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People v. Jenk

Court of Appeals of Illinois, First District, First Division

August 15, 2016

DAVID JENK, Defendant-Appellant.

          Rehearing denied September 20, 2016

         Appeal from the Circuit Court of Cook County, No. 13-DV-74550; the Hon. Laura Bertucci-Smith, Judge, presiding


          Allan A. Ackerman, of Chicago, for appellant.

          Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and John J. Sviokla II, Assistant State's Attorneys, of counsel), for the People.

          Panel CUNNINGHAM PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices Connors and Harris concurred in the judgment and opinion.



         ¶ 1 Following a bench trial, the circuit court of Cook County found defendant David Jenk guilty of misdemeanor domestic battery and sentenced him to one year of probation. On direct appeal, the defendant argues that (1) the statute allowing for the admission of his prior offenses of domestic violence (725 ILCS 5/115-7.4 (West 2012)) was unconstitutional, (2) the trial court erred in admitting into evidence his prior acts of domestic violence against the victim, and (3) the trial court erred in finding the victim credible at trial. For the following reasons after allowing the defendant's posttrial argument motion to cite additional authority and having included that authority in our analysis, we affirm the judgment of the circuit court of Cook County.

         ¶ 2 BACKGROUND

         ¶ 3 On August 7, 2013, the defendant was charged with misdemeanor domestic battery against his girlfriend, A.C.R., in connection with an incident that occurred on June 9, 2013. On January 21, 2014, the State filed a motion for proof of prior bad acts (motion to admit), seeking to introduce evidence of the defendant's six prior bad acts of domestic violence against A.C.R. Specifically, the State alleged that, pursuant to section 115-7.4 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.4 (West 2012)), evidence of the prior bad acts was admissible at trial because they occurred close in proximity of time to the charged offense; the prior bad acts were sufficiently similar to the charged offense; and they were relevant to show motive, intent, absence of mistake, and defendant's propensity to commit crimes of domestic violence. On January 30, 2014, the defendant filed a combined response to the State's motion and a motion in limine, arguing that the alleged six prior bad acts of domestic violence, for which he was never charged, were inadmissible on the basis that the statute was unconstitutional in violation of his equal protection and due process rights.

         ¶ 4 On March 18, 2014, prior to the start of trial, a hearing on the State's motion to admit was held during which the State described the six incidents of prior bad acts involving the defendant and A.C.R. that occurred on July 20, 2011; February 10, 2012; February 26, 2012; August 18, 2012; January 11, 2013; and May 2, 2013. The State asserted that evidence in the form of photographs was available to corroborate the February 10, February 26, and August 18 incidents. Medical testimony was also available to corroborate the February 26 incident. Defense counsel argued against the admissibility of the six prior bad acts on the basis that they were more prejudicial than probative and that the statute under which these prior bad acts may be admissible was unconstitutional in violation of equal protection and due process rights. The trial court, after considering the parties' arguments, found that all of the prior bad acts were close in time to the charged offense; that all of the prior incidents, except for the January 11 and May 2 incidents, were factually similar; and that the July 20, January 11, and May 2 incidents lacked any corroborating evidence to warrant inclusion. However, the trial court found the three remaining incidents dated February 10, February 26, and August 18 to be admissible at trial because they were supported by corroborating evidence, and the probative value of the evidence outweighed the prejudicial effect. The case then proceeded to a bench trial.

         ¶ 5 At trial, A.C.R. testified that she was 27 years old and had dated the defendant from 2011 to July 2013. On June 8, 2013, she and the defendant were at a graduation party for a friend, which was held at the defendant's condominium. She arrived at the party at about 7:30 p.m. The defendant and A.C.R. consumed alcohol at the party and both became intoxicated that evening. At some point, they, along with their friends, left the graduation party and went to an upscale bar called the Paris Club, where they continued to drink alcohol. When they left the Paris Club at 3 a.m. on June 9, 2013, she and the defendant took a taxicab to her apartment at 1434 North Greenview Avenue in Chicago, where she lived alone. En route, the couple began to argue inside the taxicab and continued to argue when they arrived at their destination and walked through a courtyard leading to her apartment unit. Once inside, the couple engaged in a physical fight. A.C.R. recalled seeing a "hand come at the left side of [her] face, " after which she lost consciousness. When she awoke on the ground covered in blood, the defendant was cleaning the blood on the floor with a paper towel. A.C.R. looked in the mirror and noticed that her face was severely swollen with a large gash over her right eye. After A.C.R. changed into loose-fitting clothing, the defendant cleaned her bloody clothes. A.C.R. felt pain above her right eye and begged the defendant to take her to the emergency room, but the defendant told her that she deserved everything that happened to her. Eventually, the defendant took A.C.R. to Rush University Medical Center (Rush Hospital), where she was admitted into the emergency room and received five stitches above her right eye. The defendant was present during her hospital treatment, and A.C.R. gave a false account to hospital personnel regarding what had occurred, telling them that she was "jumped" on her way home. A.C.R. testified that both she and the defendant agreed to give this fictitious account. A police officer later arrived at the hospital to speak with A.C.R., who lied by saying that she was attacked getting out of a taxicab on her way home. The defendant was also present during A.C.R.'s conversation with the officer. As soon as the police officer exited the room, A.C.R. and the defendant left the hospital against the advice of A.C.R.'s treating physician, who had recommended a CAT scan as a result of the trauma to her face. A.C.R. felt terrified and, despite being in pain, returned to her apartment with the defendant. At that time, she was still in love with the defendant. She did not contact her friends and family for a few days because she was embarrassed and did not know what to say. Eventually, she lied to her parents by telling them that she was in a car accident, a story that was fabricated by the defendant. Two days later, on June 11, 2013, A.C.R., who was still unable to use her left arm and was in excruciating pain, received further treatment for her injuries at St. Joseph Hospital. At St. Joseph Hospital, A.C.R., who was accompanied by the defendant, received X-rays which revealed a fracture of her left arm. Her arm was then put into a cast. She told the medical staff at St. Joseph Hospital that her injuries resulted from being in a car accident. At trial, she testified that she and the defendant both took photographs of her injuries after the June 9, 2013, incident and after a subsequent visit to an orthopedic surgeon. She identified the photographs depicting her injuries as People's Exhibit Nos. 1 to 13, which were then admitted into evidence without objection at trial. Although A.C.R. had health insurance through her employer, she received a hospital bill in July 2013 for thousands of dollars, for which she was responsible for $150 in out-of-pocket expenses. She contacted the defendant, who agreed to pay for her medical expenses and gave her a check dated July 15, 2013, with the following written on the memo line of the check: "settlement of medical bills." Subsequently, A.C.R. received a second medical bill, for which she requested payment from the defendant. However, the defendant requested an electronic copy of the second bill and acknowledged receipt after A.C.R. sent it, but never paid the bill. A.C.R. further testified that after June 11, 2013, she remained in a dating relationship with the defendant because she was still in love with him, claiming that they continued to share some "happy days." On July 25, 2013, A.C.R. ended her relationship with the defendant after he failed to show up for her doctor's appointment to have her cast removed. She testified that she felt betrayed by the defendant's absence at that time. In August 2013, A.C.R. traveled to New York with her mother, where A.C.R. finally revealed to her mother the truth about the June 9, 2013, incident. Upon their return to Chicago, A.C.R. reported the June 9, 2013, incident in person to the police. This marked the first time she had ever reported the defendant's abuse to the police. When questioned why she waited until August 2013 before reporting the physical abuse to the police, A.C.R. explained the delay by stating that she was scared, fearful, afraid for her life, and still in love with the defendant.

         ¶ 6 At trial, A.C.R. also testified to three prior instances of abuse by the defendant. She recalled that on February 10, 2012, she went out with the defendant and his mother after work. Afterwards, while walking to the defendant's car, A.C.R. and the defendant got into an argument about their shared dog. They pushed and pulled each other before the defendant dragged A.C.R. and pounded her head into the cement floor of the parking garage. He also ripped out her ear piercings from the cartilage and broke her purse. A.C.R. sustained welts on the back of her head. She then managed to grab the defendant's car keys, ran toward his car, and started the car. The defendant then opened the driver's side door of the car and began choking her with the seat belt by wrapping it around her neck. As both struggled for the wheel, A.C.R. stepped on the gas pedal and ran his car into a pole in the parking garage. After the crash, A.C.R. ran toward the elevator with the defendant in pursuit. He ultimately caught up to her, forcefully pulled her back into his car, threw her into the passenger seat, and drove her home. During the ride home, the defendant became hysterical and began punching and smashing his forehead into the steering wheel. When A.C.R. started to call his mother, the defendant punched her in the face. A.C.R. began to bleed and thought she had a broken nose. As a result of this incident, A.C.R. sustained a bloody nose, black and blue marks above her eye, welts on her back, and had her earrings torn out. After the February 10, 2012, incident, A.C.R. documented these injuries by taking photographs, which were admitted without objection at trial as People's Exhibit Nos. 18, 19, and 20.

         ¶ 7 A.C.R. further testified to another prior incident on February 26, 2012, when the defendant and A.C.R. invited friends over to his parents' condominium where the defendant lived at that time. They were drinking that evening, and after the guests left, A.C.R. stayed up to clean while the defendant slept in his bedroom. At about 3 a.m., A.C.R. kissed the defendant while he was sleeping and woke him up. The defendant became enraged and screamed at her, while A.C.R. locked herself in a nearby guest bedroom. The defendant broke down the guest bedroom door and entered the room, where he grabbed the back of her head by her hair and repeatedly slammed her face into the wood flooring. A.C.R. felt pain in her chin and screamed. Neighbors heard A.C.R.'s screams and notified the police, who then arrived at the scene. A.C.R. had "massive hemorrhaging" to her chin, but wore a "zip up" to cover her injury. Although A.C.R. was pulled aside by one of the two officers, she did not tell him the truth and only told him that she and the defendant were arguing. A few hours later, A.C.R., accompanied by the defendant, sought medical treatment at Rush Hospital, where the medical staff took X-rays of her chin. She lied to the medical staff by telling them that she fell while getting out of the shower. At the time of trial, A.C.R.'s chin was still deformed and a scar remained as a result of the February 26, 2012, incident. Photographs of those injuries, taken by A.C.R. and the defendant, were admitted into evidence without objection at trial as People's Exhibit Nos. 21 to 25.

         ¶ 8 A.C.R. also testified to a third prior incident that occurred on August 18, 2012, during which the couple got into an argument that escalated into pushing and shoving before A.C.R. ended up on her knees in front of the defendant. The defendant then grabbed her head and kneed her in the face. A.C.R. sustained a scratch on her right cheek, as well as swelling and bruising. Although A.C.R. did not seek medical treatment for these injuries, she took off a week from work by lying to her coworkers that she had been hit in the face by a softball-a sport she had never played. Immediately after this incident, A.C.R. documented her injuries in photographs which showed scabs, a black and blue eye, and a swollen cheek and which were admitted without objection at trial as People's Exhibit Nos. 26 to 30.

         ¶ 9 Nurse Robert Wuthenow (Nurse Wuthenow), who treated A.C.R. in the emergency department at Rush Hospital, testified that A.C.R. and the defendant arrived at the hospital at about 10 a.m. on June 9, 2013. A.C.R. had swelling to the left jaw, a laceration to the right eyebrow, and some bruising on the right forearm, which A.C.R. attributed to injuries she sustained from an unknown assailant on her way home from a bar that evening. A.C.R. indicated to Nurse Wuthenow that she was intoxicated at the time of the attack. Rush Hospital then notified the police, who interviewed A.C.R. at the hospital. A.C.R. then left the hospital against the advice of the medical staff and failed to finish the recommended CAT scan. On cross-examination, Nurse Wuthenow testified that A.C.R. told him that she never lost consciousness during the incident, but that he could not recall whether the defendant was in the treatment room with A.C.R. when the police spoke with her.

         ¶ 10 Nurse Candida Nunez (Nurse Nunez) testified that she worked in the emergency department at St. Joseph Hospital on June 11, 2013, when A.C.R. arrived at the hospital. Although Nurse Nunez could not recall why A.C.R. needed treatment, she applied a cast and sling on A.C.R.'s arm based on a doctor's directives.

         ¶ 11 Nurse Practitioner Erica Gaddy (Nurse Gaddy) testified that she worked in the emergency department of Rush Hospital on February 26, 2012, when A.C.R. was admitted for chin pain, headache, and jaw pain. Nurse Gaddy observed a large bruise on A.C.R.'s chin, which was swollen and had a pocket of blood. A.C.R., who then received pain medication and an X-ray, told Nurse Gaddy that her injuries resulted from slipping and falling in the shower. Nurse Gaddy recalled that someone else was present when she spoke with A.C.R., but that she did not know the identity of that person.

         ¶ 12 Officer Debbie Stolfe (Officer Stolfe) testified that at about 10:30 a.m. on June 9, 2013, she was dispatched to an emergency treatment room at Rush Hospital where she spoke with A.C.R. Officer Stolfe observed a cut to A.C.R.'s right eyebrow, bruising on her arms and left cheek, and red marks on the front of her neck. Officer Stolfe could not remember whether anyone else was present during her conversation with A.C.R., who informed the officer that at about 3:30 a.m., she was coming home from a night of partying and drinking when an unknown male assailant tried to grab her purse and struck her in the face. The unknown assailant ran away when A.C.R. started kicking and screaming, after which A.C.R. notified her boyfriend about the incident. A.C.R. also informed Officer Stolfe that it was not until several hours later, at about 10:30 a.m., that the defendant drove her to Rush Hospital. Although Officer Stolfe found this delay to be odd, she did not ask any follow-up questions about it. A.C.R. did not receive any medical treatment prior to arriving at Rush Hospital. During the conversation, Officer Stolfe noticed that A.C.R. was fully aware of her surroundings and did not slur her words.

         ¶ 13 Officer Richard Revolorio (Officer Revolorio) testified that on August 6, 2013, A.C.R. and her parents arrived at the police station to file a police report against the defendant regarding the June 9, 2013, incident. A.C.R. was crying and her parents were also emotional. Officer Revolorio noticed that A.C.R. had a bandaged wrist and laceration or injury on one side of her face.

         ¶ 14 Following Officer Revolorio's testimony at trial, the State rested. The trial court then denied defense counsel's motion for a directed finding of acquittal. The defense elected not to call any witnesses, and the trial court admitted into evidence several defense exhibits (Defendant's Exhibit Nos. 1 to 9), which were text messages and photographs introduced during A.C.R.'s cross-examination testimony. Following closing arguments, the trial court found the defendant guilty of the charged crime, finding A.C.R.'s testimony to be credible. ...

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