*1 easement. This case therefore a land constitutes dispute and not a case for proper resolution under section 4—211 the Code. the order of the Accordingly, circuit court is reversed.
Reversed. LUND, JJ.,
KNECHT and concur. ILLINOIS, THE PEOPLE OF THE STATE Plaintiff-Appellee, OF v. BARGER, R. Defendant-Appellant. MICHAEL Fourth District No. 4 — 91—0656 30, 1993. Opinion filed November *2 COOK,J., specially concurring. Munoz, Appellate
Daniel D. Yuhas and Karen both State Defender’s Office, appellant. of Springfield, for Difanis,
Thomas J. Attorney, (Norbert Goetten, State’s of Urbana J. Biderman, Robert J. Turpin, and Elliott all of State’s Attorneys Appellate Office, Prosecutor’s counsel), People.
PRESIDING JUSTICE STEIGMANN opinion delivered the of the court: trial,
After a July 1991 bench the trial defendant, court convicted Michael R. Barger, of two counts of criminal sexual assault of his G.B., four-year-old daughter, of section 13(a)(3) violation of the 12— Criminal (Criminal Code of 1961 Code) (Ill. Rev. Stat. ch. par. 13(a)(3)).The court later sentenced defendant to two consecu- 12— tive terms in five-year prison. Defendant appeals, arguing (1) the trial court admitted erroneously hearsay statements under section 115—10 of the Code of Criminal Procedure of 1963 (Procedural Code) (Ill. Rev. Stat. ch. par. 10), (2) the State failed prove 115— him doubt, guilty beyond reasonable (3) trial court abused its discretion him to sentencing probation. disagree
We and affirm. Background
I. wife, Barger, Defendant Eva divorced June 1990 after *3 a nine-year marriage. Eva obtained of their custody two children— G.B. (their daughter, August son, born 1986) (their and T.B. born September 10, 1984) defendant obtained visitation at his home —and in on Urbana weekends while Eva worked. 29, 1990,
On October the Monday morning after one of these visitations, weekend G.B. told during Eva breakfast at Eva’s home that G.B. and defendant had a “secret.” G.B. then looked down at her cereal bowl told and her mother that her “daddy private kissed parts and she her kissed daddy’s penis.” responded asking Eva if G.B. she meant that they had wrestled and he had actually just “ stomach, on her ‘No, blown to which G.B. responded, Mommy, he ” kissed my private parts.’ more, Eva did not ask G.B. anything spoke but instead to defend- ant he when called later that day. Eva told defendant about G.B.’s ac- cusations, and to they agreed night meet at defendant’s home that to discuss them. At meeting, this G.B. restated her allegations and defendant denied them. Concerned adamantly allegations, about her house, defendant walked G.B. around the her holding asking hand and her where periodically thought G.B. these events had occurred. Eva resolving any- further eventually home without went and children thing. re- and was after work phoned pediatrician
The Eva her day, next Although Eva Champaign. Mirell of Clinic Holly ferred Dr. Carle to the Illinois and authorities, police the Urbana at no called time called were both (DCFS) Services Family of Children and Department does not The record investigating case. at this time and started that she did not Eva testified first called authorities. reveal who reasons. give any did not although she prosecuted, want defendant DCFS, Gordon, an with investigator Bill On November Wuersch, investigator po- with Urbana juvenile Jim Officer Champaign. LaPetite Academy lice met with G.B. at department, her with why they speak G.B. that she knew wanted told them she un- alleged She told them that had told them about incidents. shirt, father, taking green off his jeans, dressed herself her both that after naked “her swimsuit, they and underwear. She said became *** her father’s re- daddy private parts, and licked her kissed [at ***kissed, part.” her daddy’s private she licked and sucked quest,] incidents and G.B. happened, asked where these had Gordon at her responded upstairs occurred on “a bed couch-type (T.B.) gone told them that her brother had down- daddy’s house.” She man occurred. pizza stairs to look for while these events delivery her father finished, T.B. before told upstairs returned tell him to downstairs. did not Gordon and Wuersch that go back downstairs; she described them had anything happened everything occurred upstairs. 19, 1990, spoke
On Buetow of Clinic Mary November Dr. Carle thought Eva initially and then examined and to G.B. G.B. she spoke cough night there to about a that had her awake speak kept Dr. before. The sexual abuse came when Buetow asked if she up Dr. waiting remembered with whom she sat in the room as Buetow I spoke responded person with Eva. G.B. “Bill Gordon told kissing Thereafter, G.B. told Dr. my daddy privates.” my Buetow father one private that her had kissed her weekend parts night him Dr. asked G.B. if she when she visited at his house. Buetow responded, the room happened, remembered which which “downstairs.”
Dr. told her Buetow described what G.B. as follows: *4 *** had upstairs; “She indicated that her brother been sent gone gotten to a T.V.store and two had] [defendant [video] was one was and
tapes [(one King Kong)] they Godzilla and watching were second of the two at the time. Her tapes floor, daddy sleeping was on the snoring; that she [and] swimsuit, took off her daddy’s pants and his bright which is a swimsuit; green that she could not off get his shirt and that her shirt; dad himself took off clothes, that she took off her her underwear, dad took off her and that he licked and kissed her in her private area.
I father, asked her she had done to what her and she [then] indicated that she had sucked on his penis.” Dr. asked G.B. if she had sucking geni- Buetow ever heard about television, book, talia on in a or from else. anyone responded G.B. “ that she did not taught and that dad me how to suck his ‘[m]y pe- ” stuffed, nis.’ using G.B. then demonstrated by anatomically correct dolls a naked adult male and a naked female According child. Buetow, Dr. “She first the little girl undressed doll and undressed the ” adult, male doll ‘All the clothes have to off.’ She laid saying, “ ” side, them side ‘Here’s the then saying snoring.’ dad She took doll, crotch, the adult male of the put mouth doll the female and said that her father represented licking kissing. and Dr. if outside, Buetow asked G.B. her father did so on the inside or the and G.B. opened vaginal opening on the doll and showed that he kissed her on the inside.
Dr. then Buetow asked G.B. what she did to her father. G.B. doll, mouth, picked up put penis adult male the doll’s in her and mouth, it, sucked on it. She then took the out penis looked at “ ” asked, belongs ‘Where’s the hole that here?’ Dr. Buetow re- if sponded by asking G.B. she saw this hole on her father’s penis hole, if had come out of this hole. said that she anything saw the but had come out of it. nothing G.B.,
Dr. then examined did not find physically any- Buetow However, thing unusual. Dr. Buetow testified that the conduct sexual G.B. alleged had occurred would not leave evi- ordinarily any physical dence.
Dr. Buetow also testified that some confusion arose between her Bill regarding alleged Gordon of DCFS where the incidents oc- only curred. G.B. had told Dr. Buetow that occurred “down- stairs,” although “up- G.B. had told Gordon that occurred only said, Dr. thus clarify, stairs.” Buetow asked G.B. “ ” no then problem.’ explained ‘That’s that these events room, up first occurred “downstairs” after defendant sent T.B. to his and then occurred after defendant T.B. downstairs to “upstairs” sent watch for a pizza delivery. *5 in December information, charged on this defendant was
Based (Ill. Rev. aggravated criminal sexual assault 1990 with two counts sexual 1989, 38, alleged The first count 14(b)(1)). Stat. ch. par. 12— and the vagina, defendant’s mouth and G.B.’s penetration between penis sexual between defendant’s alleged penetration second count trial, the State amended the and mouth. the day G.B.’s On before assault counts criminal sexual information to add two charges by on same acts based (Ill. par. 13(a)(3)) Stat. ch. Rev. 12— that the counts, alleging two but addition as contained the first awas member. family defendant trial, that she visited defendant G.B. when
At the bench testified Urbana, penis him on his and defendant at his house she kissed She vagina. “lots of on her testified kissed and licked her times” after night they on the floor downstairs these events occurred that she King on television. She testified Kong watched Godzilla and shirt, green swimsuit. She added jeans, had taken off her father’s they as dog that T.B. outside with her occurred. played also then incidents questioning, After further she added delivery. T.B. for the happened upstairs pizza as waited downstairs bed, sofa she that, She as on her brother’s kissed they testified laid her told her and on her father penis. sucked father’s She added cross-examination, she did explained to it a secret. G.B. keep On father, not felt “he’s not liv- feel mad but instead sad because ing with us.” question,
T.B. testified at trial that the weekend in his father on he delivery had him to for the man downstairs as and pizza told wait on the he went upstairs up- remained sofa bed. T.B. added that man and found his father and pizza delivery stairs before arrived laid on sofa bed. if wore talking they they When asked clothes, bit, remember, T.B. stammered a said he could and then wore her However, only said that did. he clarified that G.B. T.B., get to down- shorts. father saw he at T.B. back yelled When stairs and for the pizza delivery. watch 115— hearing prior
At a to trial conducted under section separate 1989, ch. (Ill. par. 10), 10 of the Code Rev. Stat. Procedural 115— Eva, Gordon, to trial court had found that G.B.’s statements safeguards Dr. of reliabil- Wuersch, provided and Buetow all sufficient forth, Thus, as set ity previously and therefore held them admissible. Eva, Buetow, G.B. said at trial about what Dr. and Wuersch testified to them. that he a “fantas-
Defendant denied all He testified charges. children, changed tic” has not relationship with both his him allegations up hugs these arose. G.B. still runs since him kisses as before. he, the events of defendant testified that
Regarding October G.B., their park play dog. They and T.B. all went with went then stepfather, to a visited defendant’s walked back bakery, King Kong home to and watch a Godzilla and a video. As pizza order some arguing for the G.B. started with T.B. about pizza, waited to find her some different toys, brought upstairs so defendant toys. while, him after a short defendant sent upstairs
T.B. came man would delivery for the so the pizza delivery back down wait cross-examination, admitted that his not miss the house. On defendant on his house. Defendant added prominently displayed address was *6 off, although and that he that he and G.B. never took their clothes it swimsuit, he did not wear it because was October. green owned a time for the defendant reordered long pizza, After for a waiting man into the house arrived, delivery children let the it. When it for letting He scolded them defendant was in bathroom. while after that. house, happened remarkable stranger nothing in the but him about G.B.’s the next and she told day he to Eva spoke When they them. When them to come over to discuss allegations, he asked her when she arrived, into the kitchen and asked he took G.B. but responded “today,” She privates. he had kissed thought had not heads defendant Eva shook their because defendant and both last day it “one happened G.B. then said that day. G.B. seen week,” day. provided specific but never him at twice had talked to least also testified that G.B.
Defendant kissing, occurred about alleged incident the months before during upset, He but parts. very became licking, sucking people’s private mother, casually dismissed they and Eva’s both when he told Eva talk.” as idle “kid if he had cross-examination, asked defendant prosecutor
On na- into while had his bed slipped that G.B. told Gordon Wuersch Defendant his shorts. her hand inside accidentally slipped ked and that, then them but telling recall that he did not first responded Af- it, he denied it. him but that asked about might added have it. The might he have said he admitted that questions, ter a few more answer, defend- clarify defendant’s attempted then prosecutor answering question and avoided ant answers again gave equivocal it happening. did not recall he that he Eventually, said directly. testified witnesses who reputation two presented also Defendant allegations surprised these and that good reputation that he had a spoken. had others with whom them and the G.B. mention that did rebuttal, testified that defendant Eva On com- then had naked and G.B. him he was while hugged he should his keep responded Eva had penis. his mented about again, he should that, happened if it around G.B. and clothes on when should not and that she part his penis private tell that his any- mentioned added that defendant never so close to it. Eva get sucking private or kissing, licking, talking about thing regarding parts. defendant, during a conversation with then testified that
Wuersch penis. touched his accidentally if G.B. had ever he asked defendant where she an occasion that defendant “remembered testified Wuersch and touched inside of his shorts accidentally reached might have hugged also told them that whenever Defendant had penis.” height. of her him, groin her face in his because she buried of two evidence, guilty court found defendant on this Based to two defendant sexual assault and later sentenced counts of criminal appeals. terms. Defendant five-year prison consecutive Analysis II. 115—10 Admitted Pursuant to Section Hearsay Statements A. permitting first that the trial court erred in argues Defendant Eva, Wuersch, and Dr. G.B.’s statements to testify Buetow (Ill. them under section 115—10 of the Procedural Code Rev. Stat. par. 10). following: ch. That section states 115— *7 a upon In a for a sexual act “(a) prosecution perpetrated not limited to age including prosecu- child under 12—16 of the through tions for of Sections 12—13 violations shall admitted following Criminal Code of evidence as to the rule: exception an
(1) child of an out of court statement testimony by such an- or of such act to complained made such child that he she by other; and such of an out of court statement made
(2) testimony or detail child of such act or matter describing any complaint element of an offense which pertaining any act which is an upon act a perpetrated of a for a sexual subject prosecution child. if: Such shall be admitted
(b) testimony only The court (1) finds in a conducted outside the hearing pres- time, content, ence of the jury and circumstances of provide statement sufficient safeguards reliability; (2)The child either: Testifies at
(A) proceeding; or (B) Is unavailable as a witness and there is corroborative ev- of the act is the of the subject idence which statement.” testimony presented For we will detail the at the section clarity, hearing 115—10 because the trial court must determine whether time, content, safeguards and circumstances sufficient of re- provided on the at that solely testimony presented hearing. based See liability 44, 47-51, (1992), v. Back 239 Ill. 3d 605 N.E.2d 693- People 95. Hearing
1. Presented at the Section 115—10 Testimony Eva, Gordon, Wuersch, The State and Dr. Buetow at presented hearing. the section 115—10 Eva testified about G.B.’s statement at breakfast on October that she and defendant had a se- Monday, cret. G.B. then looked down at her cereal bowl and volunteered and I licked “[m]y daddy my private parts my daddy’s penis.” kissed defendant, re- if she had with but G.B. really just Eva asked wrestled “No, private parts.” He kissed sponded, mommy. my protective Gordon testified that he had worked as a child investi- child frequently and had with gator years spoken for DCFS five on 150 to 200 re- victims of sexual He estimated that he works abuse. kinds, one” “priority of all 20% of which constitute ports year about working on began sexual abuse. Gordon reports usually involve He had spoken case a result of a call to the DCFS hotline. Mirell, at Carle psychologist to Dr. previously Holly Clinic, had met who with 14, 1990, her cen- day-care met on November
Gordon with G.B. her private that her father had kissed allegations ter to discuss kitchen of in the private parts. They spoke and had her kiss his parts the most pri- room them provided center because that day-care G.B., ques- testified that he asked Gordon vacy. speaking of the interrupt as to not the flow tions and took notes so Wuersch conversation. to children spoke that he often G.B. who he was and Gordon told her if she not.” Gordon asked what’s true and what’s
“to find out her, responded with speak knew wanted why would come had told her that she did and that her mother prob- he ordinarily experiences testified that with her. Gordon speak *8 abuse, that G.B. subject overcame initiating lems sexual herself. by bringing up subject problem this and for some de- G.B. where the incidents occurred Gordon asked “ them, my mommy that told T told Gordon testified G.B. tails. ” G.B. testified that privates.’ licked Gordon also my daddy’s that I anatomically to use them and thus did need freely they with spoke had explain happened. dolls to her what help correct He ex- meeting with G.B. next testified about this same Wuersch and had years he police that had worked as a officer plained months, involving sex crimes. many cases for 18 juvenile on worked The questions. asked G.B. said he took notes as Gordon mostly He as carpet pads they on the kitchen floor on three of them all sat spoke. speak knew wanted to why that G.B.
Wuersch corroborated brought much subject up prompt- her and that she without with her why they speak asked if she knew wanted to ing. When Gordon her, her and said that she had told responded G.B. she did father’s She added later privates. mother that she had “touched” her her father’s and penis, “she kissed and licked and sucked [had] asked her kissed licked her area.” Gordon where private he and [had] were, to her He also asked her pointed vagina. her and she privates it she that it on a sofa happened, responded happened where and it dark outside. her father’s house Urbana when was these G.B. told them about incidents. Wuersch then detailed what and her fa- stated that she had taken their clothes off She both shirt, her jeans, green ther wore and a swimsuit. She added that buttons, helped her his and that she him un- helped father undo shirt re- jeans his and then them. She also added that she unzipped button undressed, her father first kissed cowboy moved boots. After she times father privates. many her Gordon asked G.B. how her When her also privates, merely responded, day.” kissed “One told on her father’s later them that she choked while she sucked if penis. penis hap- Gordon asked her her father’s erect when this pened, using cooking before and after and a balloon before spaghetti exam- examples, and after someone blows but none these up “it ples up saying just hangs worked. She ended down.” occurred, Gordon asked her where T.B. was as these incidents man.” did responded waiting she that T.B. was “for a Gordon pizza meant, not understand asked her what she eventually what meant. She explained pizza had ordered a T.B. waited delivery downstairs for the that the man would not miss delivery so time, during the house. her came upstairs Gordon asked if T.B. did, responded go and she that he but her father told T.B. to back downstairs. father, slept
Gordon asked her where she when she visited and she that she T.B. with her father because he responded slept *9 slept pajamas had one G.B. further that she only explained bed. house, her in her underwear at her father’s house slept mother’s but her to do so. because her father told if she knew the difference between
Gordon also asked G.B. if she lie, told them that she did. When he asked truth and a and G.B. lie, and “aggressive upset” told them the truth or a G.B. became had a lie. She insisted that she had told telling that accused her they them the truth. next her with G.B. She
Dr. Buetow testified conversation pediatrician that has worked as a licensed since first testified she as a of a Champaign part at Carle Clinic currently works of child or ne- allegations child team that evaluates abuse protection G.B., meeting history Prior to with she received brief glect. her father that he had told her mother about a “secret” with G.B. had done the same to sucked on her and G.B. privates had kissed and him. 19, 1990, to Eva and spoke separately Dr. Buetow
On November name, she went to age, her and where asking then G.B. After G.B. if she knew Dr. Buetow wanted school, why Dr. Buetow asked G.B. cold. Because Gordon had that she had a responded to her. G.B. speak Buetow, G.B. to Dr. Dr. Buetow asked spoke with G.B. as Eva waited Dr. G.B. then told Buetow she knew Gordon. why about Gordon ‘kissing daddy’s private “about my that she had talked Gordon ” her father. Dr. house she went visit in her father’s when parts’ that it responded and G.B. her that happened, Buetow asked where watched a Godzilla on the floor happened “downstairs” on King Kong movie television. as he snoring her father that she remembered explained his swim- green pants on the floor. She then removed
slept G.B. to if had asked asked Dr. Buetow defendant suit. The prosecutor However, herself.” so, by Dr. “She did responded, do Buetow but shirt, tried to unbutton defendant’s Dr. added that when G.B. Buetow herself, so her father unbuttoned could not undo buttons she father re- off, and her overgarments took her his shirt. G.B. then moved her underwear. “ there,’ licked it down kissed and G.B. continued ‘[h]e Dr. then asked Buetow vaginal by pointing. to her area” referring child and a female correct dolls a naked anatomically G.B. to use noted that happened. what to demonstrate male naked adult then took the not. G.B. the doll did and that a mustache daddy laid to be off. She needed doll, saying the male off clothes ” “ snoring.’ here laying said, daddy ‘Here’s down and the male doll mouth over, and its put the doll leaned up, male doll then sat the She ques- to Dr. Buetow’s response doll. In of the female genitalia on the stated that vagina and the female doll’s on tion, G.B. labia opened her on the “inside.” and licked he kissed doll, G.B. on the male the female doll that, using instead of
After the male doll placed penis male doll and up the picked herself “ asked, ‘Where’s it out and pulled She then in her own mouth. ” respond, Dr. Buetow did in the middle?’ belongs hole here out of coming anything if she remembered asked G.B. instead but came out. nothing hole. G.B. said if asked G.B. buttocks and to the female doll’s pointed Buetow
Dr. not. Dr. Buetow G.B. said he did touched her there. her father ever incidents, during these anything if said asked G.B. defendant slept up- that T.B. told Dr. Buetow if he had. G.B. also did not recall occurred downstairs. stairs as these events *10 had if or someone something to then tried determine
Dr. Buetow Dr. However, in to response taught things these to G.B. suggested or of anyone she never heard G.B. said that had Buetow’s questions, and her and her father for kissing parts except or sucking private or in a movie. G.B. it on television anything like that she never saw to exposed penis had daycare that another boy did mention so, but doing for boy that a “teacher” had scolded one day, nothing happened. else added that her father. she felt asked G.B. about how about
Dr. Buetow then her father lot, then fought a but that her explained parents move her father to she wanted explained moved to Urbana. a poor her mother her, that her father considered home with back G.B. the upon by impressing the interview mother. Dr. Buetow ended had told G.B. if she tell truth. She then asked that she importance had. truth, responded and G.B. that she matter with discussing the testified that while Dr. Buetow also that these incidents had told Gordon Gordon, noted that G.B. hap- that Dr. Buetow on the sofa but had told upstairs happened this thus asked G.B. about on the floor. Dr. Buetow downstairs pened “ first did it We confusion, problem. ‘That’s no responded, and G.B. ” then went upstairs.’ downstairs and we about a cross-examination, Dr. Buetow defense counsel asked On child vie- helping dolls using anatomically correct over controversy tims of sex abuse demonstrate what happened them. Dr. Buetow clarified that only she controversy pertained which knew giving the dolls to the children without instructions and allowing them to with the as a play psychologist dolls or therapist observes. The arose controversy practice because that allows too much room for interpretation observing inaccurate Dr. psychologist. Buetow then clarified that no controversy asking such exists over the child victim he specifically fully explain demonstrate what or she cannot Although speak with words. G.B. did and knew some of the freely proper vocabulary, Dr. Buetow said that the dolls helped show what she meant when she stated that she sucked on her daddy’s pri- vates and that her daddy privates. licked and kissed her
At the end of the hearing, defense counsel focused on certain fac- tors that allegedly reliability undermined of G.B.’s statement. First, counsel emphasized reported that G.B. a limited amount of very mother, details when she first to her spoke she revealed more details as she reported these incidents to more Counsel people. used growing level of details to indicate that someone had Second, argued coached G.B. counsel the fact that G.B. repeated the very coaching. same details to several also indicated Coun- people admitted, however, presented sel this case a “close” call between coaching recalling verbatim the same set of simply accurately Third, facts mother several times. counsel noted G.B.’s had al- taught organs, her the terms for sexual ready appropriate thereby dismissing any might inference that otherwise stem from a child’s use child of vocabulary uncommon four.
Defense counsel also to the effect objected prejudicial cumulative presenting many essentially story. so witnesses with same noth- response, trial court noted that this factor has appropriately and therefore is ir- ing do with the G.B.’s statements reliability hearing. relevant for of the section 115—10 purposes evidence, the following Based on the above the trial court made hearing: comments at the end of the section 115—10 made to view, “In as to the statements my question *** and Gordon Dr. Buetow bit Wuersch *11 [to] bear[s] timing. Clearly, more of the this was an scrutiny because [sic] *** persons for the child to discuss with other opportunity that, statements; however, due giving regard content of her the other circum- regard age to the of the child and giving due described, that each of it’s view my stances which have been 115—10 so the three for treatment under qualifies statements as to admitted.”
2. Analysis a. Standard of Review 1069, 1057, v. Deavers 220 Ill. 3d People (1991), App. In 1375, that a trial court’s determination 1367, this court held N.E.2d of the Code were under section 115—10 that out-of-court statements “contrary unless that decision was admissible would be overruled Fifth District weight Similarly, to the manifest of the evidence.” to section applies this standard of review Court held Appellate 1031, 1022, People v. McMillan (1992), App. 231 Ill. 3d 115—10 cases. 923, 928. 597 N.E.2d McMillan, has since Deavers
However,
supreme
court
admit
of a trial court’s decision to
stated that
the standard of review
of the Procedural Code
statements
under
section 115—10
hearsay
to a
generally applied
of review
does not differ from
standard
(People v.
trial court’s decision on the
evidence.
admissibility
Zwart,
Zwart
37, 44,
1172.)
151 Ill. 2d
600 N.E.2d
(1992),
finding
characterized
pursuant
court
a trial court’s
supreme
further stated
ordinary
question
section 115—10 as an
evidentiary
of evidence lie within
“questions regarding
admissibility
a trial
reviewing
discretion of the circuit court. A
court
overturn
may
the record
demonstrates
only
clearly
court’s determination
when
(Zwart,
the court
its discretion.”
b. Court Appellate we note that the Second District Initially, v. West 578, 587, People (1992), 234 Ill. 3d 598 N.E.2d a trial court’s statements holding hearsay reversed of the Procedural that case were admissible under section 115—10 holding. its reasons for so specify Code because the trial court did not trial state their rea Although agree preferably we courts should sons for that a trial court’s failure any evidentiary ruling, disagree we the record deprives appellate to do so an court of the review ability in rul and to determine whether the trial court abused its discretion section ing that certain statements are admissible under ex Therefore, the trial court’s brief although helpful 115—10. we find above, not reverse ruling, of its we would planation quoted *12 462 sufficiently the did not ex- the sole that either court ground
case on
no
at all.
provided
explanation
or that the court
plain
ruling
its
cases,
statements
admitting hearsay
previous
As noted
several
to cross-examine the out-of-court
opportunity
a defendant
the
denies
the
right
defendant’s
to confront
declarant,
the
thereby implicating
585-88,
West,
Ill.
598
(See
App.
234
3d at
against him.
witnesses
567,
(1990), 205 Ill.
3d
1361-63; People
App.
v. Coleman
N.E.2d at
Therefore,
the
1010, 1018-21.)
regard-
standards
579-84, 563 N.E.2d
guidance
interpret
on how
provide
to confrontation
ing
right
the
the
of the Procedural Code that
of section 115—10
the requirement
content,
of the hear-
time,
and circumstances
court find that
the
trial
of
safeguards
reliability.
sufficient
provide
statements
say
638,
805, 814, 111 L. Ed. 2d
497 U.S.
Wright (1990),
In Idaho v.
held
3146,
States
Court
3139,
Supreme
the United
651-52, 110 S. Ct.
of sex-
made
a child victim
hearsay
by
statements
incriminating
that
(1)
are
admissible:
requirements
must meet two
before
ual abuse
the declarant
case,
produce
must either
prosecution
usual
(2)
statement
unavailability;
or demonstrate
the declarant’s
of
Such “indicia
reliabil-
reliability.”
“indicia of
adequate
must bear
firmly
one of the
es-
fitting into
from the statement’s
can come
ity”
guarantees
showing of particularized
rules or
“a
hearsay
tablished
653,
at
816, 111 L. Ed. 2d
497
at
Wright,
U.S.
of trustworthiness.”
The Court
that render
of the statement and
making
that surround the
those
only
819,
497
at
(Wright,
of
U.S.
belief.”
worthy
particularly
the declarant
a court should
In
655,
3148.)
particular,
at
2d at
110 S. Ct.
111 L. Ed.
the facial relia-
evaluating
when
corroborating evidence
not consider
the cir-
statements,
solely
should
evaluate
hearsay
bility of
(Wright,
made the statements.
child-declarant
when the
cumstances
The Court
3150.)
at
2d at
110 S. Ct.
at
111 L. Ed.
497 U.S.
of
determining
reliability
when
factors
to consider
listed some
to, (1) spontaneity
not limited
statements,
including, but
such
declarant,
of
(3) use
state of
(2) the mental
repetition,
and consistent
lack of mo-
(4)
age,
a child of a similar
of
terminology unexpected
2d at
821-22, 111 L. Ed.
at
497 U.S.
Wright,
to fabricate.
tive
S. Ct. at 3150.
im-
Wright’s
following regarding
Coleman,
this court held
Code:
of the Procedural
on
115—10
pact
section
10(b)(1)]
section
finding
required
[under
“[T]he
115 —
must
reliability’
of
safeguards
‘sufficient
provides
statement
finding that
nature with a
of a comparable
to be
understood
‘particu
the statement
render
the declarant
circumstances of
decision, the court
and,
reaching
larly worthy
belief
consider
those
which surround the
only
must
circumstances
Coleman,
Ill.
of the
3d
making
statement.”
In this defendant and content such safeguards reliability statements did not sufficient provide Defendant worthy G.B.’s statements are belief. particularly trial, he arguments appeal namely, makes the same on did *13 more Defendant people. more as she provided spoke details explains as follows: question to have a ‘pat’ response every seemed
“[G.B.] Dr. There was raised the or Buetow. is by investigators which something complaints the of her that causes description about one to reflect as to are valid pause complaints and whether mind four-year-old or whether were invented in the of a [child].” detail that facts as noting reported growing
Besides the same not what to more does explain she defendant spoke people, none- argues that one to Defendant pause.” “causes “something” reverse con- “it is incumbent this court theless that [defendant’s] disagree. remand trial.” victions and for a new We record, only find in G.B.’s statement reviewing In we with a to find when someone consistency expect level of we would Moreover, of con G.B.’s level vocabulary past recalls events. limited a verbatim answers person’s repeating falls far short of sistency Further, suggest not coaching. would of defendant does suggestive whom one might only person coached G.B. The anyone who have (Eva)— and mother might suspect ex-wife G.B.’s initially —defendant’s and reluctantly never to the admit reported incident authorities alleged prosecuted ted did not want defendant that she even daughter. sexual misconduct with her
Furthermore, state- regarding defendant cites G.B.’s problems their reliability, including, ments the other indicia of outweigh do to, without (1) but not limited first made these statements at issue oc- (2) continued events prompting, insisting though prosecuted, mother did not want defendant curred even her with her and wanted him to live (3) bore no animus toward father them, types other of did not accuse defendant of (4) automatically asked Dr. conduct even when Gordon specifically sexual time, content, and circum- These factors on the impacting Buetow. of safeguards all relia- allegations provided stances of C.L.’s sufficient Therefore, we find the trial court its discre- bility. do not abused section permitting testify tion the State’s witnesses to under 115—10 of Code to statements. hearsay the Procedural G.B.’s
In Ill. 608 N.E.2d (1992), App. v. Fowler 3d People argu the First District Court addressed the defendant’s Appellate of hearsay ment that the trial court admitted statements improperly victim under section 115—10 the Procedural seven-year-old The first district reversed the defendant’s conviction re Code. trial, holding permit a that the trial court erred by manded for new ting police testify beyond permits officer what section 115—10 450-51, exception hearsay (Fowler, App. an to the rule. 240 Ill. 3d as fol 396.) explained reasoning The first district its 608 N.E.2d at lows: victim only testified not about what the officer]
“[The He also about question. told him about the incidents testified he made the interview so that was physical during she gestures the vic- provided by able to the acts with details not describe portion testimony tim. find that this We [the officer’s] Fowler, 240 Ill. 3d improper prejudicial.” N.E.2d at 396. case, (Dr. Buetow) tes we note that witness present G.B. used correct dolls demonstrate anatomically
tified about how on our determina performed how she fellatio defendant. Given earlier Dr. testimony tion that trial court ruled Buetow’s properly admissible, description G.B.’s statements we hold that *14 re gestures properly G.B.’s actions and admissible equally the distinction in We follow first district’s ceived evidence. decline of a in the context sec between nonverbal and verbal communication Indeed, we know of no context where that dis analysis. tion 115—10 hold that nonverbal as well as legitimate. Accordingly, tinction we exception to the rule hearsay communication falls under the verbal the contained in section 115—10 of Procedural Code. context, the courts held that nonverbal hearsay frequently
In have as the same circumstances hearsay constitutes under communication Graham, (See Cleary & Graham’s communication. M. would verbal §801.2, 1990) (“Nonver- ed. (5th Illinois Handbook of Evidence the of an assertive equivalent on be may clearly bal conduct occasion communication, is, of statement, done for the deliberate purpose in if officer instance, police hearsay”).) and thus classified For victim?”, would witness, killed there murder asked a case “Who to the pointing no difference under the law between witness’ hand, “The defendant defendant, saying, on the one and the witness’ if offered at the it,” hearsay the other. Both would constitute did on killed the victim. that the defendant ensuing prove trial to that constitutes communication no reason nonverbal why We see hearsay to the exception not fall within the should hearsay testimony Indeed, ges- Procedural Code. in section 115—10 of the rule contained the most ac- might provide a child victim tures and demonstrations statement, if not the child’s of child’s portion and reliable curate consti- nonverbal demonstrations recollection. Just as these most vivid demonstra- in the if offered to the matter asserted prove tute hearsay the hear- 115—10 tions, exception fall under the section they also time, sufficient content, provide and circumstances rule if their say reliability. of safeguards First District division of the note that another holding, so we may of sexual abuse a child victim Court has held that
Appellate trial to demon- testifying correct dolls when anatomically use v. Roman App. 260 Ill. (See People (1992), strate happened. what the Roman it, not before the issue was 445-46.) Although 3d have also following: “Courts way out of its to add court went use concerning a complainant’s testimony held that witnesses during sexual abuse correct dolls to demonstrate anatomically (Roman, 260 Ill. 3d at out-of-court interviews is admissible.” in Roman to follow decline holding with the 445-46.) agree We Fowler. stated, “In specifically note that the trial court
Finally, we alone, evidence, testimony the child’s standing all of the viewing of the offenses guilty sufficient to find the Defendant would be not err the trial court did Therefore, although we hold charged.” 115—10 of statements section admitting pursuant have been Code, error would the Procedural we conclude harmless. Evidence Sufficiency B. him guilty to prove next the State failed argues
Defendant assault of criminal sexual because a reasonable doubt beyond The Illinois Supreme of the gave question. varied versions events reviewing standard for following Court has stated the recently of the evidence: sufficiency of the evi challenge sufficiency to the faced with a
“When
stand
dence,
reasonable doubt
reviewing
applies
court
v. Collins
106 Ill. 2d
People
(1985),
ard as set forth
*15
derived from Jack
standard,
267,
N.E.2d
This
261[, 478
277].
560,
318-19,
Ed. 2d
Virginia (1979),
son v.
307,
61 L.
443 U.S.
‘
573,
2781, 2789,
99 S. Ct.
does not
the court to “ask
require
the trial
itself whether it believes that
the evidence at
estab-
’
origi-
a
guilt beyond
(Emphasis
lished
reasonable doubt.”
whether,
[Instead,] the relevant
after
nal.)
inquiry
[Citations.]
light
prosecu-
the evidence in the
most favorable
viewing
tion,
the essential el-
rational trier of fact could have found
(Collins,
a
beyond
ements of the crime
reasonable doubt.
***
277; citation].)
at
The standard
261[,
Ill. 2d at
478 N.E.2d
fairly
to the
of the trier of fact
gives
play
responsibility
‘full
evidence,
weigh
in the
and to
testimony,
resolve conflicts
facts to ultimate facts.’
draw reasonable inferences from basic
573,
319,
C. of Correc- of the Unified Code 5—3(e) section Defendant cites 5— member 5—3(e) (family ch. par. Stat. (Ill. tions Rev. 1005— un- probation sentenced to assault can be convicted of criminal sexual the trial argues and next circumstances)) der certain limited *16 in- him to sentencing probation by its discretion court abused ex- terms each prison consecutive where him to two sentencing stead he that emphasizes Defendant penalty. minimum prison ceeded the electrician, a skilled commit- school, high from become graduated has offense, children, his traffic loved more serious than ted no crimes with his child obli- keep up support to unsuccessfully) and tried (albeit emphasizes also that two find work. Defendant gations when he could and one found agency dependent found him to be alcohol agencies had therefore, argues that he defendant dependent; him to be cannabis probation. Accord- pursuant from treatment greatly would benefit find that to refuse “this court must argues defendant ingly, consecutive sen- impose in this case and then probation [defendant] dis- statute was an by tences the minimum allowed above of] [abuse cretion.” an impose appro has sole discretion to sentencing judge
The sentence, modify court will not reverse or reviewing and a priate McDade (People (1991), sentence an of that discretion. v. absent abuse 1173, 1183; Back, 317, 330, App. 239 Ill. App. 219 Ill. 3d 579 N.E.2d sentence fell 80, 712-13.) prison imposed 3d at 605 N.E.2d at The the trial therefore do not find that statutory guidelines. within We it did. De court abused its discretion in the sentence imposing good him a candidate for spite making the factors defendant cited court and we do probation, thought probation inappropriate, trial holding. not find that the trial court its discretion so abused 978, 983, Citing (1985), v. Leckrone 134 Ill. 3d People App. 343, 347, argues improperly N.E.2d defendant also the trial court probation. considered his lack of remorse in his for rejecting request In Leckrone Ill. 3d at 481 N.E.2d at this court (134 App. 347), lack acceptable punish held “it is no more for a court to a defendant’s of remorse than to his insistence on his innocence.” punish
However, McDade, indicated our doubt over this recently we following: conclusion in Leckrone when we wrote the “The v. Ward 113 Ill. 2d supreme People (1986), court Leck- 516, [527-28,] [425-27,] 499 N.E.2d declined follow all matters reflect- rone and stated a trial must consider judge purposes, ing upon personality, propensities, defendant’s tendencies, to the sentenc- of his life relevant every aspect McDade, at 579 N.E.2d ing 219 Ill. 3d proceeding.” at 1183. reaffirm our in McDade and overrule holding expressly
We now at the sentenc- Leckrone to the extent it holds that a trial judge lack of remorse. Because ing hearing not consider a defendant’s may in continue under circumstances to legitimately a defendant can some innocence, “automatically a trial court should not arbi sist on his insisting aggravating so as an factor consider a defendant’s trarily” 516, 529, 113 Ill. (People (1986), him. v. Ward 2d sentencing when circumstances, However, other that continued 422, 427.) under N.E.2d convey lack of remorse “may concomitant insistence and defendant’s that the defendant is an unmiti judge to the trial strong message Ill. society.” (Ward, 113 2d and at continued war with gated liar in might latter circumstances well 426.) These 499 N.E.2d highly the victim or a defendant’s credibility clude the unshaken of events. dubious version his at the sentenc- maintaining innocence addition, a defendant undergo willingness upon serious doubt
ing hearing places might have contributed deficiencies treatment character he case, defendant maintained that In the criminality. present to his *17 to G.B., undergo therapy he would nonetheless said did not abuse posture this struck surprisingly, he had it. Not solve this problem if proba- so it denied defendant and it said when oddly, the trial court considered defendant’s here, Thus, appropriately the trial court tion. sentencing hearing. of innocence at his protestations continued in not abuse its discretion the trial court did concluding In re- case, found instructive the in we have defendant sentencing Dun- States v. Court United Supreme the States marks of United 445, 113 S. Ct. _, 122 L. Ed. 2d 507 U.S. nigan (1993), the argument the defendant’s Court Supreme rejected where the sentence under of defendant’s enhancement prohibited constitution Manual section Commission, Guidelines Sentencing United States perjury committed if the finds the defendant 1989), Court (Nov. 3C1.1 following: Court wrote the holding, Supreme the at trial. so sentencing scheme part is of provision enhancement “[T]he of pun- and extent the appropriate type to designed determine The commis- resolved. guilt of has been after the issue ishment regard, because relevance in this is of obvious perjury sion of willingness to on her history, criminal on a defendant’s reflects court, of authority and the commands of the law accept *** general. and on her character [*] * * her sentence be- increasing contend cannot Respondent for we testify, to right with interferes perjury cause of her to right that a defendant’s of occasions held on a number have *** perjury. to commit right not include a does testify It is rational for a sentencing authority [*] * * to conclude herself in crime and then perjures who commits a a defendant threatening is more responsibility to attempt an unlawful avoid who than a defendant leniency deserving and less society defendant’s The perjuring so the trial defy process. does not li- criminal proceedings to avoid judicial frustrate willingness and retribution suggests incapacitation need ability charged with the defendant heightened compared with without judicial proceedings progress same crime who allows at_, L. U.S. Ed. resorting perjury.” Dunnigan, 453-55,113 2d at S. Ct. at 1116-18.
III. Conclusion stated, reasons affirm defendant’s convictions For the we sentence.
Affirmed.
McCullough, j., concurs. COOK, speciallyconcurring:
JUSTICE hearsay If the rule is a useless anachronism then it should be abol- cases, of chil- just involving ished all those sexual abuse dren. If is some rule then we hearsay there value to should it, involving cautious in in cases abandoning even sexual abuse children.
The reason some statements are not rendered inadmissible major rule particular is that because circumstances cross-examination is unnecessary.
“In words, other if the is so clear from declarant’s truthfulness the surrounding that the test of cross-examina circumstances marginal tion be the rule utility, hearsay would of then does not bar admission of the at trial.” 497 U.S. at (Wright, statement 820, 655, 110 3149.) 111 L. 2d at S. Ct. at Ed.
The confrontation the admission of always clause not violated not rooted” “firmly out-of-court statements which do fit within a not come in as a matter of hearsay exception, but such statements do the rooted” “firmly course. Where does fall within a evidence excluded, at least a hearsay “the evidence must be absent exception guarantees trustworthiness.” Ohio v. showing particularized of 470 (1980), 56,
Roberts 66, 448 U.S. 597, 608, L. Ed. 2d 100 S. Ct. 2531, 2539. “Because evidence possessing ‘particularized guarantees of ’
trustworthiness must
least as
reliable
evidence admit
ted under a firmly
Roberts,
rooted hearsay exception, see
su
66,
pra, at
we think that evidence admitted under the former
requirement must
be so
similarly
trustworthy that adversarial
testing would add little
Thus,
to its reliability.
un
[Citations.]
reason,
less an affirmative
from
arising
the
circumstances
made,
which the statement
provides
was
rebutting
basis for
that a
presumption
statement is not
hearsay
of reli
worthy
trial,
ance
the Confrontation Clause requires exclusion of the
out-of-court statement.” Wright,
821,
What was it here
about
victim’s statement to her mother on
provided
October which
a basis for rebutting the presumption that
a hearsay statement is not
worthy
reliance at trial? The State does
not attempt
argue
that the statement
spontaneous
was a
declara
“A
tion.
five-day
startling
interval between the
event
victim’s
statements
generally
would
destroy
of those state
spontaneity
ments.” (Zwart,
48,
The majority opinion upon following relies admission justify of the various statements:
“Furthermore, defendant cites problems regarding G.B.’s statements do not the other of their outweigh indicia reliability,
471 these made to, (1) that G.B. first not limited including, but that insisting continued prompting, (2) any without statements her mother not though did even at issue occurred the events her fa- animus toward bore no prosecuted, (3) defendant want them, and did not auto- (4) live him to with ther and wanted conduct other sexual types matically accuse defendant (251 and Dr. Buetow.” asked Gordon specifically when even 463.) Ill. 3d at to affirma- are insufficient that these indicia respectfully suggest
I at The state- of reliance trial. worthy are tively show statements under spontaneous do not certainly qualify ments the mother rule, rely we must on to the exception declaration the child prompting the extent of before to determine mother in order cannot the statements continued The fact that made the statements. of the child. repeated questioning of the light considered unusual be is con- equally toward defendant The the victim bore no animus fact A never occurred. victim argument sistent with the events occurred) convinced certain events give story (or coached to a four other conduct. These story sexual likely expand would not truthfulness; enough be assurance of cannot factors little provide a sex unless out-of-court statements of child abuse vic- admission always tim should be admissible. who, divorce, a case there is a recent bitter mother very motive, through these apparently proceedings
whatever her initiated is pediatrician, and there is no evidence. There a four- physical comfortable year-old unusually testifying, victim who is whose mother has to her at spoken penis about a victim who has seen terminology, has six-year-old brother). school The victim does under- (and erection, stand an or is. There is no indication the ejaculation, what once, conduct more is there defend- happened than nor indication ant had The during nine-year marriage. majority these tendencies opinion rejects arguments defendant’s the victim answers pat the mother It is not defendant’s might have coached victim. burden to show the evidence is Rather is untrustworthy, however. so from State’s burden show “declarant’s truthfulness is clear surrounding circumstances the test of cross-examination L. marginal utility.” (Wright, would be of 497 111 Ed. 2d U.S. S. Ct. at There 3149.) nothing extraordinary 110 here. circumstances the child’s out-of-court statements surrounding The State failed to sustain its to admit the statements under burden section 115—10 of the Procedural Code.
Wright makes it clear the
admission
out-of-court statements
does not violate the confrontation clause when there is
necessity
some
(Wright,
admitted.
U.S. at
L. Ed. 2d at
S.
3146.) Why
110 Ct. at
was it
to admit
necessary
any out-of-court
The
statements
this case?
victim testified freely
open
fully
*20
is not
court. This
a case where the child
to
was unable
because
testify
fear,
of
to communicate in the
inability
setting,
incompe-
courtroom
or
(Coleman,
tence.
Ill. App.
583,
1020,
205
3d at
563 N.E.2d at
quoting
People
529, 539,
v.
191
(1989),
1335,
Rocha
Ill.
3d
App.
547 N.E.2d
1341-42.)The
for the
only purpose
hearsay testimony in this case was
that the
repeat
so
State could
favorable
emphasize
testimony,
has
never
considered a
been
reason for admission of testimony.
case,
Three
witnesses testified
hearsay
but there is no rea-
son there could not
been 13.
have
Routine admission of such hearsay
allows a
to send
testimony
prosecutor
a child victim to one potential
another, until
gives
witness after
the child
testi-
victim
desired
mony. The State
select the
may
speaks
"witnesses
child
to on
of
past
those witnesses’
court.
repeti-
basis
effectiveness
Constant
tion of the events may destroy any possibility that an accurate version
given
be
child finally
will
when the
testifies. Persistent questioning
48,
of a
destroy
spontaneity
(Zwart,
will
statement
Section does 115—10 of Procedural Code not condition admis- on unavailability sion out-of-court statements of the child victim. The statements be may also admitted if the child “[t]estifies (Ill. 38, proceeding” Rev. Stat. ch. but par. 10(b)(2)(A)), 115— presence mere at trial has been justify considered admission “ ‘ in other or hearsay presence cases. absence court of the “[T]he declarant of the statement irrelevant to out-of-court is a determi- ’ ” (Peo- nation as to whether the out-of-court is hearsay.” statement 954, 958, 578, 584, v. Ill. ple (1991), Velasco 3d N.E.2d 548, 557, (1991), v. 142 Ill. 568 N.E.2d quoting People Lawler 2d Graham, M. & Evi- quoting Cleary Graham’s Handbook Illinois §801.1, (5th use a 1990).) may necessary dence at 564-65 ed. It unavailable, it can- child’s out-of-court statements where a child not be use those where the child necessary to statements testifies at the freely hearing.
I considering conclude the court erred in out-of- trial child’s trial, Nevertheless, the trial court court statements. this was a bench entitled to find defendant testimony guilty heard child’s there Although on the basis of that evidence. charged of the offenses what trial has been tainted testimony whether concern may be er- trial, opinion agree majority I with the prior occurred to section pursuant statements admitting here in ror harmless. 115—10 would have been ILLINOIS, Plaintiff-Appellee, v. THE STATEOF
THE PEOPLE OF GARCIA, Defendant-Appellant. GREGARIO 2 — 91—1414 Second District No.
Opinionfiled 1993. October