No. 2--06--1304 Filed: 5-14-08
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 05--CF--4978
)
LUIS A. DOMINGUEZ, ) Honorable
) Victoria A. Rossetti,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BOWMAN delivered the opinion of the court:
Following a jury trial on April 5, 2006, defendant, Luis A. Dominguez, was convicted of one
count of aggravated domestic battery (720 ILCS 5/12--3.2(a)(1), 12--3.3(a) (West 2004)) and one
count of unlawful restraint (720 ILCS 5/10--3(a) (West 2004)). On December 4, 2006, the trial court
denied defendant's posttrial motions and sentenced him to five years' imprisonment for the
aggravated domestic battery conviction and two years' imprisonment for the unlawful restraint
conviction, to be served concurrently. Defendant timely appealed and argues that we should reverse
his convictions because the trial court erred in admitting: (1) the tape of the victim's 911 call for help,
which constituted testimonial evidence; (2) the statements of Officer Thomas Poulos and paramedic
Ryan Koncki; and (3) certain consistent statements made by the victim before the grand jury.
Additionally, defendant argues that there was insufficient evidence to convict him of either crime.
We affirm.
No. 2--06--1304
I. BACKGROUND
The following facts are derived from the trial transcripts. The victim, Jennifer Cook, testified
first for the State. Cook admitted that she was testifying by way of subpoena and did not want to be
in court. On December 24, 2005, she and defendant went to the home of defendant's mother for a
family Christmas celebration. Approximately 12 to 15 people were present, including the couple's
three children. Cook drank two bottles of tequila and some wine coolers and became highly
intoxicated. She believed that she went to bed at 3:40 a.m. but did not remember exactly. She did
not remember at what time she first awoke and did not remember anything about the previous night.
She went back to sleep and then awoke again around 9 a.m. The first thing she remembered was
waking up next to defendant. At that moment, she did not realize that she was injured, and
defendant was still asleep. The couple remained in bed and slept a little longer. At some point,
Cook and defendant went to Cook's Chevy Trailblazer to leave. Cook began driving home and,
when she looked in the mirror, she realized that her eyes were bruised and injured. She became
angry and "assumed that [defendant] had did it." She yelled at defendant, and he tried to explain that
he did not do it. Cook was still intoxicated and angry but could not remember what had happened.
She told defendant to get out of the truck and hide in the backseat because he did not have
identification to gain access to her apartment complex. After he got out, she drove off, leaving him
on the street, and called 911 because she "assumed that he had did that to [her] and [she] was mad
at him."
Cook identified the tape of the 911 call that she made on December 25, 2005. The State
moved to publish the tape to the jury, and over defendant's objection the trial court admitted the
evidence as an excited utterance. On the tape, Cook is frantic and crying. She told the 911 operator
-2-
No. 2--06--1304
that defendant caused her injuries overnight, that she first saw her injuries in her car mirror, and that
this was her first chance to get away from defendant after he kept her overnight. She told the
operator that she left defendant on the street and wanted the police to catch him so she could press
charges. She repeatedly cried out that she could not believe these events were happening to her and
that she did not want her children to see her like this. She stated that she did not know why
defendant did this to her. When asked who injured her, she identified defendant. Cook then
identified photographs that depicted her injuries, and those photographs were admitted into evidence.
After the 911 call was made, an officer responded and met Cook at the intersection of
Elmwood and Dugdale in Waukegan. Cook could not recall having a conversation with Officer
Poulos at the scene. She remembered going into an ambulance and informing the officer that she
did not want to go to the hospital. Cook spoke to the responding paramedic, Ryan Koncki, but did
not recall what she said to him. The ambulance took her to Victory Memorial Hospital, and while
there Cook spoke to Officer Poulos. She told him that she could not recall what had happened. She
recalled only drinking with the family the night before.
She did not remember telling Officer Poulos that defendant kept her in his bedroom all night,
that defendant put his whole hand down her throat, or that she had passed out. When asked, "So you
are not telling the *** jury that it did or did not happen? You are just saying you don't recall?," Cook
stated that she did not recall anything. She could not recall telling Officer Poulos that, when she
awoke, defendant was still there, would not allow her to leave, and held her against her will. Cook
could not recall telling Koncki that defendant assaulted her and that she then passed out. The State
then introduced the written statement that Cook signed for Officer Poulos. She identified her
signature and admitted that she wrote the statement. However, she stated that Officer Poulos told
-3-
No. 2--06--1304
her what to write. Over defendant's objection, the statement was admitted pursuant to section 115--
10.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115--10.1 (West 2006)).
The State then questioned Cook regarding her previous grand jury testimony. The
questioning developed as follows:
"Q. Do you recall testifying in front of the Lake County Grand Jury on January 25,
2006?
A. Yes, I do.
Q. Do you remember a question when you woke up--do you remember what
happened when you woke up? Your response was, I seen my face. And question, what did
it look like? Answer, it was bruised up. Question, you looked in the mirror and saw your
face. It was badly bruised? Answer, yes. Question, and your eyes sort of swollen shut?
Answer, yes. Question, sort of hard to see out of them? Answer, yes. And who was in the
room with you when you woke up? Answer, its [sic] just me and [defendant]. Do you recall
that testimony?
A. Yes.
Q. When you gave that testimony was your recollection different than it is today?
A. No, it's not any different. At the grand jury they didn't ask me if I got into my
truck. They just asked me what happened. I did not give them details.
Q. But your testimony is today that you first noticed your injuries when you got into
your truck?
A. Yes. That was the mirror that I looked in.
***
-4-
No. 2--06--1304
Q. Question, you and [defendant] what you said and then [sic] did you want to leave
at this point? Answer, yes. I wanted to go home and collect myself and take a shower. What
did [defendant] say? He wanted to come with me. And so you really--and so did you really
want him to come with you? Answer, no. Question, but he insisted he was going to come
with you, right? Answer, he insisted, but he didn't force himself to come with me. I just said
fine, you know, because I wanted to leave. Question, you just wanted to leave and then you
got in your car and [defendant] came with you, right?
[Defendant objected to reading into evidence the entire transcript. The trial court
advised the State to slow down and give the witness an opportunity to answer.]
Q. You indicated I believe with a nod. Do you remember that testimony?
A. Yes, I do.
Q. Next question, when you went over to your apartment in Whispering Oaks did you
have identification to get in? Your answer, right. Question, and [defendant] didn't--
[Objection to reading of questioning overruled.]
Q. Question, and [defendant] didn't have any ID on him? Answer, no. Question,
what was your plan then? Do you remember this part like did you tell [defendant] why don't
you get in the back and lie down low and the security won't see you? Your answer, yes.
Question, and when [defendant] opened the door to get out do you recall then that you just
drove away? Your answer, yes. Question, so you didn't really give [defendant] a chance to
get back in the car, did you? Your answer, no. *** Do you recall that testimony?
A. Yes."
-5-
No. 2--06--1304
Upon cross-examination, Cook admitted to consuming more than 10 shots of tequila and
passing out around 3:40 a.m. She did not recall defendant hitting her. Her children were sleeping
in their grandmother's room and she did not see them before she left. She planned to go home and
shower. When she realized that she was injured, she became angry because she could not remember
how or when it happened. She assumed that defendant had caused her injuries, because he was the
first person she saw in the morning. At the hospital, she did not want to make the written statement,
because she was still intoxicated and could not remember what had happened. She did so because
she felt intimidated by the police. She admitted to having an ongoing relationship with defendant
and that she loved him. She stated that she was not scared of him at all.
The State then attempted to admit portions of the grand jury testimony as inconsistent
testimony. The trial court denied admission as substantive evidence, because the testimony was not
inconsistent with her trial testimony. The trial court then provided the jury with a limiting
instruction explaining that evidence of Cook's prior inconsistent statements to Officer Poulos and
Koncki could be considered for the limited purpose of deciding the weight to be given the trial
testimony.
The State then called Waukegan police officer Thomas Poulos. Officer Poulos responded
to the domestic battery call on December 25, 2005. He arrived at the intersection of Dugdale and
Elmwood to find Cook in her vehicle. She had blood on her face and chin and an abrasion on her
forehead. She also had some swelling on her forehead, her eyes were swelled almost shut, and she
had bruises on both sides of her face. Over defendant's objection, Officer Poulos recounted what
Cook told him about her injuries. She was at defendant's home the night before and, during the
overnight hours, he became upset with her. Defendant took her into a bedroom, beat her, choked her,
-6-
No. 2--06--1304
and, when she tried to scream, he stuck his entire fist down her throat. He punched Cook and then
she passed out. When she woke up, defendant was still in the bedroom and would not allow her to
leave. When describing these events, Cook was upset and yelling. Officer Poulos called for an
ambulance, which arrived and took Cook to Victory Memorial Hospital. Officer Poulos went to the
hospital as well and spoke to Cook again. She was calmer at that point. He asked Cook to make a
handwritten statement, and in court he identified her statement. He confirmed that she wrote and
signed the statement. Officer Poulos did not tell Cook what to write, did not intimidate her, and did
not threaten her in any way. On cross-examination, Officer Poulos denied smelling alcohol on Cook
or believing that she was intoxicated. Only at the hospital, when Cook told him that she drank a lot
the night before, did he become aware that she had consumed alcohol.
The State moved to admit the statements that Cook made to Officer Poulos as substantive
evidence under the excited-utterance exception. The trial court denied that motion, stating that the
statements may serve to impeach only.
Koncki, the paramedic who responded to Cook's call, testified next for the State. At the
scene, Koncki spoke with Cook. She told him that her boyfriend had assaulted her and that she had
passed out or lost consciousness. He observed significant trauma to her face. Both eyes were badly
swollen and the area around the forehead and eye was also swollen. Cook was crying and very upset.
She expressed concern about her kids. He did not recall smelling alcohol on Cook. The State moved
to admit Cook's statements to Koncki as substantive evidence of treatment by a medical provider.
The trial court denied this motion.
Two stipulations were entered into evidence. The first stipulation regarded a hospital
physician stating that Cook admitted that she had consumed alcohol the night before. The second
-7-
No. 2--06--1304
was that a CT scan of Cook's face revealed extracranial soft tissue swelling in the left orbital region
extending to the left frontal and parietal region and nasal fractures of uncertain chronicity. The jury
then returned guilty verdicts for both the aggravated domestic battery and the unlawful restraint
offenses.
II. ANALYSIS
A. The 911 Tape
Defendant raises two contentions pertaining to the admission of the 911 tape: (1) the tape was
testimonial evidence and its admission violated the confrontation clause because Cook was
effectively unavailable for cross-examination; and (2) even if the tape did not violate the
confrontation clause, it did not qualify under the excited-utterance exception to the hearsay rule.
The first question before us is whether the 911 tape contains testimonial statements that
trigger confrontation-clause protections. We review this issue de novo as the question is one of law
and does not involve the trial court's discretion that is typical of most evidentiary rulings. People
v. Melchor, 376 Ill. App. 3d 444, 451 (2007). The Supreme Court, in recent years, has modified its
confrontation-clause analysis, abandoning a reliability analysis and adopting a "testimonial" analysis.
In Crawford v. Washington, 541 U.S. 36, 40, 158 L. Ed. 2d 177, 185-86, 124 S. Ct. 1354, 1357-58
(2004), the Court considered a conviction that was based largely on statements the defendant's wife
made during an interview while in police custody. The defendant's wife did not testify at his trial,
because she invoked the spousal privilege. Crawford, 541 U.S. at 40, 158 L. Ed. 2d at 185, 124 S.
Ct. at 1357. After a lengthy historical analysis of the confrontation clause's purpose, the Court
concluded that (1) the clause was particularly directed at preventing the use of ex parte examinations
as evidence against the accused, and (2) testimonial statements of witnesses absent from trial may
-8-
No. 2--06--1304
be admitted only where the declarant is unavailable and the defendant has had a prior opportunity
to cross-examine. Crawford, 541 U.S. at 50, 53-54, 158 L. Ed. 2d at 192, 194, 124 S. Ct. at 1363,
1365. The Court held that the statements made by the defendant's wife to the police were
testimonial. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. However, the Court
declined to comprehensively define what constituted "testimonial" and instead limited its holding
to at minimum "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and
to police interrogations," as those practices are most akin to the abuses at which the clause was
directed. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.
The Supreme Court revisited the definition of "testimonial statements" in Davis v.
Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006). In Davis, the Court
considered testimonial statements in two companion cases. In the first case, the victim of a domestic
disturbance, Michelle McCottrey, made statements to a 911 operator. Davis, 547 U.S. at 817, 165
L. Ed. 2d at 234, 126 S. Ct. at 2270-71. During the conversation, McCottrey reported the defendant's
name, that he was in the home, and that he was using his fists. Davis, 547 U.S. at 817, 165 L. Ed.
2d at 234, 126 S. Ct. at 2271. Eventually, McCottrey reported that the defendant ran out of the house
and was leaving in a car with someone else; the 911 operator then posed a series of questions to
gather information about the defendant. Davis, 547 U.S. at 817, 165 L. Ed. 2d at 234, 126 S. Ct. at
2271. McCottrey did not testify at the defendant's trial, and the trial court allowed into evidence the
portion of the 911 tape in which she identified the defendant, concluding that it was not testimonial.
Davis, 547 U.S. at 817, 165 L. Ed. 2d at 235, 126 S. Ct. at 2271.
In the companion appeal, another victim of a domestic disturbance, Amy Hammon, made
statements to police after they responded to a report of a disturbance at the home. Davis, 547 U.S.
-9-
No. 2--06--1304
at 819, 165 L. Ed. 2d at 235, 126 S. Ct. at 2272. The police arrived at the scene to find Hammon
sitting on the front porch and the defendant inside the home with broken glass and a gas heating unit
engulfed in flames. Davis, 547 U.S. at 819, 165 L. Ed. 2d at 235, 126 S. Ct. at 2272. The police
spoke to Hammon apart from the defendant and had her sign an affidavit, but she then did not show
up to testify at the trial. Davis, 547 U.S. at 820, 165 L. Ed. 2d at 235-36, 126 S. Ct. at 2272.
The Supreme Court held that McCottrey's 911 taped statements were not testimonial but
Hammon's statements to police were testimonial. Davis, 547 U.S. at 829, 165 L. Ed. 2d at 241-42,
126 S. Ct. at 2278. The Supreme Court again declined to provide an exhaustive list of all statements
that might conceivably be regarded as "testimonial" but applied a primary-purpose test to distinguish
the two statements there from the defendant's wife's statements in Crawford. The Court specifically
disregarded any distinction between police and 911 operators and held that, for analytical purposes,
911 operators were law enforcement agents. Davis, 547 U.S. at 823 n.2, 165 L. Ed. 2d at 238 n.2,
126 S. Ct. at 2274 n.2. The Court noted that the primary purpose of McCottrey's statements was to
"describe current circumstances requiring police assistance" and not to establish or prove some past
fact. Davis, 547 U.S. at 827, 165 L. Ed. 2d at 240, 126 S. Ct. at 2276. In comparing Davis and
Crawford, the Court stated that "any reasonable listener would recognize that McCottrey (unlike
Sylvia Crawford) was facing an ongoing emergency," that McCottrey was describing events as they
were actually happening, and that the elicited statements were necessary to resolve the present
emergency rather than simply to learn about past events. Davis, 547 U.S. at 829, 165 L. Ed. 2d at
240, 126 S. Ct. at 2276. Further, there was a striking difference in the level of formality involved
in the Crawford police interrogation, which was held at the police station after the defendant's wife
was given Miranda warnings, and McCottrey's frantic phone call. Davis, 547 U.S. at 829, 165 L. Ed.
-10-
No. 2--06--1304
2d at 240, 126 S. Ct. at 2276-77. Therefore, McCottrey's identification of the defendant to the 911
operator was not considered testimonial. Davis, 547 U.S. at 829, 165 L. Ed. 2d at 240, 126 S. Ct.
at 2277. However, the Court cautioned that a statement that began with a primary purpose of
resolving an emergency could evolve into a testimonial statement and that some statements may
require redaction. Davis, 547 U.S. at 828-29, 165 L. Ed. 2d at 241, 126 S. Ct. at 2277.
Hammon's statements, on the other hand, were elicited under conditions similar to those in
Crawford. The Court determined that Hammon's emergency was over by the time the police arrived,
and the primary purpose of their interrogation of Hammon was to investigate past events. Davis, 547
U.S. at 830, 165 L. Ed. 2d at 242, 126 S. Ct. at 2278. Further, Hammon initially said that things
were fine, and the police continued to question her, eventually separating her from the defendant in
the kitchen to continue asking her questions. Davis, 547 U.S. at 830, 165 L. Ed. 2d at 242, 126 S.
Ct. at 2278. Therefore, Hammon's statements were deemed testimonial. Davis, 547 U.S. at 830, 165
L. Ed. 2d at 242, 126 S. Ct. at 2278.
The Illinois Supreme Court fashioned the United States Supreme Court's analysis of
testimonial evidence into a two-component test derived from the definition of "testimony" as
"solemn declarations for the purpose of establishing or proving some fact germane to the defendant's
prosecution." People v. Stechly, 225 Ill. 2d 246, 280-81 (2007). Thus, the two components are that
statements (1) must be made in a solemn fashion and (2) must be intended to establish a particular
fact. Stechly, 225 Ill. 2d at 281-82. When examining solemnity, the United States Supreme Court
was divided: the majority in Davis believed solemnity was established by the potential consequences
of lying to a police officer whereas the dissent believed it was established if the statements were
made in a setting with a higher degree of formality and possibly including Miranda warnings.
-11-
No. 2--06--1304
Stechly, 225 Ill. 2d at 282. Regardless, when examining the intent of a statement made to the police
or an agent of the police, the "focus is on whether *** the witness was acting in a manner analogous
to a witness at trial, describing or giving information regarding events which had previously
occurred." Stechly, 225 Ill. 2d at 282. Further, the focus must be on the intent of the questioner in
eliciting the statement and not on the intent of the declarant. Stechly, 225 Ill. 2d at 284-85. We must
rely on the objective circumstances surrounding the statement and not on testimony regarding the
questioner's subjective intent. Stechly, 225 Ill. 2d at 285.1
Applying these factors and the objective circumstances surrounding Cook's phone call, we
find that the 911 tape was not testimonial. Any reasonable listener of the 911 tape would conclude
that Cook was facing an ongoing emergency and was describing events as they were unfolding.
While her injuries may have occurred during the overnight hours, as defendant argues vehemently,
Cook did not become cognizant of her injuries until she was able to break away from defendant and
entered her vehicle. Unlike the formal interviews police posed in Crawford and to Hammon in
Davis, Cook's conversation with the 911 operator was not calm, formal, or controlled but was more
akin to McCottrey's frantic call in Davis. Cook was crying and hysterical as the operator attempted
to gather details on the current circumstances that required police assistance. Specifically, the
operator elicited from Cook why she was fleeing defendant, what her injuries were, where she was
1
Ultimately, Stechly involved statements made to a nongovernment officer or agent. In
analyzing statements made outside the context of police interrogation, the Stechly court looked to
the intent of the declarant, asking whether the objective circumstances would have led a reasonable
person to conclude that his or her statement could be used against the defendant. Stechly, 225 Ill.
2d at 289.
-12-
No. 2--06--1304
located, and where she left defendant. The 911 operator's obvious intent was to determine where
police should be dispatched and what potential threat Cook or the police may be facing. Under this
analysis, the 911 tape was not testimonial evidence.2
Having determined that the 911 tape was not testimonial and does not implicate the
confrontation-clause protections, we are left to address defendant's second argument--that Cook's
statement did not qualify as an excited utterance because Cook had "ample time to reflect" and there
was no startling event that occurred at the time of the 911 call. The trial court's evidentiary ruling
may not be reversed absent an abuse of discretion. People v. Richardson, 348 Ill. App. 3d 796, 801
(2004). "To secure admission of a 'spontaneous declaration' or 'excited utterance,' the proponent of
the evidence must demonstrate: (1) the occurrence of an event or condition sufficiently startling to
produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) a
statement relating to the circumstances of the occurrence." People v. Smith, 152 Ill. 2d 229, 258
(1992). No one factor is determinative and each case must rest on its own facts. People v. Gwinn,
366 Ill. App. 3d 501, 517 (2006).
On the first factor, defendant's argument would make sense if we were to accept that the only
startling event was the overnight physical abuse that Cook endured. However, defendant overlooks
the fact that, after regaining consciousness the next morning, Cook's realization that she had been
abused and defendant's refusal to allow her to leave were startling events separate from the actual
physical violence. Second, the supreme court has stated that "we do not require the time between
when the startling event occurs and when the declarant makes statements in response to that event
2
Defendant argues on appeal that the entire 911 tape was testimonial. Therefore, we address
the tape in whole and do not need to examine each statement made.
-13-
No. 2--06--1304
to be contemporaneous." Smith, 152 Ill. 2d at 259-60. Rather, the proper question is whether the
statement was made while the excitement of the event predominated. Smith, 152 Ill. 2d at 260.
Here, it is significant that Cook has consistently stated that she did not realize that she was injured
until she saw her face in her car's mirror. Cook called 911 moments after that realization and
moments after breaking free from defendant. Lastly, the statement she made to the 911 operator was
clearly relating to the entire occurrence, including the events the night before, passing out, waking
up to the injuries, and defendant's refusal to let her leave. Based on the entire set of facts and
circumstances, we find that all three elements of an excited utterance have been met. Therefore, the
trial court did not abuse its discretion in admitting the 911 tape.
B. Cook's Statements to Officer Poulos and Paramedic Koncki
Defendant next argues that the State failed to lay a proper foundation when it impeached
Cook with her prior statements to Officer Poulos and Koncki. However, defendant failed to object
at all to the State's line of questioning of Officer Poulos and Koncki and did not object on
foundational grounds during the State's questioning of Cook. Further, defendant did not raise or
discuss plain error in his briefs. Therefore, these issues have been waived. People v. Daniels, 331
Ill. App. 3d 380, 388 (2002).
C. Cook's Handwritten Statement
Defendant argues that the trial court erred in admitting Cook's handwritten statement
pursuant to section 115--10.1 of the Code (725 ILCS 5/115--10.1 (West 2006)), because the "content
of the handwritten statement is not a description of an event about which the declarant had personal
knowledge." Defendant claims the problem with the statement was that, according to Cook's trial
testimony, Officer Poulos told Cook what to write. We disagree.
-14-
No. 2--06--1304
As stated earlier, the trial court's evidentiary rulings may not be reversed absent an abuse of
discretion. Richardson, 348 Ill. App. 3d at 801. Section 115--10.1 provides that a prior inconsistent
statement is not inadmissible by the hearsay rule if:
"(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement--
(1) was made under oath at a trial, hearing, or other proceeding, or
(2) narrates, describes, or explains an event or condition of which the witness
had personal knowledge, and
(A) the statement is proved to have been written or signed by the
witness, or
(B) the witness acknowledged under oath the making of the statement
either in his testimony at the hearing or trial in which the admission into
evidence of the prior statement is being sought, or at a trial, hearing, or other
proceeding, or
(C) the statement is proved to have been accurately recorded by a tape
recorder, videotape recording, or any other similar electronic means of sound
recording." 725 ILCS 5/115--10.1 (West 2006).
Cook's handwritten statement consisted of the following:
"[Defendant] held me *** all night in his bedroom. Put his whole hand down my
throat. Passed out. I finally got away when [defendant] got out of the truck to go in the back
-15-
No. 2--06--1304
seat becuz [sic] you need an Id to get in Whispering Oaks. That's when I drove off and called
911."
The fact that Cook changed her testimony at trial, and explained away the statement by
stating that Officer Poulos told her what to write, does not negate the fact that the events described
were within Cook's personal knowledge. Officer Poulos was not at defendant's home the night
before and was not in Cook's truck that morning, but Cook was. Therefore, the events described in
the statement were within Cook's personal knowledge. The other section 115--10.1 requirements
were also met: (1) the statement conflicted with Cook's trial testimony; (2) Cook was present for
cross-examination; and (3) at trial Cook acknowledged writing and signing the statement. Defendant
argues, without any support, that Cook was unavailable for cross-examination because she could not
recall anything while on the witness stand. We disagree. While on the witness stand, Cook
answered questions regarding the statement. She admitted to writing and signing the statement at
the hospital and explained why she now was changing her story. Cook testified that her statement
was the result of her assumption that defendant caused her injuries. She also stated that Officer
Poulos told her exactly what to write and intimidated her. These inconsistencies were for the trier
of fact to resolve. Therefore, Cook was obviously available for cross-examination regarding the
statement, and the trial court did not err in admitting the statement pursuant to section 115--10.1 of
the Code.
D. Grand Jury Testimony
The trial court admitted as substantive evidence only the portion of the earlier quoted grand
jury testimony that conflicted with Cook's trial testimony. Specifically, it admitted only the portion
about how Cook woke up and saw her face in the mirror, because at trial Cook stated that she saw
-16-
No. 2--06--1304
her face in her vehicle's mirror. Defendant argues that the State should not have been allowed to
read the consistent portions of Cook's grand jury testimony, because prior consistent testimony
serves only to bolster a witness's credibility. However, defendant has failed to address how the
introduction of the grand jury testimony constitutes reversible error. The superfluous testimony
concerned three facts: (1) that Cook left defendant's mother's home with defendant on December 25,
2005; (2) that Cook asked defendant to get out of her truck and to get into the backseat; and (3) that
Cook drove off when defendant stepped out of the truck. Cook had already testified to these facts
and these events were not disputed during defendant's trial. It is unlikely that defendant would have
been acquitted based on the facts and evidence of the case barring these three consistent grand jury
statements. Therefore, the admission of these three potentially bolstering statements did not
constitute reversible error. See People v. Engle, 351 Ill. App. 3d 284, 289 (2004) (finding
erroneously admitted bolstering statements did not constitute reversible error but were merely
cumulative of witness's testimony, and it was unlikely that the jury would have acquitted the
defendant barring the statements).
E. Insufficiency of the Evidence
Having determined that the trial court did not make any reversible evidentiary errors, we now
turn to defendant's insufficiency of the evidence arguments. Defendant argues that the State failed
to prove him guilty of aggravated domestic battery, because Cook was intoxicated and did not
actually know that defendant caused her injuries. Defendant further argues that Cook did not testify
that defendant held her against her will, and there was no other evidence to prove that he did. We
disagree on both points.
-17-
No. 2--06--1304
When reviewing a challenge to the sufficiency of the evidence, we consider whether, 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. People v. Wheeler, 226 Ill. 2d 92, 114
(2007). The critical inquiry in reviewing the sufficiency of the evidence is whether the record
evidence could reasonably support a guilty finding, regardless of whether the evidence is direct or
circumstantial and whether the trial was by bench or jury. Wheeler, 226 Ill. 2d at 114. Because the
trier of fact is best positioned to judge the credibility of witnesses and resolve disputes in the
evidence, its decision is entitled to great deference. Wheeler, 226 Ill. 2d at 114-15. Thus, we do not
retry the defendant when evaluating the sufficiency of the evidence and will reverse only where the
evidence is so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of the
defendant's guilt. Wheeler, 226 Ill. 2d at 115.
Under those parameters, we first review defendant's aggravated domestic battery conviction.
According to section 12--3.3(a) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12--
3.3(a) (West 2004)), in order to prove a defendant guilty of domestic battery, the State must prove
that the defendant (1) intentionally or knowingly, (2) without legal justification, (3) caused great
bodily harm or permanent disability or disfigurement (4) to any family or household member.
Section 112A--3(3) of the Code of Criminal Procedure provides that a "family or household
member" includes "persons who have had a dating or engagement relationship." 725 ILCS
5/112A--3(3) (West 2004). In this case, it is undisputed that defendant and Cook had a dating
relationship for several years. It is also undisputed that Cook sustained serious injuries to her face,
which were apparent in the photographs and in the stipulation to the radiologist's CT report.
However, defendant argues that the State did not prove that he caused Cook's injuries. We disagree
-18-
No. 2--06--1304
based on the evidence presented by the State, including Cook's 911 call in which she identified
defendant as the person who beat her, her written statement to the police, and her statements to
Officer Poulos and the paramedic. The trier of fact was in the best position to weigh Cook's prior
inconsistent statements against her trial testimony and to make a credibility determination. The 911
tape alone contained enough information to convict defendant of aggravated domestic battery. On
the tape, Cook identified defendant as her attacker, stating that he held her overnight and beat her
face and that she could not even see anymore. She frantically stated that she was not able to even
see herself or get away until "now." The jury reasonably could have determined that Cook's 911 call
and statements to police were more credible than her courtroom testimony in which she denied
remembering anything. Therefore, there was sufficient evidence presented by the State to convict
defendant of aggravated domestic battery.
Unlawful restraint requires that the State prove that the defendant knowingly and without
legal authority detained another. 720 ILCS 5/10--3(a) (West 2004). Based on Cook's 911 call, the
State presented evidence sufficient to convict defendant of unlawful restraint. On the tape, Cook
stated that defendant held her overnight and that she just now had gotten away. Her written
statement also claimed that defendant "held [her] all night in his bedroom" and that she got away
when defendant got out of her truck to go into the backseat. Therefore, based on these statements,
the trier of fact reasonably could have found defendant guilty of unlawful restraint.
III. CONCLUSION
In conclusion, we find that the 911 tape was not testimonial and was properly admitted as an
excited utterance. We further find that the trial court did not err in admitting Cook's handwritten
statement pursuant to section 115--10.1. Defendant waived his foundational arguments regarding
-19-
No. 2--06--1304
Cook's statements to Officer Poulos and paramedic Koncki by failing to object at trial. Defendant
also failed to establish reversible error in admitting prior consistent portions of the grand jury
testimony. Finally, we find that the State presented sufficient evidence to support defendant's
convictions of aggravated domestic battery and unlawful restraint.
For the foregoing reasons, we affirm the judgment of the circuit court of Lake County.
Affirmed.
GROMETER and CALLUM, JJ., concur.
-20-