People v. Watts

2022 IL App (4th) 210590 FILED
December 15, 2022
Carla Bender
NO. 4-21-0590 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Pike County
CLAYTON G. WATTS, ) No. 20CF51
Defendant-Appellant. )
) Honorable
) Alan D. Tucker,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court, with opinion.
Presiding Justice Knecht concurred in the judgment and opinion.
Justice Doherty specially concurred, with opinion.
OPINION
¶1 On July 22, 2021, a jury found defendant, Clayton G. Watts, guilty of criminal
sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2018)) and aggravated criminal sexual abuse (720
ILCS 5/11-1.60(d) (West 2018)) in connection with the sexual assault of L.W. The assault occurred
after L.W. snuck out of her home to go driving with defendant, who had been drinking alcohol and
had made suicidal statements.
¶2 On appeal, defendant contends the trial court erred when it (1) admitted propensity
evidence under section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/115-7.3 (West 2020)) of three other sexual assaults of young women who had also met defendant
and rode in a vehicle with him when he had been drinking; (2) admitted testimony from
defendant’s former girlfriend stating defendant had made statements about self-harm to manipulate
her; (3) admitted evidence of memes found on defendant’s phone indicating beliefs it was
appropriate to sexually assault incapacitated women; and (4) committed cumulative error. To the
extent defendant forfeited issues for review, he contends plain error and ineffective assistance of
counsel apply. We find no error. Accordingly, we affirm.
¶3 I. BACKGROUND
¶4 In April 2020, the State charged defendant in connection with the November 21,
2019, sexual assault of L.W., who was 14 at the time of the offense. Defendant was 21 at that time.
¶5 A. L.W.’s Assault and Propensity Evidence
¶6 At the preliminary hearing, sheriff deputy Chastity Anderson testified she observed
L.W.’s interview conducted by a Child Advocacy Center employee. In the interview, L.W. stated
she knew defendant as a family friend. He previously dated her cousin, and after they split up, her
father befriended defendant, helped him, and treated him like family. On November 21, 2019,
defendant sent L.W. messages she believed were suicidal, and he asked L.W. to meet him. Between
11 p.m. and midnight, L.W. snuck out of her house to meet defendant. She could tell he had been
drinking. The interviewer did not ask L.W. if she had anything to drink.
¶7 Defendant and L.W. drove around and talked. L.W. stated she could tell defendant
was “coming on to her,” but she did not think it would go any further than that. L.W. asked
defendant to take her home, and he stopped the vehicle at the end of her driveway, which was very
long. Defendant asked L.W. to wait, prevented her from exiting the vehicle, and then forced
himself on top of her. She tried to scream, but he covered her mouth. Defendant took off L.W.’s
pants and underwear, rubbed his genitals on her thigh, put a condom on, and penetrated her vagina
with his penis. L.W. told him to stop and told him “[y]ou don’t want to do this.” L.W. reported
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defendant was “not able to finish” and became aggravated. L.W. quickly dressed herself and got
out of the vehicle. Defendant told her “[l]ove you lots,” and the next day, he sent a message stating
“[t]hanks for a great night.” L.W. took a long shower after the incident and did not report it until
March 2020, when she spoke to a school counselor about it.
¶8 The State filed a motion in limine seeking to introduce evidence under section
115-7.3 of the Code to show defendant’s propensity to commit sexual assault. The evidence
consisted of three previous instances in which defendant allegedly sexually assaulted three
different women, M.M., D.C., and J.N. Separate hearings were held regarding each of the
allegations.
¶9 At the first hearing, M.M. testified defendant was a friend of her husband, Trevor,
and he frequently stayed at their house. On Friday, October 18, 2019, Trevor was at work, and
M.M., who was 23 at the time, went out drinking at two different bars with defendant and two
other men, Kenny Little and Chase Howland. She became intoxicated and did not remember
arriving at the second bar, but remembered defendant drove her home after the bars closed. She
could not remember anything else about the night. When M.M. woke up the next morning, Trevor
was in her bed, and defendant was in the spare bedroom. M.M. testified she felt “dirty” in her
vaginal area when she woke up, like she had not cleaned up properly after sexual activity. She
described the feeling as “sticky” and “like semen.” M.M. knew she did not have sex with Trevor,
as he did not arrive home until after 7 a.m., and she was not severely drunk at that time. Around
Tuesday or Wednesday she thought about that feeling and had a memory of defendant on top of
her with his hand on her stomach, breast, and vaginal area. M.M. did not tell Trevor about the
incident until the allegation about J.N. came out.
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¶ 10 At the second hearing, D.C. testified she dated defendant for a couple of months
approximately two years earlier. They were intimate at that time, but then D.C. did not see
defendant again until May 2018 when she saw him at a party. She was 20 years of age at that time.
Defendant then texted D.C. and asked if she wanted to “hang out.” D.C got in a vehicle with
defendant and two other men, Jaime Howland and Hayden Kessinger, and they drove around on
back roads drinking alcohol and became intoxicated. They stopped for bathroom breaks and once
for D.C. and Jaime to swim in a river, where she stripped down to her bra and underwear to swim.
The men then dropped D.C. off at her house.
¶ 11 About 10 minutes later, defendant texted D.C. and asked her to come over to his
father’s house, where he lived. D.C. was very intoxicated but could remember what happened. She
testified she went to defendant’s room, and defendant and Jaime were on defendant’s bed wearing
boxer shorts. She remembered laying in between defendant and Jaime on the bed and defendant
kissed her. She felt Jaime force his fingers inside of her and then she blacked out. When she woke
up, she did not have pants or underwear on, and defendant and Jaime were standing in front of the
bed pulling up their pants. Defendant told D.C. she had to leave before his sister got there, and she
got dressed and left. When D.C. arrived home, she used the bathroom and discovered she was
bleeding, which she believed was caused by forced trauma. The next day, defendant called her and
asked if she told her mother what happened. Defendant told D.C. she “was down for it,” and D.C.
told him she “was not down for it” and she consented to hanging out with him but did not consent
to him touching her body. Defendant asked D.C. if she told her mother he raped her, and D.C. said
“no.” She testified she viewed rape as pinning someone down and using force and, at that point in
time, she had no idea what had happened. Defendant kept trying to get D.C. to agree she did not
say “no” or “stop” to him. D.C. later learned defendant recorded the conversation. D.C. sought
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medical attention a couple of days later, and a rape kit was performed, but D.C. had not received
the results.
¶ 12 At the third hearing, J.N. testified she knew defendant through friends and her
brother, Brenton. Around October 30, 2019, when she was 19 years of age, defendant sent J.N. a
Snapchat message asking her if she wanted to “road trip.” J.N. met defendant and two others,
Brenton and Daniel Howland. The group drove around on back roads drinking alcohol. J.N.
testified they were very intoxicated. J.N. stated she weighed around 135 pounds and estimated she
consumed about 10 beers. After about three hours, the group went to Daniel’s house. Eventually
Daniel stayed home, and Brenton went to an apartment he shared with his girlfriend. J.N. went
with defendant where she “crashed at his house that night,” with the idea defendant would drive
her home in the morning.
¶ 13 J.N. laid down in defendant’s bed. Defendant asked her for a kiss, and she testified:
“I did give him a kiss on the lips. It was not a make-out kiss.” She then fell asleep, wearing a shirt,
sweatshirt, underwear, and leggings. J.N. later woke up without pants on. A phone light was
shining on her bottom half, and defendant was trying to insert his penis into her vagina. He then
penetrated her without her consent. J.N. asked “[w]hat the f*** are you doing?” Defendant
pretended he was asleep, and she shoved him. While J.N. found her pants and got dressed, she
repeated her question and began yelling at defendant, who said “[w]hat are you talking about?”
Defendant seemed confused and asked her to be quiet. Defendant’s sister knocked on the door,
asked what was going on, and offered J.N. a ride home. J.N. declined and walked to Brenton’s
apartment. She told Brenton and his girlfriend what happened and called the police. She had a
vaginal swab at the hospital as part of a sexual assault kit. Test results indicated a “likely match”
to defendant. J.N. stated she did not feel defendant forcefully tried to rape her, but she felt very
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violated because she did not give him consent. She admitted she once previously stayed with
defendant after drinking and engaged in consensual sex with him.
¶ 14 Zack Orr, chief deputy with the Pike County Sheriff’s Office, testified he reviewed
text messages from defendant’s phone and found messages from defendant’s father sent in the
early morning of October 30, 2019, asking “[w]hat’s going on?” and “[w]ho is it and why is she
crying so much?” Defendant responded, “I don’t even know.” Defendant’s father gave a statement
to a police deputy and said he heard yelling but did not see anybody.
¶ 15 The trial court heard arguments concerning the propensity evidence and took
judicial notice of the preliminary hearing. In a written order, the court found the evidence relevant
and admissible for showing propensity. The court further determined the probative value of the
evidence was not substantially outweighed by its risk of unfair prejudice. The court discussed the
evidence at length. The court noted the proximity in time of the incidents and found sufficient
similarities between them. In particular, the trial court found the women were familiar with
defendant, considered him a friend, and were comfortable being around him socially or being alone
with him. In each situation defendant consumed alcohol and drove “around the countryside for a
few hours” in a vehicle with the victim before the assault. The court also found each of the adult
women was intoxicated and unable to give consent, while L.W. was unable to consent because of
her age, and the incapacitation of the women, “either by age or intoxication” was known to the
defendant. The court found the differences among the assaults insufficient to be fatal to
admissibility of the evidence.
¶ 16 Shortly before trial, the defense sought to bar additional evidence concerning DNA
results, which defendant said was disclosed at a late date and would lead to a “mini-trial” of the
issue of J.N.’s assault. In response to the State’s request, the trial court expressed the following
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concern: “[i]f you want it in we’ll let it in but I think you’re going to lose your jury. You’re going
to be going down the rabbit hole here but that’s just my opinion.” The trial court ultimately allowed
the additional evidence.
¶ 17 At trial, L.W. testified consistently with her pretrial testimony but added details as
to how she knew defendant. L.W. testified defendant had mostly communicated with her on
Snapchat and he would remove her from social media anytime he had a new girlfriend, telling her
his girlfriend did not like her. She said when defendant had been drinking, he would become sad
and say he could hurt himself. He previously had asked L.W. to sneak out and meet him, but she
refused. According to L.W, on the night of the assault, defendant “was saying some really weird
stuff worse than usual about how he could hurt himself and how he could get stuff to hurt himself.”
He told L.W. he needed to see her, and she agreed. However, as L.W. testified, defendant made
no further statements about self-harm once she was in his car. She said, “[i]t was just kind of like
the subject just disappeared.” L.W. also confirmed she did not drink alcohol that night. The day
after the assault, when defendant messaged L.W. on Snapchat stating “[t]hank you for a great
night,” L.W. did not respond and removed defendant from all social media.
¶ 18 M.M., D.C., and J.N. also generally testified consistently with their pretrial
testimony. D.C. added she received the results of her sexual assault kit, which found no male DNA.
M.M. admitted she shared defendant’s exhibit 2, consisting of social media post that read: “In the
girl’s group chat like teehee so which innocent man should we all accuse of sexual misconduct
today!? We’ll probably get death threats, ppl saying we’re lying whores, our nudes leaked, address’
doxed, and careers ruined but haha what a fun prank[.]” M.M. stated the post was sarcastic and
intended to highlight how bad it was to be a victim of sexual assault, especially once it becomes
known by the public.
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¶ 19 Additional witnesses testified at trial to corroborate the propensity evidence. For
example, D.C.’s sister testified she saw blood in the toilet and D.C. crying on the night defendant
assaulted D.C. Little testified about meeting M.M. with defendant. Trevor testified he did not have
sex with M.M. on the night of her assault. Defendant’s father testified about his text messages to
defendant on the night of J.N.’s assault. Brenton testified J.N. told him defendant raped her, and
he and his girlfriend called the police and went to the hospital where J.N. was examined. The
officer who transported J.N. to the hospital and the nurse who performed an examination also
testified. A DNA expert testified about the test results.
¶ 20 B. Evidence of Statements Concerning Self-Harm
¶ 21 Before trial, the State filed a motion in limine seeking to admit testimony from
L.W.’s cousin, Madelyn, who would testify she previously dated defendant and he frequently
threatened self-harm to get her to do something he wanted. For example, every month or two
Madelyn would confront defendant about his cheating, alcohol consumption, or toxicity of the
relationship, and defendant would respond by threatening to harm himself. Madelyn would then
feel bad for him, and they would end up staying together. The State argued the evidence was
relevant to show defendant’s “opportunity, preparation, plan, knowledge, and absence of mistake
or accident, in that he purposefully orchestrated the events that led to [L.W.] agreeing to sneak out
of her home, and then he committed a sexual assault against her.” Defense counsel argued the
evidence was not presented at the hearings concerning propensity evidence and could not be used
to prove modus operandi, which required greater similarity between the incidents.
¶ 22 The trial court found the evidence was used to show context why L.W. met
defendant on the night of her assault. The court noted it did not find the evidence particularly
harmful, as L.W. was already going to testify about statements of self-harm. The court also said it
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would keep the matter “on the short leash” and limited it to the context of why L.W. met with
defendant. At trial, Madelyn’s testimony on the matter was brief and consistent with the facts as
set forth in the State’s motion.
¶ 23 C. Evidence of Memes on Defendant’s Phone
¶ 24 The State also filed a motion in limine seeking to present memes found in a data
extraction from defendant’s phone. The memes were created and modified on the phone on
October 22, 2019, four days after the alleged incident with M.M, eight days before the alleged
incident with J.N., and just under one month before the sexual assault of L.W. The memes were
three photos with accompanying text, which the State argued expressed “the idea that a male has
a right to have sexual relations with a female who is not consenting or who is unable to give
consent.”
¶ 25 The first meme was a series of five photos depicting two men arguing, with the
accompanying text:
“[MAN 1]: Why did you have sex with her?
[MAN 2]: She was lying there naked, what was I supposed to do?!
[MAN 1]: The autopsy, the f*** autopsy!
[MAN 2]: Don’t tell me how to do my job!
[MAN 1]: You are the worst vet on earth!”
¶ 26 The second meme depicted a photo of a sleeping woman, who appeared to have
Down syndrome and whose upper body was bare. The accompanying text stated: “Women are like
parking spots[.] Usually, the best ones are taken…so when no one is looking—stick it in the
disabled one.”
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¶ 27 The third meme depicted a photo of the actor Tom Cruise laughing with the text:
“When she says don’t cum in me, but you already did five minutes ago and are smashing her with
a floppy.”
¶ 28 The State argued the memes were admissible under section 115-7.3 to show
propensity and admissible to show defendant’s state of mind and knowledge that certain females
did not consent to his sexual advances. Based on the content of the memes and the proximity in
time of their creation to several of the assaults, the trial court found they were relevant to
defendant’s state of mind.
¶ 29 At trial, the parties stipulated to the chain of custody of defendant’s phone. Orr
testified about the extraction process of items on defendant’s phone. Each meme was “created”
and “modified” with the same time stamp, and each listed the source file as defendant’s phone.
The memes were created and modified within minutes of each other and within a matter of seconds
to a text message conversation between defendant and Claire Stein, who was defendant’s girlfriend
at the time. Defense counsel objected, arguing Kyle Chumley, the detective who prepared the
extraction report, had not yet testified to give full foundation. The court stated counsel could renew
the objection if Chumley testified. When Chumley did so, he provided additional details about the
extraction process. The record does not show an additional objection about foundation.
¶ 30 Stein testified and identified texts she exchanged with defendant on October 22,
2019. She also testified defendant was a member of a group chat that exchanged memes and videos.
However, she had not seen the memes that were recovered from defendant’s phone.
¶ 31 D. Additional Evidence, Verdict, and Posttrial Motion
¶ 32 A total of 19 witnesses testified over three days. In addition to law enforcement
testimony, L.W.’s testimony, and testimony from the witnesses who were subject to motions
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in limine, L.W.’s parents testified. L.W.’s mother stated L.W. lacked social skills and suggested
L.W. “may be on the spectrum somewhere.” In a video interview with Orr, defendant denied the
allegations.
¶ 33 The jury found defendant guilty of both charges. Defendant filed a motion for a
new trial, arguing newly discovered evidence in the form of a cell phone used by defendant that
allegedly contained evidence defendant was with Stein around the time frame of the alleged sexual
assault on L.W. He also included an affidavit from Stein recanting part of her testimony. He raised
no issues regarding evidentiary rulings at trial. The trial court denied the motion. The court merged
the convictions and sentenced defendant to 10 years’ incarceration. This appeal followed.
¶ 34 II. ANALYSIS
¶ 35 Defendant contends the trial court abused its discretion in allowing propensity
evidence, allowing evidence of his previous statements of self-harm, allowing the memes into
evidence, and committing cumulative error.
¶ 36 Initially, we note the State argues defendant has forfeited review of the issues on
appeal because he failed to raise them in his posttrial motion. A defendant must object at trial and
raise the issue in a posttrial motion to preserve an issue for review. People v. Hestand, 362 Ill.
App. 3d 272, 279 (2005). “We require this of defendants because failure to raise the issue at trial
deprives the circuit court of an opportunity to correct the error, thereby wasting time and judicial
resources.” People v. Jackson, 2022 IL 127256, ¶ 15. However, defendant argues the errors
amount to plain error and his counsel was ineffective for failing to preserve them. Illinois’s plain
error rule “is a narrow exception to forfeiture principles.” People v. Moon, 2022 IL 125959, ¶ 21.
“ ‘The plain-error doctrine allows a court to disregard a defendant’s forfeiture and
consider unpreserved error in two instances: “(1) where a clear or obvious error
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occurred and 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 and (2) where a clear or obvious error occurred and that error is so serious that
it affected the fairness of the defendant’s trial and challenged the integrity of the
judicial process.” ’ ” People v. Logan, 2022 IL App (4th) 210492, ¶ 70 (quoting
People v. Matthews, 2017 IL App (4th) 150911, ¶ 16).
Forfeiture may also be set aside when a defendant contends trial counsel was ineffective for not
preserving the error. People v. Collins, 2021 IL App (1st) 180768, ¶ 32. Such a claim requires
counsel to have made an objectively unreasonable decision resulting in prejudice to the defendant.
Collins, 2021 IL App (1st) 180768, ¶ 32. However, whether we review this case for plain error or
for ineffective assistance of counsel, we begin by determining whether an error actually occurred.
See People v. Sargent, 239 Ill. 2d 166, 189 (2010) (“[The] court typically undertakes plain-error
analysis by first determining whether error occurred at all.”); People v. Mahaffey, 194 Ill. 2d 154,
173 (2000), overruled on other grounds by People v. Wrice, 2012 IL 111860, ¶ 75 (noting
ineffective assistance of counsel cannot be established where no error occurred).
¶ 37 A. Propensity Evidence
¶ 38 Defendant first contends the trial court abused its discretion in allowing evidence
under section 115-7.3 regarding the sexual assaults of M.M., D.C., and J.N. He argues the evidence
was unduly prejudicial because the assaults were not sufficiently similar to the sexual assault of
L.W. and the evidence was so substantial it became a “mini-trial” within the trial.
¶ 39 Evidence of other crimes is generally inadmissible to show a defendant’s propensity
to commit the charged criminal conduct. People v. Donoho, 204 Ill. 2d 159, 170 (2003). Such
evidence, while relevant, is excluded because it “has ‘too much’ probative value.” Donoho, 204
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Ill. 2d at 170 (quoting People v. Manning, 182 Ill. 2d 193, 213 (1998)). Instead, “[e]vidence of
other offenses may be admissible to demonstrate ‘motive, intent, identity, absence of mistake,
modus operandi, or any other relevant fact other than propensity.’ ” People v. Smith, 2015 IL App
(4th) 130205, ¶ 21 (quoting People v. Vannote, 2012 IL App (4th) 100798, ¶ 37). “ ‘Indeed, other-
crimes evidence is admissible to prove any material fact other than propensity that is relevant to
the case.’ ” People v. Johnson, 368 Ill. App. 3d 1146, 1154 (2006) (quoting People v. Spyres, 359
Ill. App. 3d 1108, 1112 (2005)).
¶ 40 However, other-crimes evidence demonstrating propensity may be admissible
under section 115-7.3 when a defendant is charged with one of the enumerated sex offenses in the
statute. People v. Ward, 2011 IL 108690, ¶ 25; 725 ILCS 5/115-7.3(a) (West 2020) (listing the
offenses of criminal sexual assault and aggravated criminal sexual abuse). “The other offenses
must have a threshold similarity to the charged conduct to be admissible.” Smith, 2015 IL App
(4th) 130205, ¶ 23.
¶ 41 “ ‘Where other-crimes evidence meets the initial statutory requirements, the
evidence is admissible if it is relevant and its probative value is not substantially outweighed by
its prejudicial effect.’ ” Smith, 2015 IL App (4th) 130205, ¶ 21 (quoting Vannote, 2012 IL App
(4th) 100798, ¶ 38). When weighing the probative value of the other-crimes evidence against any
undue prejudice against the defendant, section 115-7.3(c) permits the trial court to consider (1) the
proximity in time to the charged offense, (2) the degree of factual similarity to the charged offense,
or (3) other relevant facts and circumstances. 725 ILCS 5/115-7.3(c) (West 2020). The trial court
must, however, “engag[e] in a meaningful assessment of the probative value versus the prejudicial
impact of the evidence.” Donoho, 204 Ill. 2d at 186.
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¶ 42 A trial court’s decision to admit other-crimes evidence will not be reversed on
appeal absent an abuse of discretion. Donoho, 204 Ill. 2d at 182. “An abuse of discretion has
occurred when the trial court’s decision is arbitrary, fanciful, or unreasonable or when no
reasonable person would take the position adopted by the trial court.” People v. Wilson, 2015 IL
App (4th) 130512, ¶ 75.
¶ 43 Defendant does not argue the evidence was inadmissible based on the proximity in
time to the charged offense, nor does the record show the proximity of the events would
legitimately be of concern. See, e.g., Donoho, 204 Ill. 2d at 184 (holding while the lapse of 12 to
15 years may lessen the probative value of other-crimes evidence, it is insufficient by itself to find
an abuse of discretion existed in its admission). As to the similarities in the events, relying
primarily on People v. Lamonica, 2021 IL App (2d) 200136, defendant argues the propensity
evidence was not sufficiently similar to the charged offenses for its probative value to outweigh
the prejudice caused by its admission.
¶ 44 In Lamonica, the State charged the defendant with aggravated criminal sexual
assault. Lamonica, 2021 IL App (2d) 200136, ¶ 4. At trial, the victim, L.L., testified she met the
defendant through a dating app and met him at a wine restaurant. After becoming intoxicated, L.L.
invited the defendant to her apartment. Lamonica, 2021 IL App (2d) 200136, ¶¶ 8-9. L.L. gave
testimony indicating she was willing to have sex with the defendant, but he was unduly forceful
with her. When L.L. told the defendant he was hurting her, she became afraid he would become
violent and did not resist until the pain became so bad that she shoved him off her. She admitted
the defendant never threatened her, held her down, or grabbed her so hard she could not release
his grip. Lamonica, 2021 IL App (2d) 200136, ¶¶ 11-13. She reported the incident to the police
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after learning the defendant had been arrested for another offense. Lamonica, 2021 IL App (2d)
200136, ¶ 16.
¶ 45 At trial, the court admitted propensity testimony from E.S., who testified she met
the defendant at a bar and became intoxicated. The defendant accompanied her to her apartment,
where she went to sleep. During the night the defendant removed her bra and underwear. The next
morning E.S. told the defendant she did not want to have sex with him, but he got on top of her
and penetrated her, and she was unable to push him off. Afterward, E.S. asked the defendant to
leave, and he would not do so. They argued for about an hour before he left. E.S. went to the
hospital where a rape kit was completed. Lamonica, 2021 IL App (2d) 200136, ¶¶ 18-24. The State
also presented evidence from the sexual assault examiner and a DNA expert.
¶ 46 On appeal from the defendant’s conviction, the Second District reversed based on
insufficient evidence of use or threat of force. Lamonica, 2021 IL App (2d) 200136, ¶ 46. The
court then nevertheless found the trial court abused its discretion in admitting the propensity
evidence. The court noted L.L. testified the defendant penetrated her in the evening, after their
date, while she was drunk, while E.S. testified the defendant forcefully penetrated her in the
morning when she was sober. The court stated, other than the defendant inviting the women to
wine bars, the two incidents bore little resemblance to one another in any significant way.
Lamonica, 2021 IL App (2d) 200136, ¶ 54. The court further stated the evidence of other crimes
was extensive and unnecessary. Lamonica, 2021 IL App (2d) 200136, ¶ 54.
¶ 47 However, in People v. Kelley, 2019 IL App (4th) 160598, this court distinguished
meaningful factual differences from incidental ones, especially in the context of an
abuse-of-discretion standard of review. There, we noted when the identity of the perpetrator was
not at issue and the State was not offering the evidence to show modus operandi, more general
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areas of similarity are sufficient to support admissibility. Kelley, 2019 IL App (4th) 160598, ¶ 105.
As such, the objective is not to identify factual differences for the sake of identifying factual
differences. Instead, the differences must logically matter. “[T]hey have to be relevant, in a
commonsensical way, to the probative value of the previous offense as propensity evidence.”
Kelley, 2019 IL App (4th) 160598, ¶ 105. For example, in disagreeing with a Second District case,
this court stated:
“If on one occasion [the defendant] committed sexual assault with the assistance of
someone else and on the next occasion he committed sexual assault unassisted, the
previous occasion still would be evidence that he had a propensity to commit sexual
assault. The same would be true if on the previous occasion the defendant used a
car and on the next occasion he did not do so or if on the previous occasion he blew
cocaine into the victim’s face and on the next occasion he did not do so. Such
factual differences are incidental and meaningless unless the identity of the
perpetrator is at issue and the State pursues a theory of modus operandi, the proof
of which always requires ‘a high degree of identity between the facts of the crime
charged and [those of] the other offense.’ (Internal quotation marks omitted.)”
Kelley, 2019 IL App (4th) 160598, ¶ 105 (quoting People v. Cruz, 162 Ill. 2d 314,
349 (1994).
¶ 48 Applying the above reasoning, this court held the admission of propensity evidence
was not an abuse of discretion when the factual differences arguably did not greatly reduce the
probative value of the testimony. In doing so, this court further noted “our standard of review is
the most deferential standard of review known to the law.” Kelley, 2019 IL App (4th) 160598,
¶ 106 (citing People v. Radojcic, 2013 IL 114197, ¶ 33).
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¶ 49 Here, we apply the reasoning from Kelley. The differences among the offenses are
much less meaningful under Kelley than they were in Lamonica. The sexual assaults of M.M.,
D.C., and J.N. were all introduced to show a propensity to commit sexual assault and shared
multiple facts in common with the sexual assault of L.W. In each case, defendant invited young
women who felt safe being alone with him to meet him. Each woman rode in a vehicle with
defendant when defendant had consumed alcohol. He then sexually assaulted them afterward. In
each case, the women were unable to legally consent. The primary factual differences, that L.W.
did not drink and could not consent because of her age, did not greatly reduce the probative value
of the evidence to show defendant had a propensity to commit sexual assault. Other differences
such as the location of the assaults is inconsequential.
¶ 50 Defendant particularly argues L.W. was forcibly assaulted and the other women
were not, but the overriding similarity in all cases was a clear pattern of defendant inviting young
women to meet with him when he had been drinking and then sexually assaulting them. The trial
court carefully considered the similarities and differences among the offenses and did not abuse
its discretion in determining there were sufficient similarities to admit the evidence.
¶ 51 Defendant also argues the propensity evidence improperly became the focal point
of the trial, leading to undue prejudice. In doing so, he relies in part on Lamonica and People v.
Cardamone, 381 Ill. App. 3d 462 (2008). He also spends a significant portion of his brief
distinguishing People v. Walston, 386 Ill. App. 3d 598 (2008).
¶ 52 “Our supreme court has urged trial courts ‘to be cautious in considering the
admissibility of other-crimes evidence to show propensity by engaging in a meaningful assessment
of the probative value versus the prejudicial impact of the evidence.’ ” People v. Perez, 2012 IL
App (2d) 100865, ¶ 47 (quoting Donoho, 204 Ill. 2d at 186). “When weighing the prejudicial effect
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of admission, a court should consider whether the other-crimes evidence will become the focus of
the trial, or whether it might otherwise be misleading or confusing to the jury.” Perez, 2012 IL
App (2d) 100865, ¶ 47 (citing People v. Boyd, 366 Ill. App. 3d 84, 94 (2006)). The overriding
rationale for not permitting “mini-trials” of a collateral offense is due to the risk that it will cause
unfair prejudice to the defendant, jury confusion, or delay. Walston, 386 Ill. App. 3d at 619.
¶ 53 In Walston, the Second District addressed the issue of “mini-trials” in the context
of section 115-7.3 cases and determined the danger of unfair prejudice to a defendant was not as
great as in common-law other-crimes cases. Walston, 386 Ill. App. 3d at 619-20. Specifically, the
court stated:
“[T]he danger of unfair prejudice in the context of a section 115-7.3 case, as opposed
to a common-law other-crimes case, is greatly diminished. *** [T]he common-law
rule against other-crimes evidence is essentially a per se application of the rule that
unfairly prejudicial evidence should not be admitted even if probative. [Citation.]
When the legislature enacted section 115-7.3, it upended this rule with respect to
the types of crimes listed in the section, so that not only is other-crimes evidence
offered to show propensity no longer per se unfairly prejudicial, it is actually
proper. As a result, the danger of unfair prejudice in a section 115-7.3 case may still
exist, but it is much less pronounced than in a common-law other-crimes case.
[Citation.] Accordingly, while a ‘mini-trial’ of a collateral offense can cause undue
prejudice in a section 115-7.3 case, it is not necessary in such a case that a court
‘carefully limit[ ] the details of the other crime to what is necessary to “illuminate
the issue for which the other crime was introduced” ’ [citation] to the extent
required in common-law other-crimes cases.” Walston, 386 Ill. App. 3d at 619-20.
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¶ 54 In People v. Bates, 2018 IL App (4th) 160255, ¶ 89, this court relied on Walston in
finding no impermissible “mini-trial” following the admission of propensity evidence under
section 115-7.3. There, the State’s other-crimes evidence included testimony from the defendant’s
alleged victim in another case, testimony from a nurse who evaluated that victim, a forensic
scientist who testified the defendant’s DNA was found on swabs taken from the previous victim,
and an interrogation video related to the other crime. Bates, 2018 IL App (4th) 160255, ¶ 88. We
stated the “mini-trial” in that case “was necessary to establish [the] defendant’s involvement in the
attack on [the other victim].” Bates, 2018 IL App (4th) 160255, ¶ 89.
¶ 55 Relying on Lamonica and Cardamone, defendant attempts to distinguish Walston
and Bates, arguing the amount of propensity evidence became the focal point of the trial. He
contends the “vast majority” of the evidence consisted of propensity evidence, most of which was
cumulative and unnecessary. We disagree.
¶ 56 In Cardamone, the Second District noted there might be times when the sheer
volume of other-crimes evidence renders it unduly prejudicial. Cardamone, 381 Ill. App. 3d at
496-97. There, the trial court admitted testimony regarding at least 158 uncharged acts against 15
victims. Cardamone, 381 Ill. App. 3d at 491, 494. On appeal, the Second District held the volume
of the other-crimes evidence was overwhelming and undoubtedly more prejudicial than probative.
Cardamone, 381 Ill. App. 3d at 497. The court further found the “admission of so many allegations
of uncharged conduct, many of which were vague as to dates, placed [the] defendant in the
impossible position of accounting for his whereabouts and behavior almost all day, every day, over
a three-year period.” Cardamone, 381 Ill. App. 3d at 494.
¶ 57 “Simply put, Cardamone was an extreme case.” Perez, 2012 IL App (2d) 100865,
¶ 49. Thus, as the Second District has also recognized, “Cardamone did not purport to hold that
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anytime the evidence of other crimes outnumbers that of the charged incidents, the prejudicial
effect renders the other-crimes evidence inadmissible.” Perez, 2012 IL App (2d) 100865, ¶ 49.
Instead, Cardamone was a case of “ ‘prosecutorial overkill.’ ” See Walston, 386 Ill. App. 3d at 618
(quoting People v. Funches, 59 Ill. App. 3d 71, 73 (1978)). Thus, in Kelley, this court relied on
Walston and noted propensity evidence would amount to a “mini-trial” only if it “was so
overabundant as to ‘cause jury confusion or unnecessary delay.’ ” Kelley, 2019 IL App (4th)
160598, ¶ 110 (quoting Walston, 386 Ill. App. 3d at 620).
¶ 58 In the case before us, we find Walston and Bates best address the issues presented
by the facts rather than Cardamone and Lamonica. To the extent defendant argues corroborating
other-crimes evidence is not allowed under section 115-7.3, we disagree. As held in Bates, where
not only the testimony of the alleged other-crime victim was presented, but also evidence
corroborating that victim’s testimony, such evidence may be necessary to establish the defendant’s
involvement in the other crime and, thus, the defendant’s propensity for committing sex offenses.
Bates, 2018 IL App (4th) 160255, ¶ 89.
¶ 59 There is no question the acts against M.M., D.C., and J.N. were highly probative
and part of a clear pattern of sexual assaults by defendant. While we recognize the total amount of
propensity evidence was significant, we also observe it was limited to three principal victims who
provided specific dates and details of the assaults, and the testimony of each corroborating
witnesses was comparatively short. The propensity evidence was relatively straightforward and
not the vague “prosecutorial overkill” as seen in Cardamone. We further note, unlike in Lamonica,
where the victim’s testimony contained inconsistencies confusing to the jury, here L.W.’s
testimony was clear, as was the propensity testimony.
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¶ 60 Ultimately, we again stress the importance of the standard of review. At exactly
what point the quantity of evidence becomes unduly prejudicial is left to the trial court’s discretion,
and reviewing courts have noted that “it is difficult to determine precisely where to draw the line.”
Cardamone, 381 Ill. App. 3d at 497.
“Thus, while undue prejudice can arise in a section 115-7.3 case, ‘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 that governs review of such trial
court decisions.’ ” (Emphasis in original.) Perez, 2012 IL App (2d) 100865, ¶ 49
(quoting Walston, 386 Ill. App. 3d at 621).
Overall, the trial court here did not abuse its discretion in allowing the propensity evidence, as it
was not so great it caused unfair prejudice to the defendant, jury confusion, or delay. See Walston,
386 Ill. App. 3d at 619-20.
¶ 61 B. Evidence of Statements About Self-Harm
¶ 62 Defendant next contends the trial court abused its discretion in in allowing Madelyn
to testify about defendant’s statements of self-harm. He argues the evidence was not admissible to
show propensity and was not relevant for any other purpose. The State argues the evidence was
admissible as part of a continuing course of conduct.
¶ 63 Evidence is relevant if it has any tendency to make the existence of any fact
consequential to the determination of an action either more or less probable than it would be
without the evidence. Ill. R. Evid. 401 (eff. Jan. 1, 2011). Illinois Rule of Evidence 404(b) (eff.
Jan. 1, 2011) provides evidence of other crimes, wrongs, or acts may be admissible for purposes
other than to show propensity, such as such as proof of motive, opportunity, intent, preparation,
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plan, knowledge, identity, or absence of mistake or accident. Evidence may also be permissibly
used to show, by similar acts or incidents, that the act in question was not performed inadvertently,
accidently, involuntarily, or without guilty knowledge. People v. Brown-Engel, 2018 IL App (3d)
160368, ¶ 21 (citing 1 John W. Strong, McCormick on Evidence § 190, at 660, 664 (5th ed. 1999)).
¶ 64 Evidence of other crimes or bad acts may also be admissible when part of a
continuing narrative of the events giving rise to the offense, intertwined with the charged offense,
or it explains an aspect of the charge that would otherwise be implausible or inexplicable. People
v. Patterson, 2013 IL App (4th) 120287, ¶ 58. Thus, events forming a continuing narrative, even
if they reflect negatively on the defendant, may be permitted when the events are “linked and it
would be illogical for the trial court to uncouple them and give the jury only half the story.” People
v. Pikes, 2013 IL 115171, ¶ 24. However, “evidence may not be admitted under the continuing-
narrative exception, even when the crimes occur in close proximity, if the crimes are distinct and
‘undertaken for different reasons at a different place at a separate time.’ ” People v. Adkins, 239
Ill. 2d 1, 33 (2010) (quoting People v. Lindgren, 79 Ill. 2d 129, 140 (1980)).
¶ 65 The admissibility of other-crimes evidence rests within the sound discretion of the
trial court, and its decision on the matter will not be disturbed absent a clear abuse of discretion.
People v. Heard, 187 Ill. 2d 36, 58 (1999). “Erroneous admission of other-crimes evidence calls
for reversal only if the evidence was ‘a material factor in the defendant’s conviction such that,
without the evidence, the verdict likely would have been different.’ ” Adkins, 239 Ill. 2d at 23(quoting People v. Hall, 194 Ill. 2d 305, 339 (2000)). “In other words, the evidence ‘must be so
prejudicial that the defendant is denied a fair trial.’ ” Patterson, 2013 IL App (4th) 120287, ¶ 59
(quoting People v. Pelo, 404 Ill. App. 3d 839, 865 (2010)). “An evidentiary issue is harmless when
no reasonable probability exists that the jury would have acquitted the defendant absent the error.”
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Pelo, 404 Ill. App. 3d at 865, abrogated on other grounds, People v. Veach, 2017 IL 120649,
¶¶ 39, 48.
¶ 66 Here, Madelyn’s testimony was not introduced as evidence of other crimes to show
propensity under section 115-7.3. Indeed, it was not evidence of another “crime” at all, and the
trial court did not admit it to show a general propensity to commit a crime. Instead, the trial court
admitted it to show context and a continuing narrative of the facts of the case, to further explain
why L.W. left her home to meet defendant. While defendant argues his previous statements of
self-harm to Madelyn were not sufficiently “linked” to his statements to L.W. to constitute a
continuing narrative, we disagree. The commonality of defendant’s use of statements of self-harm
to get his way helped explain facts associated with L.W.’s assault. Because L.W. had previously
refused to sneak out of her house to meet defendant, the testimony provided context as to why
defendant made such statements to convince her to do so. Further, defendant’s use of statements
of self-harm with Madelyn illustrated a reason why he also threatened self-harm to L.W. and then
did not make any further such statements once L.W. met with him. Without Madelyn’s testimony,
the reason defendant ceased making statements of self-harm once he convinced L.W. to meet him
would have been unaddressed and unclear.
¶ 67 Likewise, we further conclude the statements were evidence of an intent, motive,
or plan to convince L.W. to leave her home under false pretenses with a motive to get her to meet
defendant, not to discuss his statements of self-harm, but for other purposes. As such, the trial
court did not abuse its discretion in admitting the testimony. We may affirm the circuit court on
any basis supported by the record. People v. Dinelli, 217 Ill. 2d 387, 403 (2005).
¶ 68 Finally, even if we were to find the evidence should not have been admitted in any
respect, we cannot say it was a material factor in defendant’s convictions such that, without the
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evidence, a different verdict would likely have resulted. Here, the trial court explicitly limited the
evidence, stating it would not allow it to be used for improper purposes. The State’s questions to
Madelyn about the matter were short, consisting of only four questions. Excluding Madelyn’s
testimony, the remaining evidence presented at defendant’s trial was more than sufficient to sustain
his convictions.
¶ 69 C. Admission of Memes
¶ 70 Defendant next argues the trial court erred in allowing evidence of the memes found
on his phone. Defendant argues the memes were not relevant because of insufficient foundation to
authenticate them when there was no evidence defendant looked at the memes or “endorsed them
in some way.” The State argues the law does not require foundation showing defendant “endorsed”
the content of the memes and that it presented sufficient foundation to authenticate them.
¶ 71 While the authentication of memes appears to be a novel issue, as to a proper
foundation for admission, we treat text messages obtained from a phone like any other form of
documentary evidence. See People v. Price, 2021 IL App (4th) 190043, ¶ 115; People v. Ziemba,
2018 IL App (2d) 170048, ¶ 51. For the reasons stated below, we conclude the logic for treating
text messages obtained from a phone like any other form of documentary evidence applies equally
well to memes found on a phone.
¶ 72 There is a lack of support to treat any electronic documents, such as memes, found
on a phone, differently than any other form of documentary evidence. For example, in People v.
Chromik, 408 Ill. App. 3d 1028, 1047 (2011), the Third District relied on a North Dakota case,
State v. Thompson, 2010 ND 10, 777 N.W.2d 617, to find text messages were sufficiently
authenticated. Relying in turn on a Pennsylvania case, the Thompson court wrote:
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“ ‘Essentially, appellant would have us create a whole new body of law just
to deal with e-mails or instant messages. The argument is that e-mails or text
messages are inherently unreliable because of their relative anonymity and the fact
that while an electronic message can be traced to a particular computer, it can rarely
be connected to a specific author with any certainty. Unless the purported author is
actually witnessed sending the e-mail, there is always the possibility it is not from
whom it claims. As appellant correctly points out, anybody with the right password
can gain access to another’s e-mail account and send a message ostensibly from
that person. However, the same uncertainties exist with traditional written
documents. A signature can be forged; a letter can be typed on another’s typewriter;
distinct letterhead stationary can be copied or stolen. We believe that e-mail
messages and similar forms of electronic communication can be properly
authenticated within the existing framework of [Pennsylvania law]. We see no
justification for constructing unique rules for admissibility of electronic
communications such as instant messages; they are to be evaluated on a
case-by-case basis as any other document to determine whether or not there has
been an adequate foundational showing of their relevance and authenticity.’ ”
Thompson, 2010 ND 10, ¶ 25 (quoting In re F.P., 878 A.2d 91, 95 (Pa. Super. Ct.
2005)).
Along those lines, the Texas Court of Criminal Appeals in Tienda v. State, 358 S.W.3d 633 (Tex.
Crim. App. 2012) stated:
“Courts and legal commentators have reached a virtual consensus that, although
rapidly developing electronic communications technology often presents new and
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protean issues with respect to the admissibility of electronically generated,
transmitted and/or stored information, including information found on social
networking web sites, the rules of evidence already in place for determining
authenticity are at least generally ‘adequate to the task.’ Widely regarded as the
watershed opinion with respect to the admissibility of various forms of
electronically stored and/or transmitted information is Lorraine v. Markel
American Insurance Co. There the federal magistrate judge observed that ‘any
serious consideration of the requirement to authenticate electronic evidence needs
to acknowledge that, given the wide diversity of such evidence, there is no single
approach to authentication that will work in all instances.’ Rather, as with the
authentication of any kind of proffered evidence, the best or most appropriate
method for authenticating electronic evidence will often depend upon the nature of
the evidence and the circumstances of the particular case.” Tienda, 358 S.W.3d at
638-39.
¶ 73 The Third Circuit in the case of United States v. Browne, 834 F.3d 403 (3d Cir.
2016), also stated:
“We hold today that it is no less proper to consider a wide range of evidence
for the authentication of social media records than it is for more traditional
documentary evidence. The authentication of electronically stored information in
general requires consideration of the ways in which such data can be manipulated
or corrupted, [citation], and the authentication of social media evidence in particular
presents some special challenges because of the great ease with which a social
media account may be falsified or a legitimate account may be accessed by an
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imposter, [citation]. But the authentication rules do not lose their logical and legal
force as a result. [Citations.] Depending on the circumstances of the case, a variety
of factors could help support or diminish the proponent’s claims as to the
authenticity of a document allegedly derived from a social media website, and the
Rules of Evidence provide the courts with the appropriate framework within which
to conduct that analysis.” Browne, 834 F.3d at 412.
¶ 74 We find the reasoning of the above courts persuasive and conclude the same
reasoning applies to the authentication of the memes here. Accordingly, we address memes
obtained from a phone like any other form of documentary evidence.
¶ 75 In that regard, “ ‘[a] proper foundation is laid for the admission of documentary
evidence when the document has been identified and authenticated.’ ” Price, 2021 IL App (4th)
190043, ¶ 115 (quoting Ziemba, 2018 IL App (2d) 170048, ¶ 51). Authentication of documentary
evidence requires the proponent to present evidence the document is what the proponent claims it
to be. Price, 2021 IL App (4th) 190043, ¶ 115; see also Ill. R. Evid. 901(a) (eff. Sept. 17, 2019).
To do so, “[t]he proponent need prove only a rational basis upon which the fact finder can conclude
that the document did in fact belong to or was authored by the party alleged.” Ziemba, 2018 IL
App (2d) 170048, ¶ 51. The trial court’s finding of authentication is merely a finding there is
sufficient evidence to justify presentation of the offered evidence to the trier of fact and does not
preclude the opponent from contesting the genuineness of the writing after the authentication
requirements are satisfied. Ziemba, 2018 IL App (2d) 170048, ¶ 51 “If the court, after serving its
screening function, allows the evidence to be admitted, the issue of the document’s authorship is
ultimately for the jury to determine.” Ziemba, 2018 IL App (2d) 170048, ¶ 51.
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¶ 76 Documentary evidence may be authenticated by either direct or circumstantial
evidence. Price, 2021 IL App (4th) 190043, ¶ 117; Ziemba, 2018 IL App (2d) 170048, ¶ 52,
“ ‘Circumstantial evidence of authenticity includes such factors as appearance, contents,
substance, and distinctive characteristics, which are to be considered with the surrounding
circumstances.’ ” Price, 2021 IL App (4th) 190043, ¶ 117 (quoting Ziemba, 2018 IL App (2d)
170048 ¶ 52). “ ‘Documentary evidence, therefore, may be authenticated by its contents if it is
shown to contain information that would be known only by the alleged author of the document or,
at the very least, by a small group of people including the alleged author.’ ” Price, 2021 IL App
(4th) 190043, ¶ 117 (quoting Ziemba, 2018 IL App (2d) 170048, ¶ 52). “ ‘A trial court’s decision
to admit documentary evidence will not be reversed absent an abuse of discretion.’ ” Ziemba, 2018
IL App (2d) 170048, ¶ 50 (quoting Chromik, 408 Ill. App. 3d at 1046).
¶ 77 In Price, we recently endorsed the use of the following nonexhaustive list of factors
for a trial court to consider when determining if a party has made a prima facie showing of
authentication:
“ ‘(1) the purported sender admits authorship, (2) the purported sender is seen
composing the communication, (3) business records of an Internet service provider
or cell phone company show that the communication originated from the purported
sender’s personal computer or cell phone under circumstances in which it is
reasonable to believe that only the purported sender would have had access to the
computer or cell phone, (4) the communication contains information that only the
purported sender could be expected to know, (5) the purported sender responds to
an exchange in such a way as to indicate circumstantially that he was in fact the
author of the communication, or (6) other circumstances peculiar to the particular
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case may suffice to establish a prima facie showing of authenticity.’ ” Price, 2021
IL App (4th) 190043 ¶ 118 (quoting People v. Kent, 2017 IL App (2d) 140917,
¶ 118).
These six factors have also been cited with approval by our supreme court. People v. Brand, 2021
IL 125945, ¶ 44.
¶ 78 Here, through Orr, the State was able to establish the phone, taken from defendant
at his arrest, actually belonged to him. Defendant provided the passcode to gain access to the
phone. Indeed, no one disputed it was defendant’s phone. Orr testified the extraction report
revealed the source files for the memes were created and modified on defendant’s phone with
identical time stamps for each. Further, the phone revealed a text conversation between defendant
and his girlfriend, Stein, which she identified and thereby authenticated as well. More importantly,
the conversation with Stein happened almost contemporaneously with the “creation” or
“modification” of the memes—whether by merely opening them to view, or otherwise. That the
evidence showed the memes were created and modified while defendant exchanged text messages
with Stein provided circumstantial evidence the memes belonged to him, as it would be unlikely
anyone else had possession of his phone at that time. Stein also testified defendant belonged to a
chat group where memes were shared. The content of the memes is also not in dispute. Thus, here,
the trial court did not abuse its discretion, as there was direct and circumstantial evidence the
memes were what the State claimed them to be—memes from defendant’s phone. See Ziemba,
2018 IL App (2d) 170048, ¶ 53. At that point, after the court served its screening function, further
issues of the document’s use, authorship, or the weight they should be accorded were ultimately
for the jury to determine. See Ziemba, 2018 IL App (2d) 170048, ¶ 51.
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¶ 79 Nevertheless, defendant relies on People v. Pulliam, 176 Ill. 2d 261, 276-77 (1997),
as support for his argument the State failed to present adequate evidence to authenticate the memes.
There, the trial court allowed evidence that police found a book titled “The Force of Sex” on a
table in the defendant’s apartment two days after a murder. Pulliam, 176 Ill. 2d at 276. However,
allowing the evidence was in error when there was no testimony offered about the book’s contents
or who owned or had read the book. Therefore, the court lacked a sound basis to conclude the book
was relevant to the crime. Pulliam, 176 Ill. 2d at 277. Thus, in Pulliam, authentication was entirely
lacking. Such was not the case here.
¶ 80 Defendant also relies on Kent and Brand for the argument the State failed to show
he “endorsed” or was “responsible for” the memes. In both Kent and Brand, “authentication”
included efforts to establish the defendant was the author of questioned social media posts—a
Facebook post in Kent and messages on Facebook Messenger in Brand. Even under those
circumstances, the courts said the list of authentication factors list was not exhaustive but was
“ ‘intended only as a guide’ ” and the “ ‘ “[e]vidence may be authenticated in many ways, and as
with any piece of evidence whose authenticity is in question, the ‘type and quantum’ of evidence
necessary to authenticate a web page will always depend on context.” ’ ” Brand, 2021 IL 125945,
¶ 45 (quoting Kent, 2017 IL App (2d) 140917, ¶ 119, quoting United States v. Vayner, 769 F.3d
125, 133 (2d Cir. 2014)).
¶ 81 As previously noted, all that was required of the State in this instance, was “to
present evidence that the document is what the proponent claims it to be.” (Internal quotation
marks omitted.) Price, 2021 IL App (4th) 190043, ¶ 115. The Ziemba court recognized the State
had to present sufficient evidence to provide the fact finders with a rational basis for concluding
the document did in fact belong to or was authored by the party alleged. Ziemba, 2018 IL App (2d)
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170048, ¶ 51. Within the context of this case, the purpose of seeking to admit the memes was not
to establish defendant as the author, but to show the memes were on his phone and may have been
viewed, sent, received, or otherwise generated while he was actively using his phone.
¶ 82 We stress “[t]he bar for authentication of evidence is not particularly high.”
(Internal quotation marks omitted.) Vayner, 769 F.3d at 130. “[T]he proponent need not rule out
all possibilities inconsistent with authenticity,” but need only adduce sufficient proof so a
reasonable juror could find in favor of authenticity. (Internal quotation marks omitted.) Vayner,
769 F.3d at 130. Once an item of evidence is “authenticated” this “merely renders [evidence]
admissible, leaving the issue of [its] ultimate reliability to the jury,” for which “the opposing party
remains free to challenge the reliability of the evidence, to minimize its importance, or to argue
alternative interpretations of its meaning,” with all such challenges going to the weight of the
evidence rather than its initial admissibility. (Internal quotation marks omitted.) Vayner, 769 F.3d
at 131.
¶ 83 Here, the State presented sufficient foundation evidence to show the memes
“belonged” to defendant in that they were on his phone and created/modified at the same time as
another identified conversation with Stein, all of which took place in close temporal proximity
with the offense and two of the three sexual assaults admitted as propensity evidence. Thus, the
trial court did not abuse its discretion in allowing the evidence.
¶ 84 D. Cumulative Error
¶ 85 Finally, defendant argues cumulative error. Because we have found no error at all,
cumulative error does not apply. Likewise, plain error and ineffective assistance of counsel do not
apply.
¶ 86 III. CONCLUSION
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¶ 87 The trial court did not abuse its discretion in its evidentiary determinations.
Accordingly, for the reasons stated, we affirm the trial court’s judgment.
¶ 88 Affirmed.
¶ 89 JUSTICE DOHERTY, specially concurring:
¶ 90 In my view, the majority has reached the proper disposition in this case. For the
reasons so capably stated by the majority, I agree that it was not an abuse of discretion for the trial
court to admit the other-crimes evidence under section 115-7.3 of the Code (725 ILCS 5/115-7.3
(West 2020)) or the evidence of self-harm. While it is my view that the admission of the meme
evidence was error on the facts of this case for the reasons stated below, I believe that any error
was harmless. Thus, I agree that affirmance is required here. I write separately to address the
propriety of the admission of memes found on defendant’s phone without evidence that he
authored, agreed with, or even saw them.
¶ 91 Authentication “as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent claims.” Ill. R. Evid.
901(a) (eff. Sept. 17, 2019). Here, the State claimed that the memes were images found on
defendant’s phone. The foundational testimony offered by Orr and Chumley was sufficient to
authenticate the memes, i.e., to prove that they were found on defendant’s phone. But
authentication is not all that is required for admission of evidence; it must still be relevant. If the
State properly authenticated the memes as having been found on some other person’s phone, even
incontestable authentication of such evidence would not make it relevant to the case against this
defendant. It is still important to understand what the proponent claims the evidence proves. The
question becomes why are the memes on defendant’s phone—with no evidence of where they
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came from, whether he saw them, and whether he agreed with their content—relevant to the case
against him?
¶ 92 The following comments from Justice Wright’s concurrence in People v. Watkins,
2015 IL App (3d) 120882, ¶ 58 (Wright, J., specially concurring), capture the essence of the issue
presented here:
“I conclude that the receipt of a particular text message that has not triggered
a response from the recipient proves nothing about the habits or intentions of the
designated recipient. Based on my own experience, I emphasize that a cell phone
user cannot control the content of messages directed to a personal cell phone. In
fact, persons, both known and unknown, elect to send uninvited, unexpected, and
sometimes unwelcome text messages to other persons.” (Emphases omitted.)
¶ 93 Similarly, the State’s evidence here proved that the three memes in question were
found on defendant’s phone, but there was a complete absence of evidence showing how the
memes got there or whether defendant had even seen them, much less agreed with them. The
prosecutor argued that, while there was no evidence that defendant created the memes, “we all
know if it’s on your phone, it’s on your mind.” In the first instance, this statement is simply not
correct if the defendant had not seen the memes. But the more fundamental issue is whether we
will permit any communication received by a person as evidence of what they were thinking or
what they believe.
¶ 94 In this context, I believe that the supreme court’s decision in People v. Pulliam, 176
Ill. 2d 261 (1997), demonstrates that admission of the memes was error. In Pulliam, the defendant
was charged with, among other things, the murder and sexual assault of a child. Two days after
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the crime, a police officer found a book entitled, “The Force of Sex,” in the defendant’s apartment.
The trial court allowed this fact into evidence, but the supreme court found it to be error:
“We hold that the trial court erred in admitting the book into
evidence. First, because there was no testimony that defendant owned or
had read the book, or concerning the nature of its contents, the court had no
sound basis for concluding that the book was relevant to the crimes. Second,
the fact that the apartment was unsecured for two days before the book was
found further diminished the book’s relevance to defendant’s role in the
crimes. Given these circumstances, the trial court abused its discretion in
admitting the book.” (Emphasis added.) Id. at 276-77.
¶ 95 Here, as in Pulliam, there is no evidence that defendant read the memes or that he
agreed with them (such as might be shown if he had shared them). All we know is that they
appeared on his phone by some unspecified means. On the surface, one element of Pulliam might
seem different from the facts here, as the book at issue in Pulliam was found in an apartment which
was unsecured for two days; the implication is that another person might have planted the book.
But a cell phone is generally “unsecured” in more fundamental ways, and for much longer periods
of time. As stated by Justice Wright in her special concurrence in Watkins, a “user cannot control
the content of messages directed to a personal cell phone.” Watkins, 2015 IL App (3d) 120882,
¶ 58 (Wright, J., specially concurring).
¶ 96 The State argued that the relevance of the memes here was that they gave us some
insight into what defendant was thinking. That would surely be true if, for example, defendant had
seen the memes and shared them, or had regularly solicited memes of this nature by signing up at
some sort of website that propagates them. The evidence here, however, is simply that the memes
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were received on defendant’s phone, and mere receipt gives no insight into defendant’s thinking
any more than a newspaper on one’s porch indicates agreement with everything printed in it.
¶ 97 It is important to recognize how limited the testimony with respect to the telephone
retrieval of the memes was in this case. The evidence is that each of the three memes was “created”
at exactly the same time it was “modified,” down to the second. The State here wisely did not
argue that defendant himself “modified” the memes at such lightning speed. The extraction report
introduced as People’s exhibit No. 6 shows that the memes were found in a subdirectory of
defendant’s phone named “Thumbnails.” The State’s experts gave almost no insight into how or
why the thumbnail images were created on the phone. All we know is that their creation
approximately coincided with a time defendant was also using his phone to text Stein, but there
was no evidence that the memes were in any way a part of those or any other communications.
¶ 98 However, while I believe admission of the memes was error, I believe the error was
harmless. The admission of irrelevant evidence is subject to harmless error analysis when
overwhelming evidence supports the conviction. People v. Hobley, 159 Ill. 2d 272, 311 (1994);
People v. Gill, 54 Ill. 2d 357, 369 (1973). In this case, the evidence against defendant was
overwhelming, resulting in the error in admission of the memes being harmless beyond a
reasonable doubt.
¶ 99 For the aforementioned reasons, I specially concur.
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People v. Watts, 2022 IL App (4th) 210590Decision Under Review: Appeal from the Circuit Court of Pike County, No. 20-CF-51; the
Hon. Alan D. Tucker, Judge, presiding.
Attorneys James E. Chadd, Catherine K. Hart, and Joshua Scanlon, of State
for Appellate Defender’s Office, of Springfield, for appellant.
Appellant:
Attorneys Zachary P. Boren, State’s Attorney, of Pittsfield (Patrick Delfino,
for David J. Robinson, and John M. Zimmerman, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
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