No. 2--06--1304 Filed: 5-14-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF I LL INO IS, ) of Lak e C ou nt y. ) Plaintiff-Appellee, ) ) v. ) No. 05--CF--4978 ) LUIS A. DOM INGUEZ, ) Honorab le ) Victoria

A. Rossett

i, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE BOWMAN de

livered the opinio n of the c ourt: Following a

jury trial on April 5, 2006, defendant, Luis A. Dominguez, was convicted of one count of aggravated dome stic battery (720 I LCS 5/12--3.2(a)(1), 12--3.3( a) (West 2004)) an d one count of unlawful restraint (720 IL CS 5/10--3(a) (West 2004)). On December 4, 2006, the trial court denieddefendant's posttrial motions and sentenced him to five y ea rs' imprisonment for the aggravated

domestic battery c onviction and two y ears' i mprisonment for the unlawful restraint conviction, to be served c oncurre ntly . Defendant timel

y a ppealed and arg ues that w e should r

everse his convictions because the trial court erred in admittin g: (1) t

he tape o f the vic tim's 911 callfor help, which constituted testimonial evidence; (2) the state ments of Offic er Thoma s Poulos and parame dic Ryan Koncki; a

nd (3) ce rtain co nsi stent sta

te me nt s m ad e b y th e v ic ti m b efor e t he gr an d j ur y. Ad di ti on al ly, defendant argues that there was insuffic ient evid

ence to c onvict him

of either crime. We affir m.No. 2--06--1304

-2- I. BACKGROUND The following facts are derived fr om the trial transcripts. The victim, J e nnifer Cook, testified first for the State. Cook admitted that she was testifying by way of subpoe

na and did not want to be in court. On December 24, 2005, she and defe ndant went to the home of defendant's mother for a family Christmas celebration. Approximately 12 to 15 people were present, including the coupl e's three childre

n. Cook dra

nk two bottl es of teq

uila and some w ine coole

rs and became hig

hly intoxicated. She believed that she went to bed at 3 :40 a.m. bu

t did not reme mber exactly. She did notremember at

what time

she first awoke a nd did not r

emember any thing ab out the pr

evious nig

ht. She went back to sleep an d then awoke again around 9 a.m. The first thing she remembered was waking up next to defendant. At that moment, she did no t realize that she was injured, and defendant was still asleep . The co uple remained in b ed and sle pt a little l onger . At some point, Cook and defendant went to Cook's Chevy Trailblazer to leave. Cook began drivi ng home and, when she lo oked

in the mirr or, s he re alize d that her ey es were bruised a nd injure d. She bec ame angry and "as sumed tha

t [defend ant] had di d it." She ye lled at de fendant , and he tr

ied to explain that he did not do it. Cook was still intoxicated and angry but could not remember what had happened. She told defenda nt to get out of the truck and hide in the backseat because he did not have identification to gain access to her apartment c omplex. After he got out, she drove off, leaving him on the str eet, and called 9 11 beca

use she "assumed that he had did that to [her] and [she] was mad at him." Cook identified the tape of the 911 call that she ma de on Dec ember 25 , 2005. The State moved to publish the tape to the j ur y, and over de fendant's objection the trial court admitted the evidence as an excited utterance. On the tape, Cook is frantic and c rying. She told the 911 operatorNo. 2--06--1304

-3-

that defendant caused her injuries overnig ht, that she first saw her

injuries in her

car mirror, and that this was he r f

irst chance to get away

from defendant after he kept her overnight. She told the operator that she left defendant on the street and wanted the police to

catch him so she could press charg es. She repeatedly

cried out that she could not believe these events were happening to her and that she did not want her children to see her like this. She stated that she did not know why defendant did this to her. When asked who injured her, she identified defendant. Cook then ide ntified photographs that depicted her injuries, and those photog raphs were a dmitted into evidence

. After the 911 call was made, an officer re sponded and met Cook at the intersection of Elmwood and Dugdale in Waukegan. Cook co uld not recall having a conversation with Office r P oulos at the sc ene. She

remembe red go ing into a

n ambulance and in

forming the offic er that sh

e didnot want to

go to the hospital. Cook spoke to the re sponding

parame dic, Ry an Konck

i, but did notrecall w

hat she sa id to him. Th

e ambula nce took h

er to Vic tory

Memorial

Hospital, and while there Cook spoke to Officer Poulos. She told him that she could not recall what had happened. She recalled only

drinking with the family the night before. She didnot reme

mber tell ing Off icer Poul os that defendant kept her in his bedr

oom all night, that defendant put his whole hand down her throat, or that she had passed out. When asked, "So you

are not telling the *** jury that it did or did not happen? You are just saying y ou don't recall?," Cook stated that she did not recall any thing. She could not recall telling Officer Poulos that, when she awoke, defendant was still there, would not a llow her t o leave, and held h

er aga inst her will. Cook could not recall telling Koncki that defendant assaulted he r andthat she then passed ou t. The Stat

e then in troduced the written statement that Cook signed for Office r Poulos. She identified her signature and

admitted t

hat she w rote the state ment. How ever, sh

e stated that Off icer Poul os toldNo. 2--06--1304

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her what to write. Over defendant's objection, the statement was admitted pursuant to section 115-- 10.1 of the Code of Criminal Procedure of 1963 (Code) (725 I LCS 5/115--10.1 (West 2006)). The State the

n questio ned Cook regarding her pre vious grand jury

testimony. The questioning deve

loped as f ollows: "Q. Do y ou recall testifying in front of the Lake

County Grand Jury

on January 25, 2006? A. Yes, I do. Q. Do you remembe

r a question when y ou woke up--do you remember what happened when you woke

up? Your re sponse wa s, I see n my face. A nd questio n, what di d it look like? Answer, it was bruised up. Question, you looked in the mirror andsaw your face. It was badly

bruised? Answer, yes. Q uestion, and you

r eyes sort of

swollen sh

ut? Answer, yes. Question, sort of hard to see out of them? Answer, yes. And who wa s in the

roomwith you when

you woke up? Answ er, its [ sic ] just me and [defenda nt]. Do you reca

ll th at te st im on y? A. Yes. Q. Wh en you ga ve th at te st im on y wa s yo ur re co ll ec ti on di ff er en t t ha n i t i s t od ay? A. No, it's not any diff

erent. At the grand jury

they didn't a sk me if I g ot into my truck. Th ey just aske d me what h appene d. I d id not giv e them de

tails. Q. But your testimony

is today that you first noticed y

our injuries when you

got into your truck? A. Yes. That was the mirror that I looked in. * * *No. 2--06--1304

-5- Q. Question, you and [defenda nt] what you said and then [ sic ] did y ou want to leave at this point? Answer, yes. I w anted to go home and collect my self and take a shower. What did[d ef en da nt ] s ay? He wanted to come with me. And so y ou reall

y- -and so di d you

really want him to

come with

you? Answer, no. Question, but he insisted he

was going to co me withy ou, rig

ht? Answer, he insiste d, but he d idn't fo rce himse lf to come with

me. I just said fine, you know, beca

use I wanted to leave . Question, you just wanted to leave and then you got in y our car and [defe

ndant] ca me with y ou, righ t? [Defendant

objecte d to re ading into evidence the entire transcr ipt. The trial court advised the State to slow down and give the witness an opportunity to answer.] Q. Yo u i nd ic at ed I be li ev e w it h a no d. Do you re me mb er th at te st im on y? A. Yes, I do. Q. Next question, when you went over to y our apar tment in Whispering Oaks did you have identification to get in? Your answer, right. Question, and [defenda nt] didn't-- [Objection to reading of questioning overruled.] Q. Question, and [defendant] didn 't have any ID on him? Answer, no. Question, what was your plan the

n? Do you remembe

r this part like did you t ell [ defend ant] why don't you get in the back and lie down low and the secur ity won't see

you? Yo ur an swer, y

es. Question, and when [defendant] opened the door to get out do you re

call then that you

just drove aw ay ? Your ans wer, y es. Ques tion, so y

ou didn' t really

give [defendant

] a chanc e to ge t b ac k i n t he ca r, di d yo u? Yo ur an sw er , n o. ** * D o yo u r ec al l t ha t t es ti mo ny? A. Yes."No. 2--06--1304

-6-

Upon cross-e

xamination, Cook admitt ed to cons u ming mo re than 10 shots of tequila and passing out around 3:40 a.m. She did not recall defendant hitting her. Her children were sleeping in their grandmother's room and she did not see them before she left. She planned to go home and shower. When she realized that she was injured, she became ang ry beca use she could not

remember how or when ithappened. She assumed that defendant had caused her injuries, because he was the first person she saw in the morning. At the hospital, she did not want to make thewritten s tatement , because she was s till intoxica

ted and c ould

not reme mber wha t had happ ened. She

didso becau se she felt intimidated by the police. She a dmitted to having an ongoingrelationship with defendant and that s he loved h

im. She sta

ted that sh

e was not scared of him at a

ll. The State the

n attempted to admit po rtions of t

he gra nd jury testimony

as inconsist

ent te st im on y. The trial court denied admission as substantive evidence, beca use the testimony was not inconsistentwi th he r t ri al te st im on y. The tria l court then provided the jury with a limiting instruct io n explaining that evidence of Cook's prior inconsistent statements to Officer Poulos and Koncki could be c onsidered for the limited pur

pose of deciding t

he weig ht to be g iven th e trial te st im on y. The State the

n called Waukeg an police

office r Thomas Po

ulos. Officer

Poulos responded to the domestic battery c all on December 25, 2005. He arrived at the intersection of

Dugdale and Elmwood to find Cook in her vehicle. She had blood on her face and chin and an a brasion on her forehead. She also had some swelling on her forehead, he r eyeswere sw elled alm

ost shut, and she hadbruises on both sides of her face. Over def endant 's objection, Officer Poulos recounted what Cook told him about her injuri es. Sh e was at defendant's home the nig ht before and, during the overnight hours, he became upset with

her. Defendant took her into a bedroom, beat he r, choked her,No. 2--06--1304

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and, when she tried

to scream, he stuck his entire fist down her throat. He punched Cook and then she passed ou

t. When she

woke up, d

efenda nt was still

in the bedroom and would not allow her to leave. When describing these events, Cook was upset and yelling. Of ficer Poulos called for an ambulance, which arrived and took Cook to Victory Memorial Hospital. Officer Poulos went to the hospital as well andspoke to Cook again. She was calmer at that point. He asked Cook to make a handwritten statemen

t, and in c ourt he id

entifie d her statement. He confirmed that she wrote and signed the state ment. Off

icer Poul os did not te

ll Cook wha

t to write, did not intim

idate her, and did notthreaten her in any

way. On c

ross-examination, Officer Poulos denied smelling alcohol on Cook

or believing that she was intoxicated. Only at the hospital, when Cook told him that she drank a lot the nigh t before , did he become aw are tha t she had c onsumed a

lcohol. The Statemove d to admit the statements that Cook made to Officer Poulos as substantive evidence under the excited-utterance exception. The trial court denied that

motion, stating that the st at em en ts ma y se rv e t o i mp ea ch on ly. Koncki, the paramedi c who responded to Cook's call, testified next for the State. At the scene, Koncki spoke with Cook. She told him that her boyfriend ha d assaulted her

and that she had passedout or

lost consc iousness. He obser ved sign ificant t rauma to her fac e. Both e

ye s were b adly swollen and the area

around th e foreh ead and ey e was als o swollen. Cook was c rying and very upset. She expressed concern

about her kids. He d

id not recall smelling alcohol on Cook. The State moved to admit Cook's statements to Koncki as substantive evidence of treatment by a medica

l provider. The trial court denied this motion. Two stipulations wer e enter ed into evidence. The first stipulation regarded a hospital physician stating

that Cook

admitted that she had consumed alcohol the night before. The secondNo. 2--06--1304

-8-

was that a CT sc an of Cook 's fac e revea led extrac ranial so ft tissue s welling in the left orbital region extending to the left frontal and parietal region and na sal fractures of uncertain chronicity . The jury then returned guilty

verdicts for both the aggra vated domestic battery

and the unlawful restraint offense s. II. AN ALYS IS A. The 911 Tape Defendant

raises two contentions pertaining to the admission of the 911 tape: (1) the tape was testimonial evid ence and i ts admission violated the confrontation clause because Cook was ef fect ively unavailable for cross-examination; and (2) even if the tape did not violate the confrontation clause, it did not qualify under the excited-utterance exception to the hearsay rule. The first qu estion bef

ore us is whether the 911 tape contains testimonial statements that trigger confron tation-c lause pr

otection s. We review this issue de novo as the question is one of law anddoes not in

volve the trial cou rt's d iscreti on that is typical of most evidentiary rulings. People

v. Melchor , 376 Ill. App. 3d 444, 451 (2007). The Supre me Court, in rece

nt y ears, ha s modified

its confron tation-c lause

analysis, abandoning

a reliability ana

lys is and adopting a "testimo nial" anal ysi s. In Crawford v. Washington , 541 U.S. 36, 40, 158 L. Ed. 2d 177, 185-86, 124 S. Ct. 1354, 1357-58 (2004), the Court considered a conviction that was based largely on statements the defendant's wife made during a

n intervie w while in police custody. The de fendant's wife did not

testify at his tria l, because she invokedthe spousal privilege. Crawford , 541 U.S. at 40, 158 L. Ed. 2d at 185, 124 S. Ct. at 1357. After a lengthy historical analysis of the c onfrontation clause's purpose, the Cour t concluded

that (1) t he claus e was particularly dire cted at preventing the use of ex parte examinations as evidence against the acc used, and (2) testimonial statements of witnesses absent from trial mayNo. 2--06--1304

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be admitted o nly

where th e decla rant is unavailable and the defendant has had a prior opp ortunity to cross-examine. Crawford , 541 U.S. at 50, 53-54, 158 L. Ed. 2d at 192, 194, 124S. Ct. at 1363, 13 65. The Court held

that the st

atementsmade by

the defe ndant' s wife to t

he poli ce wer e testimonia

l. Crawford , 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. However, the Court declin e d to comprehensively de fine what constituted "testimonial" and instead limited its holding to at minimum "prior testimony at a pre liminary hearing , before a grand jury , or at a former trial; and to police in

terrog ations," as those p

ractice s are mos t akin to the abuses a t which the

cla use was directed. Crawford , 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The Sup reme Court revisited the definition of "testimonial statements" in Davis v . Washington , 547 U.S. 813, 165 L. Ed. 2d 224 , 126 S. Ct . 2266 (2006). In Davis , the Court considered

testimonia

l stateme nts in two c ompanion c ases. In the first case, th e victim of

a domestic disturbance, Michelle

McCottrey, made state

ments to a 911 operator. Davis , 547 U.S. at 817, 165 L. Ed. 2d at 2 34, 126 S. Ct. at 2270-71. During the conversation, McCottrey reported the de fendan t's name, that he was in the home, and that he was using his fists. Davis , 547 U.S. at 817, 165 L. Ed. 2d at 234, 126 S. Ct. at 2271. Eventually, McCottrey reported that the defenda

nt ran out of the hou se andwas leav

ing in a c ar with so me one else ; the 911 op erator then pose d a serie s of quest ions to gather information about the defendant. Davis , 547 U.S. at 817, 165 L. Ed. 2d at 234, 126 S. Ct. at 2271. McCottrey did not testify at the defendant's trial, and the trial court allowed

into evidence the portion of the 911 tape in which she ident ified the defenda nt, concl uding tha t it was not

testimonia

l. Davis , 547 U.S. at 817, 165 L. Ed. 2d at 235, 126 S. Ct. at 2271. In the compa

nion appe al, anoth

er victim of a dome st ic dis turbance, Amy Hammon, made statemen ts to police after

they responded to a report of a disturbance at the home. Davis , 547 U.S.No. 2--06--1304

-10-

at 819, 165 L. Ed. 2d at 235, 12 6 S. Ct. at 2272. The police arrived at the scene to find Ha mmon sitting on the fr

ont porch and the de

fendant inside the home with b

roken g lass and a

gas he ating un

it engulfed in fl ames. Davis , 547 U.S. at 819, 165 L. Ed. 2d at 235, 126 S. Ct. at 2272. The police spoke to Ham mon ap art fro m the d efenda nt and had he r sign an affidavit, but she then did not show up to testify at the trial. Davis , 547 U.S. at 820, 165 L. Ed. 2d at 235-36, 126 S. Ct. at 2272. The Supreme Court held that McCottrey' s 911 taped statements were not testimonial but Hammo n's statemen

ts to police

were te stimonial. Davis , 547 U.S. at 829, 165 L. Ed. 2d at 241-42, 126 S. Ct. at 2278. The Supreme Court again declined to provide an exhaustive list of all s tatement s that might co nceivab ly

be regarded as "testimo nial" bu t applied a primar y- purpose t

est to distinguish the two statements there from the defendant's wife's state ments in Crawford . The Cour t specifi cally disregarded

any distinction between police and 911 operators and held t hat, for analy tical pur poses, 911 operators were law enforc ement agents. Davis , 547 U.S. at 823 n.2, 165 L. Ed. 2d at 238 n.2, 126 S. Ct. at 2274 n.2. The Court noted that the prima ry purpose o f McCottr

ey 's state ments wasto "describecurren

t circums tances r

equiring police a ssistance " and no t to establish or prove somepast fact. Davis , 547 U.S. at 827, 165 L. Ed. 2d at 240, 126 S. Ct. at 2276. In c omparing Davis and Cr awford , the Court s tated tha t "any reasona ble listener would

recognize that Mc Cottr ey (unlik e Sylvia Crawford) was facing a

n ongoing emerg ency ," that M cCottrey was desc ribing e vents as they

were actually

happening, and t

hat the elicited st

atementswere ne

cessar y to resolv e the present emergency

rather than simply to lear n about past events. Davis , 547 U.S. at 829, 165 L. Ed. 2d at 240, 126 S. Ct. at 2276. Further , there w as a strik ing diff erence in the level of formality involved in the Crawford

police interrogation, which was held at the police station after the defendant' s wife

was given Miranda

warnings, and

McCot trey's frantic phone call. Davis , 547 U.S. at 829, 165 L. Ed.No. 2--06--1304

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2d at 240, 126 S. Ct. at 2276-77. Therefore, McCottrey 's identification of thedefendant to the 911 operator was not considered testimonial. Davis , 547 U.S. at 829, 165 L. Ed . 2d at 240 , 126 S. Ct. at 2277. However, the Court cautioned that a statement that began with a primary purpose of resolving an emergency

could evolve into a testimonial statement and that some statements may require redaction. Davis , 547 U.S. at 828-29, 165 L. Ed. 2d at 241, 126 S. Ct. at 2277. Hammo n's statements, on the other hand, were elicited under conditions similar to t hose in Crawford

. The Court determined that Hammon's emerg ency wa s over by the time the police arrived, andthe primary

purpose of their interrogation of Hammon was to investigate past events. Davis , 547 U.S. at 830, 16 5 L. Ed. 2d at 24 2, 126 S. Ct . at 2278. Furt her, Ha mmon init iall y said tha t thi ngs

were fine, and the police continue d to questi on her, e ventuall y se parating her f

rom the de

fendant in the kitchen to continue asking her questions. Davis , 547 U.S. at 830, 165 L. Ed. 2d at 242, 126S. Ct. at 2278. Therefore, Hammon's statements wer e deemed testimonial. Davis , 547 U.S. at 830, 165 L. Ed. 2d at 242, 126 S. Ct. at 2278. The Illinois Supreme Court fas h ioned the United States Supreme Court's analy sis of te s timonial evidence into a two-component test derived from the def inition of "testimony" as "solemn declarations for

the purpo se of est

ablishing or proving some

fact ger mane t o the d efenda nt's prosecution." People v. Stechly , 225 I ll. 2d 246, 2 80-81 (20 07). Thus , the two c omponentsare that statemen ts (1) must be made in a solemn fashion and (2) must be intended to establish aparticular fact. Stechly , 225 Ill. 2d at 281-82. When examining solemnity , the United States Supreme Court

was divided: th

e majorit y in Davis believed solemnity was e stablished by the potential consequences of lying to a police

officer whereas the dissent believed it was e stabl ish ed if the statements were made in a se ttin g with a highe r degree of form alit y and poss ibly inc ludi ng Miranda warning s .No. 2--06--1304

1 Ul ti ma te ly, Stechly

i nvolved st ate men ts mad e to a no ngo ver nm ent off ice r or age nt . In analyzing statements made outside the context of police interrogation, the Stechly court looked to the intent of the declarant , asking whether the objective circumstances would have led a re asonable person to conclude that his or her state ment coul d be used

agains t the def

endant. Stechly , 225 I

ll. 2d at 289. -12- Stechly , 225 Ill. 2d at

282. Regardless, when examining the intent of a statement made to the police

or an agent of the police, the "f ocus is on whether *** the witness was acting in a manner analogous to a witne ss at tria

l, descr ibing or giving informat ion reg arding

events which had p

reviousl y occurred." Stechly , 225 Ill. 2d at 282. Further, the foc us must be on the intentof the questioner in eliciting the statement and not on the intent of the declarant. Stechly , 225 I ll. 2d at 284- 85. We must rely on the objective circumstances surrounding the stateme nt and not on t esti mony reg arding the questioner's subjective intent. Stechly , 225 Ill. 2d at 285. 1 Applying these factors and the objective circumstancessurrounding Cook's phone call, we find that the 9 11 tape w as not tes timonial. A ny r easonab le listener of the 911 tape would conclude that Cook was facing an ongoing emergency

and was descri bi ng even ts as t hey were un foldi ng. While her injuries may

have occurred during

th e o ve rn ig ht ho ur s, as de fe nd an t a rg ue s v eh em en tl y, Cook did not become cognizant of her in juries un til she was able to break away from defendant and entered her vehicle. Unlike the formal interviews police posed in Crawford and to H ammon in Davis , Cook's c onversa

tion with the 911 op erator

was not c alm, formal, or controlled but was more akin to McCottrey' s frantic call in Davis

. Cook was crying and hysterica

l as the operator attempted to gather details on the current ci rcumstances that required police assistance. Spec ifically, the operator elicited from Cook why she w as fleeing defendant, what her injuries were, where she wa sNo. 2--06--1304

2 Defendant

argues on appeal that the entire 911 tape was testimonial. Th erefor e, we ad dress the tape in whole and do not need to examine each statement made. -13- located, and where she left defendant. The 91 1 operat or's obvious intent was to determine where police should be d

ispatche d and wha

t potentia l threat C ook or the

police ma

y be facing . Under t

his analysis, the 911 tape w as not testimonial evidence. 2 Having determined that the 911 tape was not te st imonial and does not implicate the confro nta tion-cla

use prote ction s, we ar e left to add ress d efenda nt's s econd argumen t--th at Coo k's statement didnot qualify as an e

xcited utterance because Cook had "ample time to reflect" and there

was no start ling ev ent th at occu rred at the ti me of t he 911 call. The tr ial co urt's evidentiary r uling may not be reversed absent an abuse of discr etion. People v. Richardson , 348 Ill. App. 3d 796, 801 (2004). "To secure admission of a 'spontaneous declaration' or 'excited utterance ,' the proponent of the evidence must demonstrate: (1) the occurrenc e of anevent or condition

sufficie ntly startling to produce a spontaneous and unre flect ing statement; (2) absence of time to fabricate; and ( 3) a statement relating to t he circumst ances of the occu rrence." Peopl e v. Smith , 152 Ill. 2d 229, 258 (1992). No one factor

is determinative and each case must rest on its own facts. People v. Gwinn , 366 Ill. App. 3d 501, 517 (2006). On the first

factor , defendant's a

rgumen t would make sen se if we w ere toaccept that the o nly startling event was the overnight phy sical abuse that Cook endured. However, defe ndant overlooks the fact that, after rega

ining consciousness the next morning, Cook's realization that she had been abusedanddefend ant's refusal to allow her to leave were star tling events separate from the actual physical violence. Sec ond, the supreme court has state d that "w e do not re quire the time between when the startling event occurs and when the declarant makes statements in response to that eventNo. 2--06--1304

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to be contemporan eous." Smith , 152 Ill. 2d at 259-60. Rather, the proper question is whether the statement was made while the excitement of the event predominated. Smith , 152 Ill. 2d at 260. Here, it is significant that Cook has consistently stated that she d id not real izethat she was injured until sh e saw her

face in her car's mirr

or. Cook called 911 moments after that realization and moments after breaking free from defendant. La stly, the statement she made to the 911 operator was clearly relating to the ent ire occurrenc e, includ

ing the e vents the night before, passing out, waking up to the injur

ies, and d efenda nt' s refus al to let her leave. Based on the entire se t of facts and circumst ances, we findthat all three elements of an excited utterance have been met. Therefore, the trial court did not abuse its discretion in admitting the 911 tape.

B. Cook's Statements to Officer Poulos and Paramedic Koncki Defendant

next argues that the State failed to lay a p roper foun dation when it impeached Cook with her prior statements to Officer Poulos and Koncki. However , defendant failed to object at all to the State's line of questioning of Officer Poulos and Konc ki and did not object on foundational ground s during the State 's ques tioning o f Cook. Fu rther, d efenda nt did not r

ais e or discuss plain error

in his briefs. Therefore, these issues have bee n waived. People v. Daniels , 331 Ill. App. 3d 380, 388 (2002). C. Cook's Handwritten Statement Defendant

argues that the trial court erre d in admitting Cook's handwritten statement pursuant to section 115--10. 1 of the Co de (725 I LCS 5/1 15--10.1 (West

2006)), b ecause

the "content of the handwritten statement is not a description of an event about which the declara nthad personal knowledge." Defenda

nt claims the problem with the statement was that, according to Cook's tria l testimony, Officer

Poulos told Cook what to write. We disagree.No. 2--06--1304

-15-

As stated earlier, the trial court's evidentiary rulings may not be

reversed absent an abuse of discretion. Richardson , 348 I ll. App. 3d at 801. Section 115--10.1 provides that a prior inconsistent statemen t is not inad

missible by

the hear say

rule if: "(a) the statement is inconsistent with his testimony a t the hearing or trial, and (b) the witness is subject to cross-examination concerning the statement, and (c) the statement-- (1) was made under oath at a trial, hear ing, or other proceeding, or (2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and

(A) the st atement is proved to have been written or signed by the witness, or (B) the witness acknowledged under oath the making of the statement either in his testimon y at the he aring o r trial in which the

admission into evidence of

the prior statemen t is being sought, or at a

trial, hearing, or other proceeding, or (C) the statement is proved to have been accura tely recor ded by a tape recorder, videotape recording, or any other similar

electronic means of sound recording." 725 I

LCS 5/115--10.1 (West 2006). Cook 's hand writt en sta temen t cons isted of the follo wing:

"[Defe ndant] held me *** all nigh t i n his bedr

oom. Put his w

hole hand down my throat. Passed ou

t. I fin ally

got awa y when [defe

ndant] got out of the truck to go in the backNo. 2--06--1304

-16-

seat becu z [ sic ] you need a

n Id to get in Whispering Oa ks. That's when I dr

ove off and

called 911." The fact that Cook changed her testimony at trial, and e xpl ained away the statement by stating that Off

icer Poul os told her

what towrite, does not negate the fact that the events desc ribed

were within Cook 's pers onal know le dge . Officer Poulos was not at defendant's home the nig ht before and was not

in Cook's truck

that morning, but Co ok was. Th erefor e, the ev ents desc

ribed in the statement were within Cook's personal knowledge . The other section 115--10. 1 requ irements

were also met: (1) the statement co nfli cted with Cook's trial testimony; (2) Cook wa s present for

cross-e xami nation; and ( 3) at trial Cook acknowledged writing a nd signing the statement. Defendant argue s, without any support, that Cook was u

navaila ble for c ross-exa mination because

she could not recall anything w

hi le on the w itn ess stand. We disagree. While on the witness stand, Cook answered questions regardingthe statement. She admitted to writing and signing the statement at the hospital and explained why she now wa s changing her story

. Cook testified thather statement

was the result of her a ssumption th at defe ndant caused h er injuries. She also stated that Officer Poulos told

her exac tly w

hat to write and intimidated her. These inconsistencies were for the tr ier of fact to r esolve. T herefo re, Co ok was o bviously available for c ross-examination regarding the statemen t, andthe trial court did not err in admitting the statement pursuant to section 115--10.1 of the Code. D. Grand Jury Testimony The trial court admittedas substantive evidence only the portion of the earlier quoted grand jury testi mony that confl icted with Cook 's trial testimony. Specifically , it admitted only the portion about how Cook wo

ke up and saw her face in the mirror, because at trial Cook stated that she sawNo. 2--06--1304

-17-

her face in her vehicle' s m irror. D efenda nt argu es that the

State should not have

been all owed to read the co n sistent portions of Cook's grand jury testimony, because pr

ior consistent testimony

serves only

to bols ter a wit

ness' s credibility. Howeve r, defendant has failed to address how the introduction of the g

rand jur y te stimony

constitute s rever sib le err or. The superfluous testimony concerned

three facts: (1) that Cook le ft defe ndant' s mother' s home with defendant on December 25, 2005; (2) that Cook asked defendant to get out of her

truck and to get into the backseat; and (3) that Cook drove off when defendant stepped out of the truck. Cook had

alread y te stified to

these fa cts andthese ev ents were not disputed during defendant' s trial. It is unlikely that defendant would have been acquitted based on the facts and evidence of the case barring these three consistent

grand jury statemen ts. Theref

ore, the admissio n o f these three potentially bolstering statements did not constitute reversible error. See People v. Engle , 351 Ill. App. 3d 28 4, 289 (2004) (finding

errone ously

admitted bolstering statem ents d id not cons titute reversible error but were m

erely cumulative of witness's testimony, and itwas unlikely that the jury would have acquitted the defendant barring the statements). E. Insufficiency

of the Evidence Having determined that

the trial court did not make any reversible evidentiary

errors, we now turn to defendant's insufficiency of the evidence arguments. Def endant argues that the State failed to prove him guilty of a

ggravated domestic battery , because Cook w as int oxi cated and did not actually know that

defenda nt cause d her inju

ries. Defendant

further argue s that Cook d

id nottestify that defendant held her

against her will, and there was n o othe

r evi denc e to prove

that h e did . We disagr ee on both

points.No. 2--06--1304

-18-

When reviewing a challeng e t o the sufficiency of the evidence, we consider whether , viewing the evidenc e inthe ligh

t most favo

rable to the State, any rational trie r of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Wheeler , 226 Ill. 2d 92, 114 (2007). The critical inquiry in r eviewing the sufficiency

of the evidence is whet

her t he record evidence could reasonably support a guilty finding , regardless of whether the evidenc e is direct or circumstantial and whether the trial was by bench or jur y. Wheeler , 226 I

ll. 2d at 11 4. Beca

use the trier of fact is best positioned to judge the credibility of w itnesses a

nd resolve disputes in the evidence, its decision is entitled to great deference. Wheeler , 226 Ill. 2d at 114-15. Thus, we do not retry the defendant

when evaluating the sufficiency of the evidence and will reverse only where the evidence is so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of the defendant's guilt. Wheeler , 226 Ill. 2d at 115. Under those par ameters , we firs t revi ew defe ndant 's aggravated domestic ba ttery conviction. According to section

12--3.3( a) of th e Crimina l C ode of 1961 (Criminal Code) (720 IL CS 5/12-- 3.3(a) (West 2004)), in order to provea defendant guilty of domestic battery, the State must prove that the defendant (1) intentionally or knowingly, ( 2) without legal justification, (3) caused gre at bodily harm or p ermanent di sability or disfigure ment (4) to any fa

mily or household member. Sect ion 112A--3 (3) of the Code of Criminal Pr

ocedure providesthat a " family or household member" includes "persons who have had a dating or engagement re

lation ship." 72 5 IL

CS 5 /112A--3(3) (West 2004 ). In this case , it is undisp

uted that defenda nt and Cook

had a da ti n g relation ship for severalyears. I t is also undisputed that Cook sustained serious injuries to her face, which were apparent in the photographs a nd in the stipulation to the radiolog ist's CT r eport. However, defendant argues that the State did not prove that he caused Cook's injuries. We disagreeNo. 2--06--1304

-19-

basedon the evidence presented by the State, including Cook 's 911 ca ll in which she identified defendant as the pe rson who b eat her , her wr itten stat ement to th

e police , and her

statemen ts to Officer Poulos and the paramedic. The trier of fact was in the best position to weigh Cook's prior inconsistentstatemen

ts against her trial testimony and to make a credibility

determination. The 911 tape alone contained enough information to convict defendant

of aggravated dome stic battery. On the tape, Cook identified defendant as her attacker , stating that he held her overnight and bea t her face and that she could not even see any more. She frantically

stated that

she was not able to even

see herself

or get a way until "no w." The

jury reasona bly could have determined that Cook's 911 call andstatements to police were more credible than her court roo m testimony in which she denied remembering any

thing. Therefore, there

was sufficient

evidence presented by

the State to convict de fe nd an t o f a ggr av at ed do me st ic ba tt er y. Unlawful restraint requires that the State prove that the defenda nt kn o wingly a

nd without legal authority detained a nother. 720 IL

CS 5/10--3(a) (West 2004). Based on Cook's 911 call, the Statepresent

ed evide nce suff icient to c onvict def

endant of unlawful restraint. On the tape, Cook st at edthat defendant held her overnight and that she just now had gotten away . Her written statement also claimed that defendant "held [her] all night in his bedroom" and th at she got away when defendant got out of her truck to go into the backseat. There fore, based on

these sta tements, the trier of fact reasona bly could hav e found d

efenda nt guilty of unlaw ful restr

aint. II I. CONCL

USION In conclusion, we find that the 911 tape was not testimonial and was properly admitted as an excited ut ter ance. We further find that the trial court did not err in admitting Cook' s handwritten statemen t pursuan t to sectio n 115--10 .1. Defe ndant wa ived his f oundation al arguments regardingNo. 2--06--1304

-20-

Cook 's statements to Officer Poulos and paramedic Koncki by failing to object at trial. Defendant also failed to establish reversible error in admitting pri or consi stent portions of the grand jury te st im on y. Finally, we f ind that the State pr esent ed sufficie nt evi dence t o supp ort de fendan t's convicti ons of ag grava

ted domes tic batte

ry and unlawful restr

aint. Fo r t he fo re go in g r ea so ns , w e a ff ir m t he ju dg me nt of

th e c ir cu it co ur t o f La ke Co un ty. Affirmed. GROMETER and CALL

UM, JJ., concur.