Appeal from the Circuit Court of Kendall County. No. 10-CM-854. Honorable Robert J. Morrow, Judge, Presiding.
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and 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 ...