2020 IL App (1st) 182053-U No. 1-18-2053 Order filed December 23, 2020 Third Division
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, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 15 CR 20877 ) RODY RODRIGUEZ-OCAMPO, ) Honorable ) Ramon Ocasio III, Defendant-Appellant. ) Judge presiding.
JUSTICE BURKE delivered the judgment of the court. Presiding Justice Howse and Justice Ellis concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s conviction for aggravated domestic battery where there was sufficient evidence to convict him of the offense, there was no affirmative evidence in the record showing the trial court considered improper evidence and he failed to establish his trial counsel was ineffective.
¶2 Following a bench trial, defendant Rody Rodriguez-Ocampo was found guilty of
aggravated domestic battery and not guilty of home invasion. The trial court subsequently
sentenced him to three years’ imprisonment. On appeal, defendant contends that: (1) the State No. 1-18-2053
failed to present sufficient evidence to prove his guilt; (2) the trial court erred when it considered
photographs that were not offered into evidence, lacked a foundation and then mischaracterized
what the photographs depicted; and (3) his trial counsel was ineffective. For the reasons that
follow, we affirm.
¶3 I. BACKGROUND
¶4 A grand jury indicted defendant with one count of home invasion and one count of
aggravated domestic battery based on an alleged incident in November 2015. Defendant, through
private counsel, filed an answer to discovery and asserted that he would raise self-defense at trial.
Prior to trial, defendant filed a motion to introduce evidence of the violent character of the
complainant, Natalia Flores Maldonado, under Illinois Rule of Evidence 405(b) (eff. Jan. 1, 2011)
and People v. Lynch, 104 Ill. 2d 194 (1984). The first instance occurred in July 2015 when Natalia
allegedly punched defendant in the lip, and the second occurred in October 2015 when she
allegedly scraped his vehicle using a sharp object. The trial court granted defendant’s motion to
introduce these alleged acts, and the case proceeded to a bench trial.
¶5 A. The State’s Case
¶6 In November 2015, 17-year-old Natalia Flores Maldonado and her mother, Maria Isabel
Maldonado, lived with various family members at the house of Natalia’s cousin, Syrley Orduna,
in Cicero. Orduna had introduced Natalia to defendant approximately two years earlier and they
had been dating ever since. However, according to Natalia, her relationship with the then 28-year-
old defendant had been deteriorating because she believed defendant was cheating on her.
¶7 On the night of November 28, 2015, defendant and Natalia went to a party. There,
defendant talked to multiple women, which led to him and Natalia having an argument. Defendant
brought Natalia back to her residence and she went inside, but defendant did not. Natalia set an
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alarm on her phone for the next morning and went to sleep. When she woke up the following day,
she could not find her phone, so she used Maria’s phone and called her own phone. Defendant
answered it and started laughing. She told him to bring her phone back, which he did later in the
day while Natalia was at her job. When defendant returned the phone, Natalia broke up with him.
She had previously tried to break up with defendant other times, but he would ask for another
chance and they ended up staying together. After her shift ended that day, she went back home and
took a nap in her room, which was located in the basement of Orduna’s house. She woke up around
7 or 8 p.m. and went to talk to her mother upstairs. When she returned downstairs, she observed
defendant, who had appeared in her room unannounced and uninvited. He asked her for another
chance, but she declined. Defendant then left Natalia’s residence.
¶8 Between 11 p.m. and midnight, Natalia was looking at her phone when she noticed
defendant looking at her through the basement window. Defendant asked Natalia to talk to him,
but she declined. Defendant disappeared from the window, and suddenly, he re-appeared in the
basement and began calling her names. Natalia told defendant to stop and to leave, but he stayed
and continued calling her names. Defendant then snatched Natalia’s phone from her hands so he
could see if she was “talking to someone.” As Natalia tried to walk out of her bedroom and go
upstairs to her mother, defendant “pulled” her toward him by grasping her arm with his hands.
Natalia began screaming for her mother, but defendant covered her mouth with his hands. When
Natalia stopped yelling, defendant let her go, which caused her to again attempt to run upstairs to
her mother. Defendant became “more aggressive” and pulled her again, causing Natalia to fall to
the ground. Defendant continued to pull her, resulting in her pajama pants ripping. Afterward,
defendant picked her up and “threw” her onto her bed. As Natalia was on her back, defendant was
on top of her preventing her from getting up. Natalia again screamed. Defendant then flipped her
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onto her stomach, covered her mouth with one of his hands and continued to press his body into
hers so she would stop screaming. At this point, defendant began hitting her on the shoulder, but
Natalia bit his hand. Defendant removed his hand from her mouth and flipped her back onto her
back. Natalia once again screamed for help, at which point defendant began choking her by placing
both of his hands on her neck and squeezing. Natalia could not breathe and thought defendant “was
going to kill” her.
¶9 Meanwhile, Orduna’s daughters heard “noises and screams” coming from the basement,
so they alerted Maria, who was on the second floor of the house. Maria rushed down to the
basement and observed defendant choking Natalia on the bed. When Maria appeared, defendant
let go of Natalia, but she remained on the bed for a little bit gasping for air. Natalia then called the
police. 1 Once officers from the Cicero Police Department arrived, they placed defendant under
arrest. Natalia went to the police station, where an officer took photographs of her body that,
according to Natalia, showed bruises, scratches and red marks on various parts of her body as well
as her ripped pajama bottoms. 2 At trial, Natalia denied that she hit defendant that night or ever
during their relationship.
¶ 10 B. The Defense’s Case
¶ 11 Defendant testified that, in 2013, he met Natalia and she told him that she was 17 years
old. In July 2015, he picked Natalia up from work and she appeared intoxicated. Defendant drove
her home, and as he was trying to get her into her house she was acting “crazy” and “wild.”
1 A recording of Natalia’s call to the police was introduced at trial and entered into evidence. However, the recording was not included in the record on appeal. 2 These photographs were also introduced at trial and entered into evidence. However, only the photograph of Natalia’s ripped pajama bottoms was included in the record on appeal.
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Suddenly, she hit him with a closed fist on the lip, which caused his lip to bleed profusely and left
him with a scar. Defendant did not call the police or go to the hospital, but he did take a photograph
of his lip, which he sent to Natalia’s brother to show Maria. In October 2015, after Natalia had
read messages on defendant’s phone, she became jealous and began to “act[] crazy.” Natalia then
went to defendant’s car, scratched it in various places and scratched the word “p***,” Spanish for
male whore. Defendant again did not call the police, but he explained at trial that he did so because
he loved Natalia and did not want her to get into trouble.
¶ 12 On the night of November 28, 2015, he and Natalia went to a bar with some friends, and
both drank alcohol. During the night, they had an argument because Natalia was jealous that
defendant had also invited some of his female friends. Eventually, they left the bar and on the way
back to Natalia’s house, she was quiet and seemed mad. After defendant brought Natalia inside
her house, he grabbed her cell phone to check her messages and ultimately gave the phone back to
her the next day at her job. According to defendant, she never broke up with him, and they made
plans to see each other later that night.
¶ 13 At around 9 p.m. on November 29, defendant went to Natalia’s house and knocked on the
basement window. She told him to come inside, and he did. Recently, Natalia allowed him to make
a copy of her key, so that he could enter the house through the basement door. They talked about
what happened at the bar the previous night and defendant ultimately told her that he wanted to
break up. Natalia became mad and started kicking defendant, who told her to stop. When he tried
to prevent her from continuing to kick him, her pajama pants ripped. Then, Natalia began slapping
defendant with an open hand. In response, he grabbed her hands, hugged her and tried to calm her
down. As he was trying to comfort her, Natalia bit defendant’s finger and was still “crazy out of
control.” Defendant told Natalia that if she did not stop biting him, he was going to bite back,
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which he eventually did on her left shoulder. Natalia continued to act volatile and slapped him
again. Unsure of what to do, defendant put his hand on her neck in order to stop her attack and she
began to settle down. Shortly after, Maria came down to the basement, and Natalia called the
police. Defendant stayed at the house and waited for the police to arrive because he had not done
anything to her. At trial, defendant denied that he ever hit Natalia, tried to cover her mouth or tried
to choke her.
¶ 14 Syrley Orduna testified that there was some “tension” in the family concerning defendant
and Natalia’s relationship because he was 11 years older than her, and they were always having
issues. Though Orduna observed them constantly fighting verbally, she never observed defendant
act violently toward Natalia. At night on November 29, 2015, Orduna and her daughter heard
noises coming from the basement, which sounded like arguing. Although it was Orduna’s house,
she did not feel comfortable confronting Natalia about it, so she told her daughter to tell Maria. A
short time later, Maria yelled for Orduna, and Orduna came to the basement where she observed
Natalia crying and calling the police while defendant was sitting on the bed. Defendant appeared
scared, so Orduna asked him what happened. Defendant responded that he “wasn’t trying to choke
her” and that she was hitting him so he was “just trying to push her away.” Orduna did not know
that defendant had a key to her house until he told the police that Natalie had given him one.
¶ 15 The parties stipulated that, if Detective Soto of the Cicero Police Department had testified
at trial, he would have stated that Natalia never told him that Maria had come downstairs while
defendant was on top of her. Additionally, Detective Soto would have testified that Natalia never
told him that defendant hit her shoulder or that she and defendant broke up on November 29.
¶ 16 C. Photographs of the Scratches on the Car
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¶ 17 During the State’s cross-examination of defendant, it asked him whether he ever took
photographs of the scratches on his car caused by Natalia and gave them to his defense attorneys.
Defendant responded that he had. Subsequently, in a sidebar, the State asserted that it had not
received those photographs, which it argued was required by Illinois Supreme Court Rule 413 (eff.
July 1, 1982). Defense counsel stated that he and his co-counsel never tendered the photographs
because they never intended to use them at trial, as required by Rule 413. The State, however,
asserted that was irrelevant for purposes of Rule 413. The trial court asked defense counsel if he
had the photographs in his possession and if so, to retrieve them. Counsel indicated he did and that
he would. The State remarked that it had no interest in viewing the photographs, but requested that
“any testimony regarding the victim carving words on the defendant’s car be stricken” for the
defense’s failure to produce the photographs related to its pretrial Lynch motion. Defense counsel
noted that none of the photographs showed what defendant testified to of the word “p***” being
scratched onto his car. The court asked defense counsel if he had any objection to it reviewing the
photographs, and counsel responded that he did not. The court proceeded to look at the
photographs.
¶ 18 After reviewing them, the trial court stated that it “reviewed four what appear to be copies
of colored photographs of a motor vehicle that does show what appear to be scratches. I can’t make
out any lettering.” The State reiterated its request for sanctions for defense counsel’s failure to
tender the photographs and asserted that it presumed this failure was because the photographs
directly contradicted defendant’s testimony that Natalia had scratched the word “p***” onto his
car. To this end, the State requested that defendant’s testimony about Natalia’s actions in October
2015 “be disregarded by this Court as outright false.” The court informed the parties that it would
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take the State’s request under advisement and instructed the State to complete its cross-
examination of defendant.
¶ 19 After defendant finished testifying and the defense indicated that it was resting, the trial
court asked the State if it had any rebuttal evidence. The State responded that it depended on the
court’s resolution of its request for sanctions and reiterated its argument for sanctions based on a
purported violation of Rule 413. Defense counsel repeated that Rule 413 only required the defense
to tender photographs that it intended to use at trial, and it never intended to use the photographs.
After defense counsel’s argument, the trial court asked: “How should the Court view the fact that
I actually have seen the four photos?” Defense counsel responded that he only gave the
photographs to the court because of its request. The court then noted “Right. And at this point I
have seen the photos. And, based on my review, none of them appear to say what the defendant
said they said, which is p***.” Defense counsel further noted that the photographs were consistent
with the defense’s pretrial Lynch motion that only alleged Natalia had scratched defendant’s car
and the inconsistency resulted only because defendant testified that she scratched the word “p***.”
¶ 20 Thereafter, the State observed that defense counsel was in possession of photographs that
showed what defendant testified to “did not occur” and if the State did something similar, the
potential sanctions would be far more severe. The State modified its request and asked the court
to not consider anything alleged in defendant’s pretrial Lynch motion based on “the truth and
veracity of both the defendant and counsels being in question,” but at the very least strike
defendant’s testimony about Natalia scratching his car. Following the parties’ arguments, the trial
court denied the State’s motion, finding that, under Rule 413, the defense only had to produce
photographs it intended to use at trial and the defense in this case did not intend to use the four
photographs of defendant’s car. However, the court asserted that, once defense counsel knew
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defendant “may perhaps” have testified untruthfully, counsel had an obligation to inform the court
of this possibility.
¶ 21 D. Closing Arguments
¶ 22 In the State’s closing argument, it asserted that defendant grabbed Natalia, held her,
covered her mouth as she attempted to scream and eventually choked her. The State contended
that defendant’s version of events, in particular that Natalia instigated the fight by kicking him,
was a “bold face lie” and contradicted by the evidence, including a photograph of Natalia’s ripped
pajama bottoms taken by the police. Meanwhile, the defense argued that Natalia was constantly
jealous during her relationship with defendant, and oftentimes her jealously manifested itself in
violent ways, including the instances in July and October of 2015. The defense asserted that, when
defendant tried to break up with her on the night of November 29, 2015, she lost control and
became violent toward him. The defense highlighted various instances where Natalia’s testimony
was inconsistent with what she told the Cicero police officers and posited that she lacked
credibility because of the inconsistencies. Furthermore, the defense noted the photographs taken
by the police and posited that they were not consistent with defendant choking Natalia, but rather
with him fending her off. The defense concluded that, when Natalia began striking defendant first,
he acted only to deescalate the situation and defend himself.
¶ 23 In rebuttal, the State observed that the defense attempted to portray defendant as mature
and credible, but posited that a mature 28-year-old does not date a 17-year-old. In an attempt to
assail defendant’s credibility, the State highlighted the incident from October 2015 and asserted
that he testified that Natalia scratched the word “p***” on his car. Yet, according to the State, the
photographs, which it highlighted the defense never tendered, did not show the word “p***.” The
State remarked that “there’s no photo that establishes the lies testified to under oath in this
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courtroom by the defendant.” The State further asserted: “The moment the defendant, who knew
he had taken photographs of his scratched up car, attempted to commit deception upon this Court
by lying and saying that those photographs established that the victim carved [the word] man
whore [in Spanish] into his car is the moment when this Court should have realized that anything
that comes out of the defendant’s mouth cannot be considered credible or relied upon.” The State
concluded that it had proven defendant guilty of both home invasion and aggravated domestic
battery beyond a reasonable doubt.
¶ 24 E. Verdict and Sentencing
¶ 25 After the parties’ closing arguments, the trial court found defendant not guilty of home
invasion, but guilty of aggravated domestic battery when he strangled Natalia. The court further
observed that the defense never submitted any credible, persuasive evidence that defendant was
acting in self-defense, but it did not expressly discuss any of the evidence from trial.
¶ 26 Defendant subsequently moved for a new trial, arguing, in part, that the trial court erred
when it ordered the defense to produce the four photographs of his car and then further erred when
it considered those photographs in finding him guilty of aggravated domestic battery. The trial
court, however, denied the motion without explanation, and it subsequently sentenced defendant
to three years’ imprisonment.
¶ 27 This appeal followed.
¶ 28 II. ANALYSIS
¶ 29 A. Sufficiency of the Evidence
¶ 30 Defendant first contends that the State failed to prove his guilt beyond a reasonable doubt
where the evidence was closely balanced and showed he acted in self-defense.
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¶ 31 When a defendant challenges the sufficiency of the evidence, the reviewing court must
determine if, after viewing the evidence in the light most favorable to the State, any rational trier
of fact could have found the elements of the offense proven beyond a reasonable doubt. People v.
Gray, 2017 IL 120958, ¶ 35. All reasonable inferences from the evidence must be made in the
State’s favor. People v. Hardman, 2017 IL 121453, ¶ 37. Under this standard of review, it is not
the reviewing court’s role to retry the defendant. Gray, 2017 IL 120958, ¶ 35. And the reviewing
court will not substitute its judgment for that of the trier of fact on issues involving the credibility
of witnesses, the weight to be afforded to the trial evidence, the drawing of reasonable inferences
from the evidence and the resolution of conflicts within the evidence. Id. We may only reverse a
conviction if “the evidence is so unreasonable, improbable, or unsatisfactory that it justifies a
reasonable doubt of the defendant’s guilt.” Id.
¶ 32 To prove defendant guilty of aggravated domestic battery as charged, the State had to prove
he committed a domestic battery and while doing so, he strangled Natalia. 720 ILCS 5/12-3.3(a-
5) (West 2014). Domestic battery occurs when someone knowingly and without legal justification
causes bodily harm to a family or household member. Id. § 12-3.2(a)(1). A family or household
member includes people “who have or have had a dating *** relationship.” 725 ILCS 5/112A-
3(b)(3) (West 2014). Although what constitutes bodily harm may be imprecise, for purposes of the
battery statute, bodily harm means “some sort of physical pain or damage to the body, like
lacerations, bruises or abrasions, whether temporary or permanent.” People v. Mays, 91 Ill. 2d 251,
256 (1982). And strangulation is defined as “intentionally impeding the normal breathing or
circulation of the blood of an individual by applying pressure on the throat or neck of that
individual or by blocking the nose or mouth of that individual.” 720 ILCS 5/12-3.3(a-5) (West
2014).
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¶ 33 As noted, defendant raised self-defense at trial, which is an affirmative defense. 720 ILCS
5/7-1(a) (West 2014); see also Gray, 2017 IL 120958, ¶ 50. Under Illinois law:
“[A] person is justified in the use of force against another when and to the extent
that he reasonably believes that such conduct is necessary to defend himself or
another against such other’s imminent use of unlawful force. However, he is
justified in the use of force which is intended or likely to cause death or great bodily
harm only if he reasonably believes that such force is necessary to prevent imminent
death or great bodily harm to himself or another, or the commission of a forcible
felony.”
720 ILCS 5/7-1(a) (West 2014). As an affirmative defense, the defendant has the burden of raising
self-defense unless the State’s evidence raises the issue. People v. Everette, 141 Ill. 2d 147, 157
(1990). To raise self-defense, the defendant must present some evidence that: “(1) force [was]
threatened against a person; (2) the person [was] not the aggressor; (3) the danger of harm was
imminent; (4) the threatened force was unlawful; (5) he actually and subjectively believed a danger
existed which required the use of the force applied; and (6) his beliefs were objectively
reasonable.” People v. Jeffries, 164 Ill. 2d 104, 127-28 (1995). Once the defendant presents
evidence of self-defense, the State must prove beyond a reasonable doubt that he did not act in
self-defense, which it can do by negating any one of the elements of self-defense. Id. Whether the
defendant needed to use self-defense is a question of fact to be resolved by the trier of fact (Gray,
2017 IL 120958, ¶ 51), who is “not obligated to accept a defendant’s claim of self-defense” but
rather must consider the claim based upon the circumstances. People v. Rodriguez, 336 Ill. App.
3d 1, 15 (2002).
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¶ 34 In this case, it is clear that, if Natalia’s version of events were believed, her testimony
would have proven defendant’s guilt for aggravated domestic battery beyond a reasonable doubt.
First, her testimony demonstrated that she and defendant had been in a two-year relationship, thus
satisfying the definition of a family or household member. See 725 ILCS 5/112A-3(b)(3) (West
2014). Natalia’s testimony further showed that she broke up with defendant, but he appeared at
her house later in the day. After Natalia told him to leave, he refused and became violent toward
her. Defendant pulled Natalia, covered her mouth with his hands, threw her onto her bed and hit
her in the shoulder. He then began choking her by placing both of his hands on her neck and
squeezing to the point that Natalia was gasping for air and thought she was going to die. After
being attacked by defendant, Natalia testified that she was left bruised and scratched on various
parts of her body. This testimony undoubtedly demonstrated that defendant caused bodily harm to
Natalia (see Mays, 91 Ill. 2d at 256) and strangled her, as defined by the aggravated battery statute.
720 ILCS 5/12-3.3(a-5) (West 2014). Additionally, as the evidence related to defendant’s claim of
self-defense, Natalia’s testimony demonstrated that force was never threatened against him and,
rather, at all times, he was the aggressor, thereby negating multiple elements of self-defense. See
Jeffries, 164 Ill. 2d at 127-28. Therefore, the State established all of the elements necessary to
convict defendant of aggravated domestic battery.
¶ 35 However, we reiterate that the State established all of the elements of aggravated domestic
battery if Natalia’s testimony were believed. Obviously, in defendant’s testimony, he testified that
Natalia had been the instigator of the altercation and he acted only to defend himself from her
attacks. But it is well settled that the resolution of witness credibility is reserved for the trier of
fact (Gray, 2017 IL 120958, ¶ 35) and reviewing courts generally do not second guess these
determinations. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). The trial court implicitly
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found Natalia’s testimony on how the fight started and ended credible and truthful when finding
defendant guilty of aggravated domestic battery. Yet, “[w]e also do not ‘rubber stamp’ credibility
determinations, and when identifiable factors undermining those determinations exist, it is
appropriate to conclude that a court or jury acted unreasonably in accepting a witness’s testimony.”
People v. Macklin, 2019 IL App (1st) 161165, ¶ 19.
¶ 36 Although much of the case rested on a credibility contest between Natalia and defendant,
the only two people in the basement when the fight began, key parts of Natalia’s version had
corroboration. For one, Maria came downstairs and observed defendant choking Natalia on the
bed. While the parties did stipulate that Natalia never told Detective Soto that Maria was
downstairs while defendant was on top of her, we must view the evidence in the light most
favorable to the State. Additionally, Maria was prompted to go downstairs because Orduna’s
daughters heard “noises and screams” coming from the basement, further buttressing Natalia’s
version that she was screaming for help because defendant had attacked her. Moreover, the State
introduced several photographs of Natalia taken by the police at the Cicero Police Department,
which, according to her testimony, showed bruises, scratches and red marks on various parts of
her body. Although these photographs were introduced at trial and entered as evidence, they were
not included in the record on appeal, meaning we must resolve the incompleteness of the record
against defendant. See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). Given the corroboration
of key aspects of Natalia’s testimony, nothing in the record would justify us overruling the trial
court’s credibility determination in her favor. Consequently, the State sufficiently proved
defendant guilty of aggravated domestic battery beyond a reasonable doubt.
¶ 37 B. Trial Court’s Consideration of the Photographs
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¶ 38 Defendant next contends that the trial court erred when it considered the four photographs
of his car that were never offered into evidence, lacked a proper foundation and where the court
mischaracterized what was depicted in the photographs. Based on the court’s alleged consideration
of improper evidence, defendant argues he was deprived of due process of law and is entitled to a
new trial.
¶ 39 As discussed, during defendant’s cross-examination, he testified that he took photographs
of his vehicle after Natalia had scratched it and provided those photographs to his attorneys. The
State believed it was entitled to these photographs under Illinois Supreme Court Rule 413 (eff.
July 1, 1982) and asked for portions of defendant’s testimony to be stricken as a result of the
alleged discovery violation. During the discussion of the photographs, the trial court asked defense
counsel if he had an objection to the court viewing the photographs, which counsel did not. The
court proceeded to view the photographs and noted what it observed, specifically scratches on the
car but no lettering. Later during the parties’ argument over the alleged discovery violation, the
court asked: “How should the Court view the fact that I actually have seen the four photos?”
Defense counsel responded that it only gave the photographs to the court because the court asked
for them. The court then remarked: “Right. And at this point I have seen the photos. And, based
on my review, none of them appear to say what the defendant said they said, which is p***.” The
court then continued to hear further argument from the parties.
¶ 40 In a bench trial, there are multiple presumptions that we must make in regard to the trial
court given its experience and knowledge. One such presumption is that the trial court knows the
law and applies it in the correct manner. People v. Howery, 178 Ill. 2d 1, 32 (1997). Another
presumption is that the court considers only admissible evidence and disregards inadmissible
evidence when reaching a verdict. People v. Naylor, 229 Ill. 2d 584, 603 (2008). This is, in part,
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because the court is eminently “capable of compartmentalizing its consideration of evidence.”
People v. Schmitt, 131 Ill. 2d 128, 137 (1989). Although we give the court these presumptions,
they can be rebutted but only where the record affirmatively shows the court did not know the law,
misapplied the law, or considered inadmissible or improper evidence. Naylor, 229 Ill. 2d at 603-
04; Howery, 178 Ill. 2d at 32.
¶ 41 In this case, we initially note that the trial court only reviewed the four photographs in order
to help resolve the State’s request to strike portions of defendant’s testimony, which was proper
based upon the circumstances of the State’s request and the need for the court to decide whether
such a remedy was warranted. With that being said, although the photographs were never admitted
into evidence at trial and showed that defendant may have lied under oath, the record does not
affirmatively demonstrate that the court relied on the photographs in finding defendant guilty of
aggravated domestic battery. Defendant highlights multiple instances of the court discussing the
photographs, but all of these discussions occurred within the context of its resolution of the State’s
request to strike portions of defendant’s testimony. In particular, in one instance, the court
seemingly recognized that its review of the photographs could become an issue later when it asked:
“How should the Court view the fact that I actually have seen the four photos” and then noted the
apparent discrepancy between the photographs and defendant’s testimony. This insight by the
court that its review of the photographs could pose a future problem buttresses the presumption
that it was capable of compartmentalizing its consideration of proper evidence and improper
evidence (see Schmitt, 131 Ill. 2d at 137) and actually did so.
¶ 42 Although defendant argues in various places that the court “clearly considered” the
photographs and there is “no question” that the court considered them, he cannot point to one
statement from the court in the record showing it considered them and the potential effect they had
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on his credibility when finding him guilty. Furthermore, as pointed out by defendant, the State
referenced the photographs in its rebuttal closing argument and even went so far as arguing that
he lied under oath based on the photographs contradicting his testimony. In light of this, the State
argued that nothing defendant testified to could be deemed credible. Although the State made these
arguments, an extension of the presumption that the trial court considers only admissible evidence
is that the court only considers proper argument, and not argument based upon inadmissible
evidence, when reaching its verdict. People v. Burton, 2012 IL App (2d) 110769, ¶ 15. As with
the photographs, defendant cannot point to one statement from the court in the record showing that
it considered this argument by the State when finding him guilty.
¶ 43 Given defendant’s inability to point to affirmative evidence in the record, his argument
relies on pure speculation, which is insufficient to overcome the presumption that the trial court
considered only proper evidence. See People v. Brumley, 229 Ill. App. 3d 16, 20 (1992)
(“Defendant’s speculation that the trial court relied on evidence outside the record, without more,
is insufficient to overcome a presumption that the trial court considered only proper evidence in
reaching its decision.”). Absent such evidence, we must presume the court understood the limited
purpose for which it viewed the photographs and did not consider them or any argument of the
State based on them when reaching its verdicts. See Naylor, 229 Ill. 2d at 603-04; Howery, 178
Ill. 2d at 32; Burton, 2012 IL App (2d) 110769, ¶ 15.
¶ 44 Additionally, defendant posits that the trial court actually mischaracterized what was
depicted in the photographs and highlights that, in the fourth photograph, one can make out the
letter “u” and possibly a “p” or an “o.” While it may be the case that Natalie did actually write the
word “p***,” it is not clear from our review of the photograph and apparently neither of
defendant’s attorneys thought she had written the word “p***” based upon their exchange with
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the trial court on the issue. Regardless, what is actually written is irrelevant because, as mentioned,
the court properly reviewed the photographs because they were relevant to the State’s request to
strike parts of defendant’s testimony and there is no affirmative evidence in the record showing
the court considered the photographs and the potential effect they had on his credibility when
finding him guilty. Still, for support, defendant relies on People v. Miller, 2013 IL App (1st)
110879, ¶¶ 1, 44, 52, 64-66, where this court reversed a defendant’s conviction for aggravated
possession of a stolen motor vehicle and remanded the matter for a new trial because the trial court
mischaracterized evidence at trial and improperly excluded other evidence from trial. However,
unlike in Miller, in this case, the trial court did not mischaracterize evidence at trial, as by
defendant’s own argument, the photographs were not evidence, and the court did not improperly
exclude proper evidence. Miller is therefore inapposite. Consequently, the trial court did not
commit error and defendant was not deprived of due process of law.
¶ 45 C. Ineffective Assistance of Counsel
¶ 46 Lastly, defendant contends that his defense attorneys were ineffective where they failed to
object to the State’s rebuttal argument about the photographs, failed to move to strike the trial
court’s consideration of the photographs and failed to argue that the court mischaracterized the
¶ 47 To establish that trial counsel was ineffective, the defendant must satisfy the standard
articulated in Strickland v. Washington, 466 U.S. 668 (1984). People v. Henderson, 2013 IL
114040, ¶ 11. Under this standard, he must show that his counsel’s performance was deficient and
the deficiency prejudiced him. People v. Valdez, 2016 IL 119860, ¶ 14. More specifically, the
“defendant must demonstrate that counsel’s performance fell below an objective standard of
reasonableness, and a reasonable probability exists that, but for counsel’s unprofessional errors,
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the result of the proceeding would have been different.” Henderson, 2013 IL 114040, ¶ 11. Both
prongs of the Strickland test must be met (Valdez, 2016 IL 119860, ¶ 14), and the defendant has
the burden of persuasion. People v. Peck, 2017 IL App (4th) 160410, ¶ 26. Because the Strickland
test contains two parts, we may review the prongs in any order (People v. Lee, 2016 IL App (1st)
152425, ¶ 56), and the failure to establish either precludes a finding of ineffective assistance of
counsel. Henderson, 2013 IL 114040, ¶ 11.
¶ 48 In the instant case, as we have previously found that there was no affirmative evidence in
the record that the trial court considered the photographs as evidence and the potential effect they
had on defendant’s credibility, even if defendant’s attorneys’ performance fell below an objective
standard of reasonableness based on his allegations, defendant could not be prejudiced by evidence
the court never considered. Consequently, because defendant cannot show prejudice from his
attorneys’ alleged ineffectiveness, his claim of ineffective assistance of counsel fails.
¶ 49 III. CONCLUSION
¶ 50 For the foregoing reasons, we affirm defendant’s conviction.
¶ 51 Affirmed.
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