                                       2019 IL 123734



                                          IN THE
                                 SUPREME COURT
                                              OF
                           THE STATE OF ILLINOIS




                                     (Docket No. 123734)

                THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                           GERALD DRAKE, Appellee.


                                Opinion filed March 21, 2019.



        JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

        Chief Justice Karmeier and Justices Thomas, Garman, Burke, Theis, and
     Neville concurred in the judgment and opinion.



                                          OPINION

¶1       Defendant, Gerald Drake, was convicted of aggravated battery following a
     bench trial in the circuit court of Cook County. The appellate court reversed his
     conviction and held that retrial was barred by the double jeopardy clause. Based on
     the facts of this case, we hold that the double jeopardy clause does not bar retrial of
     defendant. Accordingly, we reverse in part the appellate court’s judgment and
     remand to the trial court for a new trial.


¶2                                     BACKGROUND

¶3       Defendant was charged by indictment with aggravated battery of a child (720
     ILCS 5/12-4.3(a) (West 2008)), heinous battery (720 ILCS 5/12-4.1(a) (West
     2008)), and aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 2008)). The
     indictments alleged that defendant caused great bodily harm to his six-year-old
     stepson, J.H., by immersing him in hot water.

¶4       Prior to trial, the State filed a motion seeking to admit J.H.’s out-of-court
     statement to Rosalina Roxas, his nurse at John H. Stroger Jr. Hospital (Stroger
     Hospital). In that statement, J.H. claimed that defendant caused his injuries by
     pouring a cup of hot water on him. The trial court ruled that J.H.’s statement was
     admissible under the hearsay exception for statements made for purposes of
     medical diagnosis or treatment. See Ill. R. Evid. 803(4) (eff. Apr. 26, 2012).

¶5        At defendant’s bench trial, Roxas testified that, as a registered nurse, she treated
     J.H. in the pediatric intensive care unit at Stroger Hospital for burns to his buttocks,
     genital area, and legs. When Roxas entered his room one day, J.H. called to her and
     stated he was going to tell her something. J.H. then revealed that defendant poured
     hot water on him while he was in the bathtub. When Roxas asked if J.H. had done
     anything to upset defendant, J.H. replied that he had done nothing. Prior to that
     conversation, J.H. had not disclosed the cause of his injuries but “just started crying
     if [anyone tried] to ask him anything about the incident.” On cross-examination,
     Roxas confirmed that J.H. stated defendant poured a cup of hot water on him and
     that she did not ask J.H. about the size of the cup.

¶6       The State also offered expert testimony from Dr. Marjorie Fujara, a specialist in
     child abuse pediatrics at Stroger Hospital. J.H. was admitted with burns covering
     13% of his body. J.H. had third-degree burns through the full thickness of his skin
     on the tops of his feet up to his ankles and second-degree burns on the soles of his
     feet, buttocks, and genital area. Full thickness burns often require skin grafting
     because the tissue is damaged beyond recovery. Dr. Fujara stated the burn pattern
     was “very distinctive” with a clear line between the burned and healthy skin. The
     burns ended at J.H.’s ankles with no splash marks extending upward onto his legs.




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     She opined that the burns resulted from forcible immersion in hot water, explaining
     that the soles of J.H.’s feet and his buttocks were burned less severely because they
     were in contact with the cooler surface of the bathtub. Dr. Fujara stated splash
     marks would be expected if J.H. had been moving around in the bathtub. Based on
     the specific burn pattern, Dr. Fujara ruled out alternative causes, observing that if
     J.H. had stepped into a bathtub filled with hot water he would have “reflexively”
     withdrawn his foot and he would not have suffered burns to both feet and his
     buttocks. Alternatively, if J.H. had been sitting in the bathtub when the hot water
     was turned on, he would have flailed around when the water contacted his skin,
     resulting in splash marks.

¶7       On cross-examination, Dr. Fujara stated she was aware that the hot and cold
     water lines had been reversed and the hot water was measured at 160 degrees. That
     information, however, did not alter her opinion that J.H.’s burns resulted from
     forced immersion. Dr. Fujara also acknowledged that J.H.’s siblings were
     examined and did not demonstrate any indication of abuse.

¶8       Thomas White, a retired investigator with the Department of Children and
     Family Services (DCFS), testified that defendant stated his wife, J.H.’s mother,
     was at work when the injury occurred. Defendant was at home caring for their
     children. White’s memory was “a little foggy” on how many children defendant
     stated he was caring for, but it was either eight or nine, and they ranged in age from
     infancy to 12 years old. Defendant acknowledged he felt “a little overwhelmed.” At
     some point that morning, J.H. and his brother were wrestling and fell into feces that
     had leaked from the baby’s diaper onto the floor. Defendant told them to go take a
     bath.

¶9       White further testified that defendant did not explain how he became aware of
     J.H.’s injuries. During his investigation, however, White learned that two of the
     other children told their mother that J.H.’s feet were peeling after she came home
     from work between 10:30 and 11:30 that night. Defendant and J.H.’s mother then
     immediately took J.H. to the hospital. Defendant acknowledged that he falsely
     identified himself as “Joe Campbell” at the hospital. He also stated he was J.H.’s
     uncle and falsely claimed that J.H. was with a babysitter prior to arriving at the
     hospital.




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¶ 10       On cross-examination, White testified that defendant stated he was not angry
       when he sent J.H. to take a bath. Defendant informed White that a new water heater
       had been installed a couple of days before the incident. White turned the cold water
       knob in the bathtub and observed the water temperature rise rapidly to 161 degrees.
       White noted the water temperature normally should not exceed 119 degrees. He
       then went to the basement and determined that the hot and cold water lines had been
       reversed when installed on the new water heater. White did not observe any signs of
       abuse in the other children and stated they “[s]eemed appropriately adjusted.”

¶ 11       Based on the evidence, the trial court found defendant guilty of the charged
       offenses. The trial judge emphasized that the unrebutted expert testimony
       established that J.H.’s injuries resulted from forcible immersion, defendant was the
       sole caregiver present when the injuries occurred, and defendant exhibited
       consciousness of guilt by giving false information at the hospital.

¶ 12       Defendant subsequently elected to be sentenced under the amended aggravated
       battery statute. See 720 ILCS 5/12-3.05(a)(2), (b)(1) (West 2014). The trial court
       merged the remaining counts into the aggravated battery conviction and sentenced
       defendant to 20 years’ imprisonment for that offense.

¶ 13       On appeal, defendant contended, in pertinent part, that Rosalina Roxas’s
       testimony recounting J.H.’s out-of-court statement was inadmissible hearsay and
       that the State failed to prove the charged offenses beyond a reasonable doubt. 2017
       IL App (1st) 142882, ¶ 20. The appellate court held that the trial court erred in
       admitting J.H.’s statement identifying defendant as the offender under the hearsay
       exception for statements made for the purpose of medical diagnosis and treatment.
       The appellate court concluded the hearsay statement was not made for that purpose
       and admission of the statement could not be considered harmless error. 2017 IL
       App (1st) 142882, ¶¶ 24-29.

¶ 14       The appellate court further held that the double jeopardy clause barred retrial
       because the evidence presented by the State was insufficient to prove defendant
       guilty of the offenses beyond a reasonable doubt. 2017 IL App (1st) 142882,
       ¶¶ 30-41. The appellate court reasoned that J.H.’s hearsay statement was the only
       identification evidence placing defendant in the bathroom when the injury occurred
       and the evidence showed that other people were in the house when J.H. was injured.




                                              -4-
       2017 IL App (1st) 142882, ¶ 40. Defendant’s conviction was, therefore, reversed.
       2017 IL App (1st) 142882, ¶ 41.

¶ 15       Justice Gordon dissented from the portion of the majority’s opinion holding
       that the double jeopardy clause barred retrial. 2017 IL App (1st) 142882, ¶ 48
       (Gordon, J., concurring in part and dissenting in part). The partial dissent
       maintained that the majority failed to consider the excluded hearsay statement
       properly in its analysis of that issue. 2017 IL App (1st) 142882, ¶ 60 (Gordon, J.,
       concurring in part and dissenting in part). The partial dissent concluded that this
       matter should be remanded for a new trial because the evidence presented at trial,
       including J.H.’s hearsay statement, was sufficient for a rational trier of fact to find
       defendant guilty beyond a reasonable doubt. 2017 IL App (1st) 142882, ¶ 60
       (Gordon, J., concurring in part and dissenting in part).

¶ 16      We allowed the State’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. July 1,
       2018)).


¶ 17                                      II. ANALYSIS

¶ 18       On appeal to this court, the State does not dispute the appellate court’s holding
       that admission of J.H.’s out-of-court statement was reversible error. Rather, the
       State only argues that the appellate court erred in concluding retrial is barred by the
       double jeopardy clause. The State contends the evidence submitted at trial,
       including J.H.’s hearsay statement, was sufficient for a rational trier of fact to find
       defendant guilty beyond a reasonable doubt. According to the State, the appellate
       court failed to give adequate weight to J.H.’s out-of-court statement identifying
       defendant as the offender in its double jeopardy analysis.

¶ 19       Defendant responds that the appellate court considered all of the evidence
       presented in this case, including J.H.’s statement, and correctly held it was
       insufficient to prove defendant guilty of aggravated battery beyond a reasonable
       doubt. J.H.’s hearsay statement that defendant poured hot water on him was the
       only evidence that defendant was even present in the bathroom, but the statement is
       inconsistent with Dr. Fujara’s opinion that the burns could have resulted only from
       forcible immersion. Additionally, the evidence showed the hot and cold water lines
       were reversed, and the hot water temperature was 160 degrees, indicating the burns




                                                -5-
       could have been caused accidentally. Defendant, therefore, concludes that this
       court should affirm the appellate court’s judgment.

¶ 20        The applicable law is well established. The double jeopardy clause prohibits a
       second, or successive, trial to afford the prosecution another opportunity to provide
       evidence that it failed to present at the first trial. People v. Lopez, 229 Ill. 2d 322,
       367 (2008) (citing Burks v. United States, 437 U.S. 1, 11 (1978)). The double
       jeopardy clause does not preclude retrial when a conviction has been overturned
       because of an error in the trial proceedings, but retrial is barred if the evidence
       introduced at the initial trial was insufficient to sustain the conviction. Lopez, 229
       Ill. 2d at 367 (citing People v. Mink, 141 Ill. 2d 163, 173-74 (1990)). “[F]or
       purposes of double jeopardy all evidence submitted at the original trial may be
       considered when determining the sufficiency of the evidence.” People v. Olivera,
       164 Ill. 2d 382, 393 (1995) (citing Lockhart v. Nelson, 488 U.S. 33, 40 (1988)).

¶ 21        Retrial is the proper remedy if the evidence presented at the initial trial,
       including any improperly admitted evidence, was sufficient to sustain the
       conviction. People v. McKown, 236 Ill. 2d 278, 311 (2010) (citing Lopez, 229 Ill.
       2d at 367). In determining the sufficiency of the evidence, a reviewing court must
       consider whether “ ‘ “after viewing the evidence in the light most favorable to the
       prosecution, any rational trier of fact could have found the essential elements of the
       crime beyond a reasonable doubt.” ’ ” (Emphasis in original.) People v. Ross, 229
       Ill. 2d 255, 272 (2008) (quoting People v. Collins, 106 Ill. 2d 237, 261 (1985),
       quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

¶ 22       In this case, a rational trier of fact could have credited Dr. Fujara’s testimony
       that J.H.’s burns resulted from forcible immersion in hot water. Indeed, Dr. Fujara
       provided the only expert testimony explaining J.H.’s burns.

¶ 23       Defendant contends, however, that Dr. Fujara acknowledged on
       cross-examination that the burns on J.H.’s buttocks did not exhibit the “doughnut
       pattern” characteristic in forcible immersion cases. Defendant quotes an article
       from the United States Department of Justice entitled Burn Injuries in Child Abuse,
       as explaining that “[w]hen a child is held in scalding hot bathwater, the buttocks are
       pressed against the bottom of the tub so forcibly that the water will not come into
       contact with the center of the buttocks, sparing this part of the buttocks and causing
       the burn injury to have a doughnut pattern.” Office of Juvenile Justice and



                                                -6-
       Delinquency Prevention, U.S. Department of Justice, Burn Injuries in Child Abuse,
       at 6 (2d ed. June 2001), https://www.ncjrs.gov/pdffiles/91190-6.pdf [https://
       perma.cc/Q97P-6LCD]. According to defendant, Dr. Fujara testified on
       cross-examination that J.H. did not have that type of burn, thus undermining her
       opinion that the burns resulted from forcible immersion. Defendant posits that J.H.
       could have been burned accidentally because the water lines were reversed and the
       water coming from the hot water tank was 160 degrees.

¶ 24       A review of the record, however, shows Dr. Fujara actually testified that J.H.’s
       burns exhibited a doughnut pattern. When defense counsel questioned whether a
       picture of J.H.’s buttocks “demonstrate[d] that kind of pattern,” Dr. Fujara
       responded “I think it does.” Dr. Fujara explained that “probably because the water
       was so hot there is no absolute sparing,” but she noted that “the area where he
       actually is sitting on the porcelain is less burned, so I do—I believe if the water
       temperature weren’t as high, we might see that doughnut pattern of the slight
       sparing in the center.” Dr. Fujara also noted that a doughnut pattern is only
       “commonly” or “sometimes” seen when the burns result from forcible immersion.

¶ 25        In this case, Dr. Fujara offered persuasive expert testimony that J.H.’s burns
       resulted from forcible immersion in hot water. Dr. Fujara’s testimony ruling out
       alternative causes rebuts defendant’s argument that J.H. may have been burned
       accidentally as a result of the faulty water heater installation. We conclude that the
       trial court reasonably credited Dr. Fujara’s testimony that J.H.’s injuries resulted
       from forcible immersion.

¶ 26       The critical issue, therefore, becomes whether the evidence was sufficient to
       conclude beyond a reasonable doubt that defendant was the offender. The evidence
       showed defendant was the only adult present in the house at the time J.H. was
       injured. He did not seek prompt treatment for the severe injuries suffered by J.H.
       Rather, J.H. was taken to the hospital for treatment only after the other children
       informed their mother that J.H.’s feet were peeling. The injuries apparently
       occurred when J.H. took a bath at some point in the morning, and J.H.’s mother did
       not return home from work until late that night. When defendant and J.H.’s mother
       finally took J.H. to the hospital, defendant gave an incorrect name, falsely stated he
       was J.H.’s uncle, and told hospital staff that J.H. was with a babysitter prior to
       arriving at the hospital. The trial court may have viewed each of those statements as




                                               -7-
       evidence of consciousness of guilt. See People v. Harris, 225 Ill. 2d 1, 26-27 (2007)
       (use of false identification may be admitted as evidence of consciousness of guilt);
       People v. Milka, 211 Ill. 2d 150, 181 (2004) (a false exculpatory statement is
       probative of consciousness of guilt). Accordingly, substantial evidence pointed to
       defendant as the offender even without the excluded hearsay statement.

¶ 27        Finally, although the appellate court mentioned the excluded hearsay statement
       in its analysis, we do not believe that statement was given the proper weight. Before
       concluding that the evidence was insufficient to prove defendant guilty beyond a
       reasonable doubt, the appellate court observed that “J.H.’s erroneously admitted
       hearsay statement was the only piece of evidence placing defendant in the
       bathroom where the injury occurred” and “[t]he State provided no other
       identification evidence.” 2017 IL App (1st) 142882, ¶ 40. Defendant similarly
       argues that the State did not present any live witness testimony showing defendant
       was even present in the bathroom when J.H. was injured. The State was not
       necessarily required to provide other evidence on that point, however. As
       previously noted, a reviewing court must consider evidence admitted improperly
       when determining the sufficiency of the evidence. Olivera, 164 Ill. 2d at 393 (citing
       Lockhart, 488 U.S. at 40). The excluded hearsay statement is, therefore, competent
       evidence that defendant caused J.H.’s injuries for the purpose of the sufficiency of
       the evidence analysis.

¶ 28       Further, all of the evidence, including J.H.’s hearsay statement, must be viewed
       in the light most favorable to the prosecution. Given that standard, we believe a
       rational trier of fact could have considered J.H.’s hearsay statement simply as an
       identification of the person who caused his injuries. The trial judge was not
       required to parse six-year-old J.H.’s statement in a technical manner. As a
       six-year-old, J.H. may not have been able to explain the precise way defendant
       harmed him. Nonetheless, we do not believe a rational trier of fact is required to
       completely discount the part of J.H.’s statement identifying defendant as the person
       who caused his injuries merely because part of his statement is not perfectly
       consistent with the expert’s testimony.

¶ 29       In sum, our decision in this case is guided by the standard for reviewing this
       issue. We must determine whether “ ‘ “after viewing the evidence in the light most
       favorable to the prosecution, any rational trier of fact could have found the essential




                                                -8-
       elements of the crime beyond a reasonable doubt.” ’ ” (Emphasis in original.) Ross,
       229 Ill. 2d at 272 (quoting Collins, 106 Ill. 2d at 261, quoting Jackson, 443 U.S. at
       319). We believe the evidence, including J.H.’s hearsay statement identifying
       defendant as the person who caused his injuries, was sufficient when viewed in the
       light most favorable to the prosecution for a rational trier of fact to find defendant
       guilty beyond a reasonable doubt. Accordingly, the double jeopardy clause does
       not bar retrial, and this case must be remanded to the circuit court for retrial without
       the excluded hearsay evidence.


¶ 30                                    III. CONCLUSION

¶ 31       For the above reasons, we reverse the portion of the appellate court’s judgment
       barring retrial of defendant for the charged offenses. We remand to the circuit court
       for a new trial.


¶ 32      Appellate court judgment affirmed in part and reversed in part.

¶ 33      Circuit court judgment reversed.

¶ 34      Cause remanded.




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