2020 IL App (1st) 170130-U

No. 1-17-0130 

Third Division

June 24, 2020 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

____________________________________________________________________________ 

THE PEOPLE OF THE STATE OF 

ILLINOIS, 

 Plaintiff-Appellee, 

 v. 

JACQUES LEWIS, 

 Defendant-Appellant. 

) Appeal from the

) Circuit Court of 

) Cook County. 

) 

) 

) No. 15 CR 12847 

) 

) 

) 

) Honorable 

) James B. Linn, 

) Judge, presiding. 

____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court. 

Presiding Justice Ellis and Justice Howse concurred in the judgment. 

O R D E R 

¶ 1 Held: The trial court did not commit plain error in admitting Facebook messages or 

defendant’s prior acts into evidence. Defense counsel was not ineffective in failing 

to object to the introduction of prior acts evidence.

¶ 2 Following a bench trial, defendant Jacques Lewis was convicted of aggravated domestic 

battery and sentenced to three years’ imprisonment. On direct appeal, defendant argues that: 

(1) the trial court erred in admitting Facebook messages into evidence, (2) the trial court erred 
No. 1-17-0130 

- 2 - 

in admitting prior acts evidence involving domestic battery, and (3) defense counsel was 

ineffective for allowing the prior acts evidence to be admitted. For the following reasons, we 

affirm.

¶ 3 I. BACKGROUND

¶ 4 Defendant was charged with aggravated kidnaping (720 ILCS 5/10-2(A)(3) (West 2014)), 

aggravated domestic battery (720 ILCS 5/12-3.3(A-5) (West 2014)), and unlawful restraint 

(720 ILCS 5/10-3 (West 2014)), relating to an incident between he and then-wife, Angel

Powell, that occurred on July 16, 2015. A co-defendant, Dantrell Blind,1 was also charged with 

aggravated kidnaping and other offenses relating to the same event. 

¶ 5 Prior to trial, the State filed a motion in limine requesting that the court permit testimony 

concerning prior alleged incidents in which defendant committed domestic violence against 

Powell. As alleged in the motion, the first incident occurred on May 20, 2015, when Powell 

brought her and defendant’s then-7-week-old child to Lurie Hospital in Chicago. Defendant 

arrived at the hospital, threatened Powell, and pushed her against a wall. He then bit her on the 

face and attempted to take the child from the hospital before fleeing. Powell’s injuries were 

photographed. The second incident occurred in Kansas on June 3, 2014. According to the 

motion, defendant and Powell began arguing at a motel, during which defendant head-butted 

Powell and dragged her to his car. Powell attempted to call for help, but defendant covered her 

mouth and continued to attack her in his car until he was stopped by a friend. Her injuries were 

photographed from this incident also. 

¶ 6 The motion was addressed in court on June 21, 2016, at which time the State made the 

following proffer: 

1 Blind is not a party to this appeal. 
No. 1-17-0130 

- 3 - 

 “Judge, going off my memory, there was a prior incident, I believe it was from a year, 

possibly two years before this incident, involving the same defendant and the same victim. 

It took place in Kansas. *** There was an argument that turned into a physical altercation 

between this defendant and the same girlfriend at the time. It was while he was – they were 

both in Kansas. Police were called. There were photographs taken of her injuries. Similar 

aspects of it, again just by memory, it involved him getting her into a car and then attacking 

her in the car as he drove and he also was removed from the scene by a different friend of 

his.” 

Defense counsel argued that the incident did not show a pattern of behavior, but only 

propensity. The court concluded, “I’m going to say that the Government may introduce this in 

their case in chief because it shows context and it would be relevant and probative – more 

probative than prejudicial for those reasons.” 

¶ 7 At the bench trial, Powell testified that she is married to defendant and that they have one 

child together. On July 16, 2015, Powell drove from her work to school at Chicago State 

University, where she arrived around 6:45 p.m. She exited her car and went to the trunk to 

retrieve her bookbag. As she was doing so, defendant came up behind her, took her phone from 

her back pocket, and said, “You thought I wasn’t going to catch you.” They started “fighting 

and wrestling” over her phone, during which time defendant punched Powell in the face and 

body. She was able to get her phone back and then ran to the driver’s side of the car with the 

intention of driving away. Defendant opened the driver’s door, and they began fighting again, 

during which defendant bit her face. Powell climbed out of the passenger door and ran away, 

but defendant caught her and took her phone again. She ran after defendant, who broke her 

phone by throwing it on the ground after accusing her of cheating on him with a man named 
No. 1-17-0130 

- 4 - 

Tony. Defendant then walked to the car in which he arrived, which was a blue Jaguar. Powell

observed Blind standing outside of the car holding a blue baseball bat. As defendant and Blind 

drove away, defendant said to Powell, “That’s why I broke your phone.” After they left, 

Chicago State University police officer Timothy Williams arrived and spoke with Powell.

¶ 8 Powell testified that she did not remember defendant wrapping his hand around her throat 

at any point during this incident and that she did not remember losing consciousness. She stated 

that he did pull her hair during the fighting. She stated that she also had a bite mark on her 

hand in addition to on her face. 

¶ 9 At the police department, Powell gave a written statement in which she wrote that 

defendant choked her and forced her into her car. It also stated that he bit her on the face and 

hand and she tried to escape through the passenger door of the car. 

¶ 10 There was also a videotaped statement Powell gave to an assistant state’s attorney on July 

17, 2016. The video would not play in court, and the parties stipulated to what was said in the 

statement. In the statement, Powell stated that defendant choked her until she lost 

consciousness. Defendant then dragged her to her car and threw her inside. Finally, she stated 

that she saw Blind walking towards her with the bat. 

¶ 11 The State introduced photographs taken on the day of the incident that show Powell’s 

injuries. The photographs show what Powell testified were a bite mark on the left side of her 

face, red markings on her neck, and a bite mark on her left hand. 

¶ 12 The State then showed a surveillance video, albeit an extremely blurry one, from Chicago 

State University that portrayed the events of the day at issue. Powell narrated as the video 

played in court. The video shows Powell arriving in her car and walking to her trunk. The video 

shows another car pulling up behind her and two individuals exit the car. One individual begins 
No. 1-17-0130 

- 5 - 

walking toward Powell. At this point, it is impossible to tell what is going on. It then shows 

Powell and defendant outside of the driver’s side and then entering the vehicle from the driver’s 

side. Powell exits the passenger side of the car, and defendant follows her around the car. A 

few moments later, Powell runs after defendant to another area of the parking lot. He then gets 

into a blue Jaguar with Blind and drives away. 

¶ 13 Powell further testified that she has a Facebook account but she is not “friends” with 

defendant on Facebook. She stated that defendant did have a Facebook account but the name 

on it was “Doty Lewis.”2 In July of 2016, defendant contacted her through that account via 

private messages over several days. Defense counsel objected to the introduction of the 

Facebook messages due to insufficient evidence that defendant was the person who sent them. 

The court overruled the objection, stating: 

“She said she knows his name on Facebook. She’s married to him. That they had 

communicated on Facebook. I think she is in a position to identify whether those were 

messages from him, her husband or not. She may do that.” 

¶ 14 The State introduced a five-page printout of messages Powell received from the “DoDe

Lewis” account between July 7, 2016, and July 15, 2016. In the messages, the sender threatens 

to injure and kill Powell using very obscene language. The sender also reveals some personal 

information, such as the fact that they have a son, are paying child support, and that their 

mother is moving in two weeks. The following are a selection of those messages. 

¶ 15 On July 7, 2016, DoDe Lewis sent the following message to Powell: 

2

 This was the spelling used throughout the transcript, though the printout of the Facebook messages 

shows the Facebook account name as “DoDe Lewis.”
No. 1-17-0130 

- 6 - 

 “U really making s*** worse on yourself putting s*** on fb n ig then u steady putting 

clown s*** up but gone b crying when getting f*** up RIP ANGEL COMING SOON 

ON MY SON ON MY GRANDMA

 Then u telling all my business like it’s cool lord I highly advice u delete yo fb ig and 

snapchat today bc that’s what’s getting u caught up and f*** up frfr and u think s*** so 

sweet

 U thought last time was the worst wait til u c what’s fina happen to u this time lil h*** 

 nobody gone save u period[.]” 

¶ 16 On July 10, 2016, DoDe Lewis sent this message to Powell: 

“On my grandma b*** since u think s*** sweet I’m fina kill yo a*** today and that’s 

on my son head come outside or b any whr tonight I’m killing u and whoever u with b*** 

on my grandma[.]” 

¶ 17 On July 11, 2016, DoDe Lewis sent this message to Powell: 

 “B*** u keep going to fb worse u making me want to get on yo a*** today but I’m 

 sticking my normal schedule I’m gone kill u during the week see u soon[.]” 

¶ 18 On July 15, 2016, at 1:47 p.m., DoDe Lewis sent this message to Powell:

 “U claiming u got all this money and want me to buy all this s*** when I got to save 

up for my own crib bc my mama moving by herself n 2 weeks I can’t lord u stunting like 

 u got it[.]” 

¶ 19 On that same day, at 1:49 p.m., DoDe Lewis sent this message to Powell: 

 “B*** this y a mf want to kill u anyways lord I’m not fina b homeless playing with u 

b*** I was giving money daily and u wasn’t giving me s*** f*** u talking about I have to 

get a crib n two weeks
No. 1-17-0130 

- 7 - 

U got me f*** up I swear lord mf gone get on yo a*** today watch I highly advice u 

change yo schedule for the rest of the day bc it’s not gone go as planned for u[.]” 

¶ 20 Powell was then asked about the incident that occurred at Lurie Children’s Hospital on 

May 20, 2015. She stated that she took her son to the hospital and defendant showed up. They 

began arguing, and she told him to leave. She recalls defendant biting her lip and then she 

began screaming at him and he left. Chicago police officer Robert Torres arrived at the 

hospital, and she told him that defendant pushed her and bit her lip. She does not remember 

telling Torres that defendant said “I’ll kill you.” She testified that photographs were taken of 

her at the time, which show a bite mark on the right side of her mouth. 

¶ 21 Powell was asked about the incident that occurred in Kansas on June 3, 2014. She testified 

that she and defendant had been arguing often during that week. She and defendant began 

fighting one day, involving punching each other, and defendant broke her phone as she was 

calling 911. She gave police a handwritten statement regarding this incident in which she stated

that defendant head-butted her and held her down. She ran outside, but defendant caught her 

and covered her mouth and nose so that she could not breathe. From photographs taken on that 

day, she identified injuries of swelling on her right cheek and redness on her nose. She also 

identified a photograph of the phone defendant broke that day. 

¶ 22 On cross-examination, Powell admitted that she initially told the police that she did not 

want to prosecute defendant for this incident. She stated that she included in her written 

statement, which she made at about 4 a.m., that defendant had choked her because she was 

mad, frustrated, and ready to go. She stated that she did not remember every detail that 

happened and did not recall defendant forcing her into the car or choking her. She was still 

married to defendant, and she sees him about once a month to take her son to visit him. 
No. 1-17-0130 

- 8 - 

¶ 23 On redirect examination, she testified that she told the paramedics that defendant choked 

and bit her, and the paramedics arrived immediately after the incident. She also confirmed that 

defendant followed her to Chicago State University after sending her a Facebook message 

earlier that day threatening her. 

¶ 24 The court inquired as to Powell’s current relationship with defendant. She stated that she 

was dating someone else and only visits defendant so he can have a relationship with their son. 

She also stated that she had started divorce proceedings and that she would like an order of 

protection. 

¶ 25 Officer Weisinger3 testified that he responded to a call regarding a vehicle involved in a 

domestic violence incident on July 16, 2015, at which time he worked for the Chicago 

University Police Department. The vehicle was described as a blue Jaguar and he also had a 

partial plate number. He located the Jaguar and conducted a traffic stop near the university. He 

identified defendant and Blind as the passengers in the vehicle that day. Both were placed in 

custody, and a baseball bat was recovered from the backseat of the vehicle. 

¶ 26 Officer Eugene Heffner testified that he worked for the Chicago University Police 

Department on July 16, 2015. He was assigned to investigate a case of domestic battery 

involving Powell and defendants. He interviewed both defendants. 

¶ 27 Blind told him that defendant offered him $50 to drive him to see Powell so he could get 

his money. They first drove to her house and then to Chicago State University. Blind told 

Heffner that defendant exited the car and said, “Where’s my money?” to Powell before they 

started fighting. He stated that he observed defendant choking Powell. Blind then took a bat 

out of the car. Defendant walked back to the car and Powell followed him. Defendant grabbed 

3

 Officer Weisinger’s first name does not appear in the record.
No. 1-17-0130 

- 9 - 

Powell and pulled her to the ground. Blind and defendant left after Blind overheard someone 

say that they were calling the police.

¶ 28 During Heffner’s interview with defendant, defendant had a seizure and was transported to 

a hospital. Heffner spoke with defendant again later, and defendant told him that he went to 

Chicago State University to get his money from Powell. Powell did not know he was going to 

be there. He approached her, grabbed her arm, and pulled her to the driver’s side of her car. 

Powell entered the car, kicked him, and tried to climb out the other side. Defendant admitted 

to Heffner that he bit her hand and tried to pull her back into the car. After they exited the car, 

he took Powell’s phone and walked towards Blind’s Jaguar. He looked through Powell’s phone 

because he suspected that she was cheating on him and he then broke her phone. 

¶ 29 On cross-examination, Heffner stated that defendant told him at the beginning of the 

interview that he had a seizure disorder and he needed his medication. Defendant was advised 

to answer the questions and then he could get his medication, but he had a seizure before the 

interview concluded. 

¶ 30 Defendant moved for a judgment of acquittal on all counts, which the court denied. The 

defense then rested without presenting evidence. After closing arguments, the court found 

defendant guilty of aggravated domestic battery and unlawful restraint, but not guilty of

aggravated kidnaping. In so ruling, the court found that defendant threatened her on Facebook, 

followed her to school, attacked her, and choked her. The court specifically found Powell’s 

statements at the time of the incident to be more accurate as to what occurred. Defendant’s 

motion for a new trial was denied. On December 6, 2016, the trial court merged the unlawful 

restraint charge into the aggravated domestic battery charge and sentenced defendant to three 
No. 1-17-0130 

- 10 - 

years’ imprisonment on the latter. The court denied his motion to reconsider sentence. This 

appeal followed. 

¶ 31 II. ANALYSIS

¶ 32 1. Admissibility of Facebook Messages 

¶ 33 Defendant first argues that the trial court erred in admitting the Facebook messages where 

the State failed to lay a sufficient foundation authenticating that defendant sent them. The State 

contends that it was enough for Powell to testify that she knew the account to be one of 

defendant’s and that the messages contained personal information regarding their son. 

¶ 34 Defendant concedes that he did not properly preserve this issue for review and requests 

that this court review it under the plain-error doctrine. See People v. Thompson, 238 Ill. 2d 

598, 611 (2010) (“To preserve a claim for review, a defendant must both object at trial and 

include the alleged error in a written posttrial motion.”). Plain error review “allows a reviewing 

court to consider unpreserved claims of error in specific circumstances.” Id. at 613. A 

defendant bears the burden of persuasion that the plain error doctrine is applicable. Id. 

¶ 35 Plain error doctrine applies where “(1) a clear or obvious error occurred and 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) a clear or obvious error occurred 

and that 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.” (Internal 

quotation marks omitted.) Id. We must first determine whether an error occurred. 

¶ 36 A party must lay a proper foundation before a document may be authenticated and entered 

into evidence. People v. Kent, 2017 IL App (2d) 140917, ¶ 86 (citing to Piser v. State Farm 

Mutual Automobile Insurance Co., 405 Ill. App. 3d 341, 348 (2010)). A Facebook message, 
No. 1-17-0130 

- 11 - 

like email and text messages, is considered a document for admissibility purposes. Id. Illinois 

Rule of Evidence 901 (eff. Sept. 17, 2019) provides that the authentication of evidence, such 

as Facebook messages, “is satisfied by evidence sufficient to support a finding that the matter 

in question is what its proponent claims.” Authentication can be accomplished through either 

direct or circumstantial evidence. Id. (citing to Piser, 405 Ill. App. 3d at 349). It is only 

necessary to prove a rational basis “upon which the fact finder can conclude that the document 

did in fact belong to or was authored by the party alleged.” People v. Ziemba, 2018 IL App 

(2d) 170048, ¶ 51. Such a finding “does not preclude the opponent from contesting the 

genuineness of the writing after the basic authentication requirements are satisfied.” People v. 

Downin, 357 Ill. App. 3d 193, 203 (2005). “The ultimate issue of authorship is for the trier of 

fact to determine.” Id.

¶ 37 A trial court’s decision to admit evidence is reviewed under an abuse of discretion standard. 

People v. Decaluwe, 405 Ill. App. 3d 256, 266 (2010). An abuse of discretion occurs when no 

reasonable person would take the view adopted by the court. In re Dionte J., 2013 IL App (1st) 

110700, ¶ 64. Reasonable minds can differ as to whether certain evidence is admissible without 

necessitating a reversal of the trial court’s ruling under this standard. People v. Donoho, 204 

Ill. 2d 159, 186 (2003). 

¶ 38 Defendant argues that the authentication was insufficient because Powell did not provide 

any testimony as to how she knew that the messages were from defendant and the information 

contained in the messages were not so personal that only she and defendant would know. There 

was also no information elicited about the Facebook account, “DoDe Lewis,” from which the 

messages were sent.
No. 1-17-0130 

- 12 - 

¶ 39 Though there have been a few cases on the authentication of text messages and e-mails, 

the only published case in Illinois dealing with the authentication of Facebook communications 

is People v. Kent, 2017 IL App (2d) 140917. 

¶ 40 There, the defendant, Lorenzo Kent, was charged with shooting a man and leaving him 

dead in his driveway. Id. ¶¶ 3-4. At trial, the State introduced a Facebook post reading “it’s my 

way or the highway...leave em dead n his driveway” that the defendant purportedly made from 

his account bearing the name “Lorenzo Luckii Santos” on the day after the shooting. Id. ¶¶ 5, 

57. By way of authentication, the State established that the defendant’s first name was Lorenzo 

and he sometimes went by the nickname “Lucky.” Id. ¶ 9. The photograph associated with the 

account also resembled the defendant. Id. ¶ 57. The Second District panel found that the State 

had failed to sufficiently authenticate that the Facebook post was written by the defendant. Id.

at ¶ 116. In so ruling, the court recognized that authenticating social media evidence posed 

“unique issues” due to the ease with which imposters can create fake profiles and access the 

personal information of others. Id. ¶ 105 (quoting Smith v. State, 136 So. 3d 424 (2014)). In 

particular, the court stated that anyone could have created the post “if he or she knew the 

defendant by his alleged alias, knew about the shooting and the underlying feud [between the 

defendant and the deceased], and had digitally mined an image of someone who looked like 

the defendant.” Id. ¶ 113. Additionally, the court opined that the shooting had gained enough 

attention that the location of the body in the driveway could have been known to a number of 

people. Id. 

¶ 41 In coming to its decision, the Kent court also relied on two cases from other jurisdictions: 

United States v. Vayner, 769 F.3d 125 (2d Cir. 2014), a federal circuit court case, and Smith v. 

State, 136 So. 3d 424 (2014), from the Supreme Court of Mississippi. 
No. 1-17-0130 

- 13 - 

¶ 42 In Vayner, the defendant was convicted of transferring a false identification document 

based on a forged birth certificate he created for Vladyslav Timku, a Ukrainian citizen living 

in Brooklyn, New York. The birth certificate entitled Timku to a deferment from compulsory 

military service in Ukraine. Id. at 127. The trial court admitted into evidence a printout of a 

web page that the government claimed was the defendant’s profile on VK.com (VK), a Russian 

social networking site similar to Facebook. Id. The profile included information that 

corroborated Timku’s testimony that the defendant created the birth certificate. Id. On appeal, 

the defendant argued that this web page was not properly authenticated under Rule 901 of the 

Federal Rules of Evidence, akin to Illinois Rule of Evidence 901. Id. 

¶ 43 The Second Circuit concluded that the trial court abused its discretion in admitting the web 

page because “there was no evidence that the defendant himself had created the page or was 

responsible for its contents.” Id. at 132. The court found that the fact that the profile page had 

the defendant’s name and photograph was insufficient to reasonably conclude that it was 

created by the defendant. Id. Moreover, the information contained on the profile page was not 

so obscure or uniquely distinctive such that only the defendant would have knowledge. Id. 

¶ 44 In Smith, the defendant was accused of killing a child. 136 So. 3d at 426. The prosecution 

introduced into evidence Facebook messages purportedly sent by the defendant to his wife 

regarding problems he was having with the child. Id. The Supreme Court of Mississippi held 

that the trial court erred in admitting the messages because they had not been properly 

authenticated. Id. at 435. The Facebook profile associated with the messages bore the 

defendant’s name and picture, but there was no other personal information on his profile. Id. 

at 434. The court stated that “something more than simply a name and small, blurry photograph 

purporting to be Smith is needed to identify the Facebook account as his in the first place.” Id. 
No. 1-17-0130 

- 14 - 

at 433. The court further opined that the State did not elicit any testimony from the defendant’s 

wife as to how she knew that the messages were sent from her husband and the information in 

the messages was known to individuals other than defendant and his wife. Id. at 434-35. 

¶ 45 Both of these courts explained the manner in which Facebook documents can be 

authenticated. The Vayner court emphasized the content of the information and whether the 

information was based solely on personal knowledge or knowledge only known to a small 

group of people. 769 F.3d at 132; see also Downin, 357 Ill. App. 3d at 203 (“Prima facie 

authorship of a document may include a showing that the writing contains knowledge of a 

matter sufficiently obscure so as to be known to only a small group of individuals.”). In a nonexhaustive list, the Smith court identified six ways in which a Facebook communication could 

be authenticated: (1) the purported sender admits authorship, (2) the purported sender is seen 

composing the communication, (3) business records of an Internet service provider or cell 

phone company show that the communication originated from the purported sender’s personal 

computer or cell phone under circumstances in which it is reasonable to believe that only the 

purported sender would have had access to the computer or cell phone, (4) the communication 

contains information that only the purported sender could be expected to know, (5) the 

purported sender responds to an exchange in such a way as to indicate circumstantially that he 

was in fact the author of the communication, or (6) other circumstances peculiar to the 

particular case may suffice to establish a prima facie showing of authenticity. Smith, ¶ 21 

(citing Tienda v. State, 358 S.W.3d 633 (Tex. Crim App. 2012). Though case law from other 

jurisdictions is not binding upon this court, we, like the Kent court, find Vayner and Smith’s 

commentary instructive here.
No. 1-17-0130 

- 15 - 

¶ 46 Here, we find that the Facebook records were not duly authenticated. The State did not link 

the name “DoDe Lewis” to defendant. This is not defendant’s name and there was no indication 

that there was a photograph associated with the profile that resembled defendant. The State 

also failed to elicit any testimony from Powell regarding why she believed defendant sent the 

messages. In fact, the State actually elicited testimony that defendant has multiple Facebook 

accounts, underscoring that proper authentication is essential. There was no evidence that these 

messages were sent from a device (computer or otherwise) associated with defendant, and there 

was no testimony that someone had seen defendant send these messages to Powell from that 

account. The information contained in the messages, namely that defendant and Powell had a 

son together, that he owed child support, Powell’s birthdate, and that his mother was moving 

soon, was not so obscure or personal that it could not have been known by other individuals. 

Moreover, the State failed to elicit any testimony from Powell that this information was only 

known to her and defendant. Finally, the State specifically pointed out that some of the 

messages were sent on the day of the subject incident and the messages alluded to defendant 

attacking Powell; however, almost all the messages contained similar insinuations or even 

direct statements of killing Powell and defendant did not attack Powell on any of these other 

days. Thus, the significance of the message sent on the date of this incident is diminished. 

¶ 47 In contrast, emails purportedly sent by the defendant were properly authenticated in 

Downin, 357 Ill. App. 3d 193, 194 (2005). There, the defendant was charged with several 

counts of aggravated criminal sexual abuse, and the State presented an exchange of emails 

between the minor and the defendant discussing their sexual relationship. Id. at 194, 196. On 

appeal, the defendant argued that the emails were not properly authenticated, but the appellate 

court disagreed, pointing to the minor’s testimony that she communicated with the defendant 
No. 1-17-0130 

- 16 - 

at the same email address many times and that the emails contained information only she and 

defendant would know. Id. at 202, 203. We have no such testimony in this case. The State 

wholly failed to elicit any specific testimony from Powell as to how she knew it was defendant 

that was sending her messages from the Facebook account of DoDe Lewis. 

¶ 48 Because we have found that the trial court erred in admitting the Facebook messages, we 

now turn to the next step of plain-error analysis. Defendant contends that we should reverse 

his conviction under the first prong of the plain error doctrine because the evidence at trial was 

closely balanced. “An error is prejudicial because it occurred in a close case where its impact 

on the result was potentially dispositive.” People v. Lee, 2019 IL App (1st) 162563, ¶ 67 (citing 

People v. Sebby, 2017 IL 119445, ¶ 68). “In determining whether the evidence adduced at trial 

was close, a reviewing court must evaluate the totality of the evidence and conduct a 

qualitative, commonsense assessment of it within the context of the case.” Sebby, 2017 IL 

119445, ¶ 53. 

¶ 49 Defendant argues that the evidence of strangulation, an element needed to be proved on the 

charge of aggravated domestic battery, was closely balanced such that the Facebook messages 

influenced the court of defendant’s “extreme” intent to commit violence against Powell. We, 

however, agree with the State that the evidence was not closely balanced. 

¶ 50 The offense of aggravated domestic battery, as charged herein, required the State to prove 

that defendant, in committing a domestic battery, strangled Powell. 720 ILCS 5/12-3.3(a-5) 

(West 2014). In this context, “strangle” means to intentionally impede the normal breathing or 

circulation of an individual by applying pressure to the throat or neck. Id. “Domestic battery,” 

as is relevant here, occurs where a person causes bodily harm to or makes physical contact of 

an insulting or provoking nature with a spouse. 720 ILCS 5/12-3.2(a)(1), (2) (West 2014); 720 
No. 1-17-0130 

- 17 - 

ILCS 5/12-0.1 (West 2014). We note that the only issue actually being contested in regards to 

this offense is the element of strangulation. Defendant admitted to law enforcement that he 

attacked Powell.

¶ 51 The record shows that, although Powell testified at trial that she did not remember 

defendant choking her, she made multiple statements to law enforcement and paramedics at 

the time of the incident that he had done so. There was also a written statement from the day 

of the incident stating that defendant choked her. Blind, as an eyewitness, also informed law 

enforcement that he observed defendant choke Powell. Finally, Powell’s statements are 

corroborated by the photographs taken that day showing red marks on her neck from which 

the court could reasonably infer that defendant had grabbed her neck. Our assessment of the 

evidence demonstrates that it was not closely balanced. Accordingly, defendant is not entitled 

to relief under the plain error doctrine. 

¶ 52 2. Admissibility of Prior Domestic Violence Incidents

¶ 53 A. Trial Court Error

¶ 54 Next, defendant contends that the trial court erred in allowing the State to elicit testimony 

regarding the hospital incident where the court had failed to rule on its admissibility prior to 

trial. Again, defendant concedes that this issue was not preserved and requests that this court 

review it under the plain-error doctrine.

¶ 55 “Evidence of other offenses is admissible if it is relevant for any purpose other than to 

show the defendant’s disposition or propensity to commit the crime charge, including modus 

operandi, intent, identity, motive, or absence of mistake. People v. Chromik, 408 Ill. App. 3d 

1028, 1041 (2011). However, the proscription against the introduction of prior bad acts 

evidence to establish propensity was, at least in part, abrogated by Section 115-7.4 of the 
No. 1-17-0130 

- 18 - 

Illinois Code of Criminal Procedure. People v. Dabbs, 239 Ill. 2d 277, 284 (2010). That section 

allows a prior incident of domestic violence to be “considered of its bearing on any matter to 

which it is relevant.” 725 ILCS 5/115-7.4 (West 2014). Thus, prior instances of domestic 

violence are admissible under Section 115-7.4 so long as it is relevant and not substantially 

more prejudicial than probative. Dabbs, 239 Ill. 2d at 291. When weighing the probative value 

and prejudicial effect of such evidence, courts should consider the proximity in time to the 

charged offense, the degree of factual similarity to the charged offense, or other relevant facts 

and circumstances. 725 ILCS 5/115-7.4(b). Though the trial court’s decision to admit or deny 

such evidence of domestic violence is reviewed for abuse of discretion (People v. Heller, 2017 

IL App (4th) 140658, ¶ 55), whether the trial court applied the proper standard is reviewed de 

novo (People v. Cameron, 2012 IL App (3d) 110020, ¶ 26). As we are evaluating defendant’s 

claim under plain error, we must first determine whether the trial court erred in admitting this 

evidence.

¶ 56 Here, the State included the hospital incident in its written motion in limine; however, the 

incident was not discussed at the hearing on the motion on June 21, 2016. Only the incident in 

Kansas was discussed. The court ultimately allowed the State to introduce “this evidence” in 

their case-in-chief because it occurred only a year prior and showed context.

¶ 57 In People v. Abernathy, 402 Ill. App. 3d 726 (2010), the defendant argued on appeal that 

the trial court failed to conduct the requisite balancing test before admitting evidence under 

section 115-7.4. Though the the trial court did not explicitly mention the balancing test prior 

to admitting evidence, this court found that the trial court implicitly engaged in the balancing 

analysis where “the court noted that it was going to require the State to present the specific 
No. 1-17-0130 

- 19 - 

evidence that it intended to introduce at trial in order for the court to ‘weigh that against what 

prejudicial effect it might have upon the defendant.’ ” Id. at 750. 

¶ 58 Similarly, the defendant in People v. Boyd, 366 Ill App. 3d 84, 90 (2006), argued on appeal 

that the trial court failed to conduct the balancing test prior to admitting other-crimes evidence

under section 115-7.3 (a nearly identical provision regarding sex crimes). This court found that 

the record clearly showed that the trial court analyzed the probative value of the evidence but 

“never mentioned the risk of unfair prejudice.” Id. at 94. We found that that was error, but 

ultimately determined that the trial court’s failure to conduct the balancing test was harmless. 

Id. at 95. 

¶ 59 Our review of the record shows that at no point was the hospital incident discussed, and 

we cannot infer from any of the statements at that hearing that the hospital incident was also 

being ruled upon. The trial court did not implicitly or explicitly conduct a balancing test as to 

the hospital incident. We recognize that “a reviewing court will ordinarily presume the trial 

judge followed the law unless the record indicates otherwise.” People v. Groel, 2012 IL App 

(3d) 090595, ¶ 43 (citing People v. Gaultney, 174 Ill. 2d 410, 420 (1996)). Here, the record 

does not indicate that the trial judge did not know the law. On the contrary, it shows that the 

trial judge clearly did know the law because he conducted the balancing test for the Kansas 

incident but it failed to conduct the same analysis for the hospital incident or to imply that it 

was coming to the same conclusion for the hospital incident. Therefore, we find that the court 

erred in admitting evidence of the hospital evidence at trial.

¶ 60 However, our analysis does not end there. The second step of plain-error analysis requires 

us to consider, once again, whether the evidence was closely balanced such that this error 

would tip the scales of justice against defendant. We must conduct “a commonsense analysis 
No. 1-17-0130 

- 20 - 

of all the evidence in context” under this prong of the plain-error doctrine. People v. Belknap, 

2014 IL 117094, ¶ 50. 

¶ 61 In this case, the evidence was not closely balanced as to whether defendant committed 

aggravated domestic battery, which requires proof beyond a reasonable doubt that defendant 

strangled Powell. As previously stated, Powell told paramedics and law enforcement on the 

day of the incident that defendant had choked her, even though she testified at trial that she 

does not remember defendant choking her. The trial court specifically relied on Powell’s dayof statements in finding defendant guilty of aggravated domestic battery. There was also a 

photograph taken that day that shows red marks on her neck, evidencing that she was grabbed 

on the neck, and Blind’s eyewitness statement to law enforcement that he observed defendant 

choke Powell. Taken as a whole, the evidence at trial was not close as to defendant’s

strangulation of Powell.

¶ 62 We also point out that the hospital incident did not involve defendant choking Powell. 

Although it provided context for the court’s understanding that defendant has previously 

attacked Powell, it did not provide any specific context as to his penchant for choking Powell. 

Thus, the testimony of this incident was unlikely to tip the scales of justice against the 

defendant. Moreover, the trial court, as the trier of fact in this case, did not mention the hospital 

incident in finding defendant guilty. Accordingly, we do not find the evidence closely balanced 

and plain-error review is unavailable to defendant here.

¶ 63 B. Ineffective Assistance of Counsel 

¶ 64 Defendant also argues that trial counsel was ineffective in failing to object to Powell’s 

testimony regarding the hospital incident for the same reason as above. He further contends 
No. 1-17-0130 

- 21 - 

that there is no reasonable trial strategy behind failing to object to a witness testifying about a 

prior incident of domestic violence where the court had not ruled on its admissibility. 

¶ 65 The standard set forth in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by 

our supreme court in People v. Albanese, 104 Ill. 2d 504 (1984), governs claims of ineffective 

assistance of counsel. To establish such a claim, a defendant must show that (1) counsel’s 

performance was deficient and (2) the deficient performance prejudiced the defendant. People 

v. Petrenko, 237 Ill. 2d 490, 496 (2010). 

¶ 66 Under the first prong, the defendant must prove that his counsel’s performance fell below 

an objective standard of reasonableness under the prevailing professional norms. People v. 

Ramirez, 2018 IL App (1st) 152125, ¶¶ 15-16. There is a strong presumption that counsel’s 

performance fell within a wide range of reasonable assistance. Strickland, 466 U.S. at 690. 

¶ 67 The second prong requires that the defendant establish prejudice by showing “a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding arguably 

would have been different.” Strickland, 466 U.S. at 694. “[A] reasonable probability that the 

result would have been different is a probability sufficient to undermine confidence in the 

outcome—or put another way, that counsel’s deficient performance rendered the result of [the 

proceedings] unreliable or fundamentally unfair.” People v. Evans, 209 Ill. 2d 194, 220 (2004).

¶ 68 Defendant is required to prove both prongs for an ineffective assistance of counsel claim 

to succeed. We find that he is unable to prove prejudice here. As we mentioned above, the trial 

court did not mention the hospital incident in finding defendant guilty and the hospital incident 

did not involve defendant choking Powell, rendering it less weighty evidence. Even if counsel 

had objected to Powell’s testimony regarding the incident, there was still sufficient evidence 
No. 1-17-0130 

- 22 - 

to find guilty of aggravated domestic battery beyond a reasonable doubt. Accordingly, 

defendant’s claim of ineffective assistant of counsel fails.

¶ 69 III. CONCLUSION

¶ 70 For the reasons stated, we affirm the judgment of the circuit court.

¶ 71 Affirmed.