THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL GARCIA-CORDOVA, Defendant-Appellant.
Docket No. 2-07-0550
Appellate Court of Illinois, Second District
December 20, 2011
2011 IL App (2d) 070550-B
Decision Under Review: Appeal from the Circuit Court of Lake County, No. 06-CF-1371; the Hon. George Bridges, Judge, presiding.
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Defendant‘s conviction for predatory criminal sexual assault of a child based on his conduct with the seven-year-old daughter of his ex-girlfriend was upheld over his contentions that the testimony of an investigator concerning the statements the victim made during an interview was improperly admitted in evidence, that the trial court erred in admitting evidence that defendant had been abused as a child, and that his sentence to 24 years’ imprisonment was an abuse of discretion.
Judgment
Affirmed.
Patricia Unsinn and Levi S. Harris, both of State Appellate Defender‘s Office, of Chicago, for appellant.
Michael J. Waller, State‘s Attorney, of Waukegan (Lawrence M. Bauer and Edward R. Psenicka, both of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
Panel
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Burke and Hudson concurred in the judgment and opinion.
OPINION
¶ 1 On February 8, 2007, a jury found defendant, Daniel Garcia-Cordova, guilty of three counts of predatory criminal sexual assault of a child (
I. Background
¶ 2 On April 26, 2006, defendant was indicted on two counts of predatory criminal sexual assault of a child. Count I alleged that between April 5, 2005, and April 5, 2006, defendant, being over the age of 17, committed an act of sexuаl penetration with the victim, C.R., who was under the age of 13, in that defendant placed his penis in the mouth of C.R. Count II alleged that between April 5, 2005, and April 5, 2006, defendant, being over the age of 17, committed an act of sexual penetration with C.R., who was under the age of 13, in that defendant placed his finger in the vagina of C.R.
¶ 5 On July 12, 2006, defendant was indicted on six additional counts of predatory criminal sexual assault of a child. Count III alleged that between April 5, 2005, and April 5, 2006, defendant, being over the age of 17, committed an act of sexual penetration with C.R., who was under the age of 13, in that defendant placed his penis in the vagina of C.R. Counts IV through VIII contained the same allegations as count II. In response to a request for a bill of particulars, the State specified that counts IV, V, VI, and VII, were all separate and independent acts of penetration. Count VIII was nol-prossed on September 27, 2006.
¶ 6 Defendant‘s trial began on February 7, 2007. Jennifer Bare testified first. Bare testified that she was a student at the Scholl University Clinic in North Chicago, Illinois. While working in the clinic one day, a patient came in with her two daughters, one of whom was C.R. While the patient was getting an X-ray, Bare sat in the clinic hallway with the two little girls. Bare testified that while sitting in the hallway, C.R. asked her if she could keep a secret. Bare responded in the affirmative, after which C.R. told Bare that her father “makes [her] put his thing in [her] mouth.”
¶ 7 C.R.‘s mother, Michelle, testified that she had two daughters: C.R. and Danielle. C.R. was seven at the time of trial. Defendant, Michelle‘s ex-boyfriend, was the biological father of Danielle but not of C.R. Michelle testified that she had known defendant for six years and that she had lived with him for one year.
¶ 8 C.R. testified next. She testified to some general preliminary matters, such as her age, family members, and schooling. When asked if she lived with someone else before she lived with only her mother and Danielle, C.R. answered no. When asked if she knew somebody she called father or Daniel, she shook her head. The record does not specifically indicate whether she shook her head back and forth or nodded up and down. She did, however, identify defendant in court as the person she referred to as Danny or her stepdad. The State then asked if C.R. recalled going to a medical clinic with her mother and telling someone there a secret. C.R. testified that she did not remember doing that.
¶ 9 C.R. did testify that she rеcalled meeting with someone named Christina and that a person named Alan was also present when she met with Christina. C.R. testified that she recalled speaking with Christina and drawing pictures during their meeting. She did not recall why she spoke with Christina or what the room looked like when she spoke to
¶ 10 When shown People‘s Exhibits 1 and 2, which were charts of a female child‘s anatomy from the front and back, C.R. testified that she did not remember ever seeing them. C.R. testified that she recalled seeing People‘s Exhibit 3, a chart of a male child‘s anatomy from the front, but did not recall when she saw it or whether she drew anything on it. She also testified that she recalled seeing People‘s Exhibit 4, a chart of a male child‘s anatomy from the back, but did not recall when or where she saw it.
¶ 11 C.R. testified that she recalled when defendant lived with her, her mother, and her sister, but testified that she did not recall anything happening in her bedroom or on the couch. C.R. also testified that she did not know what part of the body the bottom part of a bathing suit covered and that she did not know whether there were certain parts of her body that should not be touched.
¶ 12 Defense counsel did not cross-examine C.R.
¶ 13 Sergeant Alan Lother of the Zion police department testified that as a result of receiving an incident report from DCFS in March 2006, he contacted C.R.‘s mother. On April 4, 2006, he and Kruschwitz met with C.R. at the Lake County Advocacy Center. During that meeting, Lother‘s role was simply to take notes.
¶ 14 Lother testified that he also interviewed defendant on April 4, 2006, at the Zion police department following the meeting with C.R. Assisting Lother in interviewing defendant was Lieutenant Kirk Henderson; Lother, however, was the primary interviewer.
¶ 15 Lother testified that after reading defendant his Miranda rights, he informed defendant of the specific allegations that C.R. hаd made against him. Defendant denied having abused C.R. According to Lother, he and defendant discussed defendant‘s life and his relationship with C.R. and her mother. Lother testified that during that conversation defendant stated that he had been a victim of sexual abuse when he was a child. Lother testified that he then told defendant that “a lot of times people who are victims of things later on create similar situations to that; that they will treat others the same way they were treated because that is how they understand that expression.” At one point, Lother suggested that defendant loved C.R. and that defendant was taught to express love through his alleged actions. According to Lother, defendant‘s demeanor changed from nervous to more relaxed.
¶ 17 Lother testified that defendant also said that while sitting on the couch with C.R., he had reached down her pants and touched her vagina not more than five times. Lother further testified that defendant also stated that on several other occasions he had reached into C.R.‘s underwear and done “similar acts” while C.R. was in his bed. Defendant did not say how many times he had done this while C.R. was in his bed. Lother testified that he spoke to defendant in a very calm manner and in a subdued tone of voice.
¶ 18 Lother testified that after defendant had related these occurrences orally, he agreed to provide a written statement. Lother provided defendant with a pen and paper, and Lother and Henderson left the room while defendant wrote the statement. After approximately 10 minutes, Lother and Henderson returned to the room and found that defendant had completed the written statement. Both defendant and Lother signed the written statement. Lother identified People‘s Exhibit 11 as defendant‘s written statement. It read:
“I Daniel G had been sexualy [sic] abbused [sic] when I was a child and I never talk [sic] to eny [sic] one about it when it happend [sic]. Now I made a mistake off [sic] tuching [sic] my [d]augther [sic] [C.R.] on her pryvete [sic] part and putting my peenes [sic] around her lips. I need help. I‘m so sorry for what I have done; never in my heart I [sic] want to hurt my family. But I did.”
¶ 19 On cross-examination, Lother testified that during the interview, Henderson yelled at defendant three times. On redirect examination, Lother testified that as defendant was providing details of specific occurrences, he would begin to “withdraw from his confession,” “back away,” and make denials. According to Lother, “Henderson leaned forward and said you did do this, and you already said that. Mr. Garcia began to lower his head and withdraw from the conversation. Sergeant Henderson at the time challenged him very directly and said you did that. You said you did it. Say it with me, I stuck my penis in her mouth. And he said that t[w]o or three times.” Lother testified that after Henderson made those statements to defendant, defendant said that he put his penis in C.R.‘s mouth. Lother further testified, however, that this was not the first time defendant had admitted putting his penis in C.R.‘s mouth. Rather, Henderson‘s statements were meant to bring defendant back to the admission he had already made.
¶ 20 Henderson testified that he assisted Lother in interviewing defendant, but that Lother was the primary interviewer. Henderson testified that during the interview of defendant, he did raise his voice to defendant. According to Henderson, he raised his voice with defendant because defendant had made admissions of placing his penis in C.R.‘s mouth and touching her vagina under her clothes, but would then begin to recant those statements. Henderson
¶ 21 On cross-examination, Henderson testified that he was forceful with his voice and that he told defendant to say in unison with Henderson that defendant had stuck his penis in C.R.‘s mouth. Henderson did not recall the number of times he told defendant to say that, but he did not believe it was more than twice. On redirect examination, Henderson testified that before he told defendant to say that he had stuck his penis in C.R.‘s mouth, defendant had already admitted that he had stuck his penis in C.R.‘s mouth. Henderson also testified that he did not raise his voice and tell defendant to say that he put his hand or finger in C.R.‘s vagina.
¶ 22 Christina Kruschwitz testified next. Prior to her testimony, however, defendant requested that the trial court bar her from testifying about statements C.R. had made to her. Defendant argued that the testimony of what C.R. told Kruschwitz was inadmissible under both
¶ 23 Kruschwitz testified that she was a child protection investigator with DCFS and that on April 4, 2006, she interviewed C.R. at the Lake County Children‘s Advocacy Center. Also present during the interview was Lother, who took notes. Kruschwitz testified that, at the beginning of the interview, she asked C.R. about the difference between the truth and a lie. When asked how C.R. responded, Kruschwitz testified, “[C.R.] gave me her definition of both the truth and a lie, which appeared to show that she understood the difference.” Defense counsel objected, and the trial court sustained the objection. Kruschwitz then testified that she did not recall the definitions that C.R. gave for the truth and a lie and that the only other thing that C.R. stated about the truth and a lie was that it was better to tell the truth.
¶ 24 During the interview, Kruschwitz showed C.R. charts of the anatomy of both a male and a female child. Kruschwitz identified People‘s Exhibits 1, 2, 3, and 4 as the anatomical charts that she showed C.R. during the meeting. Kruschwitz testified that C.R. told her that on a female, it was not okay to touch the breasts, vagina, and belly. C.R. also told her that on a male, it was not okay to touch his “private.”
¶ 25 Kruschwitz testified that she asked C.R. to tell her about the secret C.R. had shared with
¶ 26 Kruschwitz also testified that C.R. told her that one time while C.R. and her father were sitting on the couch, he put his hand under her underwear and put his fingers in her vagina. C.R. also told Kruschwitz that on multiple occasions (C.R. did not provide a specific number), while lying in her father‘s bedroom with him and hеr sister, he would reach over her sister, put his hand underneath her pajamas and underwear, and touch both the outside and the inside of her vagina. C.R. said that she would try to roll away from him, but that he would then try to get closer to her. Kruschwitz testified that when she asked C.R. to use the anatomical charts to demonstrate what body part her father used to touch her and where he touched her, C.R. circled the hand on the male chart and the vagina on the female chart.
¶ 27 Kruschwitz testified that during the interview, C.R. made multiple drawings. Kruschwitz identified People‘s Exhibit 6 as a drawing that C.R. made during the meeting. Kruschwitz testified that Exhibit 6 was a drawing of C.R. lying in her bed with her father standing next to her. According to Kruschwitz, C.R. stated that it was a picture of when her father tried to put his penis in her mouth. C.R. wrote the word “Dad” above the standing figure, circled what was supposed to be her father‘s penis (located in the picture just below the figure‘s waist), and stated that this was the part that went into her mouth. Kruschwitz testified that she wrote the words “Bed wearing P.J.‘s” on the picture, because C.R. explained that she was in her bed wearing her pajamas.
¶ 28 Kruschwitz identified People‘s Exhibit 7 as another drawing that C.R. made during the meeting. In the picture is a large hand next to the figure of a girl. Kruschwitz testified that C.R. wrote the word “Dad” above the hand and her name above the girl. Kruschwitz testified that C.R. also wrote the words “He is touching my privant [sic].”
¶ 29 Finally, Kruschwitz identified Peоple‘s Exhibit 9 as a piece of paper containing two drawings that C.R. made during the meeting. In the drawing on the left, there are three faces above a large rectangle. Kruschwitz testified that C.R. stated that the drawing was a picture of her, her sister, and her dad sleeping in a bed. Above the face on the left is C.R.‘s name, above the face in the middle is the word “sister,” and above the face on the right is the word “Dad,” all written by Kruschwitz. Also written by Kruschwitz were the words “put his hand over Dan[ielle] and she scoots in corner.” Kruschwitz testified that C.R. explained that her dad would put his hand over her sister to touch C.R.‘s vagina. C.R. would then scoot into the corner. The drawing on the right depicts a couch with two figures sitting on it. The figure on the right, which is larger than the figure on the left, has a disproportionately long arm that is reaching toward the figure on the left. Above the smaller figure is C.R.‘s name, and above
¶ 30 On cross-examination, Kruschwitz testified that as an investigator with DCFS, she is required to notify law enforcement when an allegation of child sexual abuse is received and to set up an interview with the child.
¶ 31 Follоwing Kruschwitz‘s testimony, the State rested. Defendant made a motion for a directed verdict, and the trial court granted it as to counts III, VI, and VII, but denied it as to counts I, II, IV, and V. Defendant rested without presenting the testimony of any witnesses. Following closing arguments, the case was tendered to the jury. The jury returned verdicts of guilty on counts I, II, and V, and a verdict of not guilty on count IV.
¶ 32 Defendant filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial. At the hearing on the motion, defendant argued, among other things, that defendant‘s confrontation rights, as delineated in Crawford, were violated when C.R. was unavailable for cross-examination at trial but her statements to Bare and Kruschwitz were admitted through their testimony. The State argued that C.R. did testify, for purposes of defendant‘s confrontation rights, when she identified the drawings she made during her meeting with Kruschwitz and stated that she had created them. The State contended that through those drawings, C.R. testified as to the substance of the allegations against defendant. The trial court found that the statements C.R. made to Bare were not testimonial and, thus, were not subject to Crawford. The trial court also found, however, that the statements C.R. made to Kruschwitz were testimonial and, thus, subject to Crawford. The trial court found that, because C.R. was not available at trial for cross-examination, the statements C.R. made to Kruschwitz should have been excluded under Crawford. Consеquently, the trial court entered judgments of acquittal as to counts II and V, but denied defendant‘s motion as to count I, finding that the “statutory and constitutional safeguards were followed” with respect to that count. To refresh the reader‘s recollection, count I charged defendant with placing his penis in C.R.‘s mouth. C.R. volunteered this information to Bare in a nontestimonial statement, and the statement was corroborated by defendant‘s admissions to the police. Thus, Bare‘s testimony was properly before the jury.
¶ 33 The trial court then held the sentencing hearing, during which it sentenced defendant to 24 years’ imprisonment on count I. Following an unsuccessful motion to reconsider the sentence, defendant appealed. We initially dismissed this appeal for lack of jurisdiction on February 27, 2009, having found that defendant‘s notice of appeal was premature. People v. Garcia-Cordova, No. 2-07-0550 (2009) (unpublished order under Supreme Court Rule 23). The Illinois Supreme Court issued a supervisory order on April 7, 2009, which vacated our February 27, 2009, order and directed us to treat defendant‘s notice of appeal as validly filed.
II. Analysis
A. The Opinion in Garcia-Cordova I
¶ 36 On appeal, defendant raised three issues: (1) whether Kruschwitz‘s testimony regarding
¶ 37 With respect to the first issue, we acknowledged that under People v. Melchor, 226 Ill. 2d 24, 33-34 (2007), and In re E.H., 224 Ill. 2d 172, 179 (2006), we were obliged to determine the admissibility of out-of-court statements as an evidentiary matter before considering any constitutional claims. Garcia-Cordova I, 392 Ill. App. 3d at 479. However, because defendant conceded that the out-of-court statements were admissible under evidentiary principles, we proceeded to review defendant‘s constitutional claim. Garcia-Cordova I, 392 Ill. App. 3d at 479. We held that C.R.‘s testimony fell within the memory-loss rule of United States v. Owens, 484 U.S. 554 (1988), Delaware v. Fensterer, 474 U.S. 15 (1985), and People v. Flores, 128 Ill. 2d 66 (1989). Garcia-Cordova I, 392 Ill. App. 3d at 483. In Flores, applying Fensterer and Owens, our supreme court declared that a gap in a witness‘s recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination. Flores, 128 Ill. 2d at 88. In Garcia-Cordova I, we concluded that C.R. was available for cross-examination where she appeared at trial and testified under oath. She made an in-court identification of defendant; she testified that she recalled speaking with Kruschwitz and that Lother was present when she spoke with Kruschwitz; she testified that during her meeting with Kruschwitz she made drawings, some of which she identified during her testimony, and, although C.R. did not recall what activities were depicted in the drawings, or why she made the drawings, she answered all of the prosecutor‘s questions on that subject. Garcia-Cordova I, 392 Ill. App. 3d at 483-84. We said that, even though defendant chose not to cross-examine C.R., we could not conclude that she was unavailable had defendant chosen otherwise. Garcia-Cordova I, 392 Ill. App. 3d at 484.
¶ 38 We then went on to conduct a harmless-error analysis and concluded that any error in the admission of the entirety of Kruschwitz‘s testimony was harmless because it was duplicative and cumulative of properly admitted evidence and because the evidence of defendant‘s guilt on count I (the only count of which he was convicted after the trial court granted his motion for judgment notwithstanding the verdict on the other two counts) was overwhelming. Garcia-Cordova I, 392 Ill. App. 3d at 485-86.
¶ 39 With respect to defendant‘s second and third issues, we held that the trial court did not err in admitting the evidence of defendant‘s sexual abuse as a child and that the sentence of 24 years’ imprisonment was not an abuse of discretion. Garcia-Cordova I, 392 Ill. App. 3d at 489, 492.
¶ 40 On March 30, 2011, our supreme court denied defendant‘s petition for leave to appeal, but in a supervisory order directed us to vacate our judgment and reconsider it in light of Kitch. We proceed now to reconsider our decision. We asked the parties to submit supplemental briefs, which they have done, to aid us in our effort. Before we reach their respective arguments, we will review Kitch.
¶ 42 A jury convicted the defendant, Richard Kitch, of nine counts of predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse. Kitch, 239 Ill. 2d at 455. The appellate court modified the defendant‘s sentence, but affirmed the convictions. Kitch, 239 Ill. 2d at 455.2 Before the Illinois Supreme Court, the defendant argued, inter alia, that the child victims did not testify in enough detail to have appeared for cross-examination within the meaning of the confrontation clause. Kitch, 239 Ill. 2d at 460.
¶ 43 Pursuant to
¶ 44 At trial, K.J.K. testified consistently with her out-of-court statement regarding the defendant forcing his penis into her mouth, between her legs, and into her vagina. Kitch, 239 Ill. 2d at 458. She also testified that, a couple of months after the defendant began putting his penis between her legs, he started putting his fingers in her vagina, telling her he was doing it so his penis would eventually fit. Kitch, 239 Ill. 2d at 458. K.J.K. described an instance when the defendant‘s ejaculate dripped onto her comforter and the defendant told her to wipe it up with paper towels. Kitch, 239 Ill. 2d at 458-59. K.J.K. testified about the defendant rubbing her breasts with cocoa butter, showering with her, and tattooing her right buttock. Kitch, 239 Ill. 2d at 459.
¶ 45 At trial, M.J.B. also testified consistently with his out-of-court statement that, when he was about eight years old, the defendant touched his penis in his bedroom. Kitch, 239 Ill. 2d at 459. M.J.B. testified that other incidents occurred in the bathroom, including one occasion when the defendant forced M.J.B. to touch the defendant‘s penis and three or four other occasions when the defendant put his penis in M.J.B.‘s mouth. Kitch, 239 Ill. 2d at 459.
¶ 46 The defendant argued before the supreme court that K.J.K. and M.J.B. did not testify in enough detail to have appeared for cross-examination within the meaning of the confrontation clause, because the State failed to establish through their testimony each and every element of every count against him. Kitch, 239 Ill. 2d at 460. As a result, the defendant argued that he was unable to engage in effective cross-examination. Kitch, 239 Ill. 2d at 460.
¶ 47 The supreme court observed that K.J.K.‘s testimony was “somewhat unclear” as to when every incident occurred, but that it nevertheless established in detail that three acts occurred between June 2002 and March 2003 that corresponded with counts against the defendant. Kitch, 239 Ill. 2d at 463. K.J.K.‘s additional detailed testimony as to the acts the defendant committed upon her established abuse from February 2000 to March 2003. Kitch, 239 Ill. 2d at 463. The supreme court held that M.J.B.‘s detailed testimony also corresponded to the allegations in the relevant counts. Kitch, 239 Ill. 2d at 463-64. The court stated:
“Accordingly, K.J.K.‘s and M.J.B.‘s direct testimony, standing alone, was sufficient to establish the elements of the relevant counts against defendant. We also conclude, largely for this reason, that K.J.K.‘s and M.J.B.‘s direct testimony was sufficient to allow for effective cross-examination. Their direct testimony provided enough detail to allow for cross-examination within the meaning of the confrontation clause. Our review of the record shows that both K.J.K. and M.J.B. answered all of the questions put to them by defense counsel on cross-examination. Their answers were forthright. There was no indication they were being evasive.” Kitch, 239 Ill. 2d at 464.
¶ 48 The supreme court then stated that there was nothing in this court‘s decision in People v. Learn, 396 Ill. App. 3d 891 (2009), a case on which the defendant relied for the proposition that the victim must give accusatory testimony, that compelled a different result. Kitch, 239 Ill. 2d at 464. The supreme court distinguished the facts in Learn, where the victim‘s direct testimony was not incriminating, from the facts in Kitch, where K.J.K. and M.J.B. accused the defendant of multiple acts of sexual abuse through their direct testimony. Kitch, 239 Ill. 2d at 465. Our supreme court held that there was no error in the admission of K.J.K.‘s and M.J.B.‘s out-of-court statements, because they appeared for cross-examination within the meaning of the confrontation clause. Kitch, 239 Ill. 2d at 465.
¶ 49 We now consider whether Kitch requires a different result in this case than the one we initially reached.
C. Whether Kitch Established a New Constitutional Rule in Memory-Loss Cases
¶ 51 Before we launch our analysis, we again briefly recount C.R.‘s trial testimony in the instant case. She testified to her age, family members, and schooling. She denied living with someone else besides her mother and Danielle, and she shook her head (the record does not
¶ 52 Defendant did not cross-examine C.R.
¶ 53 In this appeal, defendant urges us to reverse his conviction based on what he says in his supplemental briefs is the dual doctrine established by Learn-Kitch: that a victim‘s testimony must be accusatory and must establish each of the elements of the counts against a defendant in order for the victim to have appeared for cross-examinatiоn. At oral argument, defendant clarified his position with respect to Kitch. Defendant premises his argument on his belief that the supreme court in Kitch adopted, or at least approved of, Learn‘s analysis3 and then went further to approve a standard whereby the victim‘s direct testimony established the elements of each count. However, defendant is not arguing the position the defendant took in Kitch, that the victim must testify to each element of the offense. Instead, pursuant to defendant‘s understanding of the holding in Learn, defendant contends that C.R. did not give accusatory testimony against him and so did not satisfy either the Learn or the Kitch standards. He thus concludes that his constitutional right to confront the witnesses against him was violated. We review de novo whether a person‘s constitutional rights have been violated. People v. Burns, 209 Ill. 2d 551, 560 (2004).
¶ 54
¶ 55 In Crawford, the United States Supreme Court held that, under the confrontation clause, a testimonial statement of a witness who does not testify at trial is inadmissible unless (1) the witness is unavailable to testify, and (2) the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 53-54. Subsequently, in Davis v. Washington, 547 U.S. 813 (2006), the Court made clear that the confrontation clause does not apply to nontestimonial statements. Davis, 547 U.S. at 821. In the present case, the State concedes that C.R.‘s statements to Kruschwitz were testimonial.
¶ 56 The Supreme Court in Crawford also held that where “the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Crawford, 541 U.S. at 59 n.9. Thus, the issue is whether C.R. appeared for cross-examination where she did not remember or recall certain things and did not know others. In Garcia-Cordova I, we said that this case was akin to the memory-loss cases of Fensterer and Owens. Garcia-Cordova I, 392 Ill. App. 3d at 483. Nothing in Kitch dissuades us from that view, as Kitch did not involve memory loss and did not touch upon the cases dealing with memory loss.
¶ 57 In Fensterer, an expert witness‘s inability to recall the basis for his opinion did not implicate the confrontation clause. Fensterer, 474 U.S. at 21. In Owens, a federal prison guard whо was beaten by an inmate could not remember his assailant at trial, but remembered identifying the defendant as his assailant in a prior conversation with an FBI agent. Owens, 484 U.S. at 556. The Supreme Court held that the confrontation clause was not implicated where the witness testified to a past belief but was unable to recollect the reason for his past belief. Owens, 484 U.S. at 559. The Court explained that the confrontation clause gives the accused the right to be confronted with the witnesses against him, which has been read as securing an adequate opportunity to cross-examine adverse witnesses. Owens, 484 U.S. at 557.
¶ 58 Our supreme court followed Fensterer and Owens in Flores. In Flores, the defendant claimed that his right to confrontation was violated where the grand jury testimony of a State witness—who stated at trial that he could not recall having a conversation with the defendant concerning the victim‘s death and could not recall the content of his grand jury testimony—was introduced as substantive evidence. Flores, 128 Ill. 2d at 88. Our supreme court held that “a gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination.” Flores, 128 Ill. 2d at 88. In People v. Sutton, 233 Ill. 2d 89 (2009), our supreme court again interpreted Owens in deciding that a witness who recalled making out-of-court statements but did not recall what they were was available for cross-examination. Sutton, 233 Ill. 2d at 122-23.
¶ 60 It became clear at oral argument that defendant does not take issue with the foregoing discussion. Rather, defendant distinguishes the Fensterer-Owens-Flores trilogy by arguing that Learn takes the instant case outside the memory-loss cases. It is useful first to dissect defendant‘s construction of Learn and then to scrutinize the conclusion he draws. Defendant contends that Learn held that a hearsay declarant must give accusatory testimony. Defendant acknowledges that Learn was decided under
¶ 61 Defendant‘s argument ignores a couple of things about Learn. First, Learn held that the victim must give accusatory testimony where the victim is the only witness other than hearsay reporters who can accuse the defendant of actions constituting the charged offense. Learn, 396 Ill. App. 3d at 900. In our case, C.R. was not the only witness other than hearsay reporters. Defendant‘s statements to the police corroborated C.R.‘s out-of-court statements. To this extent, Learn is not even applicable to our case. Second, we disagree that our supreme court cited Learn for any purpose other than to distinguish it. We reject defendant‘s attempt to recast his right to confront witnesses as the State‘s burden to confront witnesses. It is the accused who has the right to be confronted with the witnesses against him. Pointer v. Texas, 380 U.S. 400, 404-05 (1965).
¶ 62 The foregoing compels us to determine that in Kitch our supreme court simply held that the evidence was sufficient to establish each element of each count. The court then distinguished Learn rather than adopting it. In People v. Martin, 408 Ill. App. 3d 891 (2011), this court said that in Learn the issue was one of competency. Martin, 408 Ill. App. 3d at 897. We explained the context in which we used the term “competency” when we said, “[T]he witness was unable to testify and, as a result, did not answer any substantive questions. Thus, there was no ability for the witness to respond at all, even if only to state a
¶ 63 In our case, defendant chose not to cross-examine C.R. This appears to be a matter of trial strategy because, as we pointed out in Garcia-Cordova I, there were topics upon which she could have been cross-examined, such as the descriptions in her drawings, her inability to remember why she spoke with Kruschwitz, and the аlleged incidents of abuse. Defendant argues that, “critically,” C.R. did not remember Exhibit 6, a drawing that pertained to count I, the sole count upon which he was convicted. However, her lack of memory could have been probed on cross-examination. Where a defendant does not attempt to cross-examine a witness on her out-of-court statements, he cannot complain that the witness was unavailable for cross-examination. People v. Lewis, 223 Ill. 2d 393, 405 (2006). A witness who is present for cross-examination and answers questions is available for cross-examination even when defense counsel chooses to let the witness‘s direct testimony stand. People v. Major-Flisk, 398 Ill. App. 3d 491, 506 (2010). We agree with the court in People v. Lara, 2011 IL App (4th) 080983-B, ¶ 51:
“In a situation such as this, defense counsel is placed in a precarious position. In general, during any trial, an attorney does not want to ask a question if he does not know how the witness will answer. Further, an attorney surely does not want to elicit an answer that will implicate his client. However, strategic considerations such as these do not make the witness unavailable for cross-examination.”
¶ 64 Our conclusion that Kitch was decided on its facts rather than announcing a shift in constitutional law is bolstered by consideration of the way in which out-of-court statements
D. The Constitutional Nonevent
¶ 66 The issue presented by the admission of hearsay is constitutionally identical in a child sex abuse case and a murder case, and the response of the sixth amendment is identical in both types of cases. People v. Bryant, 391 Ill. App. 3d 1072, 1090 (2009). Crawford very simply says that, where the declarant appears for cross-examination at trial, the confrontation clause places no constraints at all on the use of his prior testimonial statements. Crawford, 541 U.S. at 59 n.9. Where the declarant appears for cross-examination, even where the declarant does not testify to the substance of his hearsay statement, its admission is a nonevent under the confrontation clause. Bryant, 391 Ill. App. 3d at 1090. This court recently so held in Martin.
¶ 67 In Martin, the defendant was indicted on two counts of domestic battery and one count of aggravated battery arising out of a physical altercation with his girlfriend, Shannon Hosey. Martin, 408 Ill. App. 3d at 892. Hosey provided a written statement to the police, stating that the defendant hit her while she was driving. Martin, 408 Ill. App. 3d at 892. At trial, Hosey said she had been drinking and did not remember having an argument with the defendant, did not remember an altercation or injuries, and did not remember talking to the police, although she recognized her handwriting on the written statement. Martin, 408 Ill. App. 3d at 892. The trial court allowed the State to use Hosey‘s written statement, not just for impeachment, but for substantive evidence. Martin, 408 Ill. App. 3d at 893. The trial court found the defendant guilty, and he appealed, arguing that Hosey‘s written statement was wrongly allowed into evidence in violation of his right to confrontation. Martin, 408 Ill. App. 3d at 893.
¶ 68 This court first determined that Hosey‘s written statement was admissible as an evidentiary matter under
¶ 69 The point is that, if the confrontation clause did not bar the admission of Hosey‘s prior written statement in a battery prosecution, it would not bar admission of a similar statement
¶ 70 We do not believe that our supreme court in Kitch would intend to upend all of the existing case law on this subject and not explicitly say so. We read no implication into the supervisory order that directed us to reconsider the present case in light of Kitch, because this issue is so important that our supreme court in Kitch, being fully capable of explicitly saying that it was making new law, would have said so if that was what it meant to do.
¶ 71 Even if we were to conclude that C.R. was unavailable for cross-examination and that defendant‘s confrontation rights under Crawford were thus violated by the admission of Kruschwitz‘s testimony, we determine that such an error was harmless. Violations of a defendant‘s confrontation rights under Crawford are subject to harmless-error review. Rolandis G., 232 Ill. 2d at 43. The question is whether it appears beyond a reasonable doubt that the error did not contribute to the verdict obtained. Rolandis G., 232 Ill. 2d at 43 (citing People v. Stechly, 225 Ill. 2d 246, 304 (2007)). “When deciding whether error is harmless, a reviewing court may (1) focus on the error to determine whether it might have contributed to the conviction; (2) examine the other properly admitted evidence to determine whether it overwhelmingly supports the conviction; or (3) determine whether the improperly admitted evidence is merely cumulative or duplicates properly admitted evidence.” Rolandis G., 232 Ill. 2d at 43.
¶ 72 Wе determine that Kruschwitz‘s testimony regarding C.R.‘s statements was merely cumulative and duplicative of the properly admitted evidence presented at trial. With respect to the allegation that defendant placed his penis in C.R.‘s mouth (the conduct alleged in count I, which was the only count on which a judgment of conviction was entered), Kruschwitz testified that C.R. stated that a few weeks prior to the meeting with Kruschwitz, defendant came into her bedroom, touched her lips with his penis, and then placed his penis in her mouth. C.R. stated that she then rolled off the bed onto the floor, at which point defendant tried a second time to place his penis in her mouth. Kruschwitz also testified that C.R. stated that defendant‘s penis was soft, nothing was on it, and nothing came out of it. These statements are nearly identical to the oral statement defendant gave to Lother and Henderson. Lother testified that defendant stated that three weeks prior to the interview (which took place the same day that Kruschwitz met with C.R.), he went into C.R.‘s bedroom, pulled down his pants, rubbed his penis on C.R.‘s lips, and then placed his penis in C.R.‘s mouth. Defendant also told Lother that when he did this, C.R. rolled away. Further, just as C.R. described defendant‘s penis as being soft, having nothing on it, and not producing anything, defendant told Lother that he did not have an erection and did not ejaculate. In addition, Bare testified that C.R. told her that defendant made her put his “thing” in her mouth.
¶ 73 Defendant contends that Kruschwitz‘s testimony regarding C.R.‘s statements was substantially more detailed than the other evidence and that People‘s Exhibit 6 (which, according to Kruschwitz, depicted defendant in C.R.‘s room when he put his penis in her
¶ 74 Defendant also argues that the admission of Kruschwitz‘s testimony was not harmless because she asked questions to determine whether C.R. knew the difference between the truth and a lie, adding credibility to C.R.‘s statements and undermining defendant‘s chief defense, that his statement to police was coerced. Again, we disagree. Kruschwitz testified that she attempted to establish whether C.R. knew the difference between the truth and a lie. Her testimony that C.R. appeared to know the difference between the truth and a lie, however, was objected to by defense counsel and the trial court sustained the objection. The State was unable to elicit any other testimony that established that, during the interview with Kruschwitz, C.R. demonstrated that she knew the difference between the truth and a lie. At most, the admitted portions of Kruschwitz‘s testimony established that C.R. knew that it was better to tell the truth than to tell a lie; it did not establish, however, that C.R. knew what the truth was as opposed to a lie.
¶ 75 We also conclude that any error in the admission of the entirety of Kruschwitz‘s testimony was harmless because the evidence of defendant‘s guilt on count I was overwhelming, even putting aside Kruschwitz‘s testimony. In addition to Bare‘s testimony regarding C.R.‘s statement that defendant made her put his “thing” in her mouth, the State presented defendant‘s very specific oral statement to police and his written statement. In his written statement, defendant simply stated that he put his penis around C.R.‘s lips. In his oral statement to police, however, defendant provided great detail, explaining that, approximately three weeks prior to the interview, he entered C.R.‘s bedroom, pulled down his pants, and rubbed his penis on C.R.‘s lips, at which point C.R. rolled away. He stated that he then put his penis in C.R.‘s mouth. In addition, defendant told police that he did not have an erection and that he did not ejaculate. All of the evidence presented at trial was consistent with defendant‘s confession.
¶ 76 Defendant argues that his oral statement to police “did not jibe with” his written statement, in that he orally told police that he put his penis in C.R.‘s mouth, while in his written statement he stated that he put his penis “around [C.R.‘s] lips.” Defendant ignores, however, that Lother testified that defendant also orally stated that he rubbed his penis on C.R.‘s lips. Such evidence certainly corresponds with defendant‘s written statement and describes the element of sexual penetration.
¶ 77 Defendant also contends that Lother‘s and Henderson‘s testimony that during the interview Henderson yelled at defendant in a “loud, commanding voice” indicates that defendant‘s statement may have been coerced. This contention is equally without merit, as
¶ 78 Accordingly, we conclude that the evidence of defendant‘s guilt on count I was overwhelming. See People v. Harris, 389 Ill. App. 3d 107, 118-24 (2009) (determining the exclusion of certain testimony was harmless because the defendant‘s confession, corroborated only by the fact that the victim‘s death was a homicide, was overwhelming evidence of the defendant‘s guilt, despite the defendant‘s contention that her confession was coerced); People v. Spicer, 379 Ill. App. 3d 441, 458 (2007) (holding that the improper admission of evidence was harmless where the defendant‘s unrefuted and unrecanted statement that he had put his finger in the victim‘s vagina was overwhelming evidence that the defendant had penetrated the victim); People v. Argo, 133 Ill. App. 3d 421, 430 (1985) (concluding that exclusion of certain evidence was harmless where the defendant‘s confession—the only evidence connecting the defendant to the murder—provided overwhelming evidence supporting the defendant‘s conviction).
¶ 79 As we find that Kruschwitz‘s testimony regarding C.R.‘s statements to her was merely cumulative and duplicative of the properly admitted evidence and that the evidence of defendant‘s guilt was overwhelming, we find any error in the admission of Kruschwitz‘s testimony regarding C.R.‘s statements to be harmless. See Rolandis G., 232 Ill. 2d at 43 (error is harmless where improperly admitted evidence is merely cumulative or duplicates of the properly admitted evidence).
E. Evidence of Sexual Abuse
¶ 81 Defendant next cоntends that the trial court erred in admitting evidence that defendant had been sexually abused as a child. Defendant argues that, because it is well known that people who are sexually abused as children are more likely as adults to sexually abuse others and because evidence that defendant had been sexually abused went only to show propensity, such evidence was irrelevant and unduly prejudicial. We disagree that the trial court erred in admitting the evidence.
¶ 82 Evidence is admissible when it is relevant to an issue in dispute and its probative value is not substantially outweighed by its prejudicial effect. People v. Gonzalez, 142 Ill. 2d 481, 487 (1991). “Evidence is considered relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of an action either more or less probable than it would be without the evidence.” People v. Morgan, 197 Ill. 2d 404, 455-56 (2001). It is within the trial court‘s discretion to determine whether evidence is relevant and admissible, and the trial court‘s decision on the issue will not be reversed absent an abuse of discretion. Morgan, 197 Ill. 2d at 455. A trial court abuses its discretion where its decision is arbitrary, fanciful, or unreasonable or where no reasonable person would take the trial court‘s view. Morgan, 197 Ill. 2d at 455.
¶ 83 In the present case, the trial court found the evidence that defendant had been sexually
¶ 84 At trial, Lother testified that, during his questioning of defendant, defendant initially denied the allegations that he had abused C.R. Defendant did not give the oral and written statements indicating that he had abused C.R. until after he had revealed that he had been sexually abused as a child and Lother had told defendant that people who are abused sometimes abuse others because that is how they express love. Lother testified that, once he told defendant that people who are abused sometimes abuse others as an expression of love, defendant‘s “demeanor changed. His arms became more relaxed and he began leaning towards [Lother].” Following Lother‘s continued discussion of defendant‘s childhood abuse, defendant made his oral and written statements indicating that he had abused C.R. Such evidence thus was certainly relevant to the circumstances under which defendant made his statements. In addition, such evidence went to the credibility of those statements, as it indicates that defendant may have given his statements as a result of a feeling of comfort and understanding from Lother, rather than as a result of Henderson‘s use of a “loud, commanding voice.”
¶ 85 Defendant contends that even if the evidence that he had been sexually abused was relevant, its probative value was substantially outweighed by its prejudicial effect, because the jury was likely to believe that because defendant was sexually abused as a child, he was more likely to have abused C.R. Even where evidence is relevant, that evidence still may be excluded on the basis that its prejudicial effect substantially outweighs its probative value. People v. Hoerer, 375 Ill. App. 3d 148, 157 (2007). “It is the function of the trial court to weigh the probative value and prejudicial effect of evidenсe in determining whether it should be admitted,” and the trial court‘s decision will not be overturned absent a clear abuse of discretion. Gonzalez, 142 Ill. 2d at 489-90. We determine that the trial court did not abuse its discretion.
¶ 86 The record demonstrates that during the presentation of the evidence that defendant had been sexually abused, the trial court took care to ensure that the evidence was presented in the limited context of the interrogation of defendant by the police. The trial court also allowed Lother to testify only as to what he specifically said to defendant during the interrogation, keeping out any testimony by Lother about whether he knew that people who had been abused as children actually were more likely to become abusers as adults. Although
¶ 87 We conclude that the trial court did not abuse its discretion in admitting the evidence that defendant had been sexually abused as a child, because any prejudicial effects the evidence may have had were minimized by the very limited context in which the trial court allowed the evidence. Thus, the prejudicial effects of the evidence did not substantially outweigh its highly probative value on the issue of the credibility of defendant‘s confession.
F. Sentencing
¶ 89 Defendant finally argues that the trial court abused its discretion in sentencing him to 24 years’ imprisonment, because the trial court failed to adequately consider numerous mitigating factors and considered some mitigating factors as aggravating factors.
¶ 90 The sentence imposed by a trial court is entitled to great deference and when the sentence is within the statutory limits, it may be disturbed only where the trial court has abused its discretion. People v. Bosley, 233 Ill. App. 3d 132, 139 (1992). So long as the trial court “does not consider incompetent evidence, improper aggravating factors, or ignore pertinent mitigating factors, it has wide latitude in sentencing a defendant to аny term within the statutory range prescribed for the offense.” Bosley, 233 Ill. App. 3d at 139 (quoting People v. Hernandez, 204 Ill. App. 3d 732, 740 (1990)). The trial court has no obligation to recite and assign value to each factor presented at a sentencing hearing. People v. Baker, 241 Ill. App. 3d 495, 499 (1993). Where mitigating evidence is presented to the trial court during the sentencing hearing, we may presume that the trial court considered it, absent some indication, other than the sentence itself, to the contrary. People v. Dominguez, 255 Ill. App. 3d 995, 1004 (1994). As the reviewing court, we are not to reweigh the factors considered in determining the defendant‘s sentence; nor are we to substitute our judgment for that of the trial court simply because we would have weighed the factors differently. People v. Jones, 376 Ill. App. 3d 372, 394 (2007).
¶ 91 Defendant contends that the trial court failed to adequately consider certain mitigating evidence in imposing his sentence. Specifically, defendant argues that the trial court did not adequately consider evidence of defendant‘s minimal criminal history, supportive family, steady employment, and high school graduation, all of which defendant contends demonstrated his rehabilitative potential. Defendant also argues that the trial court did not adequately consider his drug and alcohol addictions and the lack of physical injury to C.R. The record belies defendant‘s contentions. The trial court explicitly stated at the sentencing
¶ 92 Defendant also argues that the trial court improperly considered his remorse and the fact that he was sexually abused as a child as factors in aggrаvation. In so arguing, defendant relies on the following comments by the trial court during the sentencing hearing:
“I look at this case and in trying to get an understanding of you, Mr. Cordova, you as the person, I find it interesting that someone with your background, a person who tells us the story about how you were sexually abused in a number of foster homes at the hands of a number of foster parents, that having that as a backdrop or in your background that that would put you in a situation where you find yourself today being found and convicted of having sexually abused a young child. You told the law enforcement officers when you gave them the statement that you felt bad about having done what you told them you had done in this particular case, placing your penis on the lips of a child and placing your hand on a child‘s vagina, a very young child. Your statement to them about how bad you felt this Court can only imagine how this young child felt when you were doing the things that you did to this child.”
The trial court also stated:
“I read the fact that the young victim in this case has been involved in counseling and it‘s pretty clear that this traumatic experience warrants that. Mr. Cordova, it‘s you that put this in motion. You are the one that has subjected this young child to this treatment—requiring counseling rather. And again it just escapes this Court as to why somebody with your experiences of your own would put this young child through this incident here.”
¶ 93 We cannot agree that these statements by the trial court indicate that it considered defendant‘s remorse and childhood abuse as aggravating factors. Rather, the statement regarding defendant‘s remorse indicates that the trial court considered defendant‘s remorse but afforded it little weight when balanced against the seriousness of the offense and the psychological harm done to C.R. as a result. See People v. Leggans, 253 Ill. App. 3d 724, 737 (1993) (psychological harm done to a child as a result of sexual abuse is properly
¶ 94 Accordingly, we determine that the trial court did not abuse its discretion in sentencing defendant to 24 years’ imprisonment.
III. Conclusion
¶ 96 For the foregoing reasоns, the judgment of the circuit court of Lake County is affirmed.
¶ 97 Affirmed.