FILED December 15, 2022 Carla Bender NO. 4-21-0590 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Pike County CLAYTON G. WATTS, ) No. 20CF51 Defendant-Appellant. ) ) Honorable ) Alan D. Tucker, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court, with opinion. Presiding Justice Knecht concurred in the judgment and opinion. Justice Doherty specially concurred, with opinion.

OPINION

¶1 On July 22, 2021, a jury found defendant, Clayton G. Watts, guilty of criminal

sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2018)) and aggravated criminal sexual abuse (720

ILCS 5/11-1.60(d) (West 2018)) in connection with the sexual assault of L.W. The assault occurred

after L.W. snuck out of her home to go driving with defendant, who had been drinking alcohol and

had made suicidal statements.

¶2 On appeal, defendant contends the trial court erred when it (1) admitted propensity

evidence under section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS

5/115-7.3 (West 2020)) of three other sexual assaults of young women who had also met defendant

and rode in a vehicle with him when he had been drinking; (2) admitted testimony from defendant’s former girlfriend stating defendant had made statements about self-harm to manipulate

her; (3) admitted evidence of memes found on defendant’s phone indicating beliefs it was

appropriate to sexually assault incapacitated women; and (4) committed cumulative error. To the

extent defendant forfeited issues for review, he contends plain error and ineffective assistance of

counsel apply. We find no error. Accordingly, we affirm.

¶3 I. BACKGROUND

¶4 In April 2020, the State charged defendant in connection with the November 21,

2019, sexual assault of L.W., who was 14 at the time of the offense. Defendant was 21 at that time.

¶5 A. L.W.’s Assault and Propensity Evidence

¶6 At the preliminary hearing, sheriff deputy Chastity Anderson testified she observed

L.W.’s interview conducted by a Child Advocacy Center employee. In the interview, L.W. stated

she knew defendant as a family friend. He previously dated her cousin, and after they split up, her

father befriended defendant, helped him, and treated him like family. On November 21, 2019,

defendant sent L.W. messages she believed were suicidal, and he asked L.W. to meet him. Between

11 p.m. and midnight, L.W. snuck out of her house to meet defendant. She could tell he had been

drinking. The interviewer did not ask L.W. if she had anything to drink.

¶7 Defendant and L.W. drove around and talked. L.W. stated she could tell defendant

was “coming on to her,” but she did not think it would go any further than that. L.W. asked

defendant to take her home, and he stopped the vehicle at the end of her driveway, which was very

long. Defendant asked L.W. to wait, prevented her from exiting the vehicle, and then forced

himself on top of her. She tried to scream, but he covered her mouth. Defendant took off L.W.’s

pants and underwear, rubbed his genitals on her thigh, put a condom on, and penetrated her vagina

with his penis. L.W. told him to stop and told him “[y]ou don’t want to do this.” L.W. reported

-2- defendant was “not able to finish” and became aggravated. L.W. quickly dressed herself and got

out of the vehicle. Defendant told her “[l]ove you lots,” and the next day, he sent a message stating

“[t]hanks for a great night.” L.W. took a long shower after the incident and did not report it until

March 2020, when she spoke to a school counselor about it.

¶8 The State filed a motion in limine seeking to introduce evidence under section

115-7.3 of the Code to show defendant’s propensity to commit sexual assault. The evidence

consisted of three previous instances in which defendant allegedly sexually assaulted three

different women, M.M., D.C., and J.N. Separate hearings were held regarding each of the

allegations.

¶9 At the first hearing, M.M. testified defendant was a friend of her husband, Trevor,

and he frequently stayed at their house. On Friday, October 18, 2019, Trevor was at work, and

M.M., who was 23 at the time, went out drinking at two different bars with defendant and two

other men, Kenny Little and Chase Howland. She became intoxicated and did not remember

arriving at the second bar, but remembered defendant drove her home after the bars closed. She

could not remember anything else about the night. When M.M. woke up the next morning, Trevor

was in her bed, and defendant was in the spare bedroom. M.M. testified she felt “dirty” in her

vaginal area when she woke up, like she had not cleaned up properly after sexual activity. She

described the feeling as “sticky” and “like semen.” M.M. knew she did not have sex with Trevor,

as he did not arrive home until after 7 a.m., and she was not severely drunk at that time. Around

Tuesday or Wednesday she thought about that feeling and had a memory of defendant on top of

her with his hand on her stomach, breast, and vaginal area. M.M. did not tell Trevor about the

incident until the allegation about J.N. came out.

-3- ¶ 10 At the second hearing, D.C. testified she dated defendant for a couple of months

approximately two years earlier. They were intimate at that time, but then D.C. did not see

defendant again until May 2018 when she saw him at a party. She was 20 years of age at that time.

Defendant then texted D.C. and asked if she wanted to “hang out.” D.C got in a vehicle with

defendant and two other men, Jaime Howland and Hayden Kessinger, and they drove around on

back roads drinking alcohol and became intoxicated. They stopped for bathroom breaks and once

for D.C. and Jaime to swim in a river, where she stripped down to her bra and underwear to swim.

The men then dropped D.C. off at her house.

¶ 11 About 10 minutes later, defendant texted D.C. and asked her to come over to his

father’s house, where he lived. D.C. was very intoxicated but could remember what happened. She

testified she went to defendant’s room, and defendant and Jaime were on defendant’s bed wearing

boxer shorts. She remembered laying in between defendant and Jaime on the bed and defendant

kissed her. She felt Jaime force his fingers inside of her and then she blacked out. When she woke

up, she did not have pants or underwear on, and defendant and Jaime were standing in front of the

bed pulling up their pants. Defendant told D.C. she had to leave before his sister got there, and she

got dressed and left. When D.C. arrived home, she used the bathroom and discovered she was

bleeding, which she believed was caused by forced trauma. The next day, defendant called her and

asked if she told her mother what happened. Defendant told D.C. she “was down for it,” and D.C.

told him she “was not down for it” and she consented to hanging out with him but did not consent

to him touching her body. Defendant asked D.C. if she told her mother he raped her, and D.C. said

“no.” She testified she viewed rape as pinning someone down and using force and, at that point in

time, she had no idea what had happened. Defendant kept trying to get D.C. to agree she did not

say “no” or “stop” to him. D.C. later learned defendant recorded the conversation. D.C. sought

-4- medical attention a couple of days later, and a rape kit was performed, but D.C. had not received

the results.

¶ 12 At the third hearing, J.N. testified she knew defendant through friends and her

brother, Brenton. Around October 30, 2019, when she was 19 years of age, defendant sent J.N. a

Snapchat message asking her if she wanted to “road trip.” J.N. met defendant and two others,

Brenton and Daniel Howland. The group drove around on back roads drinking alcohol. J.N.

testified they were very intoxicated. J.N. stated she weighed around 135 pounds and estimated she

consumed about 10 beers. After about three hours, the group went to Daniel’s house. Eventually

Daniel stayed home, and Brenton went to an apartment he shared with his girlfriend. J.N. went

with defendant where she “crashed at his house that night,” with the idea defendant would drive

her home in the morning.

¶ 13 J.N. laid down in defendant’s bed. Defendant asked her for a kiss, and she testified:

“I did give him a kiss on the lips. It was not a make-out kiss.” She then fell asleep, wearing a shirt,

sweatshirt, underwear, and leggings. J.N. later woke up without pants on. A phone light was

shining on her bottom half, and defendant was trying to insert his penis into her vagina. He then

penetrated her without her consent. J.N. asked “[w]hat the f*** are you doing?” Defendant

pretended he was asleep, and she shoved him. While J.N. found her pants and got dressed, she

repeated her question and began yelling at defendant, who said “[w]hat are you talking about?”

Defendant seemed confused and asked her to be quiet. Defendant’s sister knocked on the door,

asked what was going on, and offered J.N. a ride home. J.N. declined and walked to Brenton’s

apartment. She told Brenton and his girlfriend what happened and called the police. She had a

vaginal swab at the hospital as part of a sexual assault kit. Test results indicated a “likely match”

to defendant. J.N. stated she did not feel defendant forcefully tried to rape her, but she felt very

-5- violated because she did not give him consent. She admitted she once previously stayed with

defendant after drinking and engaged in consensual sex with him.

¶ 14 Zack Orr, chief deputy with the Pike County Sheriff’s Office, testified he reviewed

text messages from defendant’s phone and found messages from defendant’s father sent in the

early morning of October 30, 2019, asking “[w]hat’s going on?” and “[w]ho is it and why is she

crying so much?” Defendant responded, “I don’t even know.” Defendant’s father gave a statement

to a police deputy and said he heard yelling but did not see anybody.

¶ 15 The trial court heard arguments concerning the propensity evidence and took

judicial notice of the preliminary hearing. In a written order, the court found the evidence relevant

and admissible for showing propensity. The court further determined the probative value of the

evidence was not substantially outweighed by its risk of unfair prejudice. The court discussed the

evidence at length. The court noted the proximity in time of the incidents and found sufficient

similarities between them. In particular, the trial court found the women were familiar with

defendant, considered him a friend, and were comfortable being around him socially or being alone

with him. In each situation defendant consumed alcohol and drove “around the countryside for a

few hours” in a vehicle with the victim before the assault. The court also found each of the adult

women was intoxicated and unable to give consent, while L.W. was unable to consent because of

her age, and the incapacitation of the women, “either by age or intoxication” was known to the

defendant. The court found the differences among the assaults insufficient to be fatal to

admissibility of the evidence.

¶ 16 Shortly before trial, the defense sought to bar additional evidence concerning DNA

results, which defendant said was disclosed at a late date and would lead to a “mini-trial” of the

issue of J.N.’s assault. In response to the State’s request, the trial court expressed the following

-6- concern: “[i]f you want it in we’ll let it in but I think you’re going to lose your jury. You’re going

to be going down the rabbit hole here but that’s just my opinion.” The trial court ultimately allowed

the additional evidence.

¶ 17 At trial, L.W. testified consistently with her pretrial testimony but added details as

to how she knew defendant. L.W. testified defendant had mostly communicated with her on

Snapchat and he would remove her from social media anytime he had a new girlfriend, telling her

his girlfriend did not like her. She said when defendant had been drinking, he would become sad

and say he could hurt himself. He previously had asked L.W. to sneak out and meet him, but she

refused. According to L.W, on the night of the assault, defendant “was saying some really weird

stuff worse than usual about how he could hurt himself and how he could get stuff to hurt himself.”

He told L.W. he needed to see her, and she agreed. However, as L.W. testified, defendant made

no further statements about self-harm once she was in his car. She said, “[i]t was just kind of like

the subject just disappeared.” L.W. also confirmed she did not drink alcohol that night. The day

after the assault, when defendant messaged L.W. on Snapchat stating “[t]hank you for a great

night,” L.W. did not respond and removed defendant from all social media.

¶ 18 M.M., D.C., and J.N. also generally testified consistently with their pretrial

testimony. D.C. added she received the results of her sexual assault kit, which found no male DNA.

M.M. admitted she shared defendant’s exhibit 2, consisting of social media post that read: “In the

girl’s group chat like teehee so which innocent man should we all accuse of sexual misconduct

today!? We’ll probably get death threats, ppl saying we’re lying whores, our nudes leaked, address’

doxed, and careers ruined but haha what a fun prank[.]” M.M. stated the post was sarcastic and

intended to highlight how bad it was to be a victim of sexual assault, especially once it becomes

known by the public.

-7- ¶ 19 Additional witnesses testified at trial to corroborate the propensity evidence. For

example, D.C.’s sister testified she saw blood in the toilet and D.C. crying on the night defendant

assaulted D.C. Little testified about meeting M.M. with defendant. Trevor testified he did not have

sex with M.M. on the night of her assault. Defendant’s father testified about his text messages to

defendant on the night of J.N.’s assault. Brenton testified J.N. told him defendant raped her, and

he and his girlfriend called the police and went to the hospital where J.N. was examined. The

officer who transported J.N. to the hospital and the nurse who performed an examination also

testified. A DNA expert testified about the test results.

¶ 20 B. Evidence of Statements Concerning Self-Harm

¶ 21 Before trial, the State filed a motion in limine seeking to admit testimony from

L.W.’s cousin, Madelyn, who would testify she previously dated defendant and he frequently

threatened self-harm to get her to do something he wanted. For example, every month or two

Madelyn would confront defendant about his cheating, alcohol consumption, or toxicity of the

relationship, and defendant would respond by threatening to harm himself. Madelyn would then

feel bad for him, and they would end up staying together. The State argued the evidence was

relevant to show defendant’s “opportunity, preparation, plan, knowledge, and absence of mistake

or accident, in that he purposefully orchestrated the events that led to [L.W.] agreeing to sneak out

of her home, and then he committed a sexual assault against her.” Defense counsel argued the

evidence was not presented at the hearings concerning propensity evidence and could not be used

to prove modus operandi, which required greater similarity between the incidents.

¶ 22 The trial court found the evidence was used to show context why L.W. met

defendant on the night of her assault. The court noted it did not find the evidence particularly

harmful, as L.W. was already going to testify about statements of self-harm. The court also said it

-8- would keep the matter “on the short leash” and limited it to the context of why L.W. met with

defendant. At trial, Madelyn’s testimony on the matter was brief and consistent with the facts as

set forth in the State’s motion.

¶ 23 C. Evidence of Memes on Defendant’s Phone

¶ 24 The State also filed a motion in limine seeking to present memes found in a data

extraction from defendant’s phone. The memes were created and modified on the phone on

October 22, 2019, four days after the alleged incident with M.M, eight days before the alleged

incident with J.N., and just under one month before the sexual assault of L.W. The memes were

three photos with accompanying text, which the State argued expressed “the idea that a male has

a right to have sexual relations with a female who is not consenting or who is unable to give

consent.”

¶ 25 The first meme was a series of five photos depicting two men arguing, with the

accompanying text:

“[MAN 1]: Why did you have sex with her?

[MAN 2]: She was lying there naked, what was I supposed to do?!

[MAN 1]: The autopsy, the f*** autopsy!

[MAN 2]: Don’t tell me how to do my job!

[MAN 1]: You are the worst vet on earth!”

¶ 26 The second meme depicted a photo of a sleeping woman, who appeared to have

Down syndrome and whose upper body was bare. The accompanying text stated: “Women are like

parking spots[.] Usually, the best ones are taken…so when no one is looking—stick it in the

disabled one.”

-9- ¶ 27 The third meme depicted a photo of the actor Tom Cruise laughing with the text:

“When she says don’t cum in me, but you already did five minutes ago and are smashing her with

a floppy.”

¶ 28 The State argued the memes were admissible under section 115-7.3 to show

propensity and admissible to show defendant’s state of mind and knowledge that certain females

did not consent to his sexual advances. Based on the content of the memes and the proximity in

time of their creation to several of the assaults, the trial court found they were relevant to

defendant’s state of mind.

¶ 29 At trial, the parties stipulated to the chain of custody of defendant’s phone. Orr

testified about the extraction process of items on defendant’s phone. Each meme was “created”

and “modified” with the same time stamp, and each listed the source file as defendant’s phone.

The memes were created and modified within minutes of each other and within a matter of seconds

to a text message conversation between defendant and Claire Stein, who was defendant’s girlfriend

at the time. Defense counsel objected, arguing Kyle Chumley, the detective who prepared the

extraction report, had not yet testified to give full foundation. The court stated counsel could renew

the objection if Chumley testified. When Chumley did so, he provided additional details about the

extraction process. The record does not show an additional objection about foundation.

¶ 30 Stein testified and identified texts she exchanged with defendant on October 22,

2019. She also testified defendant was a member of a group chat that exchanged memes and videos.

However, she had not seen the memes that were recovered from defendant’s phone.

¶ 31 D. Additional Evidence, Verdict, and Posttrial Motion

¶ 32 A total of 19 witnesses testified over three days. In addition to law enforcement

testimony, L.W.’s testimony, and testimony from the witnesses who were subject to motions

- 10 - in limine, L.W.’s parents testified. L.W.’s mother stated L.W. lacked social skills and suggested

L.W. “may be on the spectrum somewhere.” In a video interview with Orr, defendant denied the

allegations.

¶ 33 The jury found defendant guilty of both charges. Defendant filed a motion for a

new trial, arguing newly discovered evidence in the form of a cell phone used by defendant that

allegedly contained evidence defendant was with Stein around the time frame of the alleged sexual

assault on L.W. He also included an affidavit from Stein recanting part of her testimony. He raised

no issues regarding evidentiary rulings at trial. The trial court denied the motion. The court merged

the convictions and sentenced defendant to 10 years’ incarceration. This appeal followed.

¶ 34 II. ANALYSIS

¶ 35 Defendant contends the trial court abused its discretion in allowing propensity

evidence, allowing evidence of his previous statements of self-harm, allowing the memes into

evidence, and committing cumulative error.

¶ 36 Initially, we note the State argues defendant has forfeited review of the issues on

appeal because he failed to raise them in his posttrial motion. A defendant must object at trial and

raise the issue in a posttrial motion to preserve an issue for review. People v. Hestand,

(2005). “We require this of defendants because failure to raise the issue at trial

deprives the circuit court of an opportunity to correct the error, thereby wasting time and judicial

resources.” People v. Jackson,

. However, defendant argues the errors

amount to plain error and his counsel was ineffective for failing to preserve them. Illinois’s plain

error rule “is a narrow exception to forfeiture principles.” People v. Moon,

.

“ ‘The plain-error doctrine allows a court to disregard a defendant’s forfeiture and

consider unpreserved error in two instances: “(1) where a clear or obvious error

- 11 - occurred and the evidence is so closely balanced that the error alone threatened to

tip the scales of justice against the defendant, regardless of the seriousness of the

error and (2) where a clear or obvious error occurred and that error is so serious that

it affected the fairness of the defendant’s trial and challenged the integrity of the

judicial process.” ’ ” People v. Logan,

, ¶ 70 (quoting

People v. Matthews,

).

Forfeiture may also be set aside when a defendant contends trial counsel was ineffective for not

preserving the error. People v. Collins,

. Such a claim requires

counsel to have made an objectively unreasonable decision resulting in prejudice to the defendant.

Collins,

. However, whether we review this case for plain error or

for ineffective assistance of counsel, we begin by determining whether an error actually occurred.

See People v. Sargent,

(2010) (“[The] court typically undertakes plain-error

analysis by first determining whether error occurred at all.”); People v. Mahaffey,

(2000), overruled on other grounds by People v. Wrice,

(noting

ineffective assistance of counsel cannot be established where no error occurred).

¶ 37 A. Propensity Evidence

¶ 38 Defendant first contends the trial court abused its discretion in allowing evidence

under section 115-7.3 regarding the sexual assaults of M.M., D.C., and J.N. He argues the evidence

was unduly prejudicial because the assaults were not sufficiently similar to the sexual assault of

L.W. and the evidence was so substantial it became a “mini-trial” within the trial.

¶ 39 Evidence of other crimes is generally inadmissible to show a defendant’s propensity

to commit the charged criminal conduct. People v. Donoho,

(2003). Such

evidence, while relevant, is excluded because it “has ‘too much’ probative value.” Donoho, 204

- 12 - Ill. 2d at 170 (quoting People v. Manning,

(1998)). Instead, “[e]vidence of

other offenses may be admissible to demonstrate ‘motive, intent, identity, absence of mistake,

modus operandi, or any other relevant fact other than propensity.’ ” People v. Smith,

(quoting People v. Vannote,

). “ ‘Indeed, other-

crimes evidence is admissible to prove any material fact other than propensity that is relevant to

the case.’ ” People v. Johnson,

(2006) (quoting People v. Spyres,

(2005)).

¶ 40 However, other-crimes evidence demonstrating propensity may be admissible

under section 115-7.3 when a defendant is charged with one of the enumerated sex offenses in the

statute. People v. Ward,

; 725 ILCS 5/115-7.3(a) (West 2020) (listing the

offenses of criminal sexual assault and aggravated criminal sexual abuse). “The other offenses

must have a threshold similarity to the charged conduct to be admissible.” Smith,

.

¶ 41 “ ‘Where other-crimes evidence meets the initial statutory requirements, the

evidence is admissible if it is relevant and its probative value is not substantially outweighed by

its prejudicial effect.’ ” Smith,

(quoting Vannote,

). When weighing the probative value of the other-crimes evidence against any

undue prejudice against the defendant, section 115-7.3(c) permits the trial court to consider (1) the

proximity in time to the charged offense, (2) the degree of factual similarity to the charged offense,

or (3) other relevant facts and circumstances. 725 ILCS 5/115-7.3(c) (West 2020). The trial court

must, however, “engag[e] in a meaningful assessment of the probative value versus the prejudicial

impact of the evidence.” Donoho,

.

- 13 - ¶ 42 A trial court’s decision to admit other-crimes evidence will not be reversed on

appeal absent an abuse of discretion. Donoho,

. “An abuse of discretion has

occurred when the trial court’s decision is arbitrary, fanciful, or unreasonable or when no

reasonable person would take the position adopted by the trial court.” People v. Wilson,

.

¶ 43 Defendant does not argue the evidence was inadmissible based on the proximity in

time to the charged offense, nor does the record show the proximity of the events would

legitimately be of concern. See, e.g., Donoho,

(holding while the lapse of 12 to

15 years may lessen the probative value of other-crimes evidence, it is insufficient by itself to find

an abuse of discretion existed in its admission). As to the similarities in the events, relying

primarily on People v. Lamonica,

, defendant argues the propensity

evidence was not sufficiently similar to the charged offenses for its probative value to outweigh

the prejudice caused by its admission.

¶ 44 In Lamonica, the State charged the defendant with aggravated criminal sexual

assault. Lamonica,

. At trial, the victim, L.L., testified she met the

defendant through a dating app and met him at a wine restaurant. After becoming intoxicated, L.L.

invited the defendant to her apartment. Lamonica,

. L.L. gave

testimony indicating she was willing to have sex with the defendant, but he was unduly forceful

with her. When L.L. told the defendant he was hurting her, she became afraid he would become

violent and did not resist until the pain became so bad that she shoved him off her. She admitted

the defendant never threatened her, held her down, or grabbed her so hard she could not release

his grip. Lamonica,

. She reported the incident to the police

- 14 - after learning the defendant had been arrested for another offense. Lamonica,

.

¶ 45 At trial, the court admitted propensity testimony from E.S., who testified she met

the defendant at a bar and became intoxicated. The defendant accompanied her to her apartment,

where she went to sleep. During the night the defendant removed her bra and underwear. The next

morning E.S. told the defendant she did not want to have sex with him, but he got on top of her

and penetrated her, and she was unable to push him off. Afterward, E.S. asked the defendant to

leave, and he would not do so. They argued for about an hour before he left. E.S. went to the

hospital where a rape kit was completed. Lamonica,

. The State

also presented evidence from the sexual assault examiner and a DNA expert.

¶ 46 On appeal from the defendant’s conviction, the Second District reversed based on

insufficient evidence of use or threat of force. Lamonica,

. The

court then nevertheless found the trial court abused its discretion in admitting the propensity

evidence. The court noted L.L. testified the defendant penetrated her in the evening, after their

date, while she was drunk, while E.S. testified the defendant forcefully penetrated her in the

morning when she was sober. The court stated, other than the defendant inviting the women to

wine bars, the two incidents bore little resemblance to one another in any significant way.

Lamonica,

. The court further stated the evidence of other crimes

was extensive and unnecessary. Lamonica,

.

¶ 47 However, in People v. Kelley,

, this court distinguished

meaningful factual differences from incidental ones, especially in the context of an

abuse-of-discretion standard of review. There, we noted when the identity of the perpetrator was

not at issue and the State was not offering the evidence to show modus operandi, more general

- 15 - areas of similarity are sufficient to support admissibility. Kelley,

.

As such, the objective is not to identify factual differences for the sake of identifying factual

differences. Instead, the differences must logically matter. “[T]hey have to be relevant, in a

commonsensical way, to the probative value of the previous offense as propensity evidence.”

Kelley,

. For example, in disagreeing with a Second District case,

this court stated:

“If on one occasion [the defendant] committed sexual assault with the assistance of

someone else and on the next occasion he committed sexual assault unassisted, the

previous occasion still would be evidence that he had a propensity to commit sexual

assault. The same would be true if on the previous occasion the defendant used a

car and on the next occasion he did not do so or if on the previous occasion he blew

cocaine into the victim’s face and on the next occasion he did not do so. Such

factual differences are incidental and meaningless unless the identity of the

perpetrator is at issue and the State pursues a theory of modus operandi, the proof

of which always requires ‘a high degree of identity between the facts of the crime

charged and [those of] the other offense.’ (Internal quotation marks omitted.)”

Kelley,

(quoting People v. Cruz,

(1994).

¶ 48 Applying the above reasoning, this court held the admission of propensity evidence

was not an abuse of discretion when the factual differences arguably did not greatly reduce the

probative value of the testimony. In doing so, this court further noted “our standard of review is

the most deferential standard of review known to the law.” Kelley,

(citing People v. Radojcic,

).

- 16 - ¶ 49 Here, we apply the reasoning from Kelley. The differences among the offenses are

much less meaningful under Kelley than they were in Lamonica. The sexual assaults of M.M.,

D.C., and J.N. were all introduced to show a propensity to commit sexual assault and shared

multiple facts in common with the sexual assault of L.W. In each case, defendant invited young

women who felt safe being alone with him to meet him. Each woman rode in a vehicle with

defendant when defendant had consumed alcohol. He then sexually assaulted them afterward. In

each case, the women were unable to legally consent. The primary factual differences, that L.W.

did not drink and could not consent because of her age, did not greatly reduce the probative value

of the evidence to show defendant had a propensity to commit sexual assault. Other differences

such as the location of the assaults is inconsequential.

¶ 50 Defendant particularly argues L.W. was forcibly assaulted and the other women

were not, but the overriding similarity in all cases was a clear pattern of defendant inviting young

women to meet with him when he had been drinking and then sexually assaulting them. The trial

court carefully considered the similarities and differences among the offenses and did not abuse

its discretion in determining there were sufficient similarities to admit the evidence.

¶ 51 Defendant also argues the propensity evidence improperly became the focal point

of the trial, leading to undue prejudice. In doing so, he relies in part on Lamonica and People v.

Cardamone,

(2008). He also spends a significant portion of his brief

distinguishing People v. Walston,

(2008).

¶ 52 “Our supreme court has urged trial courts ‘to be cautious in considering the

admissibility of other-crimes evidence to show propensity by engaging in a meaningful assessment

of the probative value versus the prejudicial impact of the evidence.’ ” People v. Perez,

(quoting Donoho,

). “When weighing the prejudicial effect

- 17 - of admission, a court should consider whether the other-crimes evidence will become the focus of

the trial, or whether it might otherwise be misleading or confusing to the jury.” Perez,

(citing People v. Boyd,

(2006)). The overriding

rationale for not permitting “mini-trials” of a collateral offense is due to the risk that it will cause

unfair prejudice to the defendant, jury confusion, or delay. Walston,

.

¶ 53 In Walston, the Second District addressed the issue of “mini-trials” in the context

of section 115-7.3 cases and determined the danger of unfair prejudice to a defendant was not as

great as in common-law other-crimes cases. Walston,

. Specifically, the

court stated:

“[T]he danger of unfair prejudice in the context of a section 115-7.3 case, as opposed

to a common-law other-crimes case, is greatly diminished. *** [T]he common-law

rule against other-crimes evidence is essentially a per se application of the rule that

unfairly prejudicial evidence should not be admitted even if probative. [Citation.]

When the legislature enacted section 115-7.3, it upended this rule with respect to

the types of crimes listed in the section, so that not only is other-crimes evidence

offered to show propensity no longer per se unfairly prejudicial, it is actually

proper. As a result, the danger of unfair prejudice in a section 115-7.3 case may still

exist, but it is much less pronounced than in a common-law other-crimes case.

[Citation.] Accordingly, while a ‘mini-trial’ of a collateral offense can cause undue

prejudice in a section 115-7.3 case, it is not necessary in such a case that a court

‘carefully limit[ ] the details of the other crime to what is necessary to “illuminate

the issue for which the other crime was introduced” ’ [citation] to the extent

required in common-law other-crimes cases.” Walston,

.

- 18 - ¶ 54 In People v. Bates,

, this court relied on Walston in

finding no impermissible “mini-trial” following the admission of propensity evidence under

section 115-7.3. There, the State’s other-crimes evidence included testimony from the defendant’s

alleged victim in another case, testimony from a nurse who evaluated that victim, a forensic

scientist who testified the defendant’s DNA was found on swabs taken from the previous victim,

and an interrogation video related to the other crime. Bates,

. We

stated the “mini-trial” in that case “was necessary to establish [the] defendant’s involvement in the

attack on [the other victim].” Bates,

.

¶ 55 Relying on Lamonica and Cardamone, defendant attempts to distinguish Walston

and Bates, arguing the amount of propensity evidence became the focal point of the trial. He

contends the “vast majority” of the evidence consisted of propensity evidence, most of which was

cumulative and unnecessary. We disagree.

¶ 56 In Cardamone, the Second District noted there might be times when the sheer

volume of other-crimes evidence renders it unduly prejudicial. Cardamone,

. There, the trial court admitted testimony regarding at least 158 uncharged acts against 15

victims. Cardamone,

. On appeal, the Second District held the volume

of the other-crimes evidence was overwhelming and undoubtedly more prejudicial than probative.

Cardamone,

. The court further found the “admission of so many allegations

of uncharged conduct, many of which were vague as to dates, placed [the] defendant in the

impossible position of accounting for his whereabouts and behavior almost all day, every day, over

a three-year period.” Cardamone,

.

¶ 57 “Simply put, Cardamone was an extreme case.” Perez,

. Thus, as the Second District has also recognized, “Cardamone did not purport to hold that

- 19 - anytime the evidence of other crimes outnumbers that of the charged incidents, the prejudicial

effect renders the other-crimes evidence inadmissible.” Perez,

.

Instead, Cardamone was a case of “ ‘prosecutorial overkill.’ ” See Walston,

(quoting People v. Funches,

(1978)). Thus, in Kelley, this court relied on

Walston and noted propensity evidence would amount to a “mini-trial” only if it “was so

overabundant as to ‘cause jury confusion or unnecessary delay.’ ” Kelley,

(quoting Walston,

).

¶ 58 In the case before us, we find Walston and Bates best address the issues presented

by the facts rather than Cardamone and Lamonica. To the extent defendant argues corroborating

other-crimes evidence is not allowed under section 115-7.3, we disagree. As held in Bates, where

not only the testimony of the alleged other-crime victim was presented, but also evidence

corroborating that victim’s testimony, such evidence may be necessary to establish the defendant’s

involvement in the other crime and, thus, the defendant’s propensity for committing sex offenses.

Bates,

.

¶ 59 There is no question the acts against M.M., D.C., and J.N. were highly probative

and part of a clear pattern of sexual assaults by defendant. While we recognize the total amount of

propensity evidence was significant, we also observe it was limited to three principal victims who

provided specific dates and details of the assaults, and the testimony of each corroborating

witnesses was comparatively short. The propensity evidence was relatively straightforward and

not the vague “prosecutorial overkill” as seen in Cardamone. We further note, unlike in Lamonica,

where the victim’s testimony contained inconsistencies confusing to the jury, here L.W.’s

testimony was clear, as was the propensity testimony.

- 20 - ¶ 60 Ultimately, we again stress the importance of the standard of review. At exactly

what point the quantity of evidence becomes unduly prejudicial is left to the trial court’s discretion,

and reviewing courts have noted that “it is difficult to determine precisely where to draw the line.”

Cardamone,

.

“Thus, while undue prejudice can arise in a section 115-7.3 case, ‘the actual limits

on the trial court’s decisions on the quantity of propensity evidence to be admitted

under section 115-7.3 are relatively modest, especially when combined with the

highly deferential abuse-of-discretion standard that governs review of such trial

court decisions.’ ” (Emphasis in original.) Perez,

(quoting Walston,

).

Overall, the trial court here did not abuse its discretion in allowing the propensity evidence, as it

was not so great it caused unfair prejudice to the defendant, jury confusion, or delay. See Walston,

.

¶ 61 B. Evidence of Statements About Self-Harm

¶ 62 Defendant next contends the trial court abused its discretion in in allowing Madelyn

to testify about defendant’s statements of self-harm. He argues the evidence was not admissible to

show propensity and was not relevant for any other purpose. The State argues the evidence was

admissible as part of a continuing course of conduct.

¶ 63 Evidence is relevant if it has any tendency to make the existence of any fact

consequential to the determination of an action either more or less probable than it would be

without the evidence. Ill. R. Evid. 401 (eff. Jan. 1, 2011). Illinois Rule of Evidence 404(b) (eff.

Jan. 1, 2011) provides evidence of other crimes, wrongs, or acts may be admissible for purposes

other than to show propensity, such as such as proof of motive, opportunity, intent, preparation,

- 21 - plan, knowledge, identity, or absence of mistake or accident. Evidence may also be permissibly

used to show, by similar acts or incidents, that the act in question was not performed inadvertently,

accidently, involuntarily, or without guilty knowledge. People v. Brown-Engel,

, ¶ 21 (citing 1 John W. Strong, McCormick on Evidence § 190, at 660, 664 (5th ed. 1999)).

¶ 64 Evidence of other crimes or bad acts may also be admissible when part of a

continuing narrative of the events giving rise to the offense, intertwined with the charged offense,

or it explains an aspect of the charge that would otherwise be implausible or inexplicable. People

v. Patterson,

. Thus, events forming a continuing narrative, even

if they reflect negatively on the defendant, may be permitted when the events are “linked and it

would be illogical for the trial court to uncouple them and give the jury only half the story.” People

v. Pikes,

, ¶ 24. However, “evidence may not be admitted under the continuing-

narrative exception, even when the crimes occur in close proximity, if the crimes are distinct and

‘undertaken for different reasons at a different place at a separate time.’ ” People v. Adkins,

(2010) (quoting People v. Lindgren,

(1980)).

¶ 65 The admissibility of other-crimes evidence rests within the sound discretion of the

trial court, and its decision on the matter will not be disturbed absent a clear abuse of discretion.

People v. Heard,

(1999). “Erroneous admission of other-crimes evidence calls

for reversal only if the evidence was ‘a material factor in the defendant’s conviction such that,

without the evidence, the verdict likely would have been different.’ ” Adkins,

(quoting People v. Hall,

(2000)). “In other words, the evidence ‘must be so

prejudicial that the defendant is denied a fair trial.’ ” Patterson,

(quoting People v. Pelo,

(2010)). “An evidentiary issue is harmless when

no reasonable probability exists that the jury would have acquitted the defendant absent the error.”

- 22 - Pelo,

, abrogated on other grounds, People v. Veach,

.

¶ 66 Here, Madelyn’s testimony was not introduced as evidence of other crimes to show

propensity under section 115-7.3. Indeed, it was not evidence of another “crime” at all, and the

trial court did not admit it to show a general propensity to commit a crime. Instead, the trial court

admitted it to show context and a continuing narrative of the facts of the case, to further explain

why L.W. left her home to meet defendant. While defendant argues his previous statements of

self-harm to Madelyn were not sufficiently “linked” to his statements to L.W. to constitute a

continuing narrative, we disagree. The commonality of defendant’s use of statements of self-harm

to get his way helped explain facts associated with L.W.’s assault. Because L.W. had previously

refused to sneak out of her house to meet defendant, the testimony provided context as to why

defendant made such statements to convince her to do so. Further, defendant’s use of statements

of self-harm with Madelyn illustrated a reason why he also threatened self-harm to L.W. and then

did not make any further such statements once L.W. met with him. Without Madelyn’s testimony,

the reason defendant ceased making statements of self-harm once he convinced L.W. to meet him

would have been unaddressed and unclear.

¶ 67 Likewise, we further conclude the statements were evidence of an intent, motive,

or plan to convince L.W. to leave her home under false pretenses with a motive to get her to meet

defendant, not to discuss his statements of self-harm, but for other purposes. As such, the trial

court did not abuse its discretion in admitting the testimony. We may affirm the circuit court on

any basis supported by the record. People v. Dinelli,

(2005).

¶ 68 Finally, even if we were to find the evidence should not have been admitted in any

respect, we cannot say it was a material factor in defendant’s convictions such that, without the

- 23 - evidence, a different verdict would likely have resulted. Here, the trial court explicitly limited the

evidence, stating it would not allow it to be used for improper purposes. The State’s questions to

Madelyn about the matter were short, consisting of only four questions. Excluding Madelyn’s

testimony, the remaining evidence presented at defendant’s trial was more than sufficient to sustain

his convictions.

¶ 69 C. Admission of Memes

¶ 70 Defendant next argues the trial court erred in allowing evidence of the memes found

on his phone. Defendant argues the memes were not relevant because of insufficient foundation to

authenticate them when there was no evidence defendant looked at the memes or “endorsed them

in some way.” The State argues the law does not require foundation showing defendant “endorsed”

the content of the memes and that it presented sufficient foundation to authenticate them.

¶ 71 While the authentication of memes appears to be a novel issue, as to a proper

foundation for admission, we treat text messages obtained from a phone like any other form of

documentary evidence. See People v. Price,

; People v. Ziemba,

. For the reasons stated below, we conclude the logic for treating

text messages obtained from a phone like any other form of documentary evidence applies equally

well to memes found on a phone.

¶ 72 There is a lack of support to treat any electronic documents, such as memes, found

on a phone, differently than any other form of documentary evidence. For example, in People v.

Chromik,

(2011), the Third District relied on a North Dakota case,

State v. Thompson,

,

, to find text messages were sufficiently

authenticated. Relying in turn on a Pennsylvania case, the Thompson court wrote:

- 24 - “ ‘Essentially, appellant would have us create a whole new body of law just

to deal with e-mails or instant messages. The argument is that e-mails or text

messages are inherently unreliable because of their relative anonymity and the fact

that while an electronic message can be traced to a particular computer, it can rarely

be connected to a specific author with any certainty. Unless the purported author is

actually witnessed sending the e-mail, there is always the possibility it is not from

whom it claims. As appellant correctly points out, anybody with the right password

can gain access to another’s e-mail account and send a message ostensibly from

that person. However, the same uncertainties exist with traditional written

documents. A signature can be forged; a letter can be typed on another’s typewriter;

distinct letterhead stationary can be copied or stolen. We believe that e-mail

messages and similar forms of electronic communication can be properly

authenticated within the existing framework of [Pennsylvania law]. We see no

justification for constructing unique rules for admissibility of electronic

communications such as instant messages; they are to be evaluated on a

case-by-case basis as any other document to determine whether or not there has

been an adequate foundational showing of their relevance and authenticity.’ ”

Thompson,

, ¶ 25 (quoting In re F.P.,

(Pa. Super. Ct.

2005)).

Along those lines, the Texas Court of Criminal Appeals in Tienda v. State,

(Tex.

Crim. App. 2012) stated:

“Courts and legal commentators have reached a virtual consensus that, although

rapidly developing electronic communications technology often presents new and

- 25 - protean issues with respect to the admissibility of electronically generated,

transmitted and/or stored information, including information found on social

networking web sites, the rules of evidence already in place for determining

authenticity are at least generally ‘adequate to the task.’ Widely regarded as the

watershed opinion with respect to the admissibility of various forms of

electronically stored and/or transmitted information is Lorraine v. Markel

American Insurance Co. There the federal magistrate judge observed that ‘any

serious consideration of the requirement to authenticate electronic evidence needs

to acknowledge that, given the wide diversity of such evidence, there is no single

approach to authentication that will work in all instances.’ Rather, as with the

authentication of any kind of proffered evidence, the best or most appropriate

method for authenticating electronic evidence will often depend upon the nature of

the evidence and the circumstances of the particular case.” Tienda,

.

¶ 73 The Third Circuit in the case of United States v. Browne,

(3d Cir.

2016), also stated:

“We hold today that it is no less proper to consider a wide range of evidence

for the authentication of social media records than it is for more traditional

documentary evidence. The authentication of electronically stored information in

general requires consideration of the ways in which such data can be manipulated

or corrupted, [citation], and the authentication of social media evidence in particular

presents some special challenges because of the great ease with which a social

media account may be falsified or a legitimate account may be accessed by an

- 26 - imposter, [citation]. But the authentication rules do not lose their logical and legal

force as a result. [Citations.] Depending on the circumstances of the case, a variety

of factors could help support or diminish the proponent’s claims as to the

authenticity of a document allegedly derived from a social media website, and the

Rules of Evidence provide the courts with the appropriate framework within which

to conduct that analysis.” Browne,

.

¶ 74 We find the reasoning of the above courts persuasive and conclude the same

reasoning applies to the authentication of the memes here. Accordingly, we address memes

obtained from a phone like any other form of documentary evidence.

¶ 75 In that regard, “ ‘[a] proper foundation is laid for the admission of documentary

evidence when the document has been identified and authenticated.’ ” Price,

(quoting Ziemba,

, ¶ 51). Authentication of documentary

evidence requires the proponent to present evidence the document is what the proponent claims it

to be. Price,

; see also Ill. R. Evid. 901(a) (eff. Sept. 17, 2019).

To do so, “[t]he proponent need prove only a rational basis upon which the fact finder can conclude

that the document did in fact belong to or was authored by the party alleged.” Ziemba,

. The trial court’s finding of authentication is merely a finding there is

sufficient evidence to justify presentation of the offered evidence to the trier of fact and does not

preclude the opponent from contesting the genuineness of the writing after the authentication

requirements are satisfied. Ziemba,

, ¶ 51 “If the court, after serving its

screening function, allows the evidence to be admitted, the issue of the document’s authorship is

ultimately for the jury to determine.” Ziemba,

.

- 27 - ¶ 76 Documentary evidence may be authenticated by either direct or circumstantial

evidence. Price,

; Ziemba,

,

“ ‘Circumstantial evidence of authenticity includes such factors as appearance, contents,

substance, and distinctive characteristics, which are to be considered with the surrounding

circumstances.’ ” Price,

(quoting Ziemba,

). “ ‘Documentary evidence, therefore, may be authenticated by its contents if it is

shown to contain information that would be known only by the alleged author of the document or,

at the very least, by a small group of people including the alleged author.’ ” Price,

(quoting Ziemba,

). “ ‘A trial court’s decision

to admit documentary evidence will not be reversed absent an abuse of discretion.’ ” Ziemba,

(quoting Chromik,

).

¶ 77 In Price, we recently endorsed the use of the following nonexhaustive list of factors

for a trial court to consider when determining if a party has made a prima facie showing of

authentication:

“ ‘(1) the purported sender admits authorship, (2) the purported sender is seen

composing the communication, (3) business records of an Internet service provider

or cell phone company show that the communication originated from the purported

sender’s personal computer or cell phone under circumstances in which it is

reasonable to believe that only the purported sender would have had access to the

computer or cell phone, (4) the communication contains information that only the

purported sender could be expected to know, (5) the purported sender responds to

an exchange in such a way as to indicate circumstantially that he was in fact the

author of the communication, or (6) other circumstances peculiar to the particular

- 28 - case may suffice to establish a prima facie showing of authenticity.’ ” Price,

(quoting People v. Kent,

).

These six factors have also been cited with approval by our supreme court. People v. Brand,

.

¶ 78 Here, through Orr, the State was able to establish the phone, taken from defendant

at his arrest, actually belonged to him. Defendant provided the passcode to gain access to the

phone. Indeed, no one disputed it was defendant’s phone. Orr testified the extraction report

revealed the source files for the memes were created and modified on defendant’s phone with

identical time stamps for each. Further, the phone revealed a text conversation between defendant

and his girlfriend, Stein, which she identified and thereby authenticated as well. More importantly,

the conversation with Stein happened almost contemporaneously with the “creation” or

“modification” of the memes—whether by merely opening them to view, or otherwise. That the

evidence showed the memes were created and modified while defendant exchanged text messages

with Stein provided circumstantial evidence the memes belonged to him, as it would be unlikely

anyone else had possession of his phone at that time. Stein also testified defendant belonged to a

chat group where memes were shared. The content of the memes is also not in dispute. Thus, here,

the trial court did not abuse its discretion, as there was direct and circumstantial evidence the

memes were what the State claimed them to be—memes from defendant’s phone. See Ziemba,

. At that point, after the court served its screening function, further

issues of the document’s use, authorship, or the weight they should be accorded were ultimately

for the jury to determine. See Ziemba,

, ¶ 51.

- 29 - ¶ 79 Nevertheless, defendant relies on People v. Pulliam,

(1997),

as support for his argument the State failed to present adequate evidence to authenticate the memes.

There, the trial court allowed evidence that police found a book titled “The Force of Sex” on a

table in the defendant’s apartment two days after a murder. Pulliam,

. However,

allowing the evidence was in error when there was no testimony offered about the book’s contents

or who owned or had read the book. Therefore, the court lacked a sound basis to conclude the book

was relevant to the crime. Pulliam,

. Thus, in Pulliam, authentication was entirely

lacking. Such was not the case here.

¶ 80 Defendant also relies on Kent and Brand for the argument the State failed to show

he “endorsed” or was “responsible for” the memes. In both Kent and Brand, “authentication”

included efforts to establish the defendant was the author of questioned social media posts—a

Facebook post in Kent and messages on Facebook Messenger in Brand. Even under those

circumstances, the courts said the list of authentication factors list was not exhaustive but was

“ ‘intended only as a guide’ ” and the “ ‘ “[e]vidence may be authenticated in many ways, and as

with any piece of evidence whose authenticity is in question, the ‘type and quantum’ of evidence

necessary to authenticate a web page will always depend on context.” ’ ” Brand,

(quoting Kent,

, ¶ 119, quoting United States v. Vayner,

(2d Cir. 2014)).

¶ 81 As previously noted, all that was required of the State in this instance, was “to

present evidence that the document is what the proponent claims it to be.” (Internal quotation

marks omitted.) Price,

. The Ziemba court recognized the State

had to present sufficient evidence to provide the fact finders with a rational basis for concluding

the document did in fact belong to or was authored by the party alleged. Ziemba, 2018 IL App (2d)

- 30 - 170048, ¶ 51. Within the context of this case, the purpose of seeking to admit the memes was not

to establish defendant as the author, but to show the memes were on his phone and may have been

viewed, sent, received, or otherwise generated while he was actively using his phone.

¶ 82 We stress “[t]he bar for authentication of evidence is not particularly high.”

(Internal quotation marks omitted.) Vayner,

. “[T]he proponent need not rule out

all possibilities inconsistent with authenticity,” but need only adduce sufficient proof so a

reasonable juror could find in favor of authenticity. (Internal quotation marks omitted.) Vayner,

. Once an item of evidence is “authenticated” this “merely renders [evidence]

admissible, leaving the issue of [its] ultimate reliability to the jury,” for which “the opposing party

remains free to challenge the reliability of the evidence, to minimize its importance, or to argue

alternative interpretations of its meaning,” with all such challenges going to the weight of the

evidence rather than its initial admissibility. (Internal quotation marks omitted.) Vayner,

.

¶ 83 Here, the State presented sufficient foundation evidence to show the memes

“belonged” to defendant in that they were on his phone and created/modified at the same time as

another identified conversation with Stein, all of which took place in close temporal proximity

with the offense and two of the three sexual assaults admitted as propensity evidence. Thus, the

trial court did not abuse its discretion in allowing the evidence.

¶ 84 D. Cumulative Error

¶ 85 Finally, defendant argues cumulative error. Because we have found no error at all,

cumulative error does not apply. Likewise, plain error and ineffective assistance of counsel do not

apply.

¶ 86 III. CONCLUSION

- 31 - ¶ 87 The trial court did not abuse its discretion in its evidentiary determinations.

Accordingly, for the reasons stated, we affirm the trial court’s judgment.

¶ 88 Affirmed.

¶ 89 JUSTICE DOHERTY, specially concurring:

¶ 90 In my view, the majority has reached the proper disposition in this case. For the

reasons so capably stated by the majority, I agree that it was not an abuse of discretion for the trial

court to admit the other-crimes evidence under section 115-7.3 of the Code (725 ILCS 5/115-7.3

(West 2020)) or the evidence of self-harm. While it is my view that the admission of the meme

evidence was error on the facts of this case for the reasons stated below, I believe that any error

was harmless. Thus, I agree that affirmance is required here. I write separately to address the

propriety of the admission of memes found on defendant’s phone without evidence that he

authored, agreed with, or even saw them.

¶ 91 Authentication “as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent claims.” Ill. R. Evid.

901(a) (eff. Sept. 17, 2019). Here, the State claimed that the memes were images found on

defendant’s phone. The foundational testimony offered by Orr and Chumley was sufficient to

authenticate the memes, i.e., to prove that they were found on defendant’s phone. But

authentication is not all that is required for admission of evidence; it must still be relevant. If the

State properly authenticated the memes as having been found on some other person’s phone, even

incontestable authentication of such evidence would not make it relevant to the case against this

defendant. It is still important to understand what the proponent claims the evidence proves. The

question becomes why are the memes on defendant’s phone—with no evidence of where they

- 32 - came from, whether he saw them, and whether he agreed with their content—relevant to the case

against him?

¶ 92 The following comments from Justice Wright’s concurrence in People v. Watkins,

(Wright, J., specially concurring), capture the essence of the issue

presented here:

“I conclude that the receipt of a particular text message that has not triggered

a response from the recipient proves nothing about the habits or intentions of the

designated recipient. Based on my own experience, I emphasize that a cell phone

user cannot control the content of messages directed to a personal cell phone. In

fact, persons, both known and unknown, elect to send uninvited, unexpected, and

sometimes unwelcome text messages to other persons.” (Emphases omitted.)

¶ 93 Similarly, the State’s evidence here proved that the three memes in question were

found on defendant’s phone, but there was a complete absence of evidence showing how the

memes got there or whether defendant had even seen them, much less agreed with them. The

prosecutor argued that, while there was no evidence that defendant created the memes, “we all

know if it’s on your phone, it’s on your mind.” In the first instance, this statement is simply not

correct if the defendant had not seen the memes. But the more fundamental issue is whether we

will permit any communication received by a person as evidence of what they were thinking or

what they believe.

¶ 94 In this context, I believe that the supreme court’s decision in People v. Pulliam,

(1997), demonstrates that admission of the memes was error. In Pulliam, the defendant

was charged with, among other things, the murder and sexual assault of a child. Two days after

- 33 - the crime, a police officer found a book entitled, “The Force of Sex,” in the defendant’s apartment.

The trial court allowed this fact into evidence, but the supreme court found it to be error:

“We hold that the trial court erred in admitting the book into

evidence. First, because there was no testimony that defendant owned or

had read the book, or concerning the nature of its contents, the court had no

sound basis for concluding that the book was relevant to the crimes. Second,

the fact that the apartment was unsecured for two days before the book was

found further diminished the book’s relevance to defendant’s role in the

crimes. Given these circumstances, the trial court abused its discretion in

admitting the book.” (Emphasis added.)

.

¶ 95 Here, as in Pulliam, there is no evidence that defendant read the memes or that he

agreed with them (such as might be shown if he had shared them). All we know is that they

appeared on his phone by some unspecified means. On the surface, one element of Pulliam might

seem different from the facts here, as the book at issue in Pulliam was found in an apartment which

was unsecured for two days; the implication is that another person might have planted the book.

But a cell phone is generally “unsecured” in more fundamental ways, and for much longer periods

of time. As stated by Justice Wright in her special concurrence in Watkins, a “user cannot control

the content of messages directed to a personal cell phone.” Watkins,

(Wright, J., specially concurring).

¶ 96 The State argued that the relevance of the memes here was that they gave us some

insight into what defendant was thinking. That would surely be true if, for example, defendant had

seen the memes and shared them, or had regularly solicited memes of this nature by signing up at

some sort of website that propagates them. The evidence here, however, is simply that the memes

- 34 - were received on defendant’s phone, and mere receipt gives no insight into defendant’s thinking

any more than a newspaper on one’s porch indicates agreement with everything printed in it.

¶ 97 It is important to recognize how limited the testimony with respect to the telephone

retrieval of the memes was in this case. The evidence is that each of the three memes was “created”

at exactly the same time it was “modified,” down to the second. The State here wisely did not

argue that defendant himself “modified” the memes at such lightning speed. The extraction report

introduced as People’s exhibit No. 6 shows that the memes were found in a subdirectory of

defendant’s phone named “Thumbnails.” The State’s experts gave almost no insight into how or

why the thumbnail images were created on the phone. All we know is that their creation

approximately coincided with a time defendant was also using his phone to text Stein, but there

was no evidence that the memes were in any way a part of those or any other communications.

¶ 98 However, while I believe admission of the memes was error, I believe the error was

harmless. The admission of irrelevant evidence is subject to harmless error analysis when

overwhelming evidence supports the conviction. People v. Hobley,

(1994);

People v. Gill,

(1973). In this case, the evidence against defendant was

overwhelming, resulting in the error in admission of the memes being harmless beyond a

reasonable doubt.

¶ 99 For the aforementioned reasons, I specially concur.

- 35 - People v. Watts,

Decision Under Review: Appeal from the Circuit Court of Pike County, No. 20-CF-51; the Hon. Alan D. Tucker, Judge, presiding.

Attorneys James E. Chadd, Catherine K. Hart, and Joshua Scanlon, of State for Appellate Defender’s Office, of Springfield, for appellant. Appellant:

Attorneys Zachary P. Boren, State’s Attorney, of Pittsfield (Patrick Delfino, for David J. Robinson, and John M. Zimmerman, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.

- 36 -