People v. Ermatov

2024 IL App (2d) 230434-U

• Court: Appellate Court of Illinois
• Decided: May 28, 2024
• Docket: 2-23-0434
• Status: Unpublished

Opinion

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 2024 IL App (2d) 230434-U

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-month-

old 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 pre-

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

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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 self-

interest.” 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.

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