the case reached our supreme court (Dabbs, 239 Ill.
2d at 294), the appellate court, whose opinion the Dabbs court affirmed, did address the equal
protection issue and found it to be without merit. See People v. Dabbs, 396 Ill. App. 3d 622
(2009). We agree that the appellate court’s equal protection analysis in Dabbs is sound, and we
likewise adopt it.
¶ 29 In conducting an equal protection analysis, we apply the same standards under the United
States Constitution and the Illinois Constitution. In re Derrico G., 2014 IL 114463, ¶ 88. The
equal protection clause guarantees that similarly situated individuals will be treated in a similar
fashion, unless the government can demonstrate an appropriate reason to treat them
differently. Id. The equal protection clause does not forbid the legislature from drawing proper
distinctions in legislation among different categories of people, but it does prohibit the
government from doing so on the basis of criteria wholly unrelated to the legislature’s purpose.
Id. Where no suspect class or fundamental rights are at issue, this court applies a rational basis
scrutiny and considers whether the challenged classification bears a rational relationship to a
legitimate governmental purpose. Id.
¶ 30 In 2007, the Illinois General Assembly passed Public Act 95-360 (Pub. Act 95-360 (eff.
Aug. 23, 2007)), which created section 115-7.4 of the Code. The bill was “modeled on the
current treatment of evidence in cases of criminal sexual assault” set forth in section 115-7.3 of
the Code (725 ILCS 5/115-7.3 (West 2006)). 95th Ill. Gen. Assem., Senate Proceedings, May
28, 2007, at 47 (statements of Senator Harmon). It was created as a tool for law enforcement
and victims because “domestic violence is a recurring crime in the same way that sexual abuse
and sexual assault is.” 95th Ill. Gen. Assem., House Proceedings, Apr. 25, 2007, at 46
(statements of Representative Gordon).
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¶ 31 Section 115-7.4 of the Code is nearly identical to section 115-7.3 of the Code. The only
major difference between the sections is the crime involved: section 115-7.3 deals with prior
incidents of sexual abuse, while section 115-7.4 covers prior incidents of domestic violence.
See 725 ILCS 5/115-7.3(b) (West 2006); 725 ILCS 5/115-7.4(a) (West 2012). Both sections
provide that evidence that the defendant committed these prior crimes can be admissible and
“may be considered for its bearing on any matter to which it is relevant.” See 725 ILCS
5/115-7.3(b) (West 2006); 725 ILCS 5/115-7.4(a) (West 2012). They also identically list the
three factors that a court may consider in weighing the probative value of the evidence against
undue prejudice to the defendant. See 725 ILCS 5/115-7.3(c) (West 2006); 725 ILCS
5/115-7.4(b) (West 2012). Both our supreme and appellate courts have examined the
constitutionality of section 115-7.3 (dealing with prior incidents of sexual abuse) and found it
to be constitutional. See People v. Donoho, 204 Ill. 2d 159 (2003); People v. Beaty, 377 Ill.
App. 3d 861 (2007).
¶ 32 In Donoho, our supreme court held that section 115-7.3 of the Code does not violate the
equal protection clause. Donoho, 204 Ill. 2d at 177; accord Beaty, 377 Ill. App. 3d at 883. The
Donoho court explained that section 115-7.3 is modeled after Federal Rules of Evidence 413
and 414 (Fed. R. Evid. 413, 414). Donoho, 204 Ill. 2d at 177. The Donoho court ruled that, like
Rules 413 and 414, section 115-7.3 only had to pass the rational basis test because “[s]exual
offense defendants are not a suspect class.” Id.
¶ 33 Because our supreme court in Donoho has found section 115-7.3 to not be in violation of a
defendant’s equal protection rights, section 115-7.4, which is nearly identical to section
115-7.3, must also be constitutional under equal protection guarantees. We find that section
115-7.4 bears a rational relationship to a legitimate governmental purpose, and thus, it does not
violate equal protection guarantees.
¶ 34 The defendant further argues that because propensity evidence is not allowed in more
serious crimes such as murder, drug trafficking, and weapon-related offenses, it is irrational
that he, who is charged only with misdemeanor domestic battery, should be subject to the
admission of propensity evidence. In support, he cites a number of cases wherein courts have
held that the admission of other-crimes evidence was prejudicial error. See People v. Manning,
182 Ill. 2d 193 (1998); People v. Cruz, 162 Ill. 2d 314 (1994); People v. Thingvold, 145 Ill. 2d
441 (1991); People v. Starks, 116 Ill. App. 3d 384 (1983); People v. Barnes, 182 Ill. App. 3d 75
(1989); United States v. Beasley, 809 F.2d 1273 (7th Cir. 1987); United States v. Richards, 719
F.3d 746 (7th Cir. 2013). We find the defendant’s argument to be unpersuasive, as these cited
cases deal with the common-law approach to other-crimes evidence as we have exhaustively
explained. Therefore, the defendant’s equal protection claim must fail. Accordingly, we hold
that section 115-7.4 of the Code is not unconstitutional.
¶ 35 We next determine whether the trial court erred in admitting into evidence the defendant’s
three prior acts of domestic violence against A.C.R. It is within the sound discretion of the trial
court to determine the admissibility of other-crimes evidence, and its decision will not be
disturbed absent a clear abuse of discretion. See Chapman, 2012 IL 111896, ¶ 19. An abuse of
discretion occurs where the trial court’s ruling is arbitrary, fanciful, unreasonable, or where no
reasonable person would take the view adopted by the trial court. People v. Jackson, 2014 IL
App (1st) 123258, ¶ 39.
¶ 36 The defendant argues that a new trial is warranted by claiming that the trial court
“prejudicially erred” in admitting evidence of his three prior incidents of domestic violence
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against A.C.R., where the admission of such propensity evidence replaced the necessary proof
required to convict him of the charged offense in the instant case.
¶ 37 The State argues that the trial court properly admitted evidence of the defendant’s prior
acts of domestic violence against A.C.R. pursuant to section 115-7.4 of the Code. The State
points out that, in allowing the introduction of three out of six proposed prior incidents of
domestic violence involving the defendant, the trial court properly found that the other-crimes
evidence was relevant to establish the defendant’s intent, the absence of mistake, his continued
hostility toward A.C.R., and his propensity to commit acts of domestic violence. The State also
argues that the trial court then carefully weighed the probative value of the other-crimes
evidence against its prejudicial effect under section 115-7.4 of the Code, which was not an
abuse of discretion.
¶ 38 Based on our review of the record, we cannot conclude that the trial court abused its
discretion in admitting evidence of the three prior incidents of domestic violence involving the
defendant and A.C.R. Prior to trial, a hearing on the State’s motion to admit six incidents of
prior domestic violence was held, during which the parties made arguments before the court.
The trial court then found that, because three of the six prior incidents (July 20, 2011; January
11, 2013; and May 2, 2013) were not supported by any corroborating evidence, they were not
admissible as the prejudicial effect of admitting those incidents would outweigh the probative
value. The remaining three prior incidents (February 10, 2012; February 26, 2012; and August
18, 2012), however, were found to be admissible by the court because they were supported by
corroborating evidence such that the probative value was not outweighed by the prejudicial
effect of the evidence. The trial court further found that the February 10, February 26, and
August 18 occurrences were relevant to show the defendant’s motive, intent, or absence of
mistake in harming A.C.R.1 and that, in considering the statutory factors under section 115-7.4
of the Code, they were close in time to the charged offense and had a high degree of factual
similarity to the instant case. See 725 ILCS 5/115-7.4 (West 2012) (enumerating factors for a
court to consider in weighing the probative value of the evidence against undue prejudice). We
find that in admitting the three specific prior incidents of domestic violence involving the
defendant, the trial court properly considered the statutory factors and properly undertook the
weighing process, by carefully balancing the probative value against the prejudicial effect of
the evidence as required by section 115-7.4 of the Code. Thus, we cannot say that the trial court
abused its discretion in admitting into evidence the prior incidents of February 10, February
26, and August 18. See People v. Jackson, 2014 IL App (1st) 123258, ¶¶ 42-45 (other-crimes
evidence properly admitted under section 115-7.4 of the Code, where the prior acts were
proximate in time to the charged offense, the prior incidents were factually similar to the
1
Although not articulated by the trial court, evidence of the February 10, February 26, and August
18 incidents was also relevant as propensity evidence under section 115-7.4 of the Code, as the trial
court had carefully applied the balancing test in weighing the probative value of the evidence against its
prejudicial effect and had considered the statutory factors listed under the statute. See People v. Ward,
2011 IL 108690, ¶ 25 (“propensity evidence is often highly relevant”); People v. Johnson, 2013 IL App
(2d) 110535, ¶ 7 (the legislature, by enacting section 115-7.4 of the Code, has made exceptions to the
common-law rule against the use of other-crimes evidence to show a defendant’s propensity to commit
crimes; evidence of a defendant’s commission of prior qualifying offense may be admitted so long as
the trial court, after weighing certain statutory factors, determines that the probative value of the
evidence is not substantially outweighed by the risk of undue prejudice).
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charged offense, and the trial court twice acknowledged that it undertook the weighing process
in balancing the probative value against the prejudicial effect).
¶ 39 Nevertheless, the defendant argues that the trial court abused its discretion in admitting the
three prior incidents of domestic violence, citing cases in which the reviewing court found
error in the trial court’s admission of other-crimes evidence: People v. Barbour, 106 Ill. App.
3d 993 (1982); People v. Alford, 111 Ill. App. 3d 741 (1982); People v. McKee, 52 Ill. App. 3d
689 (1977); People v. Manning, 182 Ill. 2d 193 (1998); People v. Moore, 2012 IL App (1st)
100857. We find these cases to be distinguishable, as none of them involves the offense of
domestic violence or a similar type of secretive and recurring crime that could be difficult to
prove. Barbour, Alford, McKee, and Manning all predate the enactment of section 115-7.4 of
the Code, which became effective on August 23, 2007, and, as discussed, made exceptions to
the common-law rule against the use of other-crimes evidence in establishing a defendant’s
propensity to commit crimes.
¶ 40 Relying on People v. Pikes, 2013 IL 115171, and People v. Adkins, 239 Ill. 2d 1 (2010), the
defendant also argues that the three prior acts of domestic violence should not have been
admitted because neither the State nor the trial court addressed the “continuing narrative”
doctrine in admitting such evidence. We reject this contention as meritless. Evidence of other
crimes may be admitted if it is part of the “continuing narrative” of the charged crime because
such “uncharged crimes do not constitute separate, distinct, and disconnected crimes.” Pikes,
2013 IL 115171, ¶ 20. The “continuing narrative” doctrine was not at issue in the case at bar, as
the trial court properly admitted the other-crimes evidence as relevant for the purposes of
demonstrating the defendant’s motive, intent, or absence of mistake in harming A.C.R. Just
because the trial court did not base its ruling on another permissible basis—the continuing
narrative doctrine—did not necessarily mean that the trial court’s ruling was erroneous. Thus,
the defendant’s argument on this basis must fail.
¶ 41 We likewise reject the defendant’s challenge to the admission of other-crimes evidence on
the basis that the amount of such evidence comprised, as measured by about 65 of the 205
pages of the trial transcript, approximately 30% of the State’s case at trial. Citing to Barbour,
106 Ill. App. 3d 993, a rape case in which testimony about prior alleged rapes comprised of
about 52% of the State’s case, he argues that the admission of propensity evidence in the case
at bar erroneously replaced the necessary proof required to convict him of the charged offense
in the instant case. First, contrary to the defendant’s calculation, our examination of the record
shows that the entirety of the trial, from opening statements to the trial court’s guilty finding,
consisted of only 176 total pages and that A.C.R.’s testimony about the three prior incidents of
domestic violence by the defendant consisted of about 27 pages of the transcript during the
State’s case-in-chief. Second, we find Barbour to be entirely inapposite to the case at bar. In
Barbour, the reviewing court had held that the other-crimes evidence “had no permissible
use,” whereas here, the evidence had a number of permissible purposes for which it could be
used—including to show the defendant’s propensity to commit domestic violence under
section 115-7.4 of the Code. See People v. Ross, 395 Ill. App. 3d 660, 677 (2009)
(distinguishing Barbour on grounds where other-crimes evidence was admitted to show
motive, lack of consent, and propensity). Thus, the defendant is not entitled to relief under
Barbour. See People v. Null, 2013 IL App (2d) 110189, ¶ 44 (rejecting defendant’s contention
that admission of other-crimes evidence became the focus of the trial, where evidence of other
crimes accounted for a mere 250 pages of the trial record and evidence of the charged crime
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constituted 1200 pages). Accordingly, we conclude that the trial court did not abuse its
discretion in admitting the three prior incidents of domestic violence, where its ruling was not
arbitrary, fanciful, or unreasonable.
¶ 42 We next determine whether the trial court erred in finding the defendant guilty of the
charged offense on the basis that the court believed A.C.R.’s trial testimony to be credible.
¶ 43 The defendant argues that a new trial is warranted on the basis that the trial court should not
have accepted A.C.R.’s trial testimony as credible, claiming that it was inherently improbable
and that the trial court’s comments during its ruling showed that it used impermissible “private
knowledge” dehors the record to render the guilty verdict against him.
¶ 44 The State counters that the trial court’s credibility determination was reasonable and
correct, arguing that the evidence at trial overwhelmingly established the defendant’s guilt and
the trial court did not consider any improper evidence in finding him guilty of the charged
crime.
¶ 45 Although unclear in the defendant’s opening brief, we find that his arguments, which he
confirms in the reply brief, essentially challenge the sufficiency of the evidence at trial.
¶ 46 When the sufficiency of the evidence is challenged on appeal, we must determine
“ ‘whether, after 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.’ ”
(Emphasis in original.) People v. Graham, 392 Ill. App. 3d 1001, 1008-09 (2009) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A reviewing court affords great deference to
the trier of fact and does not retry the defendant on appeal. People v. Smith, 318 Ill. App. 3d 64,
73 (2000). It is within the province of the trier of fact “to assess the credibility of the witnesses,
determine the appropriate weight of the testimony, and resolve conflicts or inconsistencies in
the evidence.” Graham, 392 Ill. App. 3d at 1009. The trier of fact is not required to accept any
possible explanation compatible with the defendant’s innocence and elevate it to the status of
reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 229 (2009). A reviewing court will
not substitute its judgment for that of the trier of fact. People v. Sutherland, 223 Ill. 2d 187, 242
(2006). A reviewing court must allow all reasonable inferences from the record in favor of the
State. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). A criminal conviction will not be
reversed “unless the evidence is so improbable or unsatisfactory that it creates a reasonable
doubt as to the defendant’s guilt.” Graham, 392 Ill. App. 3d at 1009.
¶ 47 A person commits domestic battery “if he or she knowingly without legal justification by
any means: (1) [c]auses bodily harm to any family or household member; (2) [m]akes physical
contact of an insulting or provoking nature with any family or household member.” 720 ILCS
5/12-3.2 (West 2012).
¶ 48 Viewing the evidence in the light most favorable to the State, we find that the trier of fact
could reasonably have found that the defendant committed domestic battery upon A.C.R. on
June 9, 2013. A.C.R. testified in detail at trial about the verbal and physical altercation that
transpired between the defendant and herself on June 9, 2013, including how, after arriving
home with the defendant from a night of partying and drinking, they argued and engaged in a
physical fight that resulted in her being hit on the left side of her face before losing
consciousness. Although A.C.R. did not testify to actually seeing the defendant’s hand hit her
face, because no one else was inside the apartment during the fight and A.C.R. testified that the
defendant later told her that she deserved everything that happened to her, a trier of fact could
reasonably infer that the defendant had hit her in the face. A.C.R. testified that she awoke on
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the floor covered in blood and noticed her face was severely swollen with a large gash over her
right eye. A.C.R. also testified that she eventually sought treatment at Rush Hospital, where
she received five stitches over her right eye. Two days after the altercation, A.C.R. was still in
pain and unable to use her left arm, for which she sought further medical treatment at St.
Joseph Hospital, where X-rays revealed a fracture of her left arm requiring it to be put into a
cast. A.C.R. did not report the physical abuse to the police until August 2013, and at trial, she
explained the delay by testifying that she was scared to report the defendant and, further, she
was still in love with the defendant at the time of the incident. Photographic evidence depicting
the injuries sustained from the June 9, 2013, incident was admitted into evidence. A.C.R.
further testified to three prior incidents in which the defendant deliberately hit, punched, and
injured her in 2012. The State also presented testimonial evidence by Nurse Wuthenow, Nurse
Nunez, and Nurse Gaddy, who testified to the extent of A.C.R.’s injuries during A.C.R.’s June
9, 2013; June 11, 2013; and February 26, 2012, hospital visits, respectively. Based on this
evidence, we conclude that the trier of fact could reasonably have concluded that the defendant
committed domestic battery upon his girlfriend, A.C.R., on June 9, 2013.
¶ 49 In finding the defendant guilty, the trial court rejected defense counsel’s argument that
A.C.R. could not be trusted in light of her repeated lies to others about what really occurred on
June 9, 2013. The court found that photographs and medical evidence corroborated A.C.R.’s
testimony at trial, noting that although she had previously lied to others about what had really
occurred on June 9, 2013, the “changing of her stories actually added to her credibility”
because they were designed to protect the defendant at the time of the incidents. Had A.C.R.
not actually been a victim of domestic violence and “something else had happened,” the court
reasoned, she would have “stuck to the one story, and it wouldn’t have changed like two or
three [times].” The trial court noted that while A.C.R. had misled others about the truth of what
had happened, the act of photographing her injuries corroborated, rather than undermined,
what A.C.R. testified to at trial: “[s]o every time she gets mysteriously injured, she takes
pictures of herself because she wants to ultimately hold it against her boyfriend of two and a
half years? I don’t think that makes any sense to be honest. I know that’s what the defense is
trying to argue, but I just don’t think that’s credible.” The trial court further found that A.C.R.
likely stayed in the relationship despite the physical abuse because she loved the defendant and
that A.C.R. fabricated lies about her injuries at the time of the various incidents in order to
protect the defendant.
¶ 50 Notwithstanding the foregoing, the defendant challenges the sufficiency of the trial
evidence, by first arguing that the trial court erred in finding A.C.R.’s testimony to be credible,
where it was “inherently improbable” and an “oddity” for the trial court to conclude that
A.C.R.’s shifting stories about how she had sustained her injuries actually enhanced her
credibility. In support, the defendant cites a number of cases, which we find inapposite and
distinguishable. See People v. Wright, 147 Ill. App. 3d 302 (1986); People v. O’Connor, 412
Ill. 304 (1952); People v. Buchholz, 363 Ill. 270 (1936); People v. Kepler, 76 Ill. App. 2d 135
(1966); United States v. Rosenberg, 416 F.2d 680 (7th Cir. 1969); People v. Salinas, 383 Ill.
App. 3d 481, 502-05 (2008) (Cunningham, J., dissenting). None of these cases involves
domestic battery convictions in which a victim might lie to protect the abuser. Wright,
O’Connor, Buchholz, and Kepler are rape cases in which the reviewing courts reversed the
defendants’ convictions based on the defendant’s “good reputation” (Buchholz) or where the
complainants’ testimony was not found to be “clear and convincing” (Wright, O’Connor, and
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Kepler), a heightened standard that has been viewed as “sexist anachronism” and has since
been abandoned in Illinois by our supreme court’s decision in People v. Schott, 145 Ill. 2d 188
(1991). Rosenberg is a federal appellate case which concerns a conspiracy conviction and has
nothing to do with assessing the sufficiency of the evidence based on a witness’s testimony.
The dissenting opinion in Salinas, a drug possession case, also does nothing to support
defendant’s argument. The dissent in Salinas points out that the State’s main witness was
“impeached as to a critical element of his testimony, coupled with his incredible testimony
regarding how the drugs came to be discovered in the defendant’s car,” thereby requiring
suppression of the defendant’s statement to the police and, thus, necessitating reversal of his
conviction. Salinas, 383 Ill. App. 3d at 502-03 (Cunningham, J., dissenting). We find this
dissenting view in Salinas to be inapposite to the case at bar. Thus, the trial court’s finding that
A.C.R.’s testimony was credible, which was within its province as trier of fact to do so, should
not be second-guessed by this court. Sutherland, 223 Ill. 2d at 242. Therefore, the defendant’s
argument on this basis cannot stand.
¶ 51 The defendant next attacks the sufficiency of the trial evidence by arguing that the trial
court impermissibly used “private knowledge” dehors the record in making its ruling. The
State counters this claim as meritless, arguing that the complained-of comments made during
the trial court’s ruling did not constitute the court’s private knowledge.
¶ 52 The relevant comments by the trial court are as follows:
“You know, we can all ask every day why a person like [A.C.R.] would stay in a
relationship with a person who’s battering them, but I don’t think that, that’s something
that she did because she said she loved him, and it’s not the first time that’s happened,
and so I think that it’s completely credible that she stayed because she loved him even
though he continued to batter her.” (Emphasis added.)
Relying on People v. Wallenberg, 24 Ill. 2d 350 (1962), the defendant argues that the italicized
portion of the court’s comments shows that the trial court incorporated its personal knowledge
in making its ruling, in violation of due process.
¶ 53 Deliberations of the trial court are limited to the record, and any determination based upon
private knowledge of the court, untested by cross-examination, constitutes a denial of due
process. People v. Thomas, 364 Ill. App. 3d 91, 99-100 (2006). Every presumption will be
accorded the trial court that it considered only admissible evidence in reaching its conclusion.
Id. at 100. However, a defendant may rebut this presumption with recorded statements by the
trial court. Id.
¶ 54 We find Wallenberg, the defendant’s cited authority, to be distinguishable from this case.
In Wallenberg, the defendant’s alibi maintained that at the time of the robbery he had a soft tire
and was looking for a gas station on a certain route in the City of Chicago. Wallenberg, 24 Ill.
2d at 353. The trial court, in finding the defendant guilty, stated: “ ‘He told me there was no gas
stations on that stretch of the street where he could get air. I happen to know different. I don’t
believe his story.’ ” Id. at 353-54. Our supreme court reversed the conviction, holding that it
was error for the trial court to make a determination based on its personal knowledge. Id. at
354-55.
¶ 55 We find the case at bar to be distinguishable from Wallenberg. Viewing the complained-of
remark within the context of the entirety of the court’s ruling, we find that, unlike Wallenberg,
it was a benign comment which did not form the basis of the court’s finding that A.C.R.
testified credibly about the specific facts pertaining to the abuse or its ultimate ruling in finding
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the defendant guilty. Rather, the record shows that the trial court thoroughly summarized
A.C.R.’s testimony about the June 9, 2013, incident that gave rise to the charged offense, as
well as her testimony about the three prior incidents of domestic violence and the supporting
photographic evidence, which formed the basis of the trial court’s determination of guilt. Thus,
we find that the defendant has not rebutted the presumption that the trial court only considered
admissible evidence in reaching its conclusion. Accordingly, we hold that the evidence was
sufficient to sustain the defendant’s conviction for misdemeanor domestic battery.
¶ 56 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 57 Affirmed.
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