People v. DeSomer

• Decision Date: 03 January 2013
• Docket Number: No. 2–11–0663.,2–11–0663.
• Citation: 43 N.E.3d 527
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Dirk W. DeSOMER, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

43 N.E.3d 527

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Dirk W. DeSOMER, Defendant–Appellant.

No. 2–11–0663.

Appellate Court of Illinois, Second District.

Jan. 3, 2013.

Thomas A. Lilien and Kathleen J. Hamill, both of State Appellate Defender's Office, of Elgin, for appellant.

Eric C. Weis, State's Attorney, of Yorkville (Lawrence M. Bauer and Mary Beth Burns, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant, Dirk W. DeSomer, was convicted of domestic battery (720 ILCS 5/12–3.2(a)(2) (West 2010)) and resisting a peace officer (720 ILCS 5/31–1(a) (West 2010)). Defendant appeals, contending that the trial court erred by admitting under the excited-utterance exception to the hearsay rule a statement by defendant's girlfriend, the alleged victim, that defendant was beating her. We affirm.

¶ 2 At trial, Oswego police officer Patrick Wicyk testified that at about 1:30 a.m. on August 12, 2010, he was on Madison Street responding to a call unrelated to this case. He heard a loud banging, as if someone were slamming a door or being slammed into a door. A short time later, Wicyk saw a white female in the street, running and screaming that she needed help because “her boyfriend was beating her.” The woman identified herself as Patricia Langan (the complaint identifies the victim as Patricia Lang). Wicyk approached her and, in the light of his flashlight, saw that she was “visibly disturbed and shaking. Her chest appeared to be red as if she was in—it looked like to me [she] appeared to be in some type of physical confrontation in the past couple of minutes.”

¶ 3 Over defendant's objection, the trial court allowed Wicyk to testify to what the woman told him. The court ruled that Wicyk's description of Langan as “disturbed and shaking” rendered her subsequent statement admissible as an excited utterance. Wicyk then testified that Langan “continued to say that the male inside the house was beating her and wouldn't allow her out of the house.” Langan had no shoes and “seemed to be visibly disturbed.”

¶ 4 After 15 or 20 minutes, Wicyk and another officer, Kenneth Foote, were able to get into the house, which Wicyk described as being in “complete disarray” as if “there was some type of physical confrontation that occurred there.” The officers found defendant in a bedroom, halfway under a bed. He appeared to be intoxicated. When asked what had occurred that night, defendant replied “Nothing.” When pressed, he elaborated that his girlfriend was outside “yelling and screaming like she does on multiple occasions stating that she's in duress.” Defendant identified Langan as his girlfriend.

¶ 5 After going back outside to speak to Langan, Wicyk returned to the house and arrested defendant. He and Foote described how the arrest required them to push him onto a bed and handcuff him.

¶ 6 Defendant testified that the officers entered his house and asked him why Langan was outside screaming and to explain the red marks on her chest. He explained that she had gotten sunburned while riding her bicycle.

¶ 7 The trial court found defendant guilty of resisting a peace officer and of domestic battery based on conduct of an insulting or provoking nature. The court found defendant not guilty of domestic battery based on causing bodily harm. The court explained:

“On the domestic battery, I'm going to find the defendant guilty of domestic battery, insulting or provoking contact. I think the condition of the woman that was observed supports that.”

¶ 8 The court stated that it was doing “defendant a favor” by finding him not guilty of domestic battery based on causing bodily harm, because there was “probably enough case law to sustain physical injury with a red mark.” The court sentenced defendant to 12 months' conditional discharge. Defendant did not file a posttrial motion, but he filed a timely notice of appeal.

¶ 9 Defendant contends that the trial court erred by permitting Wicyk to testify that Langan said that defendant was beating her. He maintains that the statement was hearsay and that the excited-utterance exception did not apply.

¶ 10 Initially, defendant acknowledges that he did not file a posttrial motion, which generally would result in forfeiture of the issue. However, he contends that we should consider the issue as plain error. Under the plain-error doctrine, a reviewing court is permitted to consider unpreserved error under the following two scenarios:

“(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” People v. Sargent, 239 Ill.2d 166, 189, 346 Ill.Dec. 441, 940 N.E.2d 1045 (2010).

¶ 11 “The defendant bears the burden of persuasion under both prongs of the plain-error analysis.” People v. Wigman, 2012 IL App (2d) 100736, ¶ 31, 366 Ill.Dec. 1, 979 N.E.2d 583. “The first step in the plain-error analysis is to determine whether error occurred at all.” Id. The parties agree that Langan's statement to Wicyk was hearsay. The trial court admitted it pursuant to the excited-utterance exception to the hearsay rule. Defendant contends that this was error.

¶ 12 For a statement to be admissible under the excited-utterance exception, also known as the spontaneous-declaration exception, there must be an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, an absence of time for the declarant to fabricate a statement, and a statement relating to the circumstances of the occurrence. Ill. R. Evid. 803(2) (eff. Jan. 1, 2011); People v. Sutton, 233 Ill.2d 89, 107, 330 Ill.Dec. 198, 908 N.E.2d 50 (2009) ; People v. Williams, 193 Ill.2d 306, 352, 250 Ill.Dec. 692, 739 N.E.2d 455 (2000). Courts use a totality-of-the-circumstances analysis to decide whether a statement is admissible under the excited-utterance exception. Williams, 193 Ill.2d at 352, 250 Ill.Dec. 692, 739 N.E.2d 455. Courts consider several factors, including the passage of time, the declarant's mental and physical condition, the nature of the event itself, and whether the statement is in the declarant's self-interest. Sutton, 233 Ill.2d at 107, 330 Ill.Dec. 198, 908 N.E.2d 50. The time that may pass without affecting the admissibility of a statement varies greatly; the critical inquiry is “whether the statement was made while the excitement of the event predominated. [Citations.]” (Internal quotations marks omitted.) Id. at 107–08, 330 Ill.Dec. 198, 908 N.E.2d 50. “The admission of evidence is within the sound discretion of the trial court, and its ruling should not be reversed absent a clear showing of abuse of that discretion.” People v. Tenney, 205 Ill.2d 411, 436, 275 Ill.Dec. 800, 793 N.E.2d 571 (2002).

¶ 13 Here, the trial court could reasonably conclude that Langan's statement to Wicyk was indeed spontaneous. Wicyk encountered Langan running and screaming in the street at 1:30 a.m. She was visibly upset and shaking (see People v. Dominguez, 382 Ill.App.3d 757, 769, 321 Ill.Dec. 272, 888 N.E.2d 1205 (2008) (admitting as excited utterance statement by declarant who was crying and hysterical)) and had a red mark on her chest consistent with having been involved in an altercation within the past few minutes. Moreover, she made the statement spontaneously, apparently to the first person she encountered, rather than in response to questioning. See People v. Smith, 152 Ill.2d 229, 260, 178 Ill.Dec. 335, 604 N.E.2d 858 (1992) (in affirming admission of statement as excited utterance, court found significant that declarant made statement to first person she saw). Under these circumstances, the trial court did not err in admitting the statement pursuant to the excited-utterance exception.

¶ 14 Defendant makes several arguments in support of his contention that admitting the evidence was indeed an abuse of discretion. He contends that there was no proof of the startling event other than the statement itself. In other words, other than Langan's statement that defendant was beating her, there was no evidence that such a beating took place. The State responds that, although there must be independent proof of the startling occurrence, the circumstantial evidence here was sufficient to establish that an altercation took place. We agree.

¶ 15 While the exciting event cannot be proved solely by the statement itself (People v. Babbington, 286 Ill.App.3d 724, 736, 222 Ill.Dec. 122, 676 N.E.2d 1326 (1997) ), circumstantial evidence of the event is sufficient ( People v....