delivered the opinion of the court:
Fоllowing a jury trial, defendant, Michael Major-Flisk, was found guilty of one count of aggravated criminal sexual assault against the five-year-old victim M.O. The trial court sentenced defendant to a term of six years’ imprisonment. On appeal, defendant contends that the trial court erred by allowing testimony of out-of-court statements made by the victim pursuant to the hearsay exception for sexual abuse victims under the age of 13 (725 ILCS 5/115 — 10 (West 2006)). For the reasons that follow, we affirm.
Defendant was arrested and charged by indictment with 7 counts of aggravated criminal sexual assault, 14 counts of criminal sexual assault, 5 counts of aggravated criminal sexual abuse, and 10 counts of criminal sexual abuse. The two counts that were ultimately submitted to the jury alleged that defendant committed aggravated criminal sexual assault based upon penetration of the victim’s anus by defendant’s finger and contact between victim’s mouth and the defendent’s penis. These counts also alleged that defendant was under 17 years of age at the time of the alleged offense and that the victim was under 9 years of age when the act was committed. See 720 ILCS 5/12— 14(b)(i) (West 2006). Defendant was found guilty of the first count.
Prior to trial, the State filed a motion indicating that it intended to introduce statements made by the victim through the testimony of certain witnesses. The State also requested a hearing to determine whether the victim’s hearsay statements were sufficiently reliable to be admitted under section 115 — 10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 — 10 (West 2006)). At this hearing, which was held on February 6, 2007, the State informed the trial court that the victim, seven-year-old M.O., would testify at trial and offered the testimony of three witnesses to M.O.’s hearsay statements.
Celine M., M.O.’s aunt, testified that on January 22, 2006, M.O. was dropped off at her home by his mother. Subsequently, M.O. was at the kitchen table with several other boys talking “boy talk” when Ce-line, who was approximately 15 to 20 feet away at a nearby computer with her son, heard M.O. say, “Michael stuck his finger up my butt.” The boys “went just crazy,” and said “that’s gross [and] that’s disgusting.” Celine moved closer to the boys and then heard M.O. say, “and he stuck his tongue in my mouth.” This statement was followed by “more uproar.” The other boys were repeating the things that M.O. said and one of the boys told Celine’s son, “you got to tell your mom.” Celine then sent all of the boys except M.O. downstairs and asked M.O. if what he said was true. M.O. nodded yes and then “clammed up” as if he did not want to say anymore. Celine called M.O.’s mother and told her to come over at once.
On cross-examination, Celine explained that she was not visible to the boys when they were talking because the kitchen is an “L-shaped” room and the refrigerator blocked the boys’ view of her. Celine also explained that she paid attention to all of the details of thе boys’ conversation, testifying that she always paid attention to these conversations because “you would be surprised what you find out.” Celine spoke to a detective from the Evergreen Park police department the following evening. Celine also testified that she did not tell the detective that she was in an adjoining room but that she did tell the detective that the boys were repeating what they heard and that one of those boys said, “Mike stuck his tongue in [M.O.’s] mouth and his finger in [M.O.’s] butt.”
The victim’s mother, Lori O., testified that she went to Celine’s home after receiving a call from her at approximately 11:30 a.m. She spoke to Celine and then she and her husband went to the police station. M.O. remained at Celine’s home during this time and Lori had not yet spoken to her son. After speaking with an officer at the police department, Lori picked up M.O. and went home. She gathered her husband, M.O., and his brother Andrew in the family living room аnd explained to her two sons that they were going to have a conversation and that it was important to tell the truth. Lori did not give the children the facts about what Celine had told her, but instead asked M.O., “What did you say to Aunt Celine?” According to Lori, M.O., “actually took a deep breath, like a big relief was like off his chest, and he indicated to me that Michael Major had put his hand down his pants, [M.O.’s] pants.” Lori asked M.O. where this happened, and M.O. responded, “on Michael’s front porch.” She asked M.O. if that was all that happened, and he said yes.
Lori then explained to M.O. that what he said was serious and that it was important that he was not “fabricating a story” and that he was telling “the absolute truth.” M.O. then said that “Michael had showed him his penis” and that he gave M.O. his video game “so that I would keep his secret from everybody.” Lori did not say anything further because M.O. was five years old and she did not want him to feel that she had to know all the infоrmation right away. Therefore, she “just kind of said okay, [M.O.],” and accepted his answer for the time being.
Lori was later contacted by the police regarding having M.O. attend a victim-sensitive interview. She brought him to that interview on January 25, 2006. She did not tell M.O. what to say during the interview and only told him where they were going on the morning they left for the interview. At that time, Lori told M.O. that “this is where we were going, and these people are here to help us.” She also told him that it was “important to tell them the same thing that you told mom and dad, and most importantly, you have to tell the truth.”
On cross-examination, Lori testified that during their first telephone conversation, Celine did not tell her what had happened but only that it was important for her and her husband to come to Ce-line’s home as soon as possible. When Lori and her husband arrived at the home, Celine told her about the conversation among the boys that she had overheard. Lori further testifiеd that she spoke to M.O. about strangers and inappropriate touching several weeks prior to the incident and that he did not say anything at that time. Lori also testified that M.O. told her that defendant showed him his penis on defendant’s porch. Lori explained that defendant lived next door to her and she described the porch as being open but having an obstructed view from the street or sidewalk. Lori further testified that prior to the victim-sensitive interview, she told M.O. that the police and friends of the police wanted to talk to him. M.O. said that “he didn’t want to talk to anybody about this.” Lori told him that it would be a “friendly conversation” and that “it was important that he talk to these people.” She also asked M.O. when the incident happened, and he responded “after school.” She also asked him if it happened more than once, and he said that it had.
Danielle Butts, the director and forensic interviewer for the Children’s Advocacy Center of Southwest Cook County (the Center), interviewed M.O. at approximately 11 a.m. on January 25, 2006. The interview was conducted in an interview room at the Center, which Butts described as containing a one-way mirror and children’s furniture. Detective Jack McCarthy from the Evergreen Park police department and an assistant State’s Attorney (ASA) were in an adjoining observation room and observed the interview through the one-way mirror.
When M.O. arrived at the Center, he agreed to speak with Butts in an interview room. Butts asked M.O. his name, age and grade, and M.O. responded with his name, that he was five years old, and that he was in kindergarten. Butts asked M.O. to identify colors, to distinguish between a truth and a lie, inside and outside and on top of and under, and to identify body parts using an anatomically correct male doll that was fully clothed. M.O. was able to complete all of these requests. Butts asked M.O. if he knew why he was at the Center, and he said it was because “his friend was a bad guy.” M.O. stated that his friend was “Mike Major.” Butts then asked M.O. if anyone told him not to talk to her or what to say, and M.O. responded no.
M.O. told Butts that he was five years old when the events occurred and that they occurred on “Mike’s front porch” and “one time in his own basement.” Butts asked M.O. what happened, and he stated that “Mike put his hand down the front of his pants, Mike put his tongue in [M.O.’s] mouth, and Mike put his finger on [M.O.’s] butt.” When asked how this felt, M.O. said, “it felt bad.” Butts asked if anything else happened, to which M.O. responded, “Mike put his mouth on [M.O.’s] penis,” that “Mike touched his penis to [M.O.’s] penis,” and that “Mike put his finger in [M.O.’s] butt.” Butts asked M.O. if he put his mouth on defendant’s penis, and M.O. said no. Butts asked where this happened, and M.O. stated that it happened on “Mike’s front porch.” M.O. also stated that his brother witnessed these events.
M.O. also told Butts that “Mike put his finger inside his butt,” and that he also “tried to put his penis inside his butt.” When asked how this felt, M.O. said that it felt “very very very bad.” When asked if anything elsе happened, M.O. said “Mike had him touch his penis and squeeze it” but nothing came out. M.O. stated that he was in kindergarten when this happened and that it occurred both before and after Halloween. When asked how many times this happened, M.O. said it happened “all the time when he went over to Mike’s house on the front porch, and it happened one time in his basement.” When Butts asked M.O. to show her what happened using the anatomically correct doll, M.O. turned the doll over, pulled down its pants, bent it over, and pointed to the doll’s anus indicating that he had inserted his finger into the anus.
On cross-examination, Butts testified that she had spoken to a detective and an ASA and had been briefed about the investigation prior to interviewing M.O. She was therefore aware that there had been allegations of sexual contact between defendant and the victim. The detective and ASA could see and hear the interview with M.O., although Butts did not tell him that the two were observing the interview. Butts asked M.O. if it was good or bad to tell the truth or lie, and M.O. stated that it was good to tell the truth and bad to lie. Butts did not take notes or prepare a report of the interview because this was being done by a police officer. She also testified that she did not ask M.O. about specific acts or locations but, rather, asked him open-ended questions such as “What happened?” Butts also only told M.O. that her name was Danielle and that she was there to talk to M.O., but she did not tell him the purpose of their conversation.
The parties stipulated to the testimony of Detective McCarthy. According to the stipulation, Detective McCarthy would testify that, consistent with his police report, he spoke with Celine on January 25, 2006. Although not verbatim, Celine told the detective that she heard her son’s friend, Phillip, twice say “you got to tell your mom,” that she heard M.O. say, “he stuck his tongue in my mouth,” and that one of the boys said, “Mike stuck his tongue in [M.O.’s] mouth and his finger in [M.O’s] butt.”
The trial court granted the State’s motion to admit M.O.’s statements. With respect to the statements that M.O. made to his mother and the statements overheard by Celine, the court found that they were not testimonial in nature and that the time, content and circumstances of those statements provided sufficient safeguards of reliability. Therefore, the court found that if M.O. testified at trial or was judicially declared “unavailable” and there was corroborating evidence of the acts which were the subject of the statements, M.O.’s statements would be admitted through the testimony of Lori and Celine. With respect to the statements made to Butts, the court found that they were testimonial in nature and therefore subject to the confrontation clause contained in the sixth amendment. The court further found that if the child did in fact testify at trial, as the State had indicated he would, the confrontation clause placed no limits on the introduction of M.O.’s statements to Butts because defendant would have the opportunity to cross-examine M.O. Finally, the court found that the time, content and circumstances of M.O.’s statements to Butts provided sufficient safeguards of reliability and that, therefore, if M.O. testified at trial, these statements would be admitted.
The following evidence was presented at defendant’s trial.
M.O. testified that he was currently seven years old and in second grade. M.O. identified defendant as his neighbor and as someone with whom he played in his basement and in defendant’s bedroom. Defendant would also grab M.O.’s hands and swing him around in his front yard, and M.O. testified that defendant did not do anything to him that he thought was “bad” when they played these games. M.O. also testified, however, that defendant touched him when he was on defendant’s front porch by making M.O. “sit on his hand.” When asked if he remembered whether defendant touched him in any other way, M.O. responded, “Uhm, no.” M.O. then gave the fоllowing testimony under direct examination:
“Q. [M.O.], did you ever talk to your mom and tell her that Michael Major touched you?
A. Uhm, no.
Q. [M.O.], did you ever speak with your Aunt Celine and tell her that Michael Major touched you?
A. Uhm, yes.
Q. You did?
A. Yes.
Q. Do you remember when that was, [M.O.]?
A. Uhm, last night we — when we were at Oberweis.
Q. You told her at that time that he had touched you?
A. Uhm, no.
Q. [M.O.], did you ever tell your Aunt Celine before last night that Michael touched you?
A. No.
Q. [M.O.], do you remember when you were in kindergarten?
A. Nope.
Q. Do you remember going with your mom to visit and speak with a lady at a big house about Michael Major?
A. No.
Q. [M.O.], do you remember going and speaking with a lady and giving her a doll and asking you to show her on that doll if Michael Major ever touched you?
A. No.
Q. [M.O.], do you remember when the last time that it was when you played with Michael Major?
A. No.”
On cross-examination, defense counsel had M.O. identify a photograph of his and defendant’s homes. Counsel did not ask M.O. any further questions.
Celine and Lori testified consistently with their testimony at the pretrial hearing. Lori added that she allowed her sons to play in defendant’s front yard but that she did not allow them to enter his house. To her knowledge, the boys followed these directions. Defendant had also been in Lori’s home and had played video games in the basement with her two sons on a couple of occasions. Lori also added that when she arrived at Celine’s home, Celine told her that M.O. was talking to the boys and said defendant stuck his hand down M.O.’s pants. During the family meeting, M.O. also told his mom that defendant gave him a video game to keep a secret.
Butts also testified consistently with her testimony during the reliability hearing. She added that M.O. also said that defendant put his mouth on his penis, his penis to M.O.’s penis, and his finger “up [M.O.’s] butt.” Butts explained that the interview lasted approximately 15 minutes and she described M.O.’s demeanor during this time as “open.” Butts also testified that she does not take notes during interviews and that there is no videotape equipment at the center where the interview took place.
The parties stipulated to the authenticity of defendant’s birth certifiсate that was introduced by the State. 1 The State then rested and the trial court denied defendant’s motion for a directed finding.
Defendant called Detective McCarthy as a witness on his behalf. The detective testified that he was assigned to investigate the allegations of sexual abuse regarding defendant and M.O. Detective McCarthy spoke to M.O.’s parents on January 22, 2006, and explained to them how the investigation would proceed. The detective then interviewed Celine at the police station on January 25, 2006. Celine told the detective about a conversation between the boys that she overheard at her home. She told the detective that she was in the adjoining room to the kitchen when she heard the boys laughing and heard M.O. say, “he stuck his tongue in my mouth.” The detective’s report did not include any other statements that Celine attributed to M.O., although he explained that it was a summary report аnd not verbatim or word for word.
The jury found defendant guilty of aggravated criminal sexual assault based upon penetration of M.O.’s anus by defendant’s finger and not guilty of aggravated criminal sexual assault based upon contact between defendant’s mouth and the victim’s penis. The trial court subsequently sentenced defendant to a term of six years’ imprisonment. This appeal followed.
Defendant contends that the trial court erred in admitting M.O.’s hearsay statements. Specifically, defendant asserts that M.O. did not testify at trial and that he was “unavailable” for cross-examination because, due to memory loss or otherwise, he did not testify to the elements of the charged offense and did not remember speaking with Butts or Celine. Further, defendant claims that because the only statements constituting evidence of the charged offense were “testimonial,” the admission of those statements violated his right to confront the witnesses against him under the confrontation clause of the sixth amendment and the United States Supreme Court’s decision in Crawford v. Washington,
We first consider defendant’s claim that M.O. did not testify at trial and that he was unavailable for cross-examination. Defendant asserts that because M.O. “merely appeared to answer general questions” and did not remember certain conversations or testify to the elements of the offense, “there was nothing for defense counsel to cross.” Defendant further asserts that although section 115 — 10(b)(2) of the Code allows the child’s hearsay statements to be admitted even when the child does not testify at trial if there is corroborative evidence of the act which is the subject of the statements, there was no such cоrroborative evidence in this case and therefore M.O.’s hearsay statements were improperly admitted.
As previously noted, the State was allowed to introduce M.O.’s hearsay statements pursuant to section 115 — 10 of the Code. In relevant part, this section provides:
“(a) In a prosecution for a physical or sexual act perpetrated upon or against a child under the age of 13, *** the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by the victim of an out of court statement made by the victim that he or she complained of such act to another; and
(2) testimony of an out of court statement made by the victim describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual or physical act against that victim.
(b) Such testimony shall only be admitted if:
(1) The сourt finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child *** either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement!;.]” 725 ILCS 5/115 — 10 (West 2006).
In Crawford, the United States Supreme Court held that testimonial out-of-court statements may be admitted as evidence at trial only if the declarant testifies at trial or if the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford,
We find that defendant cannot now argue that M.O. did not testify at trial and that he was unavailable for cross-examination because thаt argument is inconsistent with the position defendant took in the trial court. “ Tt is fundamental to our adversarial process that a party waives his right to complain of an error where to do so is inconsistent with the position taken by the party in an earlier court proceeding.’ ” McMath v. Katholi,
We first note that defendant did not ask the trial court to find M.O. legally “unavailable” after he testified on direct examination or raise the issue that M.O. did not “testify” and was thus unavailable for cross-examination in his posttrial motion. See, e.g., In re T.T.,
The issue in this case, however, goes beyond mere waiver because defendant took the position at trial that M.O. did testify and that he was available for cross-examination. Specifically, during trial and following the testimony of M.O., Celine and Joan, defense counsel objected to Butts being allowed to testify to M.O.’s hearsay statements because her testimony would be the “only evidence of certain acts” and “not really corroborative of anything.” The State responded that corroborative testimony was not needed because M.O. testified before the court, answered all of the questions posed to him by the State and defense counsel, and therefore was “available.” In response, defense counsel stated that he “agreefd] with [the State] — [M.O.] did testify and he was available to [sic] cross-examination.”
After the State rested, defendant made a motion for a directed finding, arguing that the evidence was insufficient for the two counts to go to the jury. Counsel argued that M.O. was “courageous” and that he had given “very candid testimony” but that his testimony did not establish the elements of the charged offenses. Counsel further claimed that aside from defendant making him sit on his hand, M.O. testified that defendant did not touch him in any other way. Counsel further argued:
“[H]e also testified that he did not tell his mother that Michael touched him and that he did have a conversation with Aunt Celine *** and then he testified again affirmatively and you heard the witness, Judge, and I believe that he was a very mature seven year old and he was being honest as he possibly could; that he testified that he never told Aunt Celine before last night when they were apparently at Oberweis I think he said that Michael touched him. So, we — it’s not just the absence of testimony about any criminal act, but it’s the affirmative testimony by the alleged victim in this case that the criminal acts alleged did not occur.”
Defense counsel reiterated a similar theme in closing arguments in urging the jury to find defendant not guilty. Counsel argued that the jury should believe M.O.’s trial testimony that defendant did not touch him in any way except for making him sit on his hand and that the jury should disbelieve the prior statements testified to by the State’s other witnesses. Specifically, counsel stated that M.O. was “a brave young man” who “came in here and he had no agenda, he had nothing, no goal with regard to this proceeding except to tell you the truth.” Counsel also stated that M.O. had taken an oath and told the jury what happened, pointing out that M.O. did not testify “about anybody putting a finger up his butt” and “also said he had never even told his aunt or his mother about that.” Counsel also urged the jury to reject the State’s argument that M.O. may have been nervous or scared, arguing that, “[y]ou had the opportunity to watch him and decide whether he was telling the truth. And I believe very strongly he was. And I believe he told it just the way he remembered it, just the way he told it back two years ago.” Later in closing, counsel pointed out that the State asked M.O. if there was anything else that Michael did and that this was M.O.’s opportunity to tell the jury “yes, he put his finger up my butt.” Counsel proceeded to argue that, “[n]ow, at that point [M.O.] was in this courtroom testifying. He could have said that, yes, that’s what he did. He did not say that because it didn’t happen. He didn’t say it to this mother because it didn’t happen. And he didn’t say it to [Celine] either.”
Finally, counsel reiterated this theme when arguing to the trial court his motion for a new trial. Among other things, counsel made the following argument:
“[T]his is a highly unusual case in that it is a rare case where the complaining witness or the alleged victim of the offense does testify and say that, in fact, the offense never occurred. That is I don’t believe [sic] in dispute here that you heard the testimony from [M.O.] who did come before the Court and testified under oath and he said that at the most he said that there was an incident on a porch where Mike, or the defendant, Michael Major-Flisk, had [M.O.] sit on his hand did not in any way support the single count of the two counts that went to the jury.”
This record establishes that defendant objected to the admission of M.O.’s prior statements on the ground that M.O. did not testify to the specific acts alleged in the indictment and that the only evidence of these acts came in the form of M.O.’s hearsay statements. Defendant did not, however, argue that becаuse M.O. did not remember certain conversations or testify to the acts related in his prior statements, the court should find that he did not testify and that he was “unavailable” within the meaning of section 115 — 10(2) of the Code or the confrontation clause. Rather, counsel’s strategy was apparently to allow M.O.’s testimony on direct examination to stand and to urge the jury to credit that testimony and find that the prior hearsay statements were unbelievable and not credible. Consistent with this strategy, defense counsel only asked M.O. to identify his and defendant’s homes on cross-examination and counsel did not explore M.O.’s loss of memory or his testimony that defendant touched him. As a consequence of defense counsel’s strategy, the trial court was never asked to make a determination as to whether M.O. “testified” within the meaning of the statute or whether he was available for cross-examination.
Given the posture of the case in the trial court, we believe that it would be unfair to allow defendant to now use M.O.’s testimony to argue on appeal that M.O. did not testify and that he was unavailable for cross-examination such that the State was required to present corroborative evidence of the act which was the subject of the statement. See 725 ILCS 5/115 — 10(b)(2)(B) (West 2006). The determination as to whether a child testifies and is available for cross-examination is one committed to the sound discretion of the trial court. People v. Stechly,
Moreover, even if we were to consider defendant’s contention, we would find it to be without merit. In Crawford, the Court 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 statеments.” Crawford,
Although not addressed in Crawford, two prior decisions of the Court have explained what it means to “appear for cross-examination.” In Delaware v. Fensterer,
“ ‘The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.’ ” Owens,484 U.S. at 558 ,98 L. Ed. 2d at 957 ,108 S. Ct. at 842 , quoting Fensterer,474 U.S. at 21-22 ,88 L. Ed. 2d at 21 ,106 S. Ct. at 295 .
Our supreme court has relied upon the holdings in Fensterer and Owens when considering claims similar to that raised by defendant in this case. In People v. Flores,
Most recently, the Second and Fourth Districts of the Illinois Appellate Court have сonsidered and rejected essentially the same claim as the one raised by defendant in this case. For example, in People v. Bryant,
Likewise, in People v. Garcia-Cordova,
Under the authority discussed above and based upon the facts of this case, we similarly conclude that M.O. testified and that he was available for cross-examination. M.O. appeared at trial and testified under oath that defendant touched him when he was on defendant’s front porch by making M.O. sit on his hand. Moreover, although M.O. did not remember certain conversations or testify in greater detail to the manner in which defendant touched him, the record shows that M.O. was present for cross-examination and answered all of the questions posed to him by defense counsel. Although counsel chose not to do so, he certainly could have cross-examined M.O. about his testimony that defendant touched him, whether defendant touched him in any other way, or his inаbility to remember certain conversations. However, as noted, counsel chose to let M.O.’s direct testimony stand and attempted to use it to destroy the force of M.O.’s hearsay statements. See Garcia-Cordova,
Before considering defendant’s next argument, we note that, after oral arguments were held in this case, the Second District of the Illinois Appellate Court issued its decision in People v. Learn,
The appellate court found that the minor was unavailable as a witness and that she did not “testify” for purposes of section 115— 10(b)(2)(A). Learn,
The decision in Learn does not compel us to conclude that M.O. did not “testify” or that he was unavailable as a witness. First, there is nothing in the court’s discussion of the facts of that case to suggest that defense counsel took the position taken by defendant in this case that the victim did testify and that he was available for cross-examination. Second, Learn is factually distinguishable from the present case. Unlike in Learn, the victim in this case did not provide mere general or background testimony. Rather, M.O. confronted defendant with an accusation that defendant touched him and also testified as to the manner in which defendant did so and the location where that touching took place. Thus, unlike in Learn, the victim in this case made an accusation against the defendant and gave material and relevant testimony about which he could have been cross-examined.
Defendant next challenges the trial court’s determination pursuant to section 115 — 10(b)(1) of the Code that the “time, content, and circumstances” of M.O.’s hearsay statements provided “sufficient safeguards of reliability.” 725 ILCS 115 — 10(b)(1) (West 2006).
The determination as to whether the hearsay statements were sufficiently reliable so as to be admitted is committed to thе discretion of the trial court and the court’s decision will not be reversed absent a clear abuse of that discretion. Stechly,
In this case, as the proponent of the hearsay evidence, the State bore the burden of establishing that the declarant’s hearsay statements were reliable. People v. Cookson,
Defendant first claims that the hearsay statements recited by Celine were unreliable and therеfore improperly admitted. Specifically, defendant claims that according to his stipulated testimony during the reliability hearing, Detective McCarthy’s police report indicated that Celine told him that she heard M.O. say “he stuck his tongue in my mouth.” According to defendant, no record exists of Celine telling the police that she also heard M.O. say, “Michael stuck his finger up my butt.” Defendant further argues that Celine was impeached for failing to testify that she did not know which boy said, “Mike stuck his tongue in [M.O.’s] mouth and his finger in [M.O.’s] butt.” Defendant concludes that the statute requires the verifying witness to “hear the child’s remarks personally” and that, “according to the stipulation and [Celine’s] impeachment, she likely did not.” We disagree.
Our review of Celine’s testimony at the reliability hearing establishes that she did not prompt any of the statements made by M.O. Rather, she was near the boys but out of their view when she overheard M.O. spontaneously and voluntarily say to thе other boys that, “Michael stuck his finger up my butt” and that “he stuck his tongue in my mouth.” When Celine sent the other boys away, M.O. confirmed that the statements he made were true. Further, the record does not reveal that M.O. had a motive to fabricate these statements, which were consistent with the statements he made to his mother and to Butts. Moreover, the stipulation during the reliability hearing established that Detective McCarthy’s police report was not a verbatim account of his conversation with Celine, which could explain why his report did not include her statement that she heard M.O. say, “Michael stuck his finger up my butt.” In this respect, the detective testified at trial that although his police report did not contain any other statements besides the one regarding defendant placing his tongue in M.O.’s mouth, the report was only a summary report and not verbatim. See Cookson,
Defendant also attacks the reliability of the hearsay statements recited by Butts becаuse her interview with M.O. was not videotaped. We acknowledge, as defendant points out, that our supreme court has strongly admonished law enforcement personnel and social workers to record the type of interview conducted in this case “whenever possible.” Cookson,
For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
Affirmed.
CAHILL, EJ., and RE. GORDON, J., concur.
Notes
A copy of defendant’s birth certificate is not included in the record. However, according to the presentence investigative report, defendant was born on March 15, 1990.