                                   2018 IL App (1st) 161265


                                                                              FIFTH DIVISION
                                                                                  June 15, 2018

                                            No. 1-16-1265
______________________________________________________________________________
                                    IN THE

                        APPELLATE COURT OF ILLINOIS

                           FIRST JUDICIAL DISTRICT

______________________________________________________________________________


                                                             )
THE PEOPLE OF THE STATE OF ILLINOIS,                         )     Appeal from the
                                                             )     Circuit Court of
                      Plaintiff-Appellee,                    )     Cook County.
                                                             )
     v. 	                                                    )     No. 14 CR 7580
                                                             )
DONALD KRISIK,                                               )     The Honorable
                                                             )     Joseph M. Claps,
                      Defendant-Appellant. 	                 )     Judge, Presiding.
                                                             )



            JUSTICE HALL delivered the judgment of the court, with opinion.

            Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion. 


                                             OPINION

¶1      This appeal involves the applicability of the forfeiture by wrongdoing hearsay exception

to an accused Sixth Amendment right to confrontation. We find that the trial court did not

violate defendant Donald Krisik's confrontation rights by applying this hearsay exception.

¶2      Following a bench trial, defendant was convicted of aggravated battery and aggravated

domestic battery of Michelle Ghorley. At sentencing the trial court merged the conviction for
No. 1-16-1265

aggravated battery into the conviction for aggravated domestic battery.            Defendant was

sentenced as a Class X offender to 16 years' imprisonment.           Defendant now appeals his

convictions and sentence.

¶3     Defendant argues the trial court violated his constitutional Sixth Amendment right to

confront witnesses against him when it admitted Ghorley's prior out-of-court statements into

evidence. The trial court admitted the statements under the common-law doctrine of forfeiture

by wrongdoing as codified in Rule 804(b)(5) of the Illinois Rules of Evidence (Ill. R. Evid.

804(b)(5) (eff. Jan. 1, 2011)) 1.   Defendant also argues that his 16-year prison sentence is

excessive. We affirm.

¶4                                      BACKGROUND

¶5     Ghorley is defendant's former girlfriend and the mother of his young child. On April 17,

2014, during an argument at the home Ghorley shared with her family, defendant accused her of

cheating on him. He slapped her in the face, grabbed her by the throat and began choking her.

Defendant continued choking the victim until her sister, Star Ghorley, and a male family friend

intervened and restrained defendant. Defendant left the home before the police arrived, but he

was eventually arrested later the same day. Police photographs depicted bruising on Ghorley's

arm and neck.

¶6     After his arrest, defendant's bond was set at $150,000, and he remained in custody. A

petition for an order of protection was filed on Ghorley's behalf and special conditions of bond



1
  Illinois Rule of Evidence 804(b)(5) provides an exception to the rule against hearsay for "[a]
statement offered against a party that has engaged or acquiesced in wrongdoing that was
intended to, and did, procure the unavailability of the declarant as a witness." Ill. R. Evid.
804(b)(5) (eff. Jan. 1, 2011). See People v. Nixon, 2016 IL App (2d) 130514, ¶ 49.


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No. 1-16-1265

were imposed against defendant. Specifically, defendant was ordered to stay away from Ghorley


and have no further contact or communication with her. 


¶7     Following a bond hearing on August 13, 2014, the trial court lowered defendant's bond to


$90,000, but kept the bond conditions in force. The court admonished defendant that if he


interfered with the alleged victim, he would remain in custody until the case was over.


Defendant replied that he understood. Defendant did not post bond and remained in custody. 


¶8     At the trial call on September 5, 2014, defendant answered ready for trial. The State


answered that it was not ready for trial because it had been unable to locate Ghorley and other


witnesses to serve them with subpoenas. The trial court continued the case to October 23, 2014. 


¶9     In the interim, defendant posted bond on September 25, 2014, and was released from


custody. 


¶ 10   At the October 23, 2014, court date, defense counsel answered ready for trial, but


defendant requested the trial court give him extra time to retain private counsel. The State again


answered that it was not ready for trial because it had still been unable to locate Ghorley and 


other witnesses to serve them with subpoenas. The case was continued to November 24, 2014. 


¶ 11   At the November 24, 2014, court date, private counsel was granted leave to file an 


appearance on behalf of defendant. Counsel made an oral motion for the public defender to


tender its discovery. The matter was subsequently continued by agreement of the parties from


January 2015 to April 2015. 


¶ 12   At a hearing conducted on April 29, 2015, the State informed the trial court that while


defendant was in custody at the Cook County jail he violated the conditions of his bond by


telephoning Ghorley on multiple occasions and meeting with her during a jail visit.           The


prosecutor presented audio recordings of phone calls defendant placed from the jail to Ghorley


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No. 1-16-1265

asking her to evade service, to not attend court on the days he planned to demand trial, and to

move out of state or hide out at his mother's house. Defendant told Ghorley he would arrange for

her to receive money to relocate to another state. Defendant also asked Ghorley to try and

convince other witnesses to lie about what they saw and to deny that he committed the alleged

offenses.

¶ 13   The State informed the trial court that it intended to file a forfeiture-by-wrongdoing

motion, and asked the court to increase defendant's bond and take him into custody. The trial

court granted the State's request to increase defendant's bond (it was increased to $300,000) and

defendant was taken into custody. The court stated it was particularly troubled by allegations

that defendant had offered Ghorley money "to help hide her from the prosecution." The court

stated that the allegations against defendant "cut[] to the heart of the court process."

¶ 14   The next day, April 30, 2015, the State filed a motion seeking to admit prior statements

made by Ghorley and her sister Star. The State sought to admit a typewritten statement Ghorley

gave to an Assistant State's Attorney (ASA) and the testimony she gave at a preliminary

hearing. 2 The State also sought to admit a prior statement Star made to police. 3 The State

sought to admit these statements under the doctrine of forfeiture-by-wrongdoing and pursuant to




2
 Defendant does not challenge Ghorley's preliminary hearing testimony, which was subject to
cross-examination and thus, did not implicate his constitutional rights under the Sixth
Amendment's confrontation clause.
3
  Because Star eventually appeared in court, the trial court limited its rulings to Ghorley's prior
statements.


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No. 1-16-1265

sections 115-10.2 and 115-10.7 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS

5/115-10.2, 10.7 (West 2014)). 4

¶ 15   The State argued that in the event Ghorley failed to appear in court, despite the

continuing efforts to serve her with subpoenas directing her to appear, she should be deemed

unavailable based on the ground that defendant's wrongful communications with her caused her

absence. The State asked the trial court to find that defendant's wrongful communications with

Ghorley caused him to forfeit his constitutional right to confront and cross-examine her at trial.

¶ 16   On May 6, 2015, a hearing was held on the State's motion. The parties stipulated to the

unsuccessful efforts of investigators to locate and serve Ghorley and her sister Star with

subpoenas. The parties also stipulated to the introduction of Ghorley's prior statements to police

and the ASA, and her preliminary hearing testimony. The parties further stipulated to the

foundation and authenticity of audio recordings of phone calls defendant placed from Cook

County jail to Ghorley and his mother.

¶ 17   The phone calls were made in April and May of 2014. The prosecutor published the

audio recordings for the trial court.

¶ 18   In the first recorded phone call made on April 20th, three days after his arrest, defendant

spoke with his mother. He asked her to tell Ghorley not to attend court and to drop the charges.

Defendant called his mother again on the 4th of May. He complained about Ghorley testifying at

the preliminary hearing. Defendant told his mother to tell Ghorley that she needed to explain to


4
 Section 115-10.2(c) of the Code allows for the admission of hearsay statements when "the
declarant persists in refusing to testify * * * despite an order of the court to do so." 725 ILCS
5/115-10.2(c) (West 2014). And section 115-10.7 of the Code provides for the admissibility of
prior statements of an unavailable witness whose absence was wrongfully procured. 725 ILCS
5/115-10.7 (West 2014).


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No. 1-16-1265

the authorities that he never choked her, but rather grabbed her by the back of her neck.

Defendant's mother responded that Ghorley had agreed to tell defense counsel that she wanted to

testify on defendant's behalf and say that he never choked her.

¶ 19   Defendant next called his mother on the 7th of May. Defendant told his mother to

remind Ghorley to tell his attorney that he never choked her or caused her to lose her breath.

Defendant also told his mother to make sure Ghorley spoke with his attorney before speaking

with the prosecutor, and to tell his attorney that she wanted to testify on his behalf and wanted to

drop the charges as well as the order of protection. Defendant's mother repeatedly agreed to tell

these things to Ghorley.

¶ 20   Defendant called Ghorley and spoke with her on May 8th. Defendant questioned her

about her meetings with his attorney and the prosecutor. Ghorley told defendant she was

informed that she could not just drop the charges, and that if she testified to something different,

she would be impeached. Defendant told Ghorley she would have to leave the state in order for

him to beat the case. Ghorley started crying and the phone call abruptly terminated.

¶ 21   Defendant immediately called Ghorley back and asked if her sister Star had spoken to the

police or given them a statement. Defendant instructed Ghorley to tell Star to testify that she let

him into the residence. Ghorley responded that Star hated defendant and would not lie for him.

Defendant told Ghorley about the amount of jail time he was potentially facing and told her she

should avoid service and leave the state. Defendant told Ghorley he would give her $1000 to

relocate and that she should remain out of state for three or four months while he demanded a

speedy trial.

¶ 22   Defendant told Ghorley he was going to demand trial on his next court date and that she

should leave the state from July through October or November, when the case would be over.

                                               -6­
No. 1-16-1265

Ghorley responded that she did not know if she could relocate. Defendant told Ghorley he was

going to demand trial and that he had to be tried within 120 days. He told Ghorley that the State

would try to subpoena her. Ghorley started crying and said that she could not just quit her job

and move away.      Defendant repeated that he would give her $1000 to relocate.           Ghorley

remained silent on the phone for long portions of the call.

¶ 23   Defendant's mother came on the phone. Defendant told his mother that Ghorley needed

to avoid being served with subpoenas. Defendant asked his mother if Ghorley could hide out at

her house for three or four months. When Ghorley came back on the phone, defendant again

implored her to help him by hiding out so she could avoid being subpoenaed. Defendant told

Ghorley that the prosecution was "act[ing] like I tried to fuckin murder you or something,"

causing Ghorley to shout back, "you did!" Defendant talked about returning home from prison

when his infant son would be six years old. Ghorley told defendant, "I don't know what to do.

I'm not going to be able to just up and quit my job and disappear for fucking months." Ghorley

told defendant she did not want to "uproot" her children and move somewhere else. Defendant

told Ghorley that if she did not appear in court, then the prosecution would be unable to use her

prior statements against him because he could not cross-examine her about the statements.

Ghorley began to cry again and the call was terminated.

¶ 24   The State offered to publish additional recorded phone calls for the trial court, but the

court declined, stating, "I don't need more." After hearing argument from the parties, the trial

court continued the matter so it could review relevant caselaw before making its ruling.

¶ 25   The parties agreed to start the bench trial and take trial testimony pending the court's

ruling. Ghorley's whereabouts remained unknown.




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No. 1-16-1265

¶ 26    The first witness to testify was Jacob Jourdan, a family friend. Jourdan testified that at

the time of the incident, he was living in the basement of Ghorley's home. He also knew

defendant. Jourdan testified that around 9 p.m. on the date of the incident, he was in the

basement watching televison with Star when he heard several loud thumps, like the house was

shaking. He investigated where the sounds were coming from and discovered they were coming

from the top floor bedroom. Jourdan proceeded upstairs, followed by Star, where he heard a

struggle and whimpering noises coming from the bedroom. He entered the bedroom and saw

defendant on top of Ghorley. She was lying on the floor and defendant had his hand around her

throat. Ghorley's face was turning colors and she was taking "short struggled breaths." Jourdan

hit defendant, placed him in a headlock, and they started scuffling and fighting until defendant

ran out of the house. Shortly after the police arrived, he saw defendant drive by the house.

¶ 27    Responding police officer Dattulo testified to events leading up to defendant's arrest. The

officer testified that while he and his partner were speaking with Ghorley on the front porch of

her home, she pointed to a vehicle that had just passed by. Defendant was driving the vehicle.

The officers returned to their squad car and pursued the vehicle for a block before pulling it over.

The officers arrested defendant and took him into custody.

¶ 28    Officer Dattulo testified that defendant looked like he had been in a fight. The officer

testified that defendant told him his injuries were caused by a person named Jacob and Ghorley's

sister Star.

¶ 29    At the next trial date, the trial court issued its ruling on the State's forfeiture-by­

wrongdoing motion, ruling in favor of the State. The trial court stated:

    "All right. I heard the evidence [and] the arguments. In my view what I heard is sufficient

    for me to find that the state has established by a preponderance of the evidence that the

                                               -8­
No. 1-16-1265

    defendant is in fact engaged in activity involved [sic] which was Michelle Ghorley from

    appears [sic].

    It appears that the since the last court date, Star Ghorley has appeared. I have heard earing

    [sic] with her on the record as to why she didn't think service of process [sic].

    But it's clear to me that the [defendant] – directly Michelle and through his mother defendant

    engaged in activity that allowed to grant the state request to allow the testimony of Michelle

    Ghorley to be entered – in the subpoenaed." 5

¶ 30   Defense counsel asked the trial court to reconsider its ruling in light of the fact that after

being questioned by the court, Star responded that she had avoided service on her own accord.

The court declined to change its ruling. The court stated that Star's voluntary decision not to

appear in court had no bearing on Ghorley's failure to appear.

¶ 31   The parties then stipulated that if called to testify, ASA Mikah Soliunas would testify that

she and a detective met with Ghorley on April 18, 2014, at which time she gave a signed

typewritten statement. In her statement, Ghorley stated that at the time of the incident she was

living with her parents and other family members in their house. She had been dating defendant

for about two and half years. They had a young son together, but were not married and did not

live together. On April 17, 2014, at approximately 7:00 p.m., she and her children had returned

home from Walgreens when she noticed a text message from defendant.

¶ 32   She looked out the window and saw defendant seated in his car parked in the alley. He

was about 200 feet away from her. When she asked him what he was doing in the alley, he gave

her "the finger" and drove off. She continued receiving text messages from defendant. About 45

5
  This language is taken verbatim from the transcript of the court's ruling. The transcript appears
to contain errors in diction and grammar.


                                                -9­
No. 1-16-1265

minutes later, while Ghorley was upstairs with her son, defendant entered her room. Defendant

did not respond when Ghorley asked him how he got into the house.

¶ 33   Defendant began yelling and arguing with Ghorley, accusing her of lying about where

she had been. Defendant was angry that Ghorley had gone to a particular Walgreens store, and

accused her of going to the store to meet a man. Defendant refused to listen when she attempted

to explain to him why she went to that particular Walgreens. The argument escalated and

defendant began calling Ghorley a "whore" and other names. Defendant then slapped Ghorley

on the left side of her face. Ghorley stated she was "stunned" and told defendant to leave the

house, but he continued screaming at her.

¶ 34   Defendant came towards Ghorley and grabbed her by the throat with both of his hands.

He lifted her up and threw her onto the floor. Ghorley got up and sat in a chair, and continued

telling defendant to leave the house. Defendant then grabbed Ghorley by her hair and flipped her

over in the chair. He yelled at her to "shut the fuck up and stop screaming." He shoved her

down on her face, using both of his hands. Ghorley repeatedly told defendant she was concerned

her son was going to fall off the bed. Defendant stopped pushing down on Ghorley's face and

moved the boy toward the center of the bed.

¶ 35   Ghorley grabbed her son and told defendant to leave. He continued yelling at her and

then spit on her. The argument continued and defendant eventually grabbed Ghorley by the

throat again choking her with both of his hands while she held onto her son. Ghorley felt her

face getting hot as she tried hitting defendant with her free hand. Ghorley "thought she was

going to die." Defendant eventually let go of Ghorley's throat. She estimated that by this time,

defendant had been attacking her for about 20 minutes.




                                              - 10 ­
No. 1-16-1265

¶ 36   Ghorley continued asking defendant to leave, which he refused to do.              Defendant

screamed at Ghorley while she was holding her son. After a short while, defendant threw

Ghorley to the floor and began choking her again. The boy started crying and screaming and

Ghorley let him go so she could try and get defendant off of her. The boy was in arm's reach of

Ghorley during this time. Ghorley could not breathe, but did not feel any pain. As Ghorley was

on the floor being choked by defendant, she heard her sister Star yell "get the fuck off of her."

¶ 37   Defendant let Ghorley go after Star hit him. At this point, a family friend, Jacob Jourdan,

came into the room and restrained defendant. Ghorley grabbed her son and ran downstairs and

told her mother to call the police. Defendant left the house, but before leaving, he took Ghorley's

cell phone. When Star called the phone, defendant told her that Ghorley "was dead, bitch."

¶ 38   The police arrived, and as Ghorley was speaking with them at the front of her house,

defendant drove by and she identified him to the police. Photographs were taken depicting

bruises and red marks on Ghorley's neck. Ghorley confirmed to ASA Soliunas and the police

that the photographs accurately depicted how her neck appeared and that the red marks on her

neck were caused by defendant choking her.

¶ 39   The State then called ASA Katherine Schoon-Dussman to publish Ghorley's preliminary

hearing testimony she gave on April 24, 2014. Prior to publishing the testimony, ASA Schoon-

Dussman was cross-examined by defense counsel.

¶ 40   ASA Schoon-Dussman testified that she and a victim-witness-specialist spoke with

Ghorley about 30 minutes prior to the preliminary hearing. ASA Schoon-Dussman testified that

Ghorley was not uncooperative, but rather appeared to be your typical domestic violence victim;

she was emotional, fearful, and nervous. According to the ASA, Ghorley never said that she did

not want to proceed with the case. The ASA also testified that she never informed Ghorley she

                                               - 11 ­
No. 1-16-1265

would be arrested for contempt if she refused to testify or that she would face possible charges if

her testimony was inconsistent with her statement. ASA Schoon-Dussman testified that she

"would never, ever advise domestic violence victims of that."

¶ 41   ASA Schoon-Dussman stated that Ghorley willingly and voluntarily agreed to testify.

The ASA testified that Ghorley became visibly upset during her testimony and attempted to

minimize what had occurred to her. On redirect-examination, ASA Schoon-Dussman clarified

that the issue Ghorley was attempting to minimize was her inability to breathe when defendant

was choking her.

¶ 42   The State asked for and was given permission to publish Ghorley's preliminary hearing

testimony. Ghorley's recounting of events leading up to defendant's arrest was similar to the

statements she gave in her typewritten statement; however, unlike her statement, she denied not

being able to breathe when defendant was choking her. Ghorley also testified that she did not

want to press felony charges against defendant because he is her son's father and she was

concerned about the child not having his father around.

¶ 43   The State also published approximately seven minutes of a phone call defendant placed

from Cook County jail to Ghorley on May 8, 2014. The phone call was published for the

purpose of demonstrating defendant's alleged consciousness of guilt.

¶ 44   The State rested and defendant made a motion for a directed finding, which the trial court

denied. After defense counsel informed the court that he was not calling any defense witnesses,

the court called Star to testify in an attempt to ascertain how defendant gained entry into the

house on the date of the incident. Star testified that she did not see defendant enter the house on

the date of the incident, but had seen him in the house with her sister on prior occasions.

¶ 45   Defendant subsequently declined to testify and the defense rested.

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No. 1-16-1265

¶ 46   Following closing arguments, the trial court found defendant guilty of aggravated battery


and aggravated domestic battery. At sentencing, the court merged the conviction for aggravated 


battery into the conviction for aggravated domestic battery. After the court denied defendant's


motion for a new trial, he was initially sentenced as a Class X offender to 17 years'


imprisonment. The court subsequently lowered defendant's sentence to 16 years' imprisonment


after observing that he was required to serve 85 percent of his sentence. This appeal followed. 


¶ 47                                      ANALYSIS


¶ 48   Defendant first contends the trial court violated his constitutional Sixth Amendment right 


to confront witnesses against him when it admitted Ghorley's typewritten statement into evidence


under the doctrine of forfeiture by wrongdoing. Defendant argues the trial court erred in this


regard because the State failed to prove the causation element of its forfeiture by wrongdoing 


claim. Defendant claims the State failed to prove that his alleged wrongful communications with


Ghorley caused her to be unavailable so as to render her statements admissible under the


forfeiture by wrongdoing exception to his right of confrontation under the sixth amendment.


Instead, defendant contends the evidence shows that Ghorley chose to avoid service and not


attend court on her own initiative. 


¶ 49   The Sixth Amendment to the United States Constitution (U.S. Const., amend. VI)


guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right *** to be


confronted with the witnesses against him." This part of the Sixth Amendment is known as the


Confrontation Clause and applies to the states through the Fourteenth Amendment. People v.


Stechly, 225 Ill. 2d 246, 264 (2007). 


¶ 50   The Confrontation Clause is primarily concerned with testimonial hearsay. Crawford v. 


Washington, 541 U.S. 36, 53 (2004).        Here, the State concedes, and we agree, that the


                                              - 13 ­
No. 1-16-1265

typewritten statement Ghorley made to the ASA was testimonial in nature. 6            Testimonial

statements of witnesses who are absent from trial are typically barred under the Confrontation

Clause unless the witnesses are found to be unavailable to testify and the defendant had a prior

opportunity to cross-examine them. Crawford, 541 U.S. at 53-59.

¶ 51   The common law doctrine of forfeiture by wrongdoing is an exception to the protections

provided by the Confrontation Clause. People v. Hanson, 238 Ill. 2d 74, 97 (2010). This

doctrine permits the introduction of testimonial hearsay statements by an unavailable witness if

the trial court finds, by a preponderance of the evidence, that the defendant engaged in

wrongdoing that was intended to, and did, cause the witness to be unavailable. See People v.

Peterson, 2017 IL 120331, ¶¶ 18-19; Stechly, 225 Ill. 2d at 278. The doctrine is "aimed at

removing the otherwise powerful incentive for defendants to intimidate, bribe, and kill the

witnesses against them – in other words, it is grounded in 'the ability of courts to protect the

integrity of their proceedings.' " Giles v. California, 554 U.S. 353, 374 (2008) (quoting Davis v.

Washington, 547 U.S. 813, 834 (2006)). When the State seeks to admit a statement under the

forfeiture by wrongdoing exception to the Confrontation Clause, it must prove both the

wrongdoing and that the defendant intended by his actions to cause the witness to be unavailable.

Stechly, 225 Ill. 2d at 277; People v. Nixon, 2016 IL App (2d) 130514, ¶ 49.

¶ 52   Generally, a reviewing court will not disturb a trial court's ruling on the admissibility of

evidence absent an abuse of discretion. People v. Chambers, 2016 IL 117911, ¶ 75. However,

our supreme court has adopted a preponderance of the evidence standard for resolving claims of



6
 "Whatever else the term ['testimonial'] covers, it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police interrogations."
Crawford, 541 U.S. at 68.


                                              - 14 ­
No. 1-16-1265

forfeiture by wrongdoing. Stechly, 225 Ill. 2d at 278. Under this standard, the State need only

present evidence that renders a fact more likely than not. Peterson, 2017 IL 120331, ¶ 37. The

trial court makes factual determinations, based upon a preponderance of the evidence, as to

whether defendant engaged in wrongdoing that was intended to, and did, cause the witness to be

unavailable.

¶ 53   As a reviewing court, we defer to these factual findings unless they are against the

manifest weight of the evidence. Peterson, 2017 IL 120331, ¶ 39; see also Tamraz v. Tamraz,

2016 IL App (1st) 151854, ¶ 19 ("When a court makes a finding by a preponderance of the

evidence, a reviewing court will reverse that finding only if it is against the manifest weight of

the evidence."). "A finding is against the manifest weight of the evidence only if the opposite

conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the

evidence presented." People v. Deleon, 227 Ill. 2d 322, 332 (2008).

¶ 54   Based on our review of the evidence, we find the State proved, by a preponderance of the

evidence that defendant's wrongful communications with Ghorley caused her to be unavailable

so as to render her statements admissible under the forfeiture by wrongdoing exception to

defendant's right of confrontation.

¶ 55   Under the doctrine of forfeiture by wrongdoing, causation need not be established by

direct evidence or testimony. State v. Maestas, 2018-NMSC-010, ¶¶ 40-41, 412 P. 3d 79.

Instead, the requisite causation may be established by inference from circumstantial evidence. Id.

The fact that a defendant and witness were in a domestic relationship and the timing and

circumstances surrounding the defendant's wrongdoing may support an inference that the

wrongdoing caused the witness to be unavailable. Id.




                                                - 15 ­
No. 1-16-1265

¶ 56   In this case, the timing and circumstances surrounding defendant's wrongdoing support

an inference that his wrongdoing caused Ghorley to be unavailable. The evidence shows that on

April 24, 2014, Ghorley appeared at the preliminary hearing and testified about the defendant

attacking her. It was only after these events that defendant began regularly calling his mother

and Ghorley from jail in an attempt to pressure Ghorley into avoiding service, abandoning the

case, and making herself unavailable during the speedy trial period. See People v. Burns, 494

Mich. 104, 116, 832 N.W. 2d 738, 745 (2013) ("a defendant's wrongdoing after the underlying

criminal activity has been reported or discovered is inherently more suspect, and can give rise to

a strong inference of intent to cause a declarant's unavailability.") (Emphasis in the original.)

From this point on, Ghorley avoided service and failed to appear in court.

¶ 57   Based on our review of the evidence and mindful that the State's burden of proof in a

hearing on forfeiture by wrongdoing is a preponderance of the evidence, we cannot say that the

trial court's finding that Ghorley's typewritten statement was admissible under the forfeiture-by­

wrongdoing doctrine was unreasonable, arbitrary, or not based on the evidence presented. The

trial court's finding of forfeiture by wrongdoing was not against the manifest weight of the

evidence.

¶ 58   Defendant next challenges his 16-year prison sentence.        He argues the sentence is

excessive in light of the following: the nature of the offense, his mostly nonviolent criminal

background, and the lack of serious physical harm to the victim. We do not believe these factors

warrant reduction of defendant's sentence.

¶ 59   Defendant was convicted of aggravated domestic battery by strangulation, a Class 2

felony (720 ILCS 5/12-3.3(a-5) (West 2010)), with a sentencing range of three to seven years




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No. 1-16-1265

imprisonment (730 ILCS 5/5-4.5-35(a) (West 2014)), to be served at 85% under truth-in­

sentencing (730 ILCS 5/3-6-3(a)(2)(vii) (West 2010)).


¶ 60   However, because of defendant's extensive criminal history, which included numerous


prior Class 2 convictions, he was subject to mandatory Class X sentencing (730 ILCS 5/5-4.5­

95(b) (West 2010)), and faced a prison sentence of six to thirty years (730 ILCS 5/5-4.5-25(a)


(West 2010)), to be served at 85% under the truth-in-sentencing law.


¶ 61   Imposition of a sentence is a matter of judicial discretion. People v. Perruquet, 68 Ill. 2d


149, 153 (1977). Where a defendant's sentence is within statutory limits, a reviewing court will


not alter the sentence absent an abuse of that discretion. People v. Cabrera, 116 Ill. 2d 474, 494


(1987). In the instant case, defendant acknowledges his sentence falls within the applicable 


statutory range.


¶ 62   Where an imposed sentence is within the statutory range, it will not be found excessive


unless there is an affirmative showing that the sentence varies greatly from the spirit and purpose


of the law or is manifestly disproportionate to the nature of the offense. People v. Lee, 379 Ill.


App. 3d 533, 539 (2008). The spirit and purpose of the law are promoted when a sentence


reflects the seriousness of the crime and gives adequate consideration to defendant's


rehabilitative potential. People v. BoClair, 225 Ill. App. 3d 331, 335 (1992).


¶ 63   In the present case, there is nothing in the record which indicates the trial court ignored


defendant's rehabilitative potential or any mitigating factors before imposing sentence. The


record indicates that at defendant's sentencing hearing, the trial court acknowledged the 


presentence investigation report, raising the presumption that the court took into account


defendant's potential for rehabilitation. People v. Wilburn, 263 Ill. App. 3d 170, 185 (1994). 





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No. 1-16-1265

¶ 64   Our review shows the trial court considered both mitigating and aggravating factors and

arrived at a balance between society's need for protection and defendant's rehabilitative potential.

Based on the record before us, we cannot say that defendant's sentence varies greatly from the

spirit and purpose of the law or is manifestly disproportionate to the nature of the offense he

committed.

¶ 65   Defendant finally argues the trial court abused its discretion in sentencing him because

the sentence was based on the court's initial misunderstanding of the sentencing structure he was

subject to and on the court's improper speculation as to whether he would earn good-time credits

against his prison sentence or complete his sentence without having the credits revoked. Again,

we must disagree.

¶ 66   After denying defendant's motion for a new trial, the trial court initially sentenced

defendant as a Class X offender to 17 years' imprisonment with three years of mandatory

supervised release. Upon inquiring as to whether defendant was "eligible for day for day good

time," the prosecutor responded to the court, "No, Judge. He is at 85 percent." Following further

discussion, the trial court stated, "Well, I didn't realize it was 85. So I'm going to reduce [the

sentence] to 16 years, 3 years MSR at 85 percent."

¶ 67   Defense counsel then made an oral motion to reconsider sentence, stating in part:

       "[DEFENSE COUNSEL]: Your Honor, initially you had contemplated 17 years at 50
       percent. Now that we have been able to have a concrete finding of 85 percent, Judge, I
       would respectfully ask that you consider that in light of your initial discussion. If you
       would reduce that to be in line with what [defendant] would have originally served under
       the 50 percent at 17, I think that sends a substantial message. I believe that is consistent
       with protecting the public and what you heard at trial."


¶ 68   The trial court responded as follows:



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       "THE COURT: Okay. Here is the answer to that. Although it's partially a small way
       what I would consider in sentencing being eligible for good time and getting good time is
       apples and oranges. No one can predict what someone would do in prison.

       The maximum he can do is 17 years if they revoked all of his good time. Given what I
       know about [defendant], the likelihood that he will make it through his sentence without
       getting his good time revoked is minimal.

       The only reason I reduced it is because upon finding that it's 85 percent I thought I would
       give [defendant] the benefit of that at least for a year and not more than that. So the
       amount of sentence someone does is up to them. It's the maximum that I'm considering.
       So your motion is denied."

¶ 69    As the above illustrates, none of the trial court's statements support defendant's


assertions that the court's decision to sentence him to 16 years in prison was based on the court's


misunderstanding of the sentencing structure defendant was subject to or speculation as to


whether defendant would be eligible to earn good-time credits against his sentence or complete


his sentence without having the credits revoked. The record contains no evidence showing the


trial court abused its discretion in sentencing defendant to 16 years in prison for aggravated 


domestic battery.


¶ 70   Accordingly, for the reasons set forth above, we affirm the judgment and sentence of the


circuit court of Cook County.


¶ 71   Affirmed.





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