Appeal from the Circuit Court of Lake County. No. 09-CF-1507 Honorable Theodore S. Potkonjak, Judge, Presiding.
The opinion of the court was delivered by: Justice Hudson
JUSTICE HUDSON delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice Jorgensen concurred in the judgment and opinion.
¶ 1 The State appeals the trial court's denial of its motion in limine to admit evidence of prior domestic batteries that defendant, William E. Gist, Jr., allegedly committed against his son W.G. The State contends that the court erred by denying admission of the evidence solely because of its appraisal of a witness's credibility. We affirm.
¶ 2 An indictment charged defendant with two counts of aggravated battery of a child (720 ILCS 5/12-4.3(a) (West 2008)), aggravated domestic battery (720 ILCS 5/12-3.3 (West 2008)), and aggravated battery (720 ILCS 5/12-4(a) (West 2008)). All four counts alleged that defendant struck the victim in the chest.
¶ 3 The State moved in limine, pursuant to common law and section 115-7.4 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.4 (West 2008)), to admit evidence of prior acts of domestic violence that defendant allegedly committed against the victim and filed a notice disclosing the potential witnesses to those acts. The notice stated that defendant's son J.G. would testify that he had seen defendant strike the victim with a belt because the victim could not correctly recite his name; Angelita Gist would testify that she had seen defendant punch the victim in the stomach because he could not correctly recite his name and had seen defendant strike the victim with a belt for the same reason; and Becky Quinn of the Department of Children and Family Services would testify that defendant had admitted to her that he had disciplined the victim with a belt. The motion asserted that, in the charged incident, defendant struck the victim because he could not state his given name. Thus, the State asserted, the evidence was relevant to show defendant's intent, motive, and propensity to commit acts of domestic violence.
¶ 4 The trial court, per Judge Fred Foreman, ordered the State to present Angelita Gist's live testimony in support of the motion. At the subsequent hearing before Judge Theodore S. Potkonjak, Angelita testified that she had two children, J.G., then age eight, and W.G., who was six years old. W.G. had been nicknamed "Capone" since birth. As he grew older, he could not understand that his given name was different. Everyone called him by his nickname, and Angelita had no problem with that. Defendant, however, did not like it.
¶ 5 Two or three weeks before the charged incident, Angelita and defendant were in their bedroom with their sons and perhaps other visiting children. The issue about the victim's name had been going on for about a month. Defendant asked the victim his name. He originally answered correctly, but then kept saying, "Capone Gist." Defendant then allegedly punched the victim in the stomach. Angelita was sitting on the bed an arm's length from defendant and saw his hand go forward and hit the victim in the abdomen. She could not tell whether defendant struck the victim with a fist or an open hand. Defendant's back was to her, and he was blocking her view of the victim, but she saw the victim grab his stomach after the contact. The victim fell down, went into a fetal position, and began to cry. Angelita picked the victim up. Defendant's grandmother was in another room at the time. Angelita did not take the victim into the other room, tell the grandmother about the incident, or call the authorities. She had not seen defendant strike the victim or J.G. on any other date.
¶ 6 The trial court denied the State's motion. The court intimated that its ruling might have been different had Judge Foreman not ordered the witness to testify. The court observed that her testimony differed from that proffered in the State's motion. The court further stated:
"Based on the testimony the Court has in front of it, the Court will find that the-again, it is after the Court has had the opportunity to listen to the testimony of the witness which the Court specifically finds not to be credible as to the injury-as to the given time of the alleged incident, prior incident, but in looking-in listening to her testimony she testified that throughout the time that they were trying to do this she never witnessed the defendant striking the victim or making any visible contact with the victim because he was having trouble with his name."
¶ 7 The court noted that Angelita's account involved, at most, one prior incident. The court found that evidence of a single incident, which Angelita did not clearly see, would be more prejudicial than probative. An order prepared by the assistant State's Attorney stated that the State's motion in limine was denied in toto.
¶ 8 The State moved to reconsider, contending that the court's assessment of the witness's credibility was not a proper basis to deny admission of the evidence. The trial court denied the motion, reiterating that it found the evidence more prejudicial than probative. The State timely appealed.
¶ 9 On appeal, the State renews its argument that the trial court erred by denying admission of the evidence solely because of its assessment of the witness's credibility. The State concedes that, in deciding whether to admit evidence of prior bad acts, the trial court must balance the probative value of the evidence against the prejudice to the defendant. The State contends, however, that the court here excluded the ...