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No. 2--06--1304 Filed: 5-14-08
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

THE PEOPLE OF THE STATE  )  Appeal from the Circuit Court  
OF ILLINOIS,  )  of Lake County.  
)  
Plaintiff-Appellee,  )  
)  
v.  )  No. 05--CF--4978  
)  
LUIS A. DOMINGUEZ,  )  Honorable  
)  Victoria A. Rossetti,  
Defendant-Appellant.  )  Judge, Presiding.  

JUSTICE BOWMAN delivered the opinion of the court:
Following a jury trial on April 5, 2006, defendant, Luis A. Dominguez, was convicted of one count of aggravated domestic battery (720 ILCS 5/12--3.2(a)(1), 12--3.3(a) (West 2004)) and one count of unlawful restraint (720 ILCS 5/10--3(a) (West 2004)).  On December 4, 2006, the trial court denied defendant's posttrial motions and sentenced him to five years' imprisonment for the aggravated domestic battery conviction and two years' imprisonment for the unlawful restraint conviction, to be served concurrently.  Defendant timely appealed and argues that we should reverse his convictions because the trial court erred in admitting: (1) the tape of the victim's 911 call for help, which constituted testimonial evidence; (2) the statements of Officer Thomas Poulos and paramedic Ryan Koncki; and (3) certain consistent statements made by the victim before the grand jury. Additionally, defendant argues that there was insufficient evidence to convict him of either crime. We affirm.
I. BACKGROUND

The following facts are derived from the trial transcripts.  The victim, Jennifer Cook, testified first for the State.  Cook admitted that she was testifying by way of subpoena and did not want to be in court. On December 24, 2005, she and defendant went to the home of defendant's mother for a family Christmas celebration.  Approximately 12 to 15 people were present, including the couple's three children.  Cook drank two bottles of tequila and some wine coolers and became highly intoxicated.  She believed that she went to bed at 3:40 a.m. but did not remember exactly. She did not remember at what time she first awoke and did not remember anything about the previous night. She went back to sleep and then awoke again around 9 a.m.  The first thing she remembered was waking up next to defendant.  At that moment, she did not realize that she was injured, and defendant was still asleep.  The couple remained in bed and slept a little longer.  At some point, Cook and defendant went to Cook's Chevy Trailblazer to leave.  Cook began driving home and, when she looked in the mirror, she realized that her eyes were bruised and injured.  She became angry and "assumed that [defendant] had did it."  She yelled at defendant, and he tried to explain that he did not do it.  Cook was still intoxicated and angry but could not remember what had happened. She told defendant to get out of the truck and hide in the backseat because he did not have identification to gain access to her apartment complex.  After he got out, she drove off, leaving him on the street, and called 911 because she "assumed that he had did that to [her] and [she] was mad at him."
Cook identified the tape of the 911 call that she made on December 25, 2005.  The State moved to publish the tape to the jury, and over defendant's objection the trial court admitted the evidence as an excited utterance.  On the tape, Cook is frantic and crying.  She told the 911 operator that defendant caused her injuries overnight, that she first saw her injuries in her car mirror, and that this was her first chance to get away from defendant after he kept her overnight.  She told the operator that she left defendant on the street and wanted the police to catch him so she could press charges.  She repeatedly cried out that she could not believe these events were happening to her and that she did not want her children to see her like this.  She stated that she did not know why defendant did this to her.  When asked who injured her, she identified defendant. Cook then identified photographs that depicted her injuries, and those photographs were admitted into evidence.
After the 911 call was made, an officer responded and met Cook at the intersection of Elmwood and Dugdale in Waukegan.  Cook could not recall having a conversation with Officer Poulos at the scene.  She remembered going into an ambulance and informing the officer that she did not want to go to the hospital.  Cook spoke to the responding paramedic, Ryan Koncki, but did not recall what she said to him.  The ambulance took her to Victory Memorial Hospital, and while there Cook spoke to Officer Poulos.  She told him that she could not recall what had happened.  She recalled only drinking with the family the night before.
She did not remember telling Officer Poulos that defendant kept her in his bedroom all night, that defendant put his whole hand down her throat, or that she had passed out.  When asked, "So you are not telling the *** jury that it did or did not happen?  You are just saying you don't recall?," Cook stated that she did not recall anything.  She could not recall telling Officer Poulos that, when she awoke, defendant was still there, would not allow her to leave, and held her against her will. Cook could not recall telling Koncki that defendant assaulted her and that she then passed out.  The State then introduced the written statement that Cook signed for Officer Poulos.  She identified her signature and admitted that she wrote the statement.  However, she stated that Officer Poulos told her what to write.  Over defendant's objection, the statement was admitted pursuant to section 115-

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