                                    2016 IL App (1st) 143177

                                                                    FIRST DIVISION
                                                                    AUGUST 15, 2016

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THE PEOPLE OF THE STATE OF ILLINOIS,                         )       Appeal from the
                                                             )       Circuit Court of
                      Plaintiff-Appellee,                    )       Cook County.
                                                             )
            v.                                               )       No. 13 DV 74550
                                                             )
DAVID JENK,                                                  )       Honorable
                                                             )       Laura Bertucci-Smith,
                      Defendant-Appellant.                   )       Judge Presiding.

       PRESIDING JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
       Justices Connors and Harris concur 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
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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

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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,

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

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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

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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, 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 towards 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

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and ran his car into a pole in the parking garage. After the crash, A.C.R. ran towards 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

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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 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.

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¶ 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 any



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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

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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. Further,

the State argues that the defendant’s equal protection claims fails also because the statute is

rationally related to the prosecution of recidivist abusers, whose victims are often reluctant to

testify.

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¶ 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

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commit crimes. Dabbs, 239 Ill. 2d at 283. Such purposes include, but are not limited 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 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

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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

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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

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

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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

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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).

¶ 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

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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 Evidence Rules 413 and

414 (Fed. Rs. 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);

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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

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

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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

        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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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 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

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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—

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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 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.’ ”

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(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.

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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 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, 2103, 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

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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.

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

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defendant’s “good reputation” (Buchholz) or where the complainants’ testimony was not found

to be “clear and convincing” (Wright, O’Connor, and 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

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               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 his 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

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credibly about the specific facts pertaining to the abuse, or its ultimate ruling in finding 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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