People v. Hayden

2023 IL App (1st) 210797-U

• Court: Appellate Court of Illinois
• Decided: November 16, 2023
• Docket: 1-21-0797
• Status: Unpublished

Opinion

2023 IL App (1st) 210797-U Fourth Division Filed November 16, 2023

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(a).

No. 1-21-0797

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, Appeal from the Plaintiff-Appellee, Circuit Court of Cook County

v. No. 14 CR 1922

TAFT HAYDEN JR., The Honorable Carl Boyd, Defendant-Appellant. Judge, presiding.

JUSTICE OCASIO III delivered the judgment of the court. Justice Hoffman and Justice Martin concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s conviction and sentence for first degree murder over his contentions that the trial court erred when it admitted certain evidence pursuant to the forfeiture-by-wrongdoing doctrine and improperly relied on a factor inherent in the offense at sentencing. We agree with the parties that the court erred when imposing a five-year term of mandatory supervised release and correct the mittimus to reflect a three-year term.

¶2 Following a bench trial, defendant Taft Hayden Jr. was found guilty of first degree murder

and sentenced to 25 years in prison. On appeal, Taft 1 contends that the trial court erred when it

admitted certain evidence pursuant to the forfeiture-by-wrongdoing doctrine and by considering a

factor inherent in the offense at sentencing. He further contends that the trial court improperly

imposed a five-year term of mandatory supervised release (MSR), when the statutorily mandated

1 To avoid confusion, we will refer to the members of the Hayden family by their first name. No. 1-21-0797

MSR term is three years. For the following reasons, we affirm Taft’s conviction and 25-year

sentence for first degree murder and order his mittimus corrected to reflect a three-year MSR term.

¶3 BACKGROUND

¶4 Taft was charged by indictment with two counts of first degree murder alleging that on

December 29, 2013, he struck and killed his wife, Mary Hayden, with a bludgeon.

¶5 On May 4, 2018, the State filed a motion seeking to admit certain of Mary’s statements

pursuant to the doctrine of forfeiture by wrongdoing. See Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011).

The motion alleged that, after Mary decided to divorce Taft, their relationship deteriorated and he

ultimately killed her. The motion noted that, although Taft stated in a 911 call that Mary had fallen

and was not breathing, an autopsy concluded that Mary’s injuries were not consistent with a fall

and her death was caused by head trauma. The motion alleged that Taft killed Mary to prevent her

from pursuing the divorce and testifying against him in those proceedings, rendering Mary’s

statements admissible pursuant to the doctrine of forfeiture by wrongdoing.

¶6 These statements included that, in September 2013, Mary told her friend Tina Estes-

Eubanks that if something happened to Mary, Taft did it. Then, in December 2013, Mary told her

mother, Dimple Wotten, that Taft refused service of the divorce papers, that he “didn’t do

divorces,” and that Wotten should look at him should anything happen to her. That same month,

Mary also told her sister Joyce Williams that Taft refused to accept the divorce papers. On a prior

occasion, Mary told Williams to look at Taft if anything happened to her. Mary told her boyfriend,

Bertran “Goldie” Murphy, that she was having problems with Taft, whom she described as “evil.”

She also told Murphy, “[I]f anything happens to me, look at Taft because he don’t do divorces.”

¶7 A few weeks before her death, Mary told her friend Hillary Holmes that Taft locked himself

in a room when a process server came to the residence and that Mary believed she should obtain

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life insurance because she would rather be safe than sorry. Also, in the months prior to her death,

Mary told her friend Shayla Jarvis that Taft was not taking the divorce well. Mary wanted to give

Jarvis personal information in case anything happened to her, and she told Jarvis that, if anything

did happen, it would be her husband. Mary told another friend, Debra Appleby, that Taft was

verbally abusive and very controlling. Mary also told Appleby that, after she filed for divorce, Taft

made a threat that, if the divorce happened, something would happen to her.

¶8 Mary told her coworker Bianca Butler that Taft did not believe in divorce and she would

only leave him in death. She told another coworker, Romerio Lucas, that Taft did not want the

divorce and was verbally abusive. On several occasions, she told Lukas to look at Taft if anything

happened to her. She also told Lucas that she was not sure what Taft would do.

¶9 The State also sought to admit portions of Mary’s diary dated to the last months of 2013.

On October 22, Mary wrote that Taft received a letter from her attorney and told their children that

she was leaving them. On November 9, she wrote that Taft did not contribute to their daughter’s

birthday and said that “his money looks better in his own pockets.” On November 12, she wrote

that she told her family about the divorce “in the event Taft decides to harm me because I’m

divorcing him.” On December 7, she noted that Taft had refused the divorce papers from the

process server. On December 17, Mary wrote that she cancelled Taft’s bank card because she was

tired of paying all the bills and he did not contribute. Photocopies of the diary entries were attached

to the motion.

¶ 10 On September 20, 2018, the trial court held argument on the motion. The State argued that

the forfeiture-by-wrongdoing doctrine permits the admission of statements by a declarant when

the defendant procured the declarant’s absence by wrongdoing in order to prevent the declarant

from testifying against the defendant in a legal matter. The State argued that Taft killed Mary

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because he did not want the divorce, highlighting her statements to multiple people expressing

concern that Taft would do something to her and that if something happened to her, people should

“look at” Taft.

¶ 11 Thereafter, according to the State, Taft called 911 stating that Mary fell, but an autopsy

concluded that her injuries were inconsistent with a fall and her death was caused by blunt head

trauma. The State asserted that it did not have to show that the statements were reliable as, under

the doctrine of forfeiture by wrongdoing, Taft forfeited challenges the statements’ reliability.

Rather, it was for the trial court to determine whether the statements were relevant.

¶ 12 The defense argued that someone else could have entered the home and committed the

offense and that Taft was never actually served in the divorce proceeding. The defense further

objected to the diary’s foundation, as no one was “qualified” to state that Mary wrote it.

¶ 13 The trial court granted the State’s motion, finding that the State proved, by a preponderance

of the evidence, that Taft procured Mary’s unavailability with the intent to prevent her from

testifying in the divorce proceeding.

¶ 14 The defense immediately moved to reconsider based on the foundation for the evidence,

particularly whether Mary wrote the diary entries and whether they were actually written on the

corresponding dates. The State responded that, if Mary had been alive, she could have testified

regarding her thoughts on those days. The trial court denied the defense’s motion.

¶ 15 At trial, Williams testified that Mary and Taft were married for at least 11 years and had

two children who, at the time of trial, lived with their maternal grandmother. Williams and Mary

regularly spoke on the phone. In May 2013, Mary was arrested for alleged child abuse. Thereafter,

Mary was concerned that Taft had her arrested and she expressed a desire to leave the marriage.

Williams, who worked for a bar association, told Mary that she could refer her to divorce attorneys

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when she was ready to “seriously” pursue a divorce. Williams also recommended that Mary begin

keeping a journal. 2 In September 2013, Williams learned that Mary had started dating Murphy.

¶ 16 In December 2013, Mary told Williams during a phone call that a process server was trying

to serve Taft with the petition for dissolution of marriage but Taft was refusing to accept it and

had closed himself off in an office.

¶ 17 A few weeks before Mary filed for divorce, Mary told Williams during a phone call that

Taft had said to her that he did not do divorce. Although Mary was unconcerned about her safety,

Williams told her that she was welcome at Williams’s home any time. Williams believed that, as

of December 29, 2013, Mary was still sleeping in the master bedroom of her own home, although

she occasionally slept in a bunk bed in her son’s room.

¶ 18 Following Mary’s death, on December 30, 2013, Williams went to Mary’s residence to

retrieve clothing for the children. When Williams returned the following day to obtain an outfit for

Mary to be buried in, she found only a jacket, a blouse, and shoes. The rest of Mary’s clothing was

gone. Mary’s family intended to cremate Mary, but she was interred because Taft did not approve

the cremation paperwork. The family paid for the funeral and Taft paid for the casket and burial.

¶ 19 Williams identified certain pages that bore Mary’s handwriting. Williams recognized

Mary’s handwriting because they were sisters for 42 years. However, she was unsure whether she

had ever seen these particular pages before, as Mary kept two journals.

¶ 20 During cross-examination, Williams testified that she did not see Mary at Christmas as

Mary, Taft, and their children did not celebrate the holiday “because of” Taft. Williams testified

2 At this point, the trial court noted that portions of Williams’s testimony could be subject to hearsay objections and that the court previously ruled that these statements were admissible pursuant to the doctrine of forfeiture by wrongdoing. Trial counsel asked the court for a standing objection, which the court granted.

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that Mary wanted to end the marriage due to Mary’s arrest in May 2013 and the accusation that

she was “whipping” the children. Willams testified that the police recovered one of Mary’s

journals, which was the source of the pages the State previously showed her. She believed that the

journal, which she had not seen before, had been found in Mary’s office. Williams recovered a

second journal, which was “only about five or six pages,” from Mary’s vehicle and gave it to the

State approximately 5½ years prior to the trial. The dates in the second journal were from July

2013, and one entry dealt with funds that Taft removed from a joint account that were needed for

bills.

¶ 21 Williams and Taft did not speak much and never discussed Taft and Mary’s marriage. They

last spoke when Mary appeared in court due to the child abuse proceeding. Taft asked Williams if

she thought the children “being whipped” was a good idea, and Williams responded that he was

speaking to the wrong person. At trial, Williams explained that Mary took steps that she believed

were appropriate after the children left home without permission. Taft did not indicate to Williams

that he was aware of Mary’s relationship with Murphy.

¶ 22 Jarvis, Mary’s coworker, testified that they discussed personal matters and socialized

outside work. After Mary was arrested, Mary began to wonder if her marriage would not “work

out” and indicated that she and Taft separated. In December 2013, Mary stated that a process server

put the divorce papers under the door of the room where Taft had locked himself. Mary also stated

that she did not think that Taft believed in divorce. About 1½ weeks before her death, Mary stated

that, if anything happened to her, Taft “did it” and that there was a box in the office for her family.

During cross-examination, Jarvis denied telling anyone what Mary said, but acknowledged

speaking to officers when they came to the office.

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¶ 23 Appleby, another coworker, testified that, in December 2013, Mary stated that Taft

“indicated that the only way she would get her divorce was to be carried in a bag,” that is, he would

kill her. Appleby told Mary not to take Taft’s threat lightly and asked whether she was concerned.

Mary replied, “very.”

¶ 24 Lucas testified that he and Mary worked together and socialized. During conversations in

2013, Mary indicated that she was planning to file for divorce and then did so. During another

conversation, Mary stated that Taft did not want a divorce.

¶ 25 Attorney Kevin Saville testified that Mary retained him on October 16, 2013, to represent

her in the divorce. Saville mailed a letter to Taft, stating that he should decide whether to represent

himself or retain an attorney and then contact Saville. The letter included a “waiting period.” After

that period, Saville drafted a petition for dissolution of marriage, which Mary reviewed and signed.

Saville then gave the paperwork to special process server Rich Sylvester, who went to Mary and

Taft’s residence to serve the papers. The petition was filed in the circuit court of Cook County on

November 19, 2013. On December 7, 2013, Sylvester told Saville that the papers were served. On

December 30, 2013, Saville learned that Mary was dead.

¶ 26 Saville was never contacted by Taft or his attorney. He explained that, if he is not contacted

after a respondent is served, he files a motion for default and a court date is set 30 days after service

of the motion. The next court date in Mary’s case would have been around January 7, 2014.

¶ 27 During cross-examination, Saville testified that during their initial phone conversation,

Mary did not “directly” state that she feared Taft or that he threatened her. Mary reviewed the

dissolution petition, which initially alleged irreconcilable differences, or in the alternative,

physical and mental cruelty. She was “adamant” that the phrase “physical cruelty” be removed

because it would “set him off.” Mary contacted Saville on November 4, 2013, to state that Taft

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received the letter. On December 17, 2013, after Mary stated Taft was not paying half of their

expenses and had removed half the funds in a joint bank account, Saville advised Mary to open

her own accounts.

¶ 28 During redirect, Saville testified that in the petition for dissolution of marriage, Mary

sought custody of the children, child support, and maintenance. Once a petitioner dies, the

dissolution proceeding ends.

¶ 29 Sylvester testified that Saville requested that he serve the petition for dissolution on Taft.

On December 7, 2013, he went to a residence in Country Club Hills. Before entering, he heard

arguing. Mary let Sylvester inside and stated that Taft was in the bathroom. Sylvester did not see

Taft. Saville and Mary spoke to the person in the bathroom, who never opened the door. Saville

slid the summons under the door and heard the person inside tell Mary that he was not coming out.

¶ 30 Norman Boyd, a Country Club Hills lieutenant firefighter and paramedic, testified that, on

December 29, 2013, around 8:18 a.m., he was dispatched to a residence in the 4500 block of West

179th Street for an “unresponsive fall victim.” When he arrived, Taft was in the driveway and

stated that “she” was inside. Boyd saw a naked woman on the ground in the foyer. A section of a

broken pillar was on the woman’s body, her eyes were swollen shut, and fluid was exiting one ear.

Based upon the woman’s condition and his experience, Boyd “immediately felt” that she had not

fallen, so he walked outside and radioed for police officers.

¶ 31 During cross-examination, Boyd testified that the front door was open when he arrived.

The woman “did not look to be alive,” and he did not remember if he checked for a pulse. He knew

the residence was a crime scene, so he contacted the police and told the ambulance crew to be

careful. He was inside for less than a minute, and he did not remember if there were towels

underneath the woman or if the pillar on top of her was bloodstained.

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¶ 32 During redirect, Boyd acknowledged that he spoke to an investigator on December 29,

2013, and stated that he checked for a pulse, saw that the woman’s eyes were swollen shut, and

that there was “a lot” of blood.

¶ 33 Country Club Hills lieutenant paramedic Nicholas Jula testified that he arrived at the

residence just after Boyd and observed a person in front of the house on a phone. 3 This person then

entered the residence. When Jula entered the residence, he observed a scene that was “unusually

chaotic-looking” for a fall. The position of the patient did not make sense “anatomically.” There

was a concrete column on top of the patient, her eyes were swollen shut, and there was facial

trauma, gray matter exiting one ear, and blood spatter on the wall. Jula found the scene “highly

suspicious” for a fall, having never seen “something like that” in his 19-year career. He had seen

similar facial trauma in vehicle accidents.

¶ 34 Jula checked the patient’s neck for a pulse, but did not find one. She was extremely cold to

the touch and exhibited signs of death. Jula found that unusual, as fall victims were sometimes

alive for several days before rescue personnel found them and sometimes patients were warm or

had “viable life” even when it was cold outside. Jula exited the residence and stopped other

personnel from entering until the police secured the scene. Personnel then went back inside and

used EKG leads to confirm no pulse, respiration, or blood pressure. The scene was turned over to

the police.

¶ 35 During cross-examination, Jula testified that he checked the patient’s pulse, but did not

remember whether he applied the EKG leads. Cardiac pads were put on immediately to determine

whether there was a shockable rhythm. Then the police secured the scene. Emergency personnel

3 Jula testified that he had the rank of engineer paramedic on December 29, 2013.

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returned and applied the EKG leads. The patient was located three feet inside the tiled foyer, and

beneath debris from a concrete pillar. The pedestal, which was on the patient’s shoulder, was

moved so that the EKG leads could be applied. Jula did not remember injuries to the back of the

skull. As the husband walked away, Jula asked what happened. The husband acted like he did not

care, and asked, “oh, is she okay?” Jula felt that response was inappropriate, considering the

circumstances.

¶ 36 Edward McKinney testified that he previously worked as a detective at the Country Club

Hills Police Department. On December 29, 2013, he was called to a residence on West 179th as

part of a death investigation. After viewing the scene and speaking to officers, McKinney contacted

the South Suburban Major Crimes Task Force. Upon returning to a police station, he met Taft.

Later, McKinney went to the residence to retrieve a “black book” containing written notes and

brought it to the police station. At trial, he identified the item as Mary’s journal. On December 31,

2013, pursuant to a search warrant, he obtained buccal swabs from Taft. The same day, he met

with Williams, who gave him copies of Mary’s “journal.” After reviewing these pages, McKinney

determined that he had the “original” journal. He made copies of the pages and then returned them

to Williams.

¶ 37 During cross-examination, McKinney testified that he was never given a second journal.

Williams stated that she kept the diary pages out of concern for Mary’s safety. Taft’s fingernails

were swabbed. During the investigation, McKinney learned that two children were present in the

residence at the time of Mary’s death. He did not speak to the children.

¶ 38 Crestwood police sergeant Mike Alexander testified that as part of this investigation, he

requested the Majestic Star Casino in Indiana search its footage to determine Mary’s movements.

Alexander retrieved the footage on December 31, 2013.

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¶ 39 The parties stipulated to the introduction of video recordings depicting Mary at the Majestic

Star Casino from the night of December 28 and the early morning of December 29, 2013, was

recorded and then onto a CD. The State published the time-stamped video, which Alexander

narrated. Alexander identified Mary, who was wearing a red shirt, enter the casino at 8:52 p.m. on

December 28, cash out at 2:20 a.m. on December 29, and exit the garage at 2:33 a.m.

¶ 40 This footage is included in the record and this court has viewed it. There are numerous

clips of an African-American woman wearing a red and gold jacket and dark pants. These clips

depict her entering, moving about, and exiting the casino, entering a vehicle in a parking garage,

and that vehicle exiting the garage and driving away on a surface street. 4

¶ 41 During cross-examination, Alexander testified that the footage depicted Mary arriving at

the casino alone. He did not know if she met someone. She was alone when she walked to her

vehicle, but Alexander did not search the footage to determine if someone walked ahead of her.

¶ 42 Taft’s cousin Demarrion Wilson testified that he and a female companion arrived at the

Majestic Star Casino around 10 p.m. on December 28, 2013, and encountered Mary. The two

women then gambled. Wilson believed Mary had a cocktail, but did not remember how many.

When Wilson and his companion left, Mary remained. Around 2 a.m., on December 29, 2013, he

responded to Mary’s text stating she won money. He texted Mary between 7 a.m. and 8 a.m., but

she did not respond. Wilson did not know how Mary arrived at the casino, whether she was with

someone, or who else she encountered.

4 Several clips are so blurry that it is not clear whether the woman is present, and the majority of the clips are blurry such that only the top half of the image (or less) is discernable and the timestamps are not visible.

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¶ 43 The parties then stipulated to a recording of a 911 call made at 8:17 a.m. on December 29,

2013, from Mary and Taft’s residence to the Country Club Hills Fire Department. The 911 call

was published. It is included in the record on appeal and this court has listened to it.

¶ 44 In the call, the operator states “911 emergency.” A man gives an address, asks for an

ambulance, and states that his wife fell and he has been trying to “wake her up.” He asks, “can you

get somebody [inaudible] to handle that.” The operator repeats the address and that the woman fell

and is unconscious. The man answers, “yes, she is unconscious.” The operator then asks whether

the woman is breathing. The man states, “no” and that a “column fell.” He asks that someone

come “over here real fast.” The operator states that personnel are on the way and again asks

whether the woman is breathing. The man replies, “it doesn’t look like it.” The operator repeats

that the woman is not breathing, and the man confirms, “it doesn’t look like it.”

¶ 45 Cook County Sheriff’s Police Department crime scene investigator Don Stewart testified

that he photographed the residence. He identified photographs depicting the doors and windows

which showed no forced entry. Stewart also photographed the victim, broken pedestals, and areas

of the home where he observed blood. Stewart testified that photographs from the laundry room

depicted “multiple” blood patterns on the exterior of the washing machine and the inner rim.

Photographs of the master bedroom depicted a canvas bag and headboard with bloodstains. The

bloodstains on the headboard and washing machine were swabbed. During cross-examination,

Stewart testified that he did not swab the washing machine, the pedestals, the glass shards, or the

glass backyard door for fingerprints.

¶ 46 Orland Park police commander Eric Rossi testified that, on December 30, 2013, he went

to the Secret Service Office in Chicago to execute a search warrant on Mary’s cell phone. A

forensic examination was conducted on the phone, and all data on the phone, including call logs

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and text messages, was downloaded. Rossi testified that this data showed that the last outgoing

call was on December 29, 2013, at 3:37 a.m. 5 The last text message that had been read was received

at 3:11 a.m. on December 29, 2013, and the last outgoing text message was sent at 3:49 a.m.

¶ 47 During cross-examination, Rossi testified that he did not take Taft’s cell phone to be

examined and did not ask other officers to do so. He conducted “other cell phone exams” in this

case, but did not identify the owner of those phones. Rossi did not contact Mary’s cell phone carrier

and did not recall learning about Murphy.

¶ 48 Dr. James Filkins testified that, in 2013, he was an assistant medical examiner and

performed Mary’s autopsy. The autopsy revealed abrasions to the forehead, the left cheek, the

nose, and the lips; lacerations to the forehead, the left ear, and above the left eyebrow; and bruising

and swelling surrounding both eyes. There were bone fractures in the nose and left eye socket,

bruising to the left shoulder, and superficial incised injuries to the right chest as well as numerous

glass fragments in the buttocks and blood “flowing” from both ear canals. The internal examination

revealed several subgaleal hemorrhages (bleeding between the scalp and the skull), fractures to the

left frontal bone, multiple basilar skull fractures, and bleeding in the brain. Bite marks went

through the tongue. Most of the injuries were oriented to the left side of Mary’s head.

¶ 49 Filkins opined that Mary’s injuries were not caused by falling two to three steps and

striking her head. He had observed similar injuries that had been caused by being beaten with a

blunt object, falling two or three stories onto a hard surface, and being in certain vehicle accidents.

He concluded that Mary died due to brain and skull injuries caused by blunt head trauma.

5 Rossi acknowledged that the time stamp read “9:37 and 16 a.m.” He explained that this was Universal Time Code, which was “minus six to our time zone,” i.e., the Central Time Zone.

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¶ 50 During cross-examination, Filkins testified that he did not measure the thickness or strength

of Mary’s skull. In his opinion, it was a normal skull. He acknowledged that Mary was obese and

that a heavier person may generate more force when falling.

¶ 51 During redirect, Filkins testified that some of Mary’s teeth were loosed from the bone, and

that she had a broken nose and injury to the mouth, which was consistent with a punch to the face.

A punch to the face could also have caused the blackening around the eyes and rendered her

unconscious. Mary’s fingernail clippings were obtained.

¶ 52 During recross-examination, Filkins acknowledged that he could not determine whether

Mary was rendered unconscious by a punch to the face. Her injuries were also consistent with

other possible causes.

¶ 53 Country Club Hills crime scene investigator Bonnie Jones testified that she swabbed pieces

of a pedestal. During cross-examination, Jones testified this occurred nine months after the

incident. She also inventoried the clothing Taft was wearing when he was arrested but was not

instructed to send those items to the lab.

¶ 54 Illinois State Police lieutenant Rebecca Hooks testified that she focused on bloodstain

pattern and analysis. Prior to her testimony, she reviewed Mary’s autopsy report and photographs,

police reports, crime scene photos, laboratory reports, a crime scene investigation report, and an

“evidence manifest.” Hooks opined that a stain at the foot the stairs was consistent with an “impact

pattern.” The source of the blood had been above floor-level, but not by more than one foot.

¶ 55 Hooks agreed that this observation was consistent with Mary’s head being struck while

resting on the floor and was not consistent with Mary falling down steps and striking the floor.

Papers found on the floor and on Mary had no bloodstains, which indicated the papers were not

present during the bloodshed. Hooks was also asked to determine whether the bloodstain on a

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headboard in a bedroom was consistent with Mary being struck in the face. While Hooks agreed

that this spatter was consistent with Mary being struck or blood being forced out of Mary’s airway,

Hooks could not distinguish whether the stain was an “impact” spatter, a “cessation cast-off”

spatter, or aspirated blood.

¶ 56 Country Club Hills police officer Demere Terry testified that, on December 30, 2013, he

went to the residence pursuant to a search warrant to recover the clothing Mary wore in the casino

footage. In the master bathroom, he observed dark jeans, a “reddish” shirt, and a “purplish” bra

hanging on a shower rack, which he photographed and recovered. In the kitchen, he observed a

yellow rubber glove with a red substance on it, which he photographed and recovered. Terry

observed a reddish substance on the ceiling of the stairway leading to the dining room, which he

photographed and took samples from. He also observed a reddish substance on the base of the

nightstand next to the master bed and on a mug on a shelf next to the master bed, which he

photographed. A black candleholder in the entryway with hair on the base and a pedestal were also

recovered. Terry looked inside the city-issued garbage can outside the residence and observed a

silver “metal-type rod,” which was photographed and recovered.

¶ 57 During cross-examination, Terry acknowledged that he did not know whether the garbage

can was secured at the beginning of the investigation or how the rod came to be in the can.

¶ 58 The State entered several stipulations establishing that blood was indicated on the

candleholder, the broken glass from the foyer, the yellow glove, and swabs from the headboard,

the washing machine, and one section of the pedestal. A blood standard from Mary and the buccal

swab from Taft were preserved for DNA analysis. A forensic scientist would testify that Mary’s

DNA was identified in swabs taken from the headboard, the candleholder, the face of the washing

machine, a piece of the pedestal, and broken glass from the foyer. Swabs from the lid of the

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washing machine indicated a mixture of two people’s DNA, that of Mary and a minor DNA profile

from which Taft could not be excluded. Finally, Mary’s left-hand fingernail sample tested positive

for a mixture of DNA profiles originating from three males, and Taft could not be excluded from

having contributed to this mixture.

¶ 59 The trial court found Taft guilty of first degree murder, noting that several witnesses

testified that Taft stated that he did not “do divorce” and that Mary said Taft told her that the only

way she would leave him was “in a bag.” Mary also told friends that, if anything happened to her,

they needed to “look at” Taft. Additionally, the blood pattern on the headboard was consistent with

Mary being struck, and, in the 911 call, Taft stated that Mary had fallen and could not wake and

that a column also fell. The court noted that Taft only could have known that Mary fell if he was

present when she fell. However, the autopsy concluded that Mary did not fall. The court found that

the 911 call placed Taft in the home at the time of Mary’s death, which was a homicide.

¶ 60 Taft filed a motion and amended motion for a new trial arguing, as relevant here, that the

trial court erred by admitting Mary’s statements pursuant to the doctrine of forfeiture by

wrongdoing. After argument, the trial court denied Taft a new trial.

¶ 61 A presentence investigation (PSI) report stated that Taft had no criminal background, was

raised in a two-parent home, and described his childhood as “okay.” Taft had three children, had

completed an associate degree, and was previously employed. He had one prior domestic battery

arrest involving “his wife,” but the case was nol-prossed. 6 Taft enjoyed reading and traveling, and

he was a regular churchgoer. He suffered from hypertension, headaches, and pain due to a

motorcycle accident.

6 The PSI does not indicate whether the wife in question was Mary.

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¶ 62 At sentencing, Williams read the victim impact statement of Mary and Taft’s son, which

stated that Mary’s death caused stress and “extreme sadness” and that growing up without her was

“heart breaking.” Williams then read a statement from Mary’s family, which stated that Taft took

both parents from the children, seven members of the family were needed to provide the “core

nucleus” for the children, and the cycle of domestic abuse must stop.

¶ 63 In mitigation, Taft’s pastor testified that he and Taft were cousins and had grown up

together. Taft began working after high school, had a “very close” relationship with Mary, and

was proud of their children. Taft’s aunt testified that Taft was respectful, that he and Mary

“appeared to be a loving couple,” and that he took care of his children and his mother. Another of

Taft’s cousins testified that Taft helped to shape his life, parented in a “positive manner,” and

engaged in charity work. A third cousin testified that Taft was a supportive family member who

was “nice” to his children. The defense also presented numerous letters in support of Taft.

¶ 64 In allocution, Taft stated that he loved Mary, would never hurt the mother of his children,

and had already “lost everything.” Taft was sorry for Mary’s family’s pain, but he was also in pain

because he lost his wife.

¶ 65 The court stated that it considered the evidence at trial, the PSI, and the arguments in

aggravation and mitigation, as well as Taft’s statement. In aggravation, the trial court noted that

“defendant caused serious harm or injury, in this case death,” and that it was necessary to deter

others from committing a similar offense. In mitigation, the court noted that Taft was

philanthropic, employed, religious, and without a criminal background. Although Taft’s “character

and attitude” made it unlikely that he would reoffend, “the act perpetrated upon Mary *** was

reprehensible,” “unacceptable,” and “inexcusable.” Due to Taft’s actions, divorce proceedings that

might otherwise have been resolved like any other instead resulted in his incarceration. The court

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characterized “everyone” in the courtroom as a victim and noted that Taft had “robbed society” of

Mary, who was a sister, an aunt, a mother, and Taft’s wife. The court sentenced Taft to a prison

term of 25 years.

¶ 66 In addition to the term of imprisonment, the trial court stated that Taft would be subject to

a three-year term of MSR upon his release. Defense counsel interjected, “Excuse me, your Honor,

I believe it’s five years.” The court thanked counsel and clarified that the MSR term would be five

years.

¶ 67 Taft filed a motion to reconsider sentence alleging, in relevant part, that the trial court

improperly considered, in aggravation, matters that were “implicit” in the offense. The trial court

denied the motion.

¶ 68 ANALYSIS

¶ 69 I. Forfeiture by Wrongdoing

¶ 70 On appeal, Taft first contends that he was denied a fair trial when the trial court improperly

admitted numerous hearsay statements attributed to Mary pursuant to the doctrine of forfeiture by

wrongdoing. He argues that the State did not meet its burden to prove, by a preponderance of the

evidence, that he killed Mary in order to prevent her from testifying in the divorce proceeding.

Rather, Taft asserts that the State’s evidence merely showed a “general philosophical or moral

opposition to divorce” and not a “specific” intent to prevent Mary from testifying in divorce

proceedings.

¶ 71 Pursuant to the sixth amendment to the United States Constitution, in all criminal

prosecutions, a defendant has the right “to be confronted with the witnesses against him.” U.S.

Const., amend. VI. However, under the common-law doctrine of forfeiture by wrongdoing, “one

who obtains the absence of a witness by wrongdoing forfeits the constitutional right to

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confrontation.” Davis v. Washington, 547 U.S. 813, 833 (2006). The doctrine is codified in Illinois

Rule of Evidence 804(b)(5) (eff. Jan. 1, 2011), which provides that “[a] statement offered against

a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the

unavailability of the declarant as a witness” is not excluded by the hearsay rule. Thus, the

forfeiture-by-wrongdoing doctrine is an exception to the confrontation clause and the rule against

hearsay. People v. Nixon, 2016 IL App (2d) 130514, ¶ 48.

¶ 72 Our supreme court has held that “a defendant forfeits his ability to challenge the reliability

of the declarant’s statements by the very act of preventing the declarant from testifying,” such that

“requiring additional indicia of reliability would undermine the equitable considerations at the very

center of the forfeiture by wrongdoing doctrine.” People v. Peterson, 2017 IL 120331, ¶ 33.

Accordingly, so long as a declarant’s statements are relevant and otherwise admissible, statements

admitted pursuant to the doctrine of forfeiture by wrongdoing need not be shown to reflect

additional indicia of reliability. Id.

¶ 73 “[T]he State’s burden of proof in a hearing on forfeiture by wrongdoing is a preponderance

of the evidence.” People v. Stechly, 225 Ill. 2d 246, 278, (2007). The preponderance standard is

less stringent than proof beyond a reasonable doubt or even the intermediate standard of clear and

convincing evidence. Peterson, 2017 IL 120331, ¶ 37. “Under the preponderance standard, the

State need only present evidence that renders a fact more likely than not.” (Internal quotation marks

omitted.) Id. “Thus, in a forfeiture hearing, the State must establish that [the] defendant, more

likely than not, ‘engaged or acquiesced in wrongdoing’ and that such wrongdoing was ‘intended

to, and did, procure the unavailability of the declarant as a witness.’ ” Id. (quoting Ill. R. Evid.

804(b)(5) (eff. Jan. 1, 2011)). A defendant’s intent may be shown from his conduct and the

surrounding circumstances. Id. ¶ 43. For the doctrine of forfeiture by wrongdoing to apply, the

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evidence must show that the defendant engaged in witness tampering or some type of conduct

designed to prevent the witness from testifying, thwart the judicial process, or procure the

witness’s absence from trial. In re Rolandis G., 232 Ill. 2d 13, 40 (2008). However, “the State need

not identify the specific testimony [the] defendant wished to avoid in order to prove *** intent for

purposes of the forfeiture by wrongdoing doctrine.” Peterson, 2017 IL 120331, ¶ 43.

¶ 74 We review a trial court’s decision to admit evidence pursuant to the forfeiture by

wrongdoing doctrine under the manifest weight of the evidence standard. Id. ¶ 39. A finding is

against the manifest weight of the evidence if the opposite conclusion is clearly evident or if the

finding is unreasonable, arbitrary, or not based on the evidence presented. Id.

¶ 75 Peterson is instructive. There, the defendant argued that the trial court erred in allowing

the State to introduce hearsay statements of his third ex-wife, Kathleen Savio (Kathleen), and his

fourth wife, Stacy Cales (Stacy), under the forfeiture-by-wrongdoing doctrine. Id. ¶¶ 11, 36.

¶ 76 Kathleen was found dead in her own bathtub of what authorities initially deemed to be an

accidental drowning. At the time of her death, her marriage to the defendant had been dissolved

and he had married Stacy, but the proceedings had not concluded and custodial and financial issues

had not yet been resolved. Id. ¶¶ 4-7. Several years later, Stacy was reported missing by a family

member, but the defendant asserted Stacy left him and their children due to marital issues. Id. ¶ 8.

Shortly thereafter, Kathleen’s body was exhumed for a second autopsy, which concluded that her

death was actually a homicide. Id. The defendant was then indicted for the first degree murder of

Kathleen. Id. ¶ 9.

¶ 77 Before trial, the State moved to admit various statements made by both Kathleen and Stacy

under the forfeiture-by-wrongdoing doctrine. Id. ¶ 16. At the forfeiture hearing, the State theorized

that the defendant murdered Kathleen to prevent her from testifying at a divorce hearing. Id. ¶ 45.

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The evidence revealed that the defendant and Kathleen were involved in an “acrimonious”

dissolution proceeding. Id. Although the marriage was dissolved, custody, child support,

maintenance, and the division of property were still at issue, and Kathleen would have testified at

an upcoming hearing. Id. ¶¶ 4, 45, 46. Six weeks before her death, Kathleen told her sister to take

care of her children if anything happened to her. Id. ¶ 45. Additionally, the defendant asked a friend

if he knew anyone who could have the defendant’s “ ‘third wife [Kathleen] taken care of.’ ” Id.

¶ 47. The State presented further evidence establishing that, because Kathleen died, the pending

financial and custody issues were resolved in the defendant’s favor; that is, he received custody of

the minor children and the proceeds of Kathleen’s life insurance policy as the children’s guardian.

Id. ¶ 48.

¶ 78 The State further theorized the defendant murdered Stacy to prevent her from reporting his

involvement in Kathleen’s murder or testifying at an anticipated divorce hearing. Id. ¶ 52. The

evidence revealed Stacy was planning to file for divorce and that the defendant acknowledged their

marital difficulties and was concerned about the financial impact of a divorce. Id. ¶¶ 72-74. The

State presented further evidence that Stacy was afraid of the “control” the defendant had over her

life and did not believe she could leave him safely but would not leave without her children. Id.

¶ 70. Additionally, Stacy told her pastor that, on the night of Kathleen’s death, the defendant left

their home and was unreachable on his phone, put his outfit and women’s clothing in the washing

machine, and “coached” her on what to tell the police. Id. ¶ 71.

¶ 79 The trial court found this evidence admissible pursuant to the forfeiture-by-wrongdoing

doctrine. Following a jury trial, the defendant was found guilty of Kathleen’s murder. On appeal,

the defendant contended, as relevant here, that the trial court improperly admitted certain hearsay

statements pursuant to the forfeiture-by-wrongdoing doctrine.

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¶ 80 Our supreme court found that the trial court’s finding that the statements of Kathleen and

Stacy were admissible under the forfeiture-by-wrongdoing doctrine was not against the manifest

weight of the evidence. Id. ¶¶ 51, 75. The court found that the State was not required to show that

the defendant’s “sole intent” in murdering Kathleen was preventing her from testifying at a hearing

in the bifurcated divorce hearing; rather, the State was only required to prove that Kathleen’s

murder was motivated “ ‘at least in part’ ” by an intent to prevent her from testifying. Id. ¶¶ 44, 50

(quoting Stechly, 225 Ill. 2d at 272). The court therefore concluded that the trial court’s

determination that the State met its burden, by a preponderance of the evidence, that the defendant

murdered Kathleen in order to prevent her from testifying was not unreasonable or not based on

the evidence presented. Id. ¶ 51.

¶ 81 As to Stacy, our supreme court related that the evidence surrounding her unavailability

included her desire for a divorce, the defendant’s acknowledgment of this desire and his concern

about the financial impact of a divorce, and Stacy’s knowledge about the defendant’s involvement

in Kathleen’s death. Id. ¶¶ 52, 73. Given that, our supreme court found that the trial court’s

determination—that the State established by a preponderance of the evidence that the defendant

murdered Stacy, “at least in part with the intent” to prevent her from reporting the defendant’s

involvement in Kathleen’s death or testifying in a divorce hearing or a murder trial—was not

against the manifest weight of the evidence. Id. ¶ 75. In other words, the trial court’s finding as to

the defendant’s intent was not unreasonable, arbitrary, or not based on the evidence. Id.

¶ 82 Similarly, here, the trial court’s finding that Taft had engaged in wrongdoing with an intent

to cause the unavailability of Mary as a witness in the divorce proceeding was not against the

manifest weight of the evidence. The facts presented at the forfeiture hearing revealed that, before

her death, Mary told family members, friends, and colleagues that Taft did not “do” divorce, that

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he had refused to accept service of the divorce papers, and that, if anything happened to her, to

“look at” Taft. Mary told Appleby that, after she filed for divorce, Taft said that, if the divorce

happened, something would happen to Mary. Likewise, Mary told Butler that Taft did not believe

in divorce and the only way she would leave him was in death. Additionally, Mary wrote in her

diary that she told her family about the divorce “in the event Taft decides to harm me because I’m

divorcing him,” and that she cancelled Taft’s bank card in December 2013 because she was tired

of paying all the bills and he did not contribute.

¶ 83 The evidence presented at the forfeiture hearing thus showed that Mary was pursuing a

divorce and canceled Taft’s bank card. It also showed that, although Taft called 911 to state that

Mary was unconscious due to a fall, Mary’s autopsy revealed that her injuries were inconsistent

with a fall and her death was caused by blunt trauma. Viewing this evidence together, we cannot

say that the trial court’s finding that Taft killed Mary at least in part with an intention to prevent

her from proceeding with, and testifying in, the dissolution proceeding was unreasonable,

arbitrary, or not based on the evidence presented at the hearing.

¶ 84 Taft asserts that the State’s evidence merely showed that he had a general philosophical or

moral opposition to divorce. However, the State established that Mary told Appleby that Taft told

Mary that if the divorce happened, something would happen to Mary. Further, Mary told Butler

that Taft did not believe in divorce and the only way she would leave Taft would be in death. This

evidence showed more than a general opposition to the concept of divorce; rather, it supported a

finding that Taft opposed this particular divorce and wanted it to stop.

¶ 85 Although Taft asserts that the State needed to establish that his “specific intent” was to

prevent Mary from testifying in the dissolution proceeding, our supreme court has held that motive

and intent are “rarely proved by direct evidence”; rather, they are inferred from conduct and the

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surrounding circumstances. Id. ¶ 43. In the case at bar, the State’s evidence at the forfeiture hearing

established that Taft was unhappy that Mary filed for divorce, refused to accept service of the

dissolution petition, and stated that he did not “do” or believe in divorce. He told Mary that she

would only leave the marriage in death, and something would happen to her if the divorce

happened. Further, the State highlighted that Taft’s statement on the 911 call that Mary fell was

not supported by the autopsy’s findings.

¶ 86 Taft further asserts that in order to invoke the doctrine of forfeiture by wrongdoing, the

State must identify “specific consequences emanating from potential trial testimony.” However,

our supreme court has determined that no evidentiary requirement mandates that the State identify

“the specific testimony the defendant sought to avoid.” Id. ¶ 42.

¶ 87 Accordingly, the trial court’s determination that the State established by a preponderance

of the evidence that Taft killed Mary in order to prevent her from pursuing and testifying in the

divorce proceeding was not against the manifest weight of the evidence. Id. ¶ 75.

¶ 88 II. Consideration of an Aggravating Factor Implicit in the Offense

¶ 89 Taft next contends that the cause should be remanded for resentencing because the trial

court improperly relied on a factor inherent in the offense of first degree murder—Mary’s death—

at sentencing. He argues that it was improper for the trial court to specifically mention in

aggravation that Taft caused “serious harm or injury, in this case death.”

¶ 90 The parties disagree as to the standard of review for Taft’s claim. Taft argues the proper

standard is de novo, while the State argues the proper standard of review is abuse of discretion.

The imposition of a sentence is generally within the trial court’s discretion, and we will not alter a

sentence imposed by the trial court absent an abuse of that discretion. People v. Abdelhadi, 2012

IL App (2d) 111053, ¶ 8. However, whether a court relied on an improper factor in aggravation

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when imposing sentence is a question of law that we review de novo. Id.; People v. Phelps, 211

Ill. 2d 1, 12 (2004). We presume the trial court based its sentence on proper legal reasoning, and a

defendant has the burden to “affirmatively establish” the sentence was based on an improper

consideration. People v. Dowding, 388 Ill. App. 3d 936, 942-43 (2009).

¶ 91 When determining an appropriate sentence, the trial court must weigh both aggravating

and mitigating factors. See 730 ILCS 5/5-5-3.1, 3.2 (West 2012). It is presumed, absent evidence

to the contrary, that the court considered those factors when presented. People v. Sauseda, 2016

IL App (1st) 140134, ¶¶ 19-20. Moreover, a sentence that is within the prescribed statutory range

is presumed to be appropriate and will not be deemed excessive unless it varies greatly from the

purpose and spirit of the law or is manifestly disproportionate to the nature of the offense. People

v. Fern, 189 Ill. 2d 48, 54 (1999).

¶ 92 Nonetheless, “a factor implicit in the offense for which the defendant has been convicted

cannot be used as an aggravating factor in sentencing for that offense.” Phelps, 211 Ill. 2d at 11.

This is because we assume the legislature took into account the factors inherent in an offense when

determining the appropriate range of punishment. People v. Gonzalez, 151 Ill. 2d 79, 84 (1992).

Therefore, the trial court’s use of one of those factors as the basis for a harsher penalty than might

otherwise be imposed constitutes an improper double use of the single factor. Id.

¶ 93 This rule is not intended to be applied rigidly because sentences vary depending upon the

circumstances of a particular case. People v. Valadovinos, 2014 IL App (1st) 130076, ¶ 47.

Accordingly, when determining whether improper factors were considered, we focus on the entire

record as opposed to a few words or statements made by the sentencing court. Id. “Even if the

sentencing court mentions the improper fact, a defendant must show the court relied on the

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improper fact when imposing its sentence.” Id. For the following reasons, Taft cannot make that

showing here.

¶ 94 A sentence that falls within the statutory range is presumed proper. People v. Knox, 2014

IL App (1st) 120349, ¶ 46. Here, Taft was found guilty of first degree murder and was therefore

subject to a sentencing range of 20 to 60 years in prison. 730 ILCS 5/5-4.5-20(a) (West 2012).

Taft’s 25-year sentence was within the sentencing range and is, therefore, presumed to be proper.

Knox, 2014 IL App (1st) 120349, ¶ 46.

¶ 95 Taft argues that it was improper for the trial court to consider the serious harm to the victim

as a factor in aggravation. He contends that because causing the death of another is an element of

first degree murder, serious harm is an inherent factor of the offense. However, section 5-5-3.2 of

the Unified Code of Corrections provides that a sentencing court may consider certain factors as

reasons to impose a more severe sentence, including whether “the defendant’s conduct caused or

threatened serious harm.” 730 ILCS 5/5-5-3.2(a)(1) (West 2012). When balancing the “retributive

and rehabilitative purposes of punishment,” the trial court must carefully consider “all factors in

aggravation and mitigation, including, inter alia, the defendant’s age, demeanor, *** general moral

character, social environment, and education, as well as the nature and circumstances of the crime

and of defendant’s conduct in the commission of it.” People v. Quintana, 332 Ill. App. 3d 96, 109

(2002).

¶ 96 Based upon our review of the record as a whole, we find that while the trial court did note

in aggravation that “defendant caused serious harm or injury, in this case death,” it did so while

mentioning the manner and circumstances of Mary’s death. That is, the court explained that

although Taft’s “character and attitude” made it unlikely that he would reoffend, “the act

perpetrated upon Mary *** was reprehensible,” “unacceptable,” and “inexcusable;” due to Taft’s

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actions, divorce proceedings that might otherwise have ended like any other resulted in his

incarceration. See People v. Kelley, 2015 IL App (1st) 132782, ¶ 94 (the seriousness of the offense

is the most important factor in sentencing); People v. Kibayasi, 2013 IL App (1st) 112291, ¶¶ 56-

58 (finding no error in sentencing where the trial court’s comments regarding the victim’s death

referenced the manner and circumstances of the victim’s death rather than the death itself as an

aggravating factor).

¶ 97 Moreover, the trial court then stated that a prison term was necessary to deter others from

committing the same offense, recited the mitigating evidence, and concluded that Taft was unlikely

to reoffend. The court then characterized everyone in the courtroom as a victim. See People v.

Brown, 2019 IL App (5th) 160329, ¶ 22 (“Section 5-5-3.2(a)(1) does not state that the serious harm

to be considered is restricted to the serious harm to the victim, and we decline to judicially recraft

the plain language of the section.”). Accordingly, based upon our review of the entire record, Taft

has failed to show that the trial court relied on an improper factor when imposing sentence. See

Valadovinos, 2014 IL App (1st) 130076, ¶ 47.

¶ 98 Further, taken in context, the court’s comment was general in nature and made in passing.

¶ 99 In People v. Brewer, 2013 IL App (1st) 072821, the defendant argued that the trial court

erred when it considered a factor inherent in the offense of murder when sentencing him. There,

the trial court stated, “ ‘Factors in aggravation, the defendant’s conduct did cause or threaten

serious harm, the ultimate serious harm, murder.’ ” Id. ¶ 56. We found that the record did not

indicate that the trial court emphasized a factor inherent in the offense. Id. ¶ 57. Rather, “[c]ontrary

to [the defendant’s] assertions, the fact his conduct threatened or caused serious harm is not a

factor inherent in the crime itself but is a proper aggravating factor to be considered during

sentencing even in cases where serious bodily harm is implicit in the offense.” Id. Additionally,

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the defendant’s sentence was within the statutory sentencing range for first degree murder, and the

existence of mitigating evidence did not mandate the imposition of the minimum sentence or

foreclose the imposition of the maximum sentence. Id.

¶ 100 Similarly, here, the fact that the trial court noted that Taft’s conduct caused serious harm

was a proper aggravating factor to be considered at sentencing even in a first degree murder case.

Id. Moreover, the trial court noted the evidence in mitigation and that Taft was unlikely to reoffend,

but it found that a sentence was warranted to deter similar offenses and imposed a sentence only

five years above the statutory minimum. See Quintana, 332 Ill. App. 3d at 109 (when balancing

retribution and rehabilitation, the trial court must carefully consider “all factors in aggravation and

mitigation” including, inter alia, the defendant’s age, “moral character,” and “the nature and

circumstances of the crime and [his] conduct in the commission of it”). Therefore, Taft has failed

to establish that his sentence was based on an improper consideration and his argument must fail.

See Dowding, 388 Ill. App. 3d at 942-43.

¶ 101 III. MSR Term

¶ 102 Taft finally contends, and the State agrees, that the trial court improperly imposed a five-

year MSR term when the relevant statute states that the term of MSR for first degree murder is

three years. Pursuant to section 5-8-1(d)(1) of the Code of Corrections (730 ILCS 5/5-8-1(d)(1)

(West 2012)), the term of MSR for first degree murder is three years. We therefore order the

mittimus corrected to reflect a three-year MSR term.

¶ 103 CONCLUSION

¶ 104 For the foregoing reasons, we order the mittimus to be corrected to reflect a three-year term

of MSR and affirm the judgment of the circuit court in all other aspects.

¶ 105 Affirmed; mittimus corrected.

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