2024 IL App (2d) 230434-U 

No. 2-23-0434 

Order filed May 28, 2024

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of McHenry County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 22-CF-422 

) 

KHUMOYUN ERMATOV, ) Honorable 

) Tiffany E. Davis, 

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________ 

JUSTICE SCHOSTOK delivered the judgment of the court.

Presiding Justice McLaren and Justice Birkett concurred in the judgment.

ORDER

¶ 1 Held: (1) Defendant was proved guilty beyond a reasonable doubt of aggravated domestic 

battery despite his wife recanting at trial her 911 call reporting that defendant had 

choked and thrown her. (2) The wife’s 911 call was admissible as an excited 

utterance where circumstances made it unlikely that she fabricated the allegation 

that defendant had choked and thrown her.

¶ 2 Defendant, Khumoyun Ermatov, was charged with battering his wife, Daria Ermatov. 

Following a bench trial, he was convicted of one count of aggravated domestic battery (720 ILCS 

5/12-3.3(a-5) (West 2020)) (count I) and two counts of domestic battery (id. § 12-3.2(a)(1), (a)(2)) 

(counts II and III). Counts II and III merged with count I for sentencing purposes, and defendant 
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was sentenced to 18 months of felony probation. In this timely filed appeal, defendant argues that 

(1) he was not proved guilty beyond a reasonable doubt because Daria testified at trial that she lied 

to the 911 operator and the two responding police officers about being battered and (2) the trial 

court erred in admitting Daria’s 911 call as an excited utterance. We affirm.

¶ 3 I. BACKGROUND

¶ 4 Count I of the three-count indictment against defendant alleged that he committed 

aggravated domestic battery in that he knowingly strangled Daria by applying pressure to her neck. 

Counts II and III each charged domestic battery and alleged that defendant grabbed Daria by the 

neck and shoulders, causing red abrasions on her neck. Count II alleged bodily harm and count 

III alleged physical contact of an insulting or provoking nature.

¶ 5 Before trial, the State filed motions in limine. In one of its motions, the State sought to 

admit at trial the 911 call Daria made on the night of the incident. The State argued that the call’s 

content, although hearsay, was nontestimonial and, furthermore, admissible under the excited 

utterance exception to the hearsay rule. See Ill. R. Evid. 803(2) (eff. Mar. 24, 2022). Defendant 

objected. After listening to the 911 call, the court granted the State’s motion. The court found 

that the 911 call was made as part of an ongoing emergency and, thus, was nontestimonial. The 

court also found that the 911 call met the criteria for an excited utterance and would be admissible 

on that basis if the State laid the proper foundation at trial.

¶ 6 In another motion in limine, the State sought to admit certain prior statements by Daria 

under section 115-10.2a of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.2a 

(West 2020)). The court reserved ruling on this motion until trial.
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¶ 7 The State’s evidence at trial showed that the incident occurred on the evening of June 11, 

2022, in Daria and defendant’s McHenry County home, which they shared with their six-monthold baby and Daria’s two children from another relationship.

¶ 8 Daria testified that she made the 911 call after phoning her sister, Liza. A recording of the 

call was admitted into evidence.1

 On the call, which was made at 11:15 p.m. on June 11, 2022, 

Daria sounded scared, upset, and on the verge of crying. When asked for her address, she 

volunteered that defendant had abused her. When asked to specify what had happened, she said 

that defendant had “chok[ed]” and “throw[n]” her and that she had bruises. She then volunteered 

further information about the incident. She said that she had put their baby in the crib, and when

she tried to turn off the television, defendant, who had been acting “crazy,” began “throwing [her] 

against *** the whole room.” She noted that defendant was currently on another line with the 

police, claiming that she was drunk. She told the operator that she had just returned from her 

sister’s house when the battery occurred. She confirmed that defendant was currently in the room 

with her and that she wanted to remain there because she was afraid for their baby. When asked 

if “anything like this has ever happened to [her] before,” she said yes but that she did not report it. 

She then stated that she had gone to “immediate care” earlier in the day because of a panic attack. 

She told the operator that defendant had been abusing her emotionally and physically “this whole 

time.” She repeated that defendant was accusing her of drinking. She denied that she was drinking. 

1

The State attempted to introduce the 911 call into evidence after its first witness, the 911 

operator, testified. The trial court declined to admit the call at that time, citing a lack of foundation. 

After Daria and other witnesses testified, the State moved to reconsider. The court then reversed 

its decision and admitted the 911 call, finding that the additional evidence laid a proper foundation. 
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She also denied that she had come home “screaming” that day. Rather, she had come home quietly 

with the three children. She had left the house with them because defendant had been “aggressive” 

for several days.

¶ 9 Daria testified that she and her children left Liza’s house at about 10 p.m. on June 11, 2022. 

Upon arriving home, she prepared to feed the baby in the couple’s bedroom. At her request, 

defendant turned off the television during the feeding. After the feeding, Daria put the baby in her 

crib near the television in the bedroom. Defendant turned on the television, and this made Daria 

angry. She repeatedly asked him to turn it off. When he refused, she pulled on the power cord to 

unplug the television. This caused the television to shake. Defendant, afraid that the television 

would fall on Daria or the baby, “touched [Daria’s] shoulder and moved [her] away.” Daria denied 

that defendant grabbed her by the neck and choked her. After the incident, she phoned Liza for 

about two minutes. After speaking with Liza, she called the 911 operator. The police arrived 

before Liza did. Liza was with Daria when the police interviewed her. The sisters spoke Russian 

to each other during the interview. Liza was “tell[ing] [her] what to say.” She also gave the police 

a written statement. The trial court admitted the statement under section 115-10.2a of the Code. 

Daria had written that, when she attempted to turn off the television, defendant grabbed her by the 

neck and choked her, causing her to feel dizzy and short of breath.

¶ 10 However, Daria testified that she lied to the 911 operator and the police about defendant 

battering her. She denied that he choked, pushed, or shook her or caused her bodily harm. She 

claimed she falsely accused defendant of battery because she was angry with him about their 

finances. She was also suffering from postpartum depression at the time. Moreover, she had 

several glasses of wine at Liza’s house before returning home on the night of the incident. On the 

day after the incident, she attempted to speak with the prosecutors about dropping the charges, but 
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no one was in the office when she called, as it was a Sunday. She admitted that she was 

unemployed, had no money, and was sponsoring defendant so that he could obtain his United 

States citizenship. She testified that she loved defendant. She admitted that he was the family’s 

sole breadwinner and that she would be unable to support herself and her children if defendant 

were deported. 

¶ 11 The State also called Officers Trevor Wogsland and Adrian Vergara, who had responded 

to Daria’s 911 call. Vergara described Daria as “obviously distraught” and a “little frantic.” She

had “[v]ery puffy, teary eyes.” According to Wogsland, Daria was “very upset”—“still upset 

following the incident.” The officers did not detect the odor of alcohol on Daria or see any other 

sign that she was under the influence of alcohol. Daria spoke to the officers while Liza was present 

to calm her. Daria and Liza spoke to each other in Russian (Wogsland testified that he did not 

speak Russian, and Vergara was not asked whether he did.). Daria told the officers that she was 

“the victim of a domestic battery.” The officers observed red marks on her shoulders and the sides 

of her neck. The officers also testified that defendant was calm and cooperative. Neither officer 

examined the couple’s bedroom, where the incident happened. Photographs the police took of 

Daria on the night of the incident showed faint red abrasions on her shoulders and around her neck.

¶ 12 The trial court, in a lengthy oral ruling, found defendant guilty of all three counts, i.e., 

aggravated domestic battery (count I) and two counts of domestic battery (counts II and III). In 

doing so, the court found that Daria’s trial testimony about the incident was “stiff, robotic, 

rehearsed,” and, ultimately, incredible. The court instead found credible the 911 call, Daria’s 

written statement, and the testimony of the two responding police officers.

¶ 13 Defendant filed a posttrial motion, “renew[ing], and incorporat[ing] by reference, all pretrial motions in limine denied by the [c]ourt” and arguing that the “[c]ourt erred in overruling itself 
2024 IL App (2d) 230434-U 

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by admitting Daria’s 911 call into evidence.” After a hearing, the trial court denied the motion. 

As noted, after merging the counts, the court sentenced defendant on count I alone. Defendant 

then filed this timely appeal.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant argues that (1) he was not proved guilty beyond a reasonable doubt

of aggravated domestic battery because Daria testified at trial that she lied to the 911 operator and 

the responding police officers that defendant battered her and (2) the trial court erred in admitting 

the 911 call as an excited utterance. We address these issues in turn. 

¶ 16 A. Sufficiency of the Evidence

¶ 17 A defendant’s conviction will be set aside on appeal only if the evidence against him is so 

improbable or unsatisfactory that it creates a reasonable doubt of his guilt. People v. Collins, 106 

Ill. 2d 237, 261 (1985). The relevant question is “whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U.S. 

307, 319 (1979).

¶ 18 Here, we determine that defendant was proved guilty beyond a reasonable doubt of 

aggravated domestic battery. The 911 call, Daria’s written statement, the testimony from the two 

responding officers, and the photographs of Daria’s injuries established that defendant placed his 

hands around Daria’s neck and choked her, impeding her breathing and leaving red abrasions 

around her neck and shoulders.

¶ 19 Defendant claims that he was not proved guilty beyond a reasonable doubt because, 

although “[i]t is not impermissible for a judge to find prior evidence more credible than what a 

witness testified to at trial, *** there needs to be at least some corroboration by other witnesses or 
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other evidence.” Defendant suggests that the evidence that he battered Daria should not be credited 

over the evidence that she fabricated the incident, e.g., her recantation and her testimony that she 

was intoxicated, suffering from postpartum depression, influenced by Liza, and angry with 

defendant. According to defendant, it is much more plausible that Daria lied about what happened 

than that defendant, who was calm and cooperative with the police, battered her simply because 

she attempted to turn off the television.

¶ 20 Defendant’s argument amounts to nothing more than a request that we reweigh and 

reevaluate the evidence to favor him. Resolving conflicts in the evidence and weighing any 

inconsistencies are within the province of the trial court. People v. Hernandez, 319 Ill. App. 3d 

520, 533 (2001); People v. Hruza, 312 Ill. App. 3d 319, 325 (2000). The trial court “is free to 

accept or reject as much or as little of a witness’s testimony as it pleases.” (Internal quotation 

marks omitted.) People v. Peoples, 2015 IL App (1st) 121717, ¶ 67. We will not reassess Daria’s 

credibility or reweigh the evidence, as it is not our function to retry defendant. See People v. 

Patterson, 314 Ill. App. 3d 962, 969 (2000). Viewing all the evidence in the light most favorable 

to the State, which we must, we determine that defendant was proved guilty beyond a reasonable 

doubt. 

¶ 21 B. Admission of the 911 Call

¶ 22 The second issue defendant raises on appeal is whether the trial court erred in admitting 

Daria’s 911 call under the excited utterance exception to the hearsay rule (see Ill. R. Evid. 803(2) 

(eff. Mar. 24, 2022) (hearsay exception for “[a] statement relating to a startling event or condition 

made while the declarant was under the stress of excitement caused by the event or condition”)). 

The State argues that defendant forfeited review of the issue because he failed to raise it in his 

posttrial motion. See People v. Denson, 2014 IL 116231, ¶ 11 (“In criminal cases, *** a defendant 
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preserves an issue for review by (1) raising it in either a motion in limine or a contemporaneous 

trial objection, and (2) including it in the posttrial motion.”). 

¶ 23 In his posttrial motion, defendant “renew[ed], and incorporat[ed] by reference, all pre-trial 

motions in limine denied by the [c]ourt” and claimed that the “[c]ourt erred in overruling itself by 

admitting Daria’s 911 call into evidence.” Neither argument concerns the issue defendant raises 

now. First, the trial court granted the motion in limine concerning the 911 call. Second, at trial, 

the court initially barred admission of the 911 call because the State failed to lay a proper 

foundation. The court later reversed itself when the State laid a proper foundation and moved the 

court to reconsider its ruling. That reversal in no way concerned whether the 911 call met the 

substantive requirements for admission under the excited utterance exception to the hearsay rule. 

Because defendant did not raise the issue in his posttrial motion, he has forfeited it.

¶ 24 In his reply brief, defendant claims that we may review the issue under the plain error rule. 

See People v. Williams, 193 Ill. 2d 306, 347-48 (2000) (the defendant may raise plain error for the 

first time in the reply brief). The plain error rule allows us to review a forfeited issue when (1) “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) “[the] 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. Piatkowski, 225 Ill. 2d 551, 565 (2007). 

Defendant argues that we may review his issue under the first prong of plain error. Our ability to 

do so depends first on whether an error occurred. See People v. Logan, 2024 IL 129054, ¶ 53 

(“The first step in applying the plain error doctrine is to determine whether error occurred.”). 

Accordingly, we first determine whether error arose in admitting the 911 call as an excited 

utterance.
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“The excited utterance exception allows the substantive admission of an otherwise 

inadmissible hearsay statement where the proponent of that statement is able to 

demonstrate (1) the occurrence of an event or condition sufficiently startling to produce a 

spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) a 

statement relating to the circumstances of the occurrence. [Citation.] ***.” People v. 

Lerma, 2016 IL 118496, ¶ 5, n.1; see Ill. R. Evid. 803(2) (eff. Mar. 24, 2022). 

Courts consider the totality of the circumstances in determining whether a statement is admissible 

under this exception. People v. Sutton, 233 Ill. 2d 89, 107 (2009). “The totality of the 

circumstances analysis involves consideration of several factors, including time, the mental and 

physical condition of the declarant, the nature of the event, and the presence or absence of selfinterest.” Id. “No one factor is determinative and each case must rest on its own facts.” People 

v. Dominguez, 382 Ill. App. 3d 757, 768 (2008).

¶ 25 Under the second requirement for an excited utterance, our supreme court “do[es] not 

require the time between when the startling event occurs and when the declarant makes statements 

in response to that event to be contemporaneous.” People v. Smith, 152 Ill. 2d 229, 259-60 (1992); 

see Sutton, 233 Ill. 2d at 107 (“The *** time that may pass without affecting the admissibility of 

a statement varies greatly.”). “Rather, the proper question is whether the statement was made 

while the excitement of the event predominated.” Dominguez, 382 Ill. App. 3d at 768-69. 

¶ 26 As to requirements (1) and (3), Daria’s 911 call reported an incident in which defendant 

choked and threw her when she tried to turn off the television after putting their baby down to 

sleep. Her statement clearly related to the entire occurrence, i.e., the details of the battery and what 

led up to it. Such an occurrence was, of course, sufficiently startling to produce a spontaneous and 

unreflecting statement. Regarding requirement (3), we recognize that Daria called Liza before 
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calling 911. Nonetheless, the emotion in Daria’s voice during the 911 call conveys that she 

remained under the stress of the event. She was even still “very upset,” “obviously distraught,” 

and a “little frantic” when the officers arrived. Thus, the intervening call to Liza did not diminish

the emotional impact of the incident. Furthermore, under the totality of the circumstances, we see 

no error in the admission of the 911 call. Daria did recant at trial the allegations she made in the 

911 call and claimed she had lied out of anger. Moreover, she indicated not only that she had 

spoken to Liza before dialing 911, but also that she had been suffering from postpartum depression

and had drunk several glasses of wine at Liza’s. However, fabrication was unlikely given the 

nature of the event, its proximity to Daria’s 911 call, the genuine distress in Daria’s voice during 

the call, and the persistence of that emotion until the officers arrived. Nor can we overlook that 

making a false 911 report would not be in Daria’s self-interest because of potential criminal 

liability. See People v. Fernschuss, 2021 IL App (2d) 190986-U, ¶ 54; 720 ILCS 5/26-1(a)(6) 

(West 2020). Because the 911 call was properly admitted as an excited utterance, there was no 

error, and defendant’s forfeiture stands.2

¶ 27 III. CONCLUSION

¶ 28 For these reasons, we affirm the judgment of the circuit court of McHenry County. 

¶ 29 Affirmed. 

2 We note that the State did not seek to admit the 911 call under section 115-10 of the Code 

(725 ILCS 5/115-10 (West 2022)). Accordingly, we do not address whether the call would have 

been admissible under that statute.