2016 IL App (1st) 143177

FIRST DIVISION AUGUST 15, 2016

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THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 DV 74550 ) DAVID JENK, ) Honorable ) Laura Bertucci-Smith, Defendant-Appellant. ) Judge Presiding.

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

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

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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

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1-14-3177 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

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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 143180

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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 towards 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

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and ran his car into a pole in the parking garage. After the crash, A.C.R. ran towards 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

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1-14-3177 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.

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¶ 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

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¶ 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. Thereafter, the defendant was sentenced to one year of probation, along with mandated domestic violence counseling classes and an order of protection against him.

¶ 15 On August 20, 2014, the trial court denied the defendant’s motion for a new trial. On

September 26, 2014, the defendant filed a timely notice of appeal, which conferred jurisdiction upon this court pursuant to Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013), and Rule 606

(eff. Jan. ^[1], 2013).

¶ 16 ANALYSIS

¶ 17 We determine the following relevant issues on appeal: (1) whether the statute allowing for the admission of the defendant’s prior offenses of domestic violence against A.C.R. was unconstitutional; (2) whether the trial court erred in admitting into evidence the defendant’s three

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prior acts of domestic violence against A.C.R.; and (3) whether the trial court erred in finding the defendant guilty of the charged offense on the basis that the court believed A.C.R.’s trial testimony to be credible.

¶ 18 We first determine whether section 115-7.4 of the Code, the statute allowing for the admission of the defendant’s prior offenses of domestic violence against A.C.R., was unconstitutional.

¶ 19 The defendant challenges the constitutionality of section 115-7.4 of the Code by arguing that it violated the equal protection and due process clauses of the Illinois and United States

Constitutions. He argues that there was no rational basis for the admission of other-crimes evidence where he has no prior criminal record, was not charged with these alleged prior bad acts, and was only charged with a misdemeanor domestic battery offense in the instant case. He further argues that other defendants charged with more serious crimes such as murder, drug- trafficking, and weapon-related offenses are afforded greater protections by Illinois courts concerning the admissibility of other-crimes evidence than he who was charged only with a misdemeanor.

¶ 20 The State argues that section 115-7.4 of the Code is constitutional, arguing that it is

rationally related to the legitimate governmental purpose of promoting the prosecution of domestic violence, a family of crimes that have historically been difficult to prosecute. The State argues that our supreme court’s decision in People v. Dabbs, 239 Ill. 2d 277 (2010), has already

rejected as meritless the defendant’s due process arguments with respect to the statute. Further, the State argues that the defendant’s equal protection claims fails also because the statute is rationally related to the prosecution of recidivist abusers, whose victims are often reluctant to testify.

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¶ 21 A constitutional challenge to a statute may be raised at any time and is subject to de novo review. People v. Robinson, 2011 IL App (1st) 100078, ¶ 12. Statutes carry a strong presumption

of constitutionality and a party challenging the constitutionality of a statute has the burden of rebutting that presumption. People v. Cornelius, 213 Ill. 2d 178, 189 (2004). To rebut the presumption, the challenging party must clearly establish a constitutional violation. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 200 (2009). We must construe a statute so as to uphold its constitutionality, if reasonably possible to do so. People v. Dinelli, 217 Ill. 2d 387, 397

(2005). Thus, any doubt as to the construction of a statute will be resolved in favor of its validity.

Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 307 (2008).

¶ 22 Section 115-7.4 of the Code states in relevant part the following:

“(a) In a criminal prosecution in which the defendant is accused of an

offense of domestic violence ***, evidence of the defendant’s commission of another offense or offenses of domestic violence is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In weighing the probative value of the evidence against undue prejudice to the defendant, the court may consider:

(1) the proximity in time to the charged or predicate offense;

(2) the degree of factual similarity to the charged or predicate offense; or (3) other relevant facts and circumstances.” 725 ILCS 5/115-7.4

(West 2012).

¶ 23 In Illinois, it is well settled that as a common-law rule of evidence, evidence of other crimes is admissible if relevant for any purpose other than to show a defendant’s propensity to

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1-14-3177 commit crimes. Dabbs, 239 Ill. 2d at 283. Such purposes include, but are not limited to show motive, intent, identity, and accident or absence of mistake. Id. Even if offered for a permissible purpose, such evidence will not be admitted if its prejudicial effect substantially outweighs its probative value. Id. at 284. The rationale for this rule is not that a defendant’s bad character, as evinced by other bad acts, is irrelevant when he is charged with a crime; rather, the rule is

grounded in the concern that such evidence proves too much. Id. By enacting section 115-7.4 of the Code, however, the legislature has abrogated, in part, this common-law propensity rule as it creates an exception by allowing the admission of propensity evidence in domestic violence cases. Id. at 284-85, 288; People v. Chapman, 2012 IL 111896, ¶ 32 (citing Dabbs holding that section 115-7.4 of the Code allows for the admission of propensity evidence).

¶ 24 In the case at bar, the defendant specifically argues that section 115-7.4 is unconstitutional as it violates his right to due process because it allows for evidence of prior bad acts to be “presumptively admissible” under the statute. We find the defendant’s argument to be without merit as it has already been squarely rejected by our supreme court in Dabbs.

¶ 25 In Dabbs, following a jury trial wherein the defendant’s ex-wife testified that he had abused her, the defendant was convicted of domestic battery against his girlfriend. Dabbs, 239

Ill. 2d at 280. The ex-wife’s testimony was admitted pursuant to section 115-7.4 of the Code, which allows the admission of evidence of a defendant’s other acts of domestic violence in a domestic violence prosecution. Id. On appeal, the Dabbs defendant, like the defendant in the case at bar, argued that section 115-7.4 was unconstitutional. Id. Before our supreme court, the Dabbs defendant argued that, in enacting section 115-7.4, the legislature made evidence of a

defendant’s other acts of domestic violence admissible “without regard to its relevance or to the balance of probative value and risk of undue prejudice.” Id. at 288. The Dabbs court rejected this

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1-14-3177 argument, finding that section 115-7.4 had abrogated, in part, the Illinois common-law evidentiary rule that evidence of other crimes is inadmissible to show a defendant’s propensity to commit crimes. Id. at 284. Furthermore, our supreme court noted that the legislature “specifically provided that other-crimes evidence ‘may be considered for its bearing on any matter to which it is relevant’ ” (id. at 290 (quoting 725 ILCS 5/115-7.4(a) (West 2012))) and that “the statute lists three factors to be considered in weighing the probative value of the evidence against undue prejudice to the defendant [citation] in addition to any other factors that the court might

ordinarily consider.” (Internal quotation marks omitted.) Id. at 290-91. Because of this, the Dabbs court held that “the plain meaning of section 115-7.4 of the Code is that the evidence of a

defendant’s commission of other acts of domestic violence may be admitted in a prosecution for one of the offenses enumerated in the statute, so long as the evidence is relevant and its probative value is not substantially outweighed by the risk of undue prejudice.” Id. at 291. The Dabbs court further held that, under the rational basis test, the statute does not violate a defendant’s due process rights because it serves a legitimate governmental purpose of promoting effective prosecution of domestic violence crimes in which victims are often reluctant to testify against

abusers or their court testimony may be affected by fear or anxiety, and the admission of evidence that the defendant has committed other crimes of domestic violence is rationally related to that purpose. Id. at 293-94; accord Chapman, 2012 IL 111896, ¶ 32 (citing Dabbs holding that

section 115-7.4 did not violate due process and that “the propensity rule is of common law origin and not of constitutional dimension”). Thus, in the case at bar, under the controlling precedent of Dabbs, the defendant’s due process claim cannot stand, and we reject his argument that evidence

of prior acts of domestic violence is “presumptively admissible” under the statute—as the plain language of the statute dictates that a court may only admit such evidence if it is relevant and the - 13 -

1-14-3177 risk of prejudice does not outweigh its probative value. Further, although the defendant points

out that he has no prior criminal record, was never charged with these alleged prior bad acts, and was only charged with a misdemeanor domestic battery offense in the instant case, we find that the argument he makes does not address the admissibility of prior acts under section 115-7.4 of the Code.

¶ 26 The defendant urges this court not to follow Dabbs, arguing that there is “some authority” supporting his argument that admission of other-crimes evidence can rise to the level

of a due process violation, by citing United States v. Morena, 547 F.3d 191 (3d Cir. 2008), and Bigby v. Cockrell, 340 F.3d 259 (5th Cir. 2003). We reject the defendant’s argument. First, aside from decisions by the United States Supreme Court, decisions by lower federal courts are persuasive, but not binding, on Illinois reviewing courts. See Mekertichian v. Mercedes-Benz

U.S.A., L.L.C., 347 Ill. App. 3d 828, 834-36 (2004). We, however, are bound by the decisions of the Illinois Supreme Court. Id. at 836. Second, neither Morena nor Cockrell is persuasive, as these cases do not concern section 115-7.4 of the Code and both predate Dabbs. Morena involved a reversal of defendant’s weapon convictions on the basis of prosecutorial misconduct

in violation of due process, where although the court had initially ruled that evidence of defendant’s drug use and dealing was admissible to show motive, the State repeatedly crossed

the line at trial by systematically injecting the drug evidence with no apparent proper purpose, despite explicit warnings by the trial court not to do so. Morena, 547 F.2d at 194-96. The Cockrell decision is no longer good law as it was withdrawn and replaced by a subsequent decision, Bigby v. Dretke, 402 F.2d 551 (5th Cir. 2005), which held that prejudicial evidence admitted during defendant’s capital murder trial regarding his attack on the trial judge, even if it violated defendant’s due process rights, did not have “substantial and injurious” effect on the - 14 -

1-14-3177 jury’s guilty verdict in light of the overwhelming evidence of his guilt for murder. Id. at 564.

Neither Morena nor Dretke is applicable to the facts of the case at bar. Therefore, we see no reason to deviate from our supreme court’s holding in Dabbs that the admission of other-crimes evidence pursuant to section 115-7.4 does not violate due process. Accordingly, the defendant’s due process claim must fail.

¶ 27 The defendant further argues that section 115-7.4 of the Code is also unconstitutional because it violates equal protection guarantees in that other defendants charged with more serious crimes such as murder, drug-trafficking, and weapon-related offenses are afforded greater protections concerning the admissibility of other-crimes evidence than he who was

charged only with misdemeanor domestic battery. He contends that the admission of his prior acts of domestic violence for propensity purposes violated his equal protection rights.

¶ 28 The State counters that the defendant’s equal protection claim fails because section 115-

7.4 is rationally related to the prosecution of recidivist abusers, whose victims are often reluctant

to testify. The State argues that while our supreme court in Dabbs did not address the merits of the defendant’s equal protection challenge to section 115-7.4 under state and federal constitutions because the defendant had only raised this point before the appellate court but had abandoned the argument by the time the case reached our supreme court (Dabbs, 239 Ill. 2d at

294), the appellate court whose opinion the Dabbs court affirmed, did address the equal protection issue and found it to be without merit. See People v. Dabbs, 396 Ill. App. 3d 622

(2009). We agree that the appellate court’s equal protection analysis in Dabbs is sound, and we likewise adopt it.

¶ 29 In conducting an equal protection analysis, we apply the same standards under the United

States Constitution and the Illinois Constitution. In re Derrico G., 2014 IL 114463, ¶ 88. The - 15 -

1-14-3177 equal protection clause guarantees that similarly situated individuals will be treated in a similar fashion, unless the government can demonstrate an appropriate reason to treat them differently.

Id. The equal protection clause does not forbid the legislature from drawing proper distinctions in legislation among different categories of people, but it does prohibit the government from doing so on the basis of criteria wholly unrelated to the legislature’s purpose. Id. Where no

suspect class or fundamental rights are at issue, this court applies a rational basis scrutiny and considers whether the challenged classification bears a rational relationship to a legitimate governmental purpose. Id.

¶ 30 In 2007, the Illinois General Assembly passed Public Act 95-360 (Pub. Act 95-360 (eff.

Aug. 23, 2007)), which created section 115-7.4 of the Code. The bill was “modeled on the current treatment of evidence in cases of criminal sexual assault” set forth in section 115-7.3 of the Code (725 ILCS 5/115-7.3 (West 2006)). 95th Ill. Gen. Assem., Senate Proceedings, May 28, 2007, at 47 (statements of Senator Harmon). It was created as a tool for law enforcement and victims because “domestic violence is a recurring crime in the same way that sexual abuse and sexual assault is.” 95th Ill. Gen. Assem., House Proceedings, Apr. 25, 2007, at 46 (statements of Representative Gordon).

¶ 31 Section 115-7.4 of the Code is nearly identical to section 115-7.3 of the Code. The only

major difference between the sections is the crime involved: section 115-7.3 deals with prior incidents of sexual abuse, while section 115-7.4 covers prior incidents of domestic violence. See

725 ILCS 5/115-7.3(b) (West 2006); 725 ILCS 5/115-7.4(a) (West 2012). Both sections provide that evidence that the defendant committed these prior crimes can be admissible and “may be considered for its bearing on any matter to which it is relevant.” See 725 ILCS 5/115-7.3(b)

(West 2006); 725 ILCS 5/115-7.4(a) (West 2012). They also identically list the three factors that

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1-14-3177 a court may consider in weighing the probative value of the evidence against undue prejudice to the defendant. See 725 ILCS 5/115-7.3(c) (West 2006); 725 ILCS 5/115-7.4(b) (West 2012).

Both our supreme and appellate courts have examined the constitutionality of section 115-7.3

(dealing with prior incidents of sexual abuse) and found it to be constitutional. See People v. Donoho, 204 Ill. 2d 159 (2003); People v. Beaty, 377 Ill. App. 3d 861 (2007).

¶ 32 In Donoho, our supreme court held that section 115-7.3 of the Code does not violate the equal protection clause. Donoho, 204 Ill. 2d at 177; accord Beaty, 377 Ill. App. 3d at 883. The Donoho court explained that section 115-7.3 is modeled after Federal Evidence Rules 413 and 414 (Fed. Rs. Evid. 413, 414). Donoho, 204 Ill. 2d at 177. The Donoho court ruled that, like

Rules 413 and 414, section 115-7.3 only had to pass the rational basis test because “[s]exual offense defendants are not a suspect class.” Id.

¶ 33 Because our supreme court in Donoho has found section 115-7.3 to not be in violation of a defendant’s equal protection rights, section 115-7.4, which is nearly identical to section 115-

7.3, must also be constitutional under equal protection guarantees. We find that section 115-7.4 bears a rational relationship to a legitimate governmental purpose, and, thus, it does not violate equal protection guarantees.

¶ 34 The defendant further argues that because propensity evidence is not allowed in more serious crimes such as murder, drug-trafficking, and weapon-related offenses, it is irrational that he, who is charged only with misdemeanor domestic battery, should be subject to the admission

of propensity evidence. In support, he cites a number of cases wherein courts have held that the admission of other-crimes evidence was prejudicial error. See People v. Manning, 182 Ill. 2d 193

(1998); People v. Cruz, 162 Ill. 2d 314 (1994); People v. Thingvold, 145 Ill. 2d 441 (1991);

People v. Starks, 116 Ill. App. 3d 384 (1983); People v. Barnes, 182 Ill. App. 3d 75 (1989);

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United States v. Beasley, 809 F.2d 1273 (7th Cir. 1987); United States v. Richards, 719 F.3d 746

(7th Cir. 2013). We find the defendant’s argument to be unpersuasive, as these cited cases deal with the common-law approach to other-crimes evidence as we have exhaustively explained.

Therefore, the defendant’s equal protection claim must fail. Accordingly, we hold that section

115-7.4 of the Code is not unconstitutional.

¶ 35 We next determine whether the trial court erred in admitting into evidence the defendant’s three prior acts of domestic violence against A.C.R. It is within the sound discretion of the trial court to determine the admissibility of other-crimes evidence, and its decision will not

be disturbed absent a clear abuse of discretion. See Chapman, 2012 IL 111896, ¶ 19. An abuse of discretion occurs where the trial court’s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court. People v. Jackson, 2014 IL

App (1st) 123258, ¶ 39.

¶ 36 The defendant argues that a new trial is warranted, by claiming that the trial court

“prejudicially erred” in admitting evidence of his three prior incidents of domestic violence

against A.C.R., where the admission of such propensity evidence replaced the necessary proof required to convict him of the charged offense in the instant case.

¶ 37 The State argues that the trial court properly admitted evidence of the defendant’s prior acts of domestic violence against A.C.R. pursuant to section 115-7.4 of the Code. The State

points out that, in allowing the introduction of three out of six proposed prior incidents of domestic violence involving the defendant, the trial court properly found that the other-crimes evidence was relevant to establish the defendant’s intent, the absence of mistake, his continued hostility toward A.C.R., and his propensity to commit acts of domestic violence. The State also argues that the trial court then carefully weighed the probative value of the other-crimes evidence

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1-14-3177 against its prejudicial effect under section 115-7.4 of the Code, which was not an abuse of discretion.

¶ 38 Based on our review of the record, we cannot conclude that the trial court abused its

discretion in admitting evidence of the three prior incidents of domestic violence involving the defendant and A.C.R. Prior to trial, a hearing on the State’s motion to admit six incidents of prior domestic violence was held, during which the parties made arguments before the court. The trial court then found that, because three of the six prior incidents (July 20, 2011; January 11, 2013; and May 2, 2013) were not supported by any corroborating evidence, they were not admissible

as the prejudicial effect of admitting those incidents would outweigh the probative value. The remaining three prior incidents (February 10, 2012; February 26, 2012; and August 18, 2012), however, were found to be admissible by the court because they were supported by corroborating

evidence such that the probative value was not outweighed by the prejudicial effect of the evidence. The trial court further found that the February 10, February 26, and August 18

occurrences were relevant to show the defendant’s motive, intent, or absence of mistake in harming A.C.R., 1 and that, in considering the statutory factors under section 115-7.4 of the Code, they were close in time to the charged offense and had a high degree of factual similarity to the instant case. See 725 ILCS 5/115-7.4 (West 2012) (enumerating factors for a court to consider in weighing the probative value of the evidence against undue prejudice). We find that in admitting