author: LARRY A. JONES, SR., J.:

text:
    STATE of Ohio, EX REL. T.L., et al., Relators v. CORRIGAN, Respondent
    No. 106309
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASE DATE: March 7, 2018
    T.L., et al., Rachel P. Kareha, Cara L. Santosuosso, Laubacher & Company, Westgate Towers, Suite 626, 20525 Center Ridge Road, Rocky River, Ohio 44116, K.L., et al., Jennifer M. Hanes, Laubacher & Company, Westgate Towers, Suite 626, 20525 Center Ridge Road, Rocky River, Ohio 44116, ATTORNEYS FOR RELATORS
    Cuyahoga County Court of Common Pleas, Juvenile Division, Michael C. O'Malley, Cuyahoga County Prosecutor, By: Charles E. Hannan, Assistant County Prosecutor, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, Judge Patrick F. Corrigan, Michael C. O'Malley, Cuyahoga County Prosecutor, By: Steven W. Ritz, Assistant County Prosecutor, P.O. Box 93923, Cleveland, Ohio 44101, By: Marilyn Orkin Weinberg, Assistant Prosecuting Attorney, 9300 Quincy Avenue, 4th Floor Cleveland, Ohio 44106, Cuyahoga County Job & Family Services, Office of Child Support, Michael C. O'Malley, Cuyahoga County Prosecutor, By: Natalie E. Harper, Assistant Prosecuting Attorney, 9300 Quincy Avenue, 4th Floor, Cleveland, Ohio 44106, Putative Father, Eric J. Cherry, 1801 Euclid Avenue, Suite A092, P.O. Box 23181, Euclid, Ohio 44123, ATTORNEYS FOR RESPONDENTS
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} On September 28, 2017, the relators, T.L. (the mother) and K.L. (the acknowledging father) commenced this prohibition action against the respondent, the Cuyahoga County Court of Common Pleas, Juvenile Division ("Juvenile Court") to prohibit the respondent from ordering them and their daughter to undergo genetic testing in the underlying case, In the Matter of: P.L., Cuyahoga C.P., Juvenile Division No. PR 16 717446. In November 2016, the alleged father, A.P., commenced the underlying paternity action to determine whether he is the father of the girl, P.L. A.P. moved for genetic testing in April 2017, and the magistrate granted the motion. The relators objected, and the trial judge on September 15, 2017, overruled the objections and ordered the genetic testing.

{¶ 2} The relators then commenced this prohibition action. This court granted an alternative writ of prohibition on September 29, 2017, and stayed genetic testing until further order of this court. This court also allowed the alleged father to intervene on October 18, 2017, and allowed the Cuyahoga County Job and Family Services ("the County") to intervene on November 30, 2017. The respondent court filed its motion to dismiss on October 27, 2017. The County filed its brief on the matter when it moved to intervene. Although the County in its closing paragraph requests this court to clarify this area of the law-whether the law permits a juvenile court to order genetic testing after an acknowledgment of paternity has become final-the gravamen of the County's brief is to uphold the acknowledgment and prohibit genetic testing. The other parties in the case never filed a response to the respondent's motion. For the following reasons, this court grants the respondent's dispositive motion, denies the application for a writ of prohibition, and dissolves the alternative writ.

{¶ 3} At issue in this case is Ohio's legislative scheme for determining paternity. R.C. 2151.23(B)(2) grants the Juvenile Court original jurisdiction "to determine the paternity of any child alleged to have been born out of wedlock pursuant to sections 3111.01 and 3111.18 of the Revised Code." R.C. 3111.04(A)(1) provides in pertinent part that an action to determine the existence or nonexistence of the father-child relationship may be brought by a man alleged or alleging himself to be the child's father. Subsection (B) provides that an agreement does not bar an action under this section. R.C. 3111.09(A)(1) empowers the Juvenile Court to order genetic testing: "In any action instituted under sections 3111.01 to 3111.18 of the Revised Code, the court, upon its own motion, may order and, upon the motion of any party to the action, shall order the child's mother, the child, the alleged father, and any other person who is a defendant in the action to submit to genetic tests." Thus, the respondent has the basic statutory jurisdiction over the underlying case and to order genetic testing.

{¶ 4} The relators, however, argue that R.C. 3111.02 and 3111.03 override the respondent's basic jurisdiction and preclude genetic testing. R.C. 3111.03 provides in pertinent part as follows:

(A) A man is presumed to be the natural father of a child under any of the following circumstances:
(1) The man and the child's mother are or have been married to each other, and the child is born during the marriage or is born within three hundred days after the marriage is terminated by death, annulment, divorce, or dissolution or after the man and the child's mother separate pursuant to a separation agreement.
* * *
(3) An acknowledgment of paternity has been filed pursuant to section 3111.23 or former section 5101.314 of the Revised Code and has not become final under former section 3111.211 or 5101.314 or section 2151.232, 3111.25, or 3111.821 of the Revised Code.
(B) A presumption that arises under this section can only be rebutted by clear and convincing evidence that includes the results of genetic testing, except that a presumption that is conclusive as provided in division (A) of section 3111.95 or division (B) of section 3111.97 of the Revised Code cannot be rebutted. An acknowledgment of paternity that becomes final under section 2151.232, 3111.25, or 3111.821 of the Revised Code is not a presumption and shall be considered a final and enforceable determination of paternity unless the acknowledgment is rescinded under section 3111.28 or 3119.962 5 of the Revised Code. If two or more conflicting presumptions arise under this section, the court shall determine, based upon logic and policy considerations, which presumption controls.

R.C. 3111.02(B) provides: A court that is determining a parent and child relationship pursuant to this chapter shall give full faith and credit to a parentage determination made under the laws of this state or another state, regardless of whether the parentage determination was made pursuant to a voluntary acknowledgment of paternity, an administrative procedure, or a court proceeding.

{¶ 5} Finally, R.C. 3111.26 provides in pertinent part: "After an acknowledgment of paternity becomes final and enforceable, the child is the child of the man who signed the acknowledgment of paternity, as though born to him in lawful wedlock."

{¶ 6} In the present case, the mother gave birth to the girl on May 12, 2008. On May 14, 2008, the mother and K.L. executed an acknowledgment of paternity affidavit that was registered with the Ohio Central Paternity Registry and filed with the Cuyahoga County Job and Family Services-Office of Child Support. This acknowledgment of paternity has never been rescinded. In January 2010, the mother and K.L. were married in Florida, and in June 2011, had a second child. According to the prohibition complaint, K.L. has assumed all the responsibilities of a father to the children.

{¶ 7} The acknowledgment has been filed with both the birth registry and the office of child support. The limitations periods of R.C. 3111.27 and 3111.28 have long since passed. Thus, the acknowledgment has become final and enforceable. Therefore, the relators argue that under R.C. 3111.02 and 3111.03(B), the acknowledgment is not a mere presumption, but must be given full faith and credit like a final judgment. K.L. is the girl's father against all others, and no court may order otherwise. Therefore, prohibition will lie to prevent genetic testing and the disruption of their family.

{¶ 8} The principles governing prohibition are well established. Its requisites are (1) the respondent against whom it is sought is about to exercise judicial power, (2) the exercise of such power is unauthorized by law, and (3) there is no adequate remedy at law. State ex rel. Largent v. Fisher , 43 Ohio St.3d 160, 540 N.E.2d 239 (1989). Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the cause that it is attempting to adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe , 138 Ohio St. 417, 35 N.E.2d 571 (1941), paragraph three of the syllabus. "The writ will not issue to prevent an erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction." State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 65, 90 N.E.2d 598 (1950). Furthermore, it should be used with great caution and not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas , 137 Ohio St. 273, 28 N.E.2d 641 (1940) ; and Reiss v. Columbus Mun. Court , 76 Ohio Law Abs. 141, 145 N.E.2d 447 (10th Dist.1956). Nevertheless, when a court is patently and unambiguously without jurisdiction to act whatsoever, the availability or adequacy of a remedy is immaterial to the issuance of a writ of prohibition. State ex rel. Tilford v. Crush , 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988) ; and State ex rel. Csank v. Jaffe , 107 Ohio App.3d 387, 668 N.E.2d 996 (8th Dist.1995). However, absent such a patent and unambiguous lack of jurisdiction, a court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction. A party challenging the court's jurisdiction has an adequate remedy at law via an appeal from the court's holding that it has jurisdiction. State ex rel. Rootstown Local School Dist. Bd. of Edn. v. Portage Cty. Court of Common Pleas , 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997). Moreover, this court has discretion in issuing the writ of prohibition. State ex rel. Gilligan v. Hoddinott , 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).

{¶ 9} Although the relators' argument is strong, it is not persuasive. The respondent judge is not patently and unambiguously without jurisdiction. Prohibition will not lie, if the court has basic statutory jurisdiction to hear the case, and an appeal in the ordinary course of the law is available. State ex rel. Adams v. Gusweiler, 30 Ohio St.2d 326, 285 N.E.2d 22 (1972). In the present case, R.C. 2151.23(B)(2) and 3111.04 grant the respondent court the jurisdiction to adjudicate paternity actions. R.C. 3111.09(A)(1) requires the respondent to order genetic testing upon the motion of any party to the action. Moreover, the statutory scheme does not explicitly prohibit a man from establishing his paternity with a child.

{¶ 10} Clark v. Malicote , 12th Dist. Clermont No. CA2010-07-049, 2011-Ohio-1874, 2011 WL 1458696, presents the closest factual case. The mother, Malicote, and Clark executed an acknowledgment of paternity two days after the child's birth, and the acknowledgment was entered into the birth registry and sent to child support. Thus, it became final and enforceable. Approximately a year later, Shaw discovered that he might be the biological father, and genetic testing showed a 99.69 percent probability that he was the father. In response, Clark initiated legal proceedings against the mother for legal custody or for shared parenting. Shaw moved to intervene in this custody action, and the trial court denied the intervention. Shaw appealed this denial, and the appellate court affirmed, holding the trial court did not abuse its discretion in denying intervention, because a custody action is not necessarily the proper proceeding to establish paternity.

{¶ 11} However, the court stated that its holding did not foreclose Shaw from pursuing relief as the biological father. "[T]he finality of the acknowledgment does not amount to a permanent deprivation of Shaw's parental rights as would an adoption or an award of permanent custody to a children services agency." Id. at ¶ 21. Noting the fundamental right of a natural parent to rear his child, the court suggested that Shaw pursue his own civil paternity action before seeking custody. The appellate court also questioned the wisdom of elevating finality over perfection in parentage, custody, and support cases, if such finality forced the parties to live a lie.

{¶ 12} In addition to the Twelfth District's thoughts, this court adds its own observations that a child has an interest in knowing the identity of his or her own biological father and having that parentage established. Such would give the child access to the family medical history and inheritance and other survivorship rights.

{¶ 13} The cases cited by the relators are distinguishable. In In re Elliot , 3d Dist. Putnam No. 12-10-02, 2010-Ohio-5405, 2010 WL 4471277, and Thomas v. Cruz , 9th Dist. Lorain No. 03CA008247, 2003-Ohio-6011, 2003 WL 22657864, the biological fathers were never even attempted parties. Similarly, in Galen v. Holbert, 2d Dist. Greene No. 2007-CA-75, 2008-Ohio-1586, 2008 WL 853302, a cousin, trying to act as a guardian of the child, brought the paternity action. Thus, the critical element of a man asserting his rights as a natural father was not present in these cases, and they are not controlling.

{¶ 14} In summary, the respondent court is not patently and unambiguously without jurisdiction to adjudicate the paternity action and to order genetic testing. R.C. 2151.23, 3111.04 and 3111.09 grant it the basic jurisdiction to do so. The statutory scheme of R.C. Chapter 3111 does not explicitly divest the court of such jurisdiction. The case law may not be controlling, but Malicote is persuasive to allow the respondent court to proceed.

{¶ 15} Accordingly, this court grants the respondent's dispositive motion, denies the application for a writ of prohibition, and dissolves the alternative writ. The respondent court may proceed to adjudicate the underlying case. Relators to pay costs. This court directs the clerk of courts to serve all parties notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).

{¶ 16} Writ denied.

MARY EILEEN KILBANE, P.J., and MARY J. BOYLE, J., CONCUR

      Subsection (A)(2) establishes a presumption of paternity if a child is born in an attempted or invalid marriage.

      Pursuant to R.C. 3111.23, the acknowledgment of paternity is made by the mother of the child and the man acknowledging he is the father by executing an affidavit saying that the man is the father and then filing the acknowledgment with the office of child support.

      R.C. 3111.25 provides: An acknowledgment of paternity is final and enforceable without ratification by a court when the acknowledgment has been filed with the office of child support, the information on the acknowledgment has been entered in the birth registry, and the acknowledgment has not been rescinded and is not subject to possible rescission pursuant to section 3111.27 of the Revised Code. R.C. 3111.27 imposes a 60-day limitation period for rescinding an acknowledgment.

      R.C. 3111.28 allows a man presumed to be the father, either person who signed the acknowledgment, a guardian or legal custodian of the child to bring an action to rescind the acknowledgment on the basis of fraud, duress, or material mistake of fact. Such an action must be brought within one year after the acknowledgment becomes final.


source: Caselaw Access Project

author: CALLAHAN, Judge.

license: Public Domain

text:
    Donald YOUNKER, Appellant v. Patty HAYES, Appellee
    No. 28521
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: March 7, 2018
    DAVID P. BERTSCH, Attorney at Law, for Appellant.
    PATTY HAYES, pro se, Appellee.
    DECISION AND JOURNAL ENTRY
   CALLAHAN, Judge.

{¶ 1} Appellant, Donald Younker, appeals the judgment of the Summit County Common Pleas Court. For the reasons set forth below, this Court reverses.

I.

{¶ 2} Appellee, Patty Hayes, owned four Personal Seat Licenses ("PSLs") at the Cleveland Browns Stadium. Ms. Hayes's PSLs reserved four seats on the 50-yard line, at the railing, on the north side of the stadium in section 133. As the owner of the PSLs, Ms. Hayes was obligated each year to purchase season tickets for the seats which she could then use or sell. Failure to purchase season tickets would result in the PSLs reverting back to the Cleveland Browns and the seats being available to the general public or to those on a waiting list.

{¶ 3} Mr. Younker's co-worker told him about Ms. Hayes's PSLs and available season tickets. Ms. Hayes and Mr. Younker never met in person and only communicated through email.

{¶ 4} In 2014 and 2015, Mr. Younker purchased the season tickets at face value from Ms. Hayes. At the end of the 2015 season, Mr. Younker asked Ms. Hayes if she would sell the PSLs to him. Ms. Hayes indicated that she "paid $8[,]000 for the four licenses [and] would like to get $4[,]000 back." Mr. Younker agreed to the $4,000 price and sent Ms. Hayes a check for the full amount.

{¶ 5} During the next two weeks, Ms. Hayes confirmed receipt of Mr. Younker's payment and contacted the Cleveland Browns' front office to execute the necessary paperwork to transfer ownership of the PSLs. The Cleveland Browns' front office indicated to Ms. Hayes that the PSLs were worth more than her asking price and that there was a 40-year waiting list for these specific seats. Based on this information, Ms. Hayes "believe[d she could] get more than $1[,]000 per seat" and advised Mr. Younker that she "[could not] commit to selling [him her] PSL[ ]s for $4[,]000." A week later, Mr. Younker filed a complaint for breach of contract and sought specific performance and money damages. A few weeks later, Ms. Hayes returned Mr. Younker's $4,000 check to him.

{¶ 6} Despite being properly served with the complaint and summons, Ms. Hayes did not file an answer. Mr. Younker filed a motion for default judgment which was granted as to the issue of liability and a hearing was scheduled as to the damages.

{¶ 7} A magistrate presided over the damages hearing. Neither Ms. Hayes nor an attorney appeared on her behalf. The only witness at the damages hearing was Mr. Younker. During the hearing, Mr. Younker testified regarding the above facts and his damages. Mr. Younker requested relief in the form of specific performance and money damages.

{¶ 8} Mr. Younker testified that Ms. Hayes's PSLs were for four specific seats, 6, 7, 8, and 9, in the front row on the 50-yard line, and thus were not seats that could be obtained elsewhere or duplicated. Because of their location in relation to the playing field, the seats offered an unobstructed view of the game and protection from the lake winds. Mr. Younker described the seats as being "primo seats."

{¶ 9} Mr. Younker also testified to the value of the PSLs based on his research. He testified that a website that sells Cleveland Browns PSLs indicated that seats in the vicinity of Ms. Hayes's PSLs were worth approximately $10,000 to $11,500 each.

{¶ 10} The magistrate denied Mr. Younker specific performance and awarded him zero money damages. Mr. Younker timely filed objections and the transcript of the damages hearing. The trial court overruled Mr. Younker's objections and adopted the magistrate's decision. Mr. Younker has timely appealed this judgment and asserts three assignments of error.

{¶ 11} Before addressing the merits of the appeal, this Court notes that Ms. Hayes did not file a brief. As such, this Court "may accept [Mr. Younker's] statement of the facts and issues as correct and reverse the judgment if [Mr. Younker's] brief reasonably appears to sustain such action." See App.R. 18(C).

II.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AS A MATTER OF LAW IN ADOPTING THE MAGISTRATE'S DECISION FINDING [MS. HAYES] NOT LIABLE FOR BREACH OF CONTRACT BASED UPON THE AFFIRMATIVE DEFENSE OF MUTUAL MISTAKE OF FACT IN DISREGARD OF THE UNDISPUTED EVIDENCE AND THE DEFAULT JUDGMENT RENDERED AGAINST [MS. HAYES.]

{¶ 12} Mr. Younker argues that the trial court abused its discretion when it adopted the magistrate's decision and improperly applied the affirmative defense of mutual mistake to render the money damages decision when the issue of liability had been determined as a matter of law based upon Ms. Hayes's failure to answer the complaint. Mr. Younker also asserts that the trial court applied the wrong test to determine the fair market value of the PSLs. This Court agrees with both arguments.

{¶ 13} Initially, this Court notes that Mr. Younker has asserted the wrong standard of review. He is correct that this Court generally reviews a trial court's action with respect to a magistrate's decision for an abuse of discretion. Fields v. Cloyd, 9th Dist. Summit No. 24150, 2008-Ohio-5232, 2008 WL 4493144, ¶ 9. "Although the trial court has discretion when finding facts and applying those facts to the law, the trial court commits an error of law if it does not follow the law." Foster v. Foster , 9th Dist. Wayne No. 09CA0058, 2010-Ohio-4655, 2010 WL 3793112, ¶ 6. In such instances, questions of law exist and a de novo standard of review applies. Id. "A de novo review requires an independent review of the trial court's decision without any deference to the trial court's determination." State v. Consilio, 9th Dist. Summit No. 22761, 2006-Ohio-649, 2006 WL 335646, ¶ 4. Mr. Younker's first assignment of error presents this Court with two questions of law, namely, whether the trial court correctly applied the affirmative defense of mutual mistake and whether it applied the correct measure of damages.

Mutual mistake

{¶ 14} "A party who fails to file a timely pleading in response to an affirmative pleading runs the risk of having a default judgment entered against them." Helms v. Stegeman , 9th Dist. Summit No. 27995, 2016-Ohio-5118, 2016 WL 4037040, ¶ 9, citing Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 121, 502 N.E.2d 599 (1986). See Civ.R. 55(A). "The essence of a default judgment is that defendants, by their failure to appear, conclusively confess the allegations and claims of the plaintiff against them and admit the cause of action." Horwat v. Beck , 9th Dist. Summit No. 12144, 1985 WL 10913, at *2 (Oct. 30, 1985) ; see Civ.R. 8(D). Accord Prather v. Am. Med. Response, Inc. , 9th Dist. Summit No. 20965, 2002-Ohio-5261, 2002 WL 31175365, ¶ 15 ("[B]y failing to answer [plaintiff's] complaint, [defendant] admitted liability."). After the entry of a default judgment, "the only remaining triable issue is the amount of damages." Girard v. Leatherworks Partnership, 11th Dist. Trumbull No. 2004-T-0010, 2005-Ohio-4779, 2005 WL 2211079, ¶ 38 ; Prather at ¶ 15.

{¶ 15} A mutual mistake that is material to a contract occurs when both parties, at the time of entering the contract, make a " 'mistake * * * as to a basic assumption on which the contract was made [that] has a material effect on the agreed exchange of performances.' " Reilley v. Richards , 69 Ohio St.3d 352, 353, 632 N.E.2d 507 (1994), quoting 1 Restatement of the Law 2d, Contracts, Section 152(1) (1981). This Court has recognized that mutual mistake is not a claim, but rather " 'a reason to make an otherwise valid contract voidable in a rescission action.' " Ponder v. Culp , 9th Dist. Summit No. 28184, 2017-Ohio-168, 2017 WL 192609, ¶ 16, quoting Williams v. Clarke , 8th Dist. Cuyahoga No. 93973, 2010-Ohio-3318, 2010 WL 2783090, ¶ 16. Thus, a determination that there is a mutual mistake "means that the parties have not reached an agreement and no enforceable contract exists." Rylee Ltd. v. Izzard Family Partnership , 178 Ohio App.3d 172, 2008-Ohio-4506, 897 N.E.2d 208, ¶ 13 (3d Dist.).

{¶ 16} Mutual mistake, while not one of the specifically enumerated defenses in Civ.R. 8(C), has been recognized as an affirmative defense that is waived when it is not raised in the pleadings. Amare v. Chellena Food Express, Inc. , 10th Dist. Franklin No. 08AP-678, 2009-Ohio-147, 2009 WL 104775, ¶ 18, quoting Fox & Lamberth Ents., Inc. v. Craftsmen Home Improvement Inc. , 2d Dist. Montgomery No. 21060, 2006-Ohio-1427, 2006 WL 759658, ¶ 60, citing Mayer v. Medancic, 11th Dist. Geauga Nos. 2000-G-2311, 2000-G-2312, and 2000-G-2313, 2001 WL 1647119, at *1, 2001 Ohio App. LEXIS 5863, *4 (Dec. 21, 2001) fn. 6. A trial court should refrain from sua sponte raising an affirmative defense for a party because such conduct deprives the parties of notice and an opportunity to respond to the newly raised issue. See N. Olmsted Auto Paint & Supply Co. v. Lettieri , 9th Dist. Lorain No. 91CA005211, 1992 WL 174637, at *3-4, 1992 Ohio App. LEXIS 3835, *8-9 (July 22, 1992).

{¶ 17} In this case, Ms. Hayes never filed an answer or otherwise appeared in response to Mr. Younker's complaint for breach of contract, resulting in a default judgment as to liability against her. The result of the default judgment was Ms. Hayes having conclusively admitted to breaching the contract to sell the PSLs to Mr. Younker. See Horwat, 1985 WL 10913, at *2 ; Prather , 2002-Ohio-5261, 2002 WL 31175365, at ¶ 15. Because Ms. Hayes was in default, she implicitly waived all affirmative defenses. See Amare at ¶ 18. The only issue that remained was the amount of Mr. Younker's money damages and his request for specific performance. See Prather at ¶ 15.

{¶ 18} At the damages hearing, Mr. Younker testified to the parties' actions with regard to the contract and addressed both the value and uniqueness of the PSLs. Despite the limited scope of the damages hearing, the magistrate sua sponte applied mutual mistake to the contract and concluded that the fair market value of the PSLs was $4,000 and money damages were inequitable.

{¶ 19} In response to Mr. Younker's objection regarding the magistrate's application of mutual mistake, the trial court concluded that "the Magistrate's Decision reveals the Magistrate did not nullify this Court's default on liability or rescind the contract by asserting mutual mistake in price, a contract defense, in her decision on damages." The trial court acknowledged that the magistrate's damages decision "use[d] mutual mistake language," but seemingly excused that fact by finding that the magistrate did so in conjunction with other case law to reach the damages award. However, the trial court effectively applied mutual mistake when it concluded that "[t]he Magistrate did not err in finding the value of $44,000.00 was not within the contemplation of the parties at the time the agreement was made and a judgment in that amount would result in a windfall to [Mr. Younker]."

{¶ 20} Despite the existing default judgment as to liability against Ms. Hayes, the trial court sua sponte applied mutual mistake in order to deny Mr. Younker money damages and effectively rescind the contract. In doing so, the trial court ignored Ms. Hayes's conclusive admission of liability as to the breach of contract and implicit waiver of mutual mistake. Accordingly, the trial court erroneously applied mutual mistake in this case.

Fair market value

{¶ 21} Mr. Younker also argues that the trial court incorrectly applied the law when it determined the fair market value of the PSLs in order to calculate the money damages. Mr. Younker asserts the trial court used the contract price as the fair market value.

{¶ 22} The trial court concluded that "$4,000[ ] was the fair market value of the PSLs at the time the parties entered into their contract ." (Emphasis added.) The trial court then concluded that because Ms. Hayes returned Mr. Younker's $4,000 check to him (the contract price), no money damages were due to him.

{¶ 23} The measure of damages " 'in cases of executory contracts for the purchase or sale of personal property * * * is the difference between the contract price and the market price of the goods at the time when the contract is broken .' " (Emphasis added.) Reed v. Triton Servs., Inc. , 2014-Ohio-3185, 15 N.E.3d 936, ¶ 15, quoting W. Union Tel. Co. v. Hall , 124 U.S. 444, 456, 8 S.Ct. 577, 31 L.Ed. 479 (1888).

{¶ 24} The trial court made two errors in relation to the fair market value. First, the trial court calculated the fair market value at the wrong point in time by determining the value of the PSLs at the time the parties entered into the contract, as opposed to when the breach occurred. Second, the trial court incorrectly concluded that the contract price and the fair market value of the PSLs were one and the same when it applied mutual mistake and ignored the admissions inherent in the default judgment regarding the value of the PSLs.

{¶ 25} Mr. Younker's first assignment of error is sustained. This matter is remanded to the trial court to apply the correct measure of damages and to determine the issue of money damages.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AS A MATTER OF LAW IN ADOPTING THE MAGISTRATE'S DECISION REFUSING TO ORDER SPECIFIC PERFORMANCE AS A REMEDY FOR [MS. HAYES'S] BREACH OF THE SALES CONTRACT[.]

{¶ 26} Mr. Younker contends the trial court abused its discretion when it denied him specific performance. Specifically, Mr. Younker argues "[t]here is no evidence in the record or legal basis for the trial court's refusal to order specific performance."

{¶ 27} While Mr. Younker contends that the trial court had "no * * * legal basis for [its] refusal to order specific performance," he failed to cite any legal authority as to why he should be awarded specific performance. In fact, Mr. Younker failed to include any legal authority regarding specific performance in his appellate brief. "An appellant bears the burden of formulating an argument on appeal and supporting that argument with citations to the record and to legal authority ." (Emphasis added.) See State v. Watson , 9th Dist. Summit No. 24232, 2009-Ohio-330, 2009 WL 187885, ¶ 5, citing App.R. 16(A)(7). When an appellant fails to cite to any legal authority supporting his assignment of error, it is not this Court's duty "to search for authority to support an appellant's argument as to an alleged error." Harris v. Nome , 9th Dist. Summit No. 21071, 2002-Ohio-6994, 2002 WL 31828842, ¶ 15, citing Kremer v. Cox , 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (9th Dist. 1996). See Cardone v. Cardone , 9th Dist. Summit Nos. 18349, 18673, 1998 WL 224934, at *8 (May 6, 1998). ("If an argument exists that can support this assignment of error, it is not this [C]ourt's duty to root it out."). Thus, pursuant to App.R. 12(A)(2) and App.R. 16(A)(7), this Court declines to address this argument.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AS A MATTER OF LAW IN ADOPTING THE MAGISTRATE'S DECISION REFUSING TO AWARD DAMAGES AGAINST [MS. HAYES] FOR BREACH OF CONTRACT[.]

{¶ 28} Mr. Younker asserts that the trial court erred in adopting the magistrate's decision which "exclude[ed] the prices [he] obtained from [i]nternet websites as constituting hearsay." This Court does not reach the merits of this argument because Mr. Younker did not raise this issue in his objections to the magistrate's decision.

{¶ 29} "Failure to specifically raise an argument in an objection to a magistrate's decision results in a forfeiture of that argument on appeal." Coleman v. Coleman , 9th Dist. Summit No. 27592, 2015-Ohio-2500, 2015 WL 3883978, ¶ 9. A party may, nonetheless, argue plain error on appeal. See Civ.R. 53(D)(3)(b)(iv). Mr. Younker, however, did not make a plain-error argument to this Court. " '[T]his [C]ourt will not sua sponte undertake a plain-error analysis if a[n appellant] fails to do so.' " Coleman at ¶ 9, quoting State v. Cross , 9th Dist. Summit No. 25487, 2011-Ohio-3250, 2011 WL 2571645, ¶ 41, citing State v. Hairston , 9th Dist. Lorain No. 05CA008768, 2006-Ohio-4925, 2006 WL 2716833, ¶ 11. Because Mr. Younker has forfeited this argument and has not argued plain error, this Court will not address this argument.

III.

{¶ 30} Mr. Younker's first assignment of error is sustained, and this Court declines to address his second and third assignments of error. The judgment of the Summit County Court of Common Pleas is reversed and the cause is remanded for proceedings consistent with this opinion.

Judgment reversed and cause remanded.

HENSAL, P.J.

SCHAFER, J.

CONCUR.

      A personal seat license is considered personal property. Rayle v. Bowling Green State Univ. , 108 Ohio Misc.2d 60, 63, 739 N.E.2d 1260 (Ct. of Cl.2000).

      For instance, the admitted facts include that Ms. Hayes sold the PSLs for less than they were worth and that she later decided to sell the PSLs for more than the contract price.


text:
    BMO HARRIS BANK, N.A., Plaintiff-Appellant, v. JACKSON TOWERS CONDOMINIUM ASSOCIATION, INC.; FirstService Residential Illinois, Inc.; Marian Realty, Inc., Defendants-Appellees.
    No. 1-17-0781
    Appellate Court of Illinois, First District, FIFTH DIVISION.
    Rule 23 filed May 18, 2018 Motion to Publish Granted June 25, 2018 Opinion filed June 29, 2018
    Egan & Alaily, LLC, of Chicago (Adham J. Alaily, of counsel), for appellant.
    Pretzel & Stouffer, Chtrd., of Chicago (Matthew J. Egan and John H. Scheid Jr., of counsel), for appellees.
   JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

¶ 1 Plaintiff-appellant, BMO Harris Bank, N.A. (BMO) filed a complaint to foreclose its mortgage on condominium unit 7C in the Jackson Towers building and later was the successful bidder at the judicial foreclosure sale. A dispute arose between plaintiff and defendants-appellees, the Jackson Towers Condominium Association, Inc., and the building's property managers, FirstService Residential Illinois, Inc. (FirstService) and Marian Realty, Inc. (Marian), regarding whether BMO's failure to pay the postsale assessments in the month following the sale rendered it liable for the delinquent presale assessments that had never been paid by the previous owner. BMO subsequently paid all the presale assessments, then filed a complaint for a declaratory judgment that it was not liable therefor, and also sought damages against defendants for consumer fraud and civil conspiracy. The circuit court dismissed the complaint and denied BMO's motion for reconsideration. We affirm.

¶ 2 I. BACKGROUND

¶ 3 A. Relevant Law

¶ 4 Section 9(g)(1) of the Condominium Property Act (Act) permits a condominium association to assert a lien against a unit owner for unpaid assessments. 765 ILCS 605/9(g)(1) (West 2016). Section 9(g)(1) also provides for the extinguishment of the lien where the unit is foreclosed upon and the title is vested with the purchaser of the property, as long as the association is named as a party in the foreclosure action. Id.

¶ 5 Section 9(g)(3) provides that the purchaser of a condominium unit at a judicial foreclosure sale has the duty to pay postsale assessments "from and after the first day of the month after the date of the judicial foreclosure sale." Id. § 9(g)(3). Such payment "confirms the extinguishment" of any lien for presale assessments that were unpaid by the previous owner. Id.

¶ 6 B. The Facts

¶ 7 In 2013, the owner of unit 7C (the property) was the Eleanor Peterson Trust. The declarations of the association provided that a unit owner was responsible for a proportionate share of common expenses, and that a failure to pay would constitute a lien on the unit. Beginning on or around April 1, 2013, the trust was delinquent in its monthly assessment payments.

¶ 8 In September 2013, the association brought an eviction action against Eleanor Pickrel Peterson, as trustee of the trust, based on the unpaid assessments. On November 6, 2013, an order was entered granting the association possession of the property.

¶ 9 On September 12, 2013, BMO filed a complaint to foreclose its mortgage on the property for the trust's failure to make payments on the mortgage. The trust and the association were named as defendants in the foreclosure action. On March 27, 2014, a judgment of foreclosure was entered, which provided, in part, for a subordinate lien in favor of the association for unpaid assessments as of March 2013 in the amount of $23,983.95 and directed that the property be sold.

¶ 10 On July 1, 2014, BMO was the successful bidder at the foreclosure sale. On August 18, 2014, an order was entered confirming the foreclosure sale and granting BMO legal possession of the property in 30 days. In October 2014, BMO recorded its judicial sale deed as to the property.

¶ 11 On October 2, 2014, FirstService, the property management company for the building, provided BMO with account statements reflecting that BMO owed $3206.02 for the September 2014 and October 2014 assessments and that the presale assessments not paid by the trust totaled $33,526.90. Later that month, FirstService sent BMO an invoice in the amount of $3281.02 for the postsale assessments owed by BMO. On November 26, 2014, BMO issued a check to the association for that amount.

¶ 12 On December 12, 2014, BMO made another payment for postsale assessments in the amount of $8247.05. This payment was applied toward assessments for the months of August 2014 (which had been omitted from the association's account statement submitted in October), November 2014, and December 2014.

¶ 13 On January 20, 2015, the association transferred to BMO's account the delinquent presale assessments totaling $32,802.99, which were not paid by the trust. BMO made further payments for postsale assessments in March, May, August, and September 2015.

¶ 14 In September 2015, BMO entered into a contract to sell the property to Clintina Sanders-Bolden and Jessie Bolden. Prior to the closing, BMO requested a paid assessment letter from the association pursuant to section 22.1(b) of the Act (id. § 22.1(b) ). On December 16, 2015, FirstService issued an assessment letter stating that $30,900.36 in delinquent monthly presale assessments, $15,083.37 in special assessments, and a $75 wire transfer fee were due, for a total of $46,058.73.

¶ 15 On December 31, 2015, BMO and the Boldens closed on the property, and ownership of the property was transferred from BMO to the Boldens. At the closing, pursuant to a title indemnity agreement, the amount of $58,278.84 was deposited with First American Title Company to be held in escrow until BMO had resolved the dispute with the association as to unpaid presale assessments.

¶ 16 On January 1, 2016, Marian replaced FirstService as the property management company for the building. The association and Marian changed the locks on the property and asserted that access would be denied until the delinquent presale assessments were paid. The Boldens made a demand on BMO to tender payment. In response, BMO directed First American Title Company to release the escrowed funds to the association. Upon receipt of those funds, the association released its lien and gave the Boldens access to the property.

¶ 17 On June 8, 2016, BMO brought this action against the association, FirstService, and Marian alleging three claims. In count I, BMO sought a declaration that (1) it extinguished the association's lien for the delinquent presale assessments by foreclosing on the property and acquiring title thereto and it confirmed the extinguishment of the lien by paying the postsale assessments on November 26 and December 12, 2014, pursuant to section 9(g)(3) of the Act; (2) FirstService and the association wrongfully assessed $32,911.24 against BMO; and (3) the association must refund BMO's overpayment. In count II, BMO alleged a claim against the association and FirstService under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) ( 815 ILCS 505/1 (West 2012) ). In count III, BMO alleged a civil conspiracy claim against the association and Marian for locking out the Boldens.

¶ 18 On August 18, 2016, defendants filed a motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619 (West 2016) ). As to count I, defendants argued that a declaratory judgment action was not proper in that any controversy was now moot and such relief was only available to resolve disputes before there has been an irrevocable change in the position of the parties. Defendants further maintained that, under section 9(g)(3) of the Act ( 765 ILCS 605/9(g)(3) (West 2016) ), BMO was required to pay the postsale assessments on the "first day of the month after the date of the judicial foreclosure sale" to confirm the extinguishment of the presale assessment lien but had failed to do so. As to count II, defendants argued that BMO was not a "consumer" under the Consumer Fraud Act and could not bring its action. 815 ILCS 505/1(e) (West 2012). Finally, defendants sought dismissal of the conspiracy claim in count III on the ground that they had not acted unlawfully in changing the locks.

¶ 19 The court granted defendants' motion to dismiss on January 11, 2017, but allowed BMO time to file an amended complaint. The court made an oral finding that BMO's payment of the postsale assessments in late November 2014 was untimely under section 9(g)(3) of the Act and, thus, did not confirm the extinguishment of the association's lien for the delinquent presale assessments. The written order stated that count I was dismissed under section 2-619 of the Code and that counts II and III were dismissed under section 2-615 of the Code. 735 ILCS 5/2-615, 2-619 (West 2016). The court found that the motion to dismiss, as to counts II and III, was misstyled as a section 2-619 motion. Thereafter, BMO filed a motion to reconsider the court's order dismissing the complaint. The court denied the motion to reconsider on February 22, 2017, and, again, allowed BMO time to file an amended complaint. BMO did not amend its complaint. On March 16, 2017, the court dismissed the case with prejudice. BMO appeals.

¶ 20 II. ANALYSIS

¶ 21 A. The Declaratory Judgment Count

¶ 22 BMO argues that the circuit court erred by dismissing count I of its complaint for a declaratory judgment pursuant to section 2-619 of the Code, finding that its payments of postsale assessments on November 26 and December 12, 2014, were untimely and thus failed to confirm the extinguishment of the association's lien for the delinquent presale assessments under section 9(g)(3) of the Act.

¶ 23 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and asserts an affirmative matter outside the pleading that avoids the legal effect of or defeats the claim. Relf v. Shatayeva , 2013 IL 114925, ¶ 20, 375 Ill.Dec. 726, 998 N.E.2d 18. In ruling on a section 2-619 motion, we accept all well-pleaded facts in the complaint as true and draw all reasonable inferences in plaintiff's favor. Hermitage Corp. v. Contractors Adjustment Co. , 166 Ill. 2d 72, 85, 209 Ill.Dec. 684, 651 N.E.2d 1132 (1995). Defendant bears the initial burden of establishing that the affirmative matter defeats plaintiff's claim; if defendant satisfies the burden, the burden shifts to plaintiff to demonstrate that the defense is unfounded or requires resolution of a material fact. Doe v. University of Chicago Medical Center , 2015 IL App (1st) 133735, ¶ 37, 391 Ill.Dec. 647, 31 N.E.3d 323. Our review is de novo . McCarthy v. Abraham Lincoln Reynolds, III, 2006 Declaration of Living Trust , 2018 IL App (1st) 162478, ¶ 14, 423 Ill.Dec. 186, 104 N.E.3d 1275.

¶ 24 The declaratory judgment process allows the circuit court to address a controversy after a dispute arises but before steps are taken that give rise to a claim for damages or other relief. Karimi v. 401 North Wabash Venture , LLC , 2011 IL App (1st) 102670, ¶ 10, 352 Ill.Dec. 52, 952 N.E.2d 1278. "The parties to the dispute can then learn the consequences of their action before acting." (Internal quotation marks omitted.) Beahringer v. Page , 204 Ill. 2d 363, 373, 273 Ill.Dec. 784, 789 N.E.2d 1216 (2003). Although a declaratory judgment action is proper to determine the parties' existing rights, the court may dismiss such an action where the party seeks to enforce his rights after the fact. Karimi , 2011 IL App (1st) 102670, ¶ 10, 352 Ill.Dec. 52, 952 N.E.2d 1278.

¶ 25 BMO's complaint for a declaratory judgment was not a proper vehicle here to contest the association's lien for the presale assessments, as BMO was seeking to enforce its rights after having paid those assessments. Specifically, BMO paid all delinquent presale assessments in January 2016 following the association's lockout of the Boldens, and the association then released its lien and gave the Boldens access to the property. Now, after the fact, i.e. , after the payment of all delinquent presale assessments in January 2016, the release of the association's lien, and the end of the lockout of the Boldens, BMO seeks to enforce its rights to the monies paid for the presale assessments via a declaratory judgment that the lien for those presale assessments had already been extinguished in November and December 2014. The circuit court properly dismissed the declaratory judgment complaint, as BMO cannot use the declaratory judgment process to contest the validity of a lien for presale assessments that has already been satisfied by BMO's payment thereof. See id. Although this was not the basis for the circuit court's dismissal, we may affirm on any basis warranted by the record. Miller v. Lawrence , 2016 IL App (1st) 142051, ¶ 20, 406 Ill.Dec. 722, 61 N.E.3d 990.

¶ 26 The purpose of the declaratory judgment action is to give guidance for future conduct, not to provide relief related to past conduct.

Babbitt Municipalities, Inc. v. Health Care Service Corp. , 2016 IL App (1st) 152662, ¶ 41, 408 Ill.Dec. 93, 64 N.E.3d 1178. Here, BMO does not seek guidance regarding any future conduct but, rather, seeks relief related to its prior conduct of paying the presale assessments in response to the association's lockout of the Boldens. Accordingly, we affirm the dismissal of BMO's declaratory judgment count.

¶ 27 B. The Consumer Fraud Count

¶ 28 The circuit court dismissed BMO's consumer fraud count pursuant to section 2-615 of the Code. 735 ILCS 5/2-615 (West 2016). A section 2-615 motion challenges the legal sufficiency of the complaint based on defects apparent on the face of the pleading. Ledeaux v. Motorola Inc. , 2018 IL App (1st) 161345, ¶ 14, 421 Ill.Dec. 679, 101 N.E.3d 116. The court accepts as true all well-pleaded facts, as well as any reasonable inferences flowing from those facts. Id. The court should not dismiss a cause of action under section 2-615 unless the pleadings clearly show that no set of facts can be proven that would entitle plaintiff to recover. Id. Our review of the dismissal order is de novo . Id.

¶ 29 To plead a cause of action under the Consumer Fraud Act, a plaintiff must allege (1) a deceptive act or practice by defendant, (2) defendant's intent for plaintiff to rely on the deception, (3) that the deception occurred in the course of conduct involving trade or commerce; and (4) actual damage to plaintiff that was proximately caused by the deception. Aliano v. Ferriss , 2013 IL App (1st) 120242, ¶ 24, 370 Ill.Dec. 392, 988 N.E.2d 168.

¶ 30 BMO argues on appeal that defendants FirstService and the association violated the Consumer Fraud Act and engaged in consumer fraud when they sent the assessment letter on December 16, 2015, stating that BMO owed over $30,000 in delinquent presale assessments, where BMO had already confirmed the extinguishment of the association's lien for those presale assessments.

¶ 31 BMO forfeited review of this issue, as BMO's consumer fraud count only pleaded that defendants violated the Consumer Fraud Act on December 16, 2015, by double-billing it for special assessments and did not plead consumer fraud based on BMO's extinguishment of the association's lien. See Keefe-Shea Joint Venture v. City of Evanston , 332 Ill. App. 3d 163, 170, 266 Ill.Dec. 85, 773 N.E.2d 1155 (2002) (a party forfeits review of a theory that is not contained in the complaint).

¶ 32 Also, BMO makes no argument on appeal regarding the allegedly fraudulent double-billing and, accordingly, has forfeited review of this issue as well. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017).

¶ 33 We affirm the dismissal of BMO's consumer fraud count.

¶ 34 C. The Civil Conspiracy Count

¶ 35 Next, we address the circuit court's order dismissing BMO's civil conspiracy count pursuant to section 2-615 of the Code. To state a claim for civil conspiracy, a plaintiff must allege facts showing: (1) an agreement to accomplish by concerted action either an unlawful purpose or a lawful purpose by unlawful means; (2) a tortious act committed in furtherance of that agreement; and (3) an injury caused by defendant. Merrilees v. Merrilees , 2013 IL App (1st) 121897, ¶ 49, 375 Ill.Dec. 855, 998 N.E.2d 147. Because conspiracy is not an independent tort, if a plaintiff fails to state an independent cause of action underlying the conspiracy allegations, the claim for conspiracy also fails. Id.

¶ 36 BMO pleaded that defendants, Marian and the association, conspired to lock out the Boldens after the Boldens' purchase of condominium unit 7C in the Jackson Towers building and then used the lockout as leverage to force BMO to pay the presale assessments.

¶ 37 BMO argues on appeal that the self-help lockout of the Boldens was the tortious act committed in furtherance of the conspiracy; no tortious act is alleged to have been committed against BMO. As the injured party, the Boldens would have standing to assert a tort claim; BMO would lack standing. Northbrook Bank & Trust Co. v. Abbas , 2018 IL App (1st) 162972, ¶ 44, 422 Ill.Dec. 192, 102 N.E.3d 861. BMO's civil conspiracy claim fails because BMO cannot maintain an independent tort claim against defendants for the lockout of the Boldens. Merrilees , 2013 IL App (1st) 121897, ¶ 49, 375 Ill.Dec. 855, 998 N.E.2d 147.

¶ 38 Accordingly, we affirm the dismissal of BMO's civil conspiracy count. As a result of our disposition of this case, we need not address the other arguments on appeal.

¶ 39 III. CONCLUSION

¶ 40 For all the foregoing reasons, we affirm the judgment of the circuit court.

¶ 41 Affirmed.

Presiding Justice Reyes and Justice Hall concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald KRISIK, Defendant-Appellant.
    No. 1-16-1265
    Appellate Court of Illinois, First District, FIFTH DIVISION.
    June 15, 2018
    James E. Chadd, Patricia Mysza, and Talon K. Nouri, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Miles J. Keleher, and Douglas P. Harvath, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE HALL delivered the judgment of the court, with opinion.

¶ 1 This appeal involves the applicability of the forfeiture by wrongdoing hearsay exception to an accused Sixth Amendment right to confrontation. We find that the trial court did not violate defendant Donald Krisik's confrontation rights by applying this hearsay exception.

¶ 2 Following a bench trial, defendant was convicted of aggravated battery and aggravated domestic battery of Michelle Ghorley. At sentencing the trial court merged the conviction for aggravated battery into the conviction for aggravated domestic battery. Defendant was sentenced as a Class X offender to 16 years' imprisonment. Defendant now appeals his convictions and sentence.

¶ 3 Defendant argues the trial court violated his constitutional Sixth Amendment right to confront witnesses against him when it admitted Ghorley's prior out-of-court statements into evidence. The trial court admitted the statements under the common-law doctrine of forfeiture by wrongdoing as codified in Rule 804(b)(5) of the Illinois Rules of Evidence ( Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011) ) . Defendant also argues that his 16-year prison sentence is excessive. We affirm.

¶ 4 BACKGROUND

¶ 5 Ghorley is defendant's former girlfriend and the mother of his young child. On April 17, 2014, during an argument at the home Ghorley shared with her family, defendant accused her of cheating on him. He slapped her in the face, grabbed her by the throat and began choking her. Defendant continued choking the victim until her sister, Star Ghorley, and a male family friend intervened and restrained defendant. Defendant left the home before the police arrived, but he was eventually arrested later the same day. Police photographs depicted bruising on Ghorley's arm and neck.

¶ 6 After his arrest, defendant's bond was set at $150,000, and he remained in custody. A petition for an order of protection was filed on Ghorley's behalf and special conditions of bond were imposed against defendant. Specifically, defendant was ordered to stay away from Ghorley and have no further contact or communication with her.

¶ 7 Following a bond hearing on August 13, 2014, the trial court lowered defendant's bond to $90,000, but kept the bond conditions in force. The court admonished defendant that if he interfered with the alleged victim, he would remain in custody until the case was over. Defendant replied that he understood. Defendant did not post bond and remained in custody.

¶ 8 At the trial call on September 5, 2014, defendant answered ready for trial. The State answered that it was not ready for trial because it had been unable to locate Ghorley and other witnesses to serve them with subpoenas. The trial court continued the case to October 23, 2014.

¶ 9 In the interim, defendant posted bond on September 25, 2014, and was released from custody.

¶ 10 At the October 23, 2014, court date, defense counsel answered ready for trial, but defendant requested the trial court give him extra time to retain private counsel. The State again answered that it was not ready for trial because it had still been unable to locate Ghorley and other witnesses to serve them with subpoenas. The case was continued to November 24, 2014.

¶ 11 At the November 24, 2014, court date, private counsel was granted leave to file an appearance on behalf of defendant. Counsel made an oral motion for the public defender to tender its discovery. The matter was subsequently continued by agreement of the parties from January 2015 to April 2015.

¶ 12 At a hearing conducted on April 29, 2015, the State informed the trial court that while defendant was in custody at the Cook County jail he violated the conditions of his bond by telephoning Ghorley on multiple occasions and meeting with her during a jail visit. The prosecutor presented audio recordings of phone calls defendant placed from the jail to Ghorley asking her to evade service, to not attend court on the days he planned to demand trial, and to move out of state or hide out at his mother's house. Defendant told Ghorley he would arrange for her to receive money to relocate to another state. Defendant also asked Ghorley to try and convince other witnesses to lie about what they saw and to deny that he committed the alleged offenses.

¶ 13 The State informed the trial court that it intended to file a forfeiture-by-wrongdoing motion, and asked the court to increase defendant's bond and take him into custody. The trial court granted the State's request to increase defendant's bond (it was increased to $300,000) and defendant was taken into custody. The court stated it was particularly troubled by allegations that defendant had offered Ghorley money "to help hide her from the prosecution." The court stated that the allegations against defendant "cut[ ] to the heart of the court process."

¶ 14 The next day, April 30, 2015, the State filed a motion seeking to admit prior statements made by Ghorley and her sister Star. The State sought to admit a typewritten statement Ghorley gave to an Assistant State's Attorney (ASA) and the testimony she gave at a preliminary hearing. The State also sought to admit a prior statement Star made to police. The State sought to admit these statements under the doctrine of forfeiture-by-wrongdoing and pursuant to sections 115-10.2 and 115-10.7 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-10.2, 10.7 (West 2014) ).

¶ 15 The State argued that in the event Ghorley failed to appear in court, despite the continuing efforts to serve her with subpoenas directing her to appear, she should be deemed unavailable based on the ground that defendant's wrongful communications with her caused her absence. The State asked the trial court to find that defendant's wrongful communications with Ghorley caused him to forfeit his constitutional right to confront and cross-examine her at trial.

¶ 16 On May 6, 2015, a hearing was held on the State's motion. The parties stipulated to the unsuccessful efforts of investigators to locate and serve Ghorley and her sister Star with subpoenas. The parties also stipulated to the introduction of Ghorley's prior statements to police and the ASA, and her preliminary hearing testimony. The parties further stipulated to the foundation and authenticity of audio recordings of phone calls defendant placed from Cook County jail to Ghorley and his mother.

¶ 17 The phone calls were made in April and May of 2014. The prosecutor published the audio recordings for the trial court.

¶ 18 In the first recorded phone call made on April 20th, three days after his arrest, defendant spoke with his mother. He asked her to tell Ghorley not to attend court and to drop the charges. Defendant called his mother again on the 4th of May. He complained about Ghorley testifying at the preliminary hearing. Defendant told his mother to tell Ghorley that she needed to explain to the authorities that he never choked her, but rather grabbed her by the back of her neck. Defendant's mother responded that Ghorley had agreed to tell defense counsel that she wanted to testify on defendant's behalf and say that he never choked her.

¶ 19 Defendant next called his mother on the 7th of May. Defendant told his mother to remind Ghorley to tell his attorney that he never choked her or caused her to lose her breath. Defendant also told his mother to make sure Ghorley spoke with his attorney before speaking with the prosecutor, and to tell his attorney that she wanted to testify on his behalf and wanted to drop the charges as well as the order of protection. Defendant's mother repeatedly agreed to tell these things to Ghorley.

¶ 20 Defendant called Ghorley and spoke with her on May 8th. Defendant questioned her about her meetings with his attorney and the prosecutor. Ghorley told defendant she was informed that she could not just drop the charges, and that if she testified to something different, she would be impeached. Defendant told Ghorley she would have to leave the state in order for him to beat the case. Ghorley started crying and the phone call abruptly terminated.

¶ 21 Defendant immediately called Ghorley back and asked if her sister Star had spoken to the police or given them a statement. Defendant instructed Ghorley to tell Star to testify that she let him into the residence. Ghorley responded that Star hated defendant and would not lie for him. Defendant told Ghorley about the amount of jail time he was potentially facing and told her she should avoid service and leave the state. Defendant told Ghorley he would give her $1000 to relocate and that she should remain out of state for three or four months while he demanded a speedy trial.

¶ 22 Defendant told Ghorley he was going to demand trial on his next court date and that she should leave the state from July through October or November, when the case would be over. Ghorley responded that she did not know if she could relocate. Defendant told Ghorley he was going to demand trial and that he had to be tried within 120 days. He told Ghorley that the State would try to subpoena her. Ghorley started crying and said that she could not just quit her job and move away. Defendant repeated that he would give her $1000 to relocate. Ghorley remained silent on the phone for long portions of the call.

¶ 23 Defendant's mother came on the phone. Defendant told his mother that Ghorley needed to avoid being served with subpoenas. Defendant asked his mother if Ghorley could hide out at her house for three or four months. When Ghorley came back on the phone, defendant again implored her to help him by hiding out so she could avoid being subpoenaed. Defendant told Ghorley that the prosecution was "act[ing] like I tried to fuckin murder you or something," causing Ghorley to shout back, "you did!" Defendant talked about returning home from prison when his infant son would be six years old. Ghorley told defendant, "I don't know what to do. I'm not going to be able to just up and quit my job and disappear for fucking months." Ghorley told defendant she did not want to "uproot" her children and move somewhere else. Defendant told Ghorley that if she did not appear in court, then the prosecution would be unable to use her prior statements against him because he could not cross-examine her about the statements. Ghorley began to cry again and the call was terminated.

¶ 24 The State offered to publish additional recorded phone calls for the trial court, but the court declined, stating, "I don't need more." After hearing argument from the parties, the trial court continued the matter so it could review relevant caselaw before making its ruling.

¶ 25 The parties agreed to start the bench trial and take trial testimony pending the court's ruling. Ghorley's whereabouts remained unknown.

¶ 26 The first witness to testify was Jacob Jourdan, a family friend. Jourdan testified that at the time of the incident, he was living in the basement of Ghorley's home. He also knew defendant. Jourdan testified that around 9 p.m. on the date of the incident, he was in the basement watching televison with Star when he heard several loud thumps, like the house was shaking. He investigated where the sounds were coming from and discovered they were coming from the top floor bedroom. Jourdan proceeded upstairs, followed by Star, where he heard a struggle and whimpering noises coming from the bedroom. He entered the bedroom and saw defendant on top of Ghorley. She was lying on the floor and defendant had his hand around her throat. Ghorley's face was turning colors and she was taking "short struggled breaths." Jourdan hit defendant, placed him in a headlock, and they started scuffling and fighting until defendant ran out of the house. Shortly after the police arrived, he saw defendant drive by the house.

¶ 27 Responding police officer Dattulo testified to events leading up to defendant's arrest. The officer testified that while he and his partner were speaking with Ghorley on the front porch of her home, she pointed to a vehicle that had just passed by. Defendant was driving the vehicle. The officers returned to their squad car and pursued the vehicle for a block before pulling it over. The officers arrested defendant and took him into custody.

¶ 28 Officer Dattulo testified that defendant looked like he had been in a fight. The officer testified that defendant told him his injuries were caused by a person named Jacob and Ghorley's sister Star.

¶ 29 At the next trial date, the trial court issued its ruling on the State's forfeiture-by-wrongdoing motion, ruling in favor of the State. The trial court stated:

"All right. I heard the evidence [and] the arguments. In my view what I heard is sufficient for me to find that the state has established by a preponderance of the evidence that the defendant is in fact engaged in activity involved [sic] which was Michelle Ghorley from appears [sic].
It appears that the since the last court date, Star Ghorley has appeared. I have heard earing [sic] with her on the record as to why she didn't think service of process [sic]. But it's clear to me that the [defendant]-directly Michelle and through his mother defendant engaged in activity that allowed to grant the state request to allow the testimony of Michelle Ghorley to be entered-in the subpoenaed."

¶ 30 Defense counsel asked the trial court to reconsider its ruling in light of the fact that after being questioned by the court, Star responded that she had avoided service on her own accord. The court declined to change its ruling. The court stated that Star's voluntary decision not to appear in court had no bearing on Ghorley's failure to appear.

¶ 31 The parties then stipulated that if called to testify, ASA Mikah Soliunas would testify that she and a detective met with Ghorley on April 18, 2014, at which time she gave a signed typewritten statement. In her statement, Ghorley stated that at the time of the incident she was living with her parents and other family members in their house. She had been dating defendant for about two and half years. They had a young son together, but were not married and did not live together. On April 17, 2014, at approximately 7:00 p.m., she and her children had returned home from Walgreens when she noticed a text message from defendant.

¶ 32 She looked out the window and saw defendant seated in his car parked in the alley. He was about 200 feet away from her. When she asked him what he was doing in the alley, he gave her "the finger" and drove off. She continued receiving text messages from defendant. About 45 minutes later, while Ghorley was upstairs with her son, defendant entered her room. Defendant did not respond when Ghorley asked him how he got into the house.

¶ 33 Defendant began yelling and arguing with Ghorley, accusing her of lying about where she had been. Defendant was angry that Ghorley had gone to a particular Walgreens store, and accused her of going to the store to meet a man. Defendant refused to listen when she attempted to explain to him why she went to that particular Walgreens. The argument escalated and defendant began calling Ghorley a "whore" and other names. Defendant then slapped Ghorley on the left side of her face. Ghorley stated she was "stunned" and told defendant to leave the house, but he continued screaming at her.

¶ 34 Defendant came towards Ghorley and grabbed her by the throat with both of his hands. He lifted her up and threw her onto the floor. Ghorley got up and sat in a chair, and continued telling defendant to leave the house. Defendant then grabbed Ghorley by her hair and flipped her over in the chair. He yelled at her to "shut the fuck up and stop screaming." He shoved her down on her face, using both of his hands. Ghorley repeatedly told defendant she was concerned her son was going to fall off the bed. Defendant stopped pushing down on Ghorley's face and moved the boy toward the center of the bed.

¶ 35 Ghorley grabbed her son and told defendant to leave. He continued yelling at her and then spit on her. The argument continued and defendant eventually grabbed Ghorley by the throat again choking her with both of his hands while she held onto her son. Ghorley felt her face getting hot as she tried hitting defendant with her free hand. Ghorley "thought she was going to die." Defendant eventually let go of Ghorley's throat. She estimated that by this time, defendant had been attacking her for about 20 minutes.

¶ 36 Ghorley continued asking defendant to leave, which he refused to do. Defendant screamed at Ghorley while she was holding her son. After a short while, defendant threw Ghorley to the floor and began choking her again. The boy started crying and screaming and Ghorley let him go so she could try and get defendant off of her. The boy was in arm's reach of Ghorley during this time. Ghorley could not breathe, but did not feel any pain. As Ghorley was on the floor being choked by defendant, she heard her sister Star yell "get the fuck off of her."

¶ 37 Defendant let Ghorley go after Star hit him. At this point, a family friend, Jacob Jourdan, came into the room and restrained defendant. Ghorley grabbed her son and ran downstairs and told her mother to call the police. Defendant left the house, but before leaving, he took Ghorley's cell phone. When Star called the phone, defendant told her that Ghorley "was dead, bitch."

¶ 38 The police arrived, and as Ghorley was speaking with them at the front of her house, defendant drove by and she identified him to the police. Photographs were taken depicting bruises and red marks on Ghorley's neck. Ghorley confirmed to ASA Soliunas and the police that the photographs accurately depicted how her neck appeared and that the red marks on her neck were caused by defendant choking her.

¶ 39 The State then called ASA Katherine Schoon-Dussman to publish Ghorley's preliminary hearing testimony she gave on April 24, 2014. Prior to publishing the testimony, ASA Schoon-Dussman was cross-examined by defense counsel.

¶ 40 ASA Schoon-Dussman testified that she and a victim-witness-specialist spoke with Ghorley about 30 minutes prior to the preliminary hearing. ASA Schoon-Dussman testified that Ghorley was not uncooperative, but rather appeared to be your typical domestic violence victim; she was emotional, fearful, and nervous. According to the ASA, Ghorley never said that she did not want to proceed with the case. The ASA also testified that she never informed Ghorley she would be arrested for contempt if she refused to testify or that she would face possible charges if her testimony was inconsistent with her statement. ASA Schoon-Dussman testified that she "would never, ever advise domestic violence victims of that."

¶ 41 ASA Schoon-Dussman stated that Ghorley willingly and voluntarily agreed to testify. The ASA testified that Ghorley became visibly upset during her testimony and attempted to minimize what had occurred to her. On redirect-examination, ASA Schoon-Dussman clarified that the issue Ghorley was attempting to minimize was her inability to breathe when defendant was choking her.

¶ 42 The State asked for and was given permission to publish Ghorley's preliminary hearing testimony. Ghorley's recounting of events leading up to defendant's arrest was similar to the statements she gave in her typewritten statement; however, unlike her statement, she denied not being able to breathe when defendant was choking her. Ghorley also testified that she did not want to press felony charges against defendant because he is her son's father and she was concerned about the child not having his father around.

¶ 43 The State also published approximately seven minutes of a phone call defendant placed from Cook County jail to Ghorley on May 8, 2014. The phone call was published for the purpose of demonstrating defendant's alleged consciousness of guilt.

¶ 44 The State rested and defendant made a motion for a directed finding, which the trial court denied. After defense counsel informed the court that he was not calling any defense witnesses, the court called Star to testify in an attempt to ascertain how defendant gained entry into the house on the date of the incident. Star testified that she did not see defendant enter the house on the date of the incident, but had seen him in the house with her sister on prior occasions.

¶ 45 Defendant subsequently declined to testify and the defense rested.

¶ 46 Following closing arguments, the trial court found defendant guilty of aggravated battery and aggravated domestic battery. At sentencing, the court merged the conviction for aggravated battery into the conviction for aggravated domestic battery. After the court denied defendant's motion for a new trial, he was initially sentenced as a Class X offender to 17 years' imprisonment. The court subsequently lowered defendant's sentence to 16 years' imprisonment after observing that he was required to serve 85 percent of his sentence. This appeal followed.

¶ 47 ANALYSIS

¶ 48 Defendant first contends the trial court violated his constitutional Sixth Amendment right to confront witnesses against him when it admitted Ghorley's typewritten statement into evidence under the doctrine of forfeiture by wrongdoing. Defendant argues the trial court erred in this regard because the State failed to prove the causation element of its forfeiture by wrongdoing claim. Defendant claims the State failed to prove that his alleged wrongful communications with Ghorley caused her to be unavailable so as to render her statements admissible under the forfeiture by wrongdoing exception to his right of confrontation under the sixth amendment. Instead, defendant contends the evidence shows that Ghorley chose to avoid service and not attend court on her own initiative.

¶ 49 The Sixth Amendment to the United States Constitution ( U.S. Const., amend. VI ) guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him." This part of the Sixth Amendment is known as the Confrontation Clause and applies to the states through the Fourteenth Amendment. People v. Stechly , 225 Ill. 2d 246, 264, 312 Ill.Dec. 268, 870 N.E.2d 333 (2007).

¶ 50 The Confrontation Clause is primarily concerned with testimonial hearsay. Crawford v. Washington , 541 U.S. 36, 53, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Here, the State concedes, and we agree, that the typewritten statement Ghorley made to the ASA was testimonial in nature. Testimonial statements of witnesses who are absent from trial are typically barred under the Confrontation Clause unless the witnesses are found to be unavailable to testify and the defendant had a prior opportunity to cross-examine them. Crawford , 541 U.S. at 53-59, 124 S.Ct. 1354.

¶ 51 The common law doctrine of forfeiture by wrongdoing is an exception to the protections provided by the Confrontation Clause. People v. Hanson , 238 Ill. 2d 74, 97, 345 Ill.Dec. 395, 939 N.E.2d 238 (2010). This doctrine permits the introduction of testimonial hearsay statements by an unavailable witness if the trial court finds, by a preponderance of the evidence, that the defendant engaged in wrongdoing that was intended to, and did, cause the witness to be unavailable. See People v. Peterson , 2017 IL 120331, ¶¶ 18-19, 423 Ill.Dec. 776, 106 N.E.3d 944 ; Stechly , 225 Ill. 2d at 278, 312 Ill.Dec. 268, 870 N.E.2d 333. The doctrine is "aimed at removing the otherwise powerful incentive for defendants to intimidate, bribe, and kill the witnesses against them-in other words, it is grounded in 'the ability of courts to protect the integrity of their proceedings.' " Giles v. California , 554 U.S. 353, 374, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) (quoting Davis v. Washington , 547 U.S. 813, 834, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ). When the State seeks to admit a statement under the forfeiture by wrongdoing exception to the Confrontation Clause, it must prove both the wrongdoing and that the defendant intended by his actions to cause the witness to be unavailable. Stechly , 225 Ill. 2d at 277, 312 Ill.Dec. 268, 870 N.E.2d 333 ; People v. Nixon , 2016 IL App (2d) 130514, ¶ 49, 403 Ill.Dec. 247, 53 N.E.3d 301.

¶ 52 Generally, a reviewing court will not disturb a trial court's ruling on the admissibility of evidence absent an abuse of discretion. People v. Chambers , 2016 IL 117911, ¶ 75, 399 Ill.Dec. 863, 47 N.E.3d 545. However, our supreme court has adopted a preponderance of the evidence standard for resolving claims of forfeiture by wrongdoing. Stechly , 225 Ill. 2d at 278, 312 Ill.Dec. 268, 870 N.E.2d 333. Under this standard, the State need only present evidence that renders a fact more likely than not. Peterson , 2017 IL 120331, ¶ 37, 423 Ill.Dec. 776, 106 N.E.3d 944. The trial court makes factual determinations, based upon a preponderance of the evidence, as to whether defendant engaged in wrongdoing that was intended to, and did, cause the witness to be unavailable.

¶ 53 As a reviewing court, we defer to these factual findings unless they are against the manifest weight of the evidence. Peterson , 2017 IL 120331, ¶ 39, 423 Ill.Dec. 776, 106 N.E.3d 944 ; see also Tamraz v. Tamraz , 2016 IL App (1st) 151854, ¶ 19, 403 Ill.Dec. 453, 53 N.E.3d 1090 ("When a court makes a finding by a preponderance of the evidence, a reviewing court will reverse that finding only if it is against the manifest weight of the evidence."). "A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence presented." People v. Deleon , 227 Ill. 2d 322, 332, 317 Ill.Dec. 843, 882 N.E.2d 999 (2008).

¶ 54 Based on our review of the evidence, we find the State proved, by a preponderance of the evidence that defendant's wrongful communications with Ghorley caused her to be unavailable so as to render her statements admissible under the forfeiture by wrongdoing exception to defendant's right of confrontation.

¶ 55 Under the doctrine of forfeiture by wrongdoing, causation need not be established by direct evidence or testimony. State v. Maestas , 2018-NMSC-010, ¶¶ 40-41, 412 P.3d 79. Instead, the requisite causation may be established by inference from circumstantial evidence. Id. The fact that a defendant and witness were in a domestic relationship and the timing and circumstances surrounding the defendant's wrongdoing may support an inference that the wrongdoing caused the witness to be unavailable. Id.

¶ 56 In this case, the timing and circumstances surrounding defendant's wrongdoing support an inference that his wrongdoing caused Ghorley to be unavailable. The evidence shows that on April 24, 2014, Ghorley appeared at the preliminary hearing and testified about the defendant attacking her. It was only after these events that defendant began regularly calling his mother and Ghorley from jail in an attempt to pressure Ghorley into avoiding service, abandoning the case, and making herself unavailable during the speedy trial period. See People v. Burns , 494 Mich. 104, 116, 832 N.W.2d 738, 745 (2013) ("a defendant's wrongdoing after the underlying criminal activity has been reported or discovered is inherently more suspect, and can give rise to a strong inference of intent to cause a declarant's unavailability.") (Emphasis in the original.) From this point on, Ghorley avoided service and failed to appear in court.

¶ 57 Based on our review of the evidence and mindful that the State's burden of proof in a hearing on forfeiture by wrongdoing is a preponderance of the evidence, we cannot say that the trial court's finding that Ghorley's typewritten statement was admissible under the forfeiture-by-wrongdoing doctrine was unreasonable, arbitrary, or not based on the evidence presented. The trial court's finding of forfeiture by wrongdoing was not against the manifest weight of the evidence.

¶ 58 Defendant next challenges his 16-year prison sentence. He argues the sentence is excessive in light of the following: the nature of the offense, his mostly nonviolent criminal background, and the lack of serious physical harm to the victim. We do not believe these factors warrant reduction of defendant's sentence.

¶ 59 Defendant was convicted of aggravated domestic battery by strangulation, a Class 2 felony ( 720 ILCS 5/12-3.3(a-5) (West 2010) ), with a sentencing range of three to seven years imprisonment ( 730 ILCS 5/5-4.5-35(a) (West 2014) ), to be served at 85% under truth-in-sentencing ( 730 ILCS 5/3-6-3(a)(2)(vii) (West 2010) ).

¶ 60 However, because of defendant's extensive criminal history, which included numerous prior Class 2 convictions, he was subject to mandatory Class X sentencing ( 730 ILCS 5/5-4.5-95(b) (West 2010) ), and faced a prison sentence of six to thirty years ( 730 ILCS 5/5-4.5-25(a) (West 2010) ), to be served at 85% under the truth-in-sentencing law.

¶ 61 Imposition of a sentence is a matter of judicial discretion. People v. Perruquet , 68 Ill. 2d 149, 153, 11 Ill.Dec. 274, 368 N.E.2d 882 (1977). Where a defendant's sentence is within statutory limits, a reviewing court will not alter the sentence absent an abuse of that discretion. People v. Cabrera , 116 Ill. 2d 474, 494, 108 Ill.Dec. 397, 508 N.E.2d 708 (1987). In the instant case, defendant acknowledges his sentence falls within the applicable statutory range.

¶ 62 Where an imposed sentence is within the statutory range, it will not be found excessive unless there is an affirmative showing that the sentence varies greatly from the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense. People v. Lee , 379 Ill. App. 3d 533, 539, 318 Ill.Dec. 808, 884 N.E.2d 776 (2008). The spirit and purpose of the law are promoted when a sentence reflects the seriousness of the crime and gives adequate consideration to defendant's rehabilitative potential. People v. BoClair , 225 Ill. App. 3d 331, 335, 167 Ill.Dec. 606, 587 N.E.2d 1221 (1992).

¶ 63 In the present case, there is nothing in the record which indicates the trial court ignored defendant's rehabilitative potential or any mitigating factors before imposing sentence. The record indicates that at defendant's sentencing hearing, the trial court acknowledged the presentence investigation report, raising the presumption that the court took into account defendant's potential for rehabilitation. People v. Wilburn , 263 Ill. App. 3d 170, 185, 200 Ill.Dec. 538, 635 N.E.2d 877 (1994).

¶ 64 Our review shows the trial court considered both mitigating and aggravating factors and arrived at a balance between society's need for protection and defendant's rehabilitative potential. Based on the record before us, we cannot say that defendant's sentence varies greatly from the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense he committed.

¶ 65 Defendant finally argues the trial court abused its discretion in sentencing him because the sentence was based on the court's initial misunderstanding of the sentencing structure he was subject to and on the court's improper speculation as to whether he would earn good-time credits against his prison sentence or complete his sentence without having the credits revoked. Again, we must disagree.

¶ 66 After denying defendant's motion for a new trial, the trial court initially sentenced defendant as a Class X offender to 17 years' imprisonment with three years of mandatory supervised release. Upon inquiring as to whether defendant was "eligible for day for day good time," the prosecutor responded to the court, "No, Judge. He is at 85 percent." Following further discussion, the trial court stated, "Well, I didn't realize it was 85. So I'm going to reduce [the sentence] to 16 years, 3 years MSR at 85 percent."

¶ 67 Defense counsel then made an oral motion to reconsider sentence, stating in part:

"[DEFENSE COUNSEL]: Your Honor, initially you had contemplated 17 years at 50 percent. Now that we have been able to have a concrete finding of 85 percent, Judge, I would respectfully ask that you consider that in light of your initial discussion. If you would reduce that to be in line with what [defendant] would have originally served under the 50 percent at 17, I think that sends a substantial message. I believe that is consistent with protecting the public and what you heard at trial."

¶ 68 The trial court responded as follows:

"THE COURT: Okay. Here is the answer to that. Although it's partially a small way what I would consider in sentencing being eligible for good time and getting good time is apples and oranges. No one can predict what someone would do in prison.
The maximum he can do is 17 years if they revoked all of his good time. Given what I know about [defendant], the likelihood that he will make it through his sentence without getting his good time revoked is minimal.
The only reason I reduced it is because upon finding that it's 85 percent I thought I would give [defendant] the benefit of that at least for a year and not more than that. So the amount of sentence someone does is up to them. It's the maximum that I'm considering. So your motion is denied."

¶ 69 As the above illustrates, none of the trial court's statements support defendant's assertions that the court's decision to sentence him to 16 years in prison was based on the court's misunderstanding of the sentencing structure defendant was subject to or speculation as to whether defendant would be eligible to earn good-time credits against his sentence or complete his sentence without having the credits revoked. The record contains no evidence showing the trial court abused its discretion in sentencing defendant to 16 years in prison for aggravated domestic battery.

¶ 70 Accordingly, for the reasons set forth above, we affirm the judgment and sentence of the circuit court of Cook County.

¶ 71 Affirmed.

Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

      Illinois Rule of Evidence 804(b)(5) provides an exception to the rule against hearsay for "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011). See People v. Nixon , 2016 IL App (2d) 130514, ¶ 49, 403 Ill.Dec. 247, 53 N.E.3d 301.

      Defendant does not challenge Ghorley's preliminary hearing testimony, which was subject to cross-examination and thus, did not implicate his constitutional rights under the Sixth Amendment's confrontation clause.

      Because Star eventually appeared in court, the trial court limited its rulings to Ghorley's prior statements.

      Section 115-10.2(c) of the Code allows for the admission of hearsay statements when "the declarant persists in refusing to testify * * * despite an order of the court to do so." 725 ILCS 5/115-10.2(c) (West 2014). And section 115-10.7 of the Code provides for the admissibility of prior statements of an unavailable witness whose absence was wrongfully procured. 725 ILCS 5/115-10.7 (West 2014).

      This language is taken verbatim from the transcript of the court's ruling. The transcript appears to contain errors in diction and grammar.

      "Whatever else the term ['testimonial'] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Crawford , 541 U.S. at 68, 124 S.Ct. 1354.