THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY DABBS, Defendant-Appellant, 396 Ill. App. 3d 622

JUSTICE LYTTON delivered the opinion of the court: Defendant was charged with domestic battery (720 ILCS 5/12— 3.2(a)(1) (West 2006)) against his girlfriend. At trial, defendant’s ex-wife testified that defendant had physically abused her prior to their marriage. The jury found defendant guilty. Defendant appeals, arguing that

section 115 — 7.4 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115 — 7.4 (West. Supp. 2007)), which allows prior acts of domestic battery to be admissible in a domestic battery trial, is unconstitutional. We affirm. In April 2008, defendant, Gregory Dabbs, was charged with domestic battery and unlawful restraint against his girlfriend, Amy DeWeese. Prior to trial, the State moved to admit evidence, pursuant to

section 115 — 7.4 of the Code, establishing that defendant committed a prior act of domestic violence against his ex-wife, Katie Bailey, five years earlier. A hearing was held, and Bailey testified that three months before she married defendant, he was drunk, hit her, called her names and threatened her. The court ruled that the State could present Bailey’s testimony at defendant’s trial. Defendant filed a pretrial motion, arguing that DeWeese was not competent to testify because she suffered from a mental illness.

The trial court ruled that DeWeese was competent to testify but that defendant could cross-examine her regarding her mental health history. At defendant’s trial, DeWeese testified that she dated defendant for about three years before she moved in with him in February of 2008. She admitted that she has suffered from mental health problems and has been diagnosed with delusional disorder, bipolar disorder and borderline personality disorder. She said that her mental condition did not interfere with her ability to testify truthfully.

She testified that at about 10 p.m. on April 26, 2008, she went to the video store with defendant. When they returned home, she went to bed. According to DeWeese, defendant drank an entire case of beer that night. Between midnight and 1 a.m. on Sunday, April 27, 2008, defendant woke DeWeese up by sitting on her chest and putting his knees on her arms. He shouted at her, called her names, pulled her hair and said he wanted to kill her. He then poured water in her face, grabbed her hair and dragged her into the bathroom. He pushed her head into the toilet, causing her to hit her head on the toilet rim.

After that, defendant calmed down, and DeWeese talked to him. The next morning, DeWeese and defendant went out to breakfast and remained home until that evening when DeWeese went to visit her children at her ex-husband’s house. The following day, DeWeese went to work, school and then the police station. Brian Scudder, a police officer, testified that he interviewed DeWeese at about 8 p.m. on April 28, 2008. She told him that her boyfriend “battered” her and threatened to kill her at 1 a.m. on Sunday morning. She said she could not report the incident sooner because defendant would not let her leave the house.

Scudder said that DeWeese appeared “distraught, quite shaken up and nervous” and had a black eye and bruises on her arms. After receiving DeWeese’s report, Scudder went to defendant’s house. Defendant first stated that nothing happened over the weekend. When questioned further, he stated that he had an argument with DeWeese, during which she became “hysterical.” Defendant said he had to restrain DeWeese, which is probably why her arms were bruised. Katie Bailey testified that she married defendant in May of 2003 and divorced him in 2008.

She testified that in February of 2003, defendant became very drunk and repeatedly hit her with a belt. Bailey got away from defendant and drove to the police station. Defendant was arrested. Defendant admitted that he hit Bailey with a belt repeatedly in 2003, explaining that he was “really drunk” at the time. Defendant then testified about DeWeese, saying she had a history of mental problems and frequently talked to people who were not there. She believed that her doctors wanted to kill her and that someone implanted a device in her brain. Defendant thought she was delusional.

According to defendant, he and DeWeese went to the video store between 9:30 and 10 p.m. on April 26, 2008. When they returned home, DeWeese went to sleep, while defendant watched movies and drank about six beers. The next morning, DeWeese and defendant went out for breakfast and then came home. That evening, DeWeese went to her ex-husband’s house to see her children. When she came home, she was crying and told defendant that her ex-husband hit her. DeWeese went into her bedroom and did not come out the rest of the night. The next day, defendant went to work as usual.

Officer Scudder came to his house at about 8 p.m. that night. Defendant told Scudder that he and DeWeese argued on Saturday night about money. He denied telling Scudder that he had to grab DeWeese to calm her down. The jury found defendant guilty of domestic battery. The trial court sentenced defendant to three years in prison. ANALYSIS Statutes are presumed constitutional. People v. Donoho, 204 Ill. 2d 159, 177, 788 N.E.2d 707, 718 (2003). The party challenging a statute’s constitutionality carries the burden of establishing that the statute is unconstitutional. Donoho, 204 Ill. 2d at 177, 788 N.E.2d at 718.

If reasonably possible, a court will affirm the constitutionality of a statute. Donoho, 204 Ill. 2d at 177, 788 N.E.2d at 719. Where no suspect class or fundamental right is involved, the court evaluates the statute using a rational basis test, under which we will uphold the statute if it has a rational relationship to a legitimate purpose and is neither arbitrary nor discriminatory. Donoho, 204 Ill. 2d at 177, 788 N.E.2d at 719. In 2007, the Illinois General Assembly passed Public Act 95 — 360 (Pub. Act 95 — 360, eff. August 23, 2007 (adding 725 ILCS 5/115— 7.4)), which created

section 115 — 7.4 of the Code. The bill was “modeled on the current treatment of evidence in cases of criminal sexual assault” set forth in

section 115 — 7.3 of the Code (725 ILCS 5/115— 7.3 (West 2006)). 95th Ill. Gen. Assem., Senate Proceedings, May 28, 2007, at 47 (statements of Senator Harmon). It was created as a tool for law enforcement and victims because “domestic violence is a recurring crime in the same way that sexual abuse and sexual assault [are].” 95th Ill. Gen. Assem., House Proceedings, April 25, 2007, at 46 (statements of Representative Gordon). Several other states have enacted similar laws (see Alaska R. of Evid. 404(b)(4); Cal. Evid. Code §1109 (West 2006); Mich. Comp.

Laws §768.27b(l) (2006)), all of which have been found constitutional. See People v. Schultz, 278 Mich. App. 776, 754 N.W.2d 925 (2008); Fuzzard v. State, 13 P.3d 1163 (Alaska App. 2000); People v. Jennings, 81 Cal. App. 4th 1301, 97 Cal. Rptr. 2d 727 (2000).

Section 115 — 7.4 of the Code is nearly identical to

section 115— 7.3 of the Code. The only major difference between the statutes is the crime involved:

section 115 — 7.3 deals with prior incidents of sexual abuse, while

section 115 — 7.4 covers prior incidents of domestic violence. See 725 ILCS 5/115 — 7.3(b) (West 2006); 725 ILCS 5/115— 7.4(a) (West Supp. 2007). Both statutes provide that evidence that the defendant committed these prior crimes can be “admissible, and may be considered for its bearing on any matter to which it is relevant.” 725 ILCS 5/115 — 7.3(b) (West 2006); 725 ILCS 5/115 — 7.4(a) (West Supp. 2007).

They also state: “In weighing the probative value of the evidence against undue prejudice to the defendant, the court may consider: (1) the proximity in time to the charged or predicate offense; (2) the degree of factual similarity to the charged or predicate offense; or (3) other relevant facts and circumstances.” 725 ILCS 5/115 — 7.3(c) (West 2006); 725 ILCS 5/115 — 7.4(b) (West Supp. 2007). Both statutes also require that the prosecution give notice to the defendant of its intent to offer such evidence and identifies the kinds of proof that may be offered.

See 725 ILCS 5/115 — 7.3(d), (f) (West 2006); 725 ILCS 5/115 — 7.4(c), (d) (West Supp. 2007). Defendant argues that

section 115 — 7.4 violates his due process and equal protection rights guaranteed to him by the United States and Illinois Constitutions. U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §2. However, two courts have examined the constitutionality of

section 115 — 7.3 of the Code, and both found it constitutional. See Donoho, 204 2d 159, 788 N.E.2d 707; People v. Beaty, 377 Ill. App. 3d 861, 880 N.E.2d 237 (2007). I. Equal Protection In Donoho, our supreme court held that

section 115 — 7.3 of the Code does not violate the equal protection clause. Donoho, 204 Ill. 2d at 177, 788 N.E.2d at 718; see also Beaty, 377 Ill. App. 3d at 883, 880 N.E.2d at 254 (“[Biased on Donoho, any challenge to

section 115 — 7.3 on equal protection grounds must fail”). The court explained that

section 115 — 7.3 is modeled after Federal Evidence Rules 413 and 414. Donoho, 204 Ill. 2d at 177, 788 N.E.2d at 719. The Donoho court ruled that, like Rules 413 and 414,

section 115 — 7.3 only had to pass the rational basis test because “[sjexual offense defendants are not a suspect class.” Donoho, 204 Ill. 2d at 177, 788 N.E.2d at 718. The court then cited two federal cases holding that Federal Rules of Evidence 413 and 414 pass the rational basis test. Donoho, 204 Ill. 2d at 177-78, 788 N.E.2d at 719, citing United States v. Mound, 149 F.3d 799 (8th Cir. 1998), and United States v. Castillo, 140 F.3d 874 (10th Cir. 1998). The Donoho court concluded: “Under Mound and Castillo, we find that

section 115 — 7.3 does not violate the federal equal protection clause. We agree that this provision passes the rational basis test because it also promotes effective prosecution of sex offenses and strengthens evidence in sexual abuse cases. Because we apply the same equal protection analysis under both the federal and state constitutions [citation], we also find that

section 115 — 7.3 does not violate our state equal protection clause.” Donoho, 204 Ill. 2d at 178, 788 N.E.2d at 719. Just as

section 115 — 7.3 has been found not to violate a defendant’s equal protection rights, so must

section 115 — 7.4. Like sex offenders, domestic violence defendants are not a suspect class under the equal protection clause of the Constitution. See United States v. Barnes, 295 F.3d 1354, 1368 (D.C. Cir. 2002). Thus,

section 115 — 7.4 only has to pass the rational basis test to withstand an equal protection challenge. See Donoho, 204 Ill. 2d at 177, 788 N.E.2d at 718. Like sexual abuse, domestic violence is generally a repetitive and secretive crime that is highly unreported and typically becomes a credibility contest between the alleged abuser and victim. See Jennings, 81 Cal. App. 4th at 1313, 97 Cal. Rptr. 2d at

Section 115 — 7.4 attempts to address the difficulties of proof unique to the prosecution of domestic violence crimes by strengthening the evidence in such cases and promoting the prosecution of such cases. These are sufficiently rational bases for

section 115 — 7.4. II. Due Process Although the defendant in Donoho did not argue that

section 115— 7.3 of the Code violated due process, the court did address the question. In dicta, the court stated: “[C]ourts have held that admitting other-crimes evidence does not implicate the due process right to a fair trial where the evidence is relevant and its probative value is not outweighed by its prejudicial effect [citation]; these two limitations are incorporated into

section 115 — 7.3.” Donoho, 204 Ill. 2d at 177, 788 N.E.2d at 718. Though not strictly precedent, we accept and follow our supreme court’s analysis of the due process issue. In Beaty, the Fifth District also followed this reasoning, finding that

section 115 — 7.3 does not violate a defendant’s due process rights. Beaty noted that

section 115 — 7.3 was modeled after Federal Rules of Evidence 413 and 414. Beaty, 377 Ill. App. 3d at 884, 880 N.E.2d at 255. Those rules do not violate due process as long as trial judges are required to weigh the probative value versus prejudicial effect of the evidence so that they retain the authority to exclude potentially devastating evidence. See United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001); United States v. Enjady, 134 F.3d 1427, 1430-35 (10th Cir. 1998). The Beaty court then said: “[F]or the same reasons that Rules 413 and 414 [citation] are constitutional on their face, so, too, is

section 115 — 7.3, and as long as the trial court properly balances the probative value of the evidence against its prejudicial effect ***, the admission of the evidence does not violate due process.” Beaty, 377 Ill. App. 3d at 884, 880 N.E.2d at 255. Like

section 115 — 7.3,

section 115 — 7.4 does not deny defendants due process.

Section 115 — 7.4 requires the trial court to determine that other-crimes evidence is relevant and that its probative value outweighs its prejudicial effect before allowing it to be admitted at trial.

Section 115 — 7.4 also incorporates a notice requirement to ensure that defendants are informed when a prosecutor intends to use other-crimes evidence. Because of these safeguards,

section 115 — 7.4 does not violate defendant’s due process. See Donoho, 204 Ill. 2d at 181-82, 788 N.E.2d at 721; Beaty, 377 Ill. App. 3d at 884, 880 N.E.2d at 255. CONCLUSION The judgment of the circuit court of Tazewell County is affirmed. Affirmed. WRIGHT, J., concurs. The dissent contends that

section 115 — 7.4 requires evidence of prior domestic violence crimes to be admitted because the statute states that evidence of such crimes “is admissible.” (Emphasis in original.) 396 Ill. App. 3d at 633; 725 ILCS 5/115 — 7.4 (West Supp. 2007). We disagree. A review of

section 115 — 7.4 as a whole establishes that the legislature intended that the admission of evidence of prior domestic crimes be permissive, rather than mandatory. See People v. Olson, 388 Ill. App. 3d 704, 717, 903 N.E.2d 778, 788 (2009) (term like “shall” or “will be” will be interpreted as permissive where the legislature so intended). To interpret

section 115 — 7.4 to require the admission of prior crimes evidence would be to render the remainder of the statute meaningless and superfluous, which we may not do. See People v. Perry, 224 Ill. 2d 312, 323, 864 N.E.2d 196, 204 (2007).