                               No. 2--04--1169     Filed: 12-4-09
______________________________________________________________________________

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.December 11, 2009
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 04--CF--275
                                       )
JAMES E. LEARN,                        ) Honorable
                                       ) John T. Phillips,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the opinion of the court:

       Defendant , James E. Learn, was convicted after a bench trial of one count of aggravated

criminal sexual abuse (720 ILCS 5/12--16(c)(1)(i) (West 2002)) and was sentenced to a term of

probation and periodic imprisonment. Defendant's motion for a new trial and/or to reconsider the

finding of guilt was denied. This court reversed the conviction and remanded the cause for a new

trial. See People v. Learn, 371 Ill. App. 3d 701 (2007). Our supreme court denied the State's

petition for leave to appeal but, in the exercise of its supervisory authority, vacated our order and

instructed this court to reconsider the case in light of In re Rolandis G., 232 Ill. 2d 13 (2008). See

People v. Learn, 231 Ill. 2d 644 (2009) (nonprecedential supervisory order on denial of petition for

leave to appeal). After such reconsideration, we reverse and remand for a new trial.

       In February 2004, defendant was indicted on one count of aggravated criminal sexual abuse.

The alleged victim in this case was defendant's four-year-old niece, K.O. Pursuant to section 115--10
No. 2--04--1169


of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115--10 (West 2000)), the State

moved to admit at trial out-of-court statements K.O. made to her father, C.O., and two police

officers. Defendant filed a motion to prevent the State from introducing any of these out-of-court

statements at trial, arguing that section 115--10 of the Code was unconstitutional.

        The trial court, Judge Christopher Starck presiding, held hearings to determine the

admissibility of the statements made to C.O. and to Detective Ginger Stokes and Officer Ray

Montemayor of the Highland Park police department. C.O. testified that he changed the diaper of

his infant son, C.O., Jr., at about 10:30 p.m. on December 26, 2003. K.O. was present. She usually

helped by shaking talcum powder on the infant's "parts"; C.O. would then rub the powder in. On this

occasion, K.O. reached out and touched C.O., Jr.'s penis with two fingers on her right hand. C.O.

demonstrated K.O.'s actions, which were described for the record as "holding on [sic] his right hand

with two fingers, he's wiggling --." When C.O. told her not to do that again, K.O. said, " 'Why not?

Jimmy does it.' " C.O. asked what she meant, and K.O. told him that "sometimes [Jimmy] would

touch her hand *** and put it on his parts, Jimmy's parts." K.O. used the word "cocita," meaning

"little thing," when talking about Jimmy's private parts. C.O. spoke to K.O. "in a tranquil way, so I

could obtain more information." When C.O. asked K.O. how Jimmy did that, she told him:

        " '[O]ne time, he took my hand, and he has pants, with a hole in his pants. *** He takes my

        hand and he puts it inside the hole that he has in his pants by one of the legs.' She says, 'And

        my hand goes inside, and he makes me touch his part.' "

K.O. demonstrated how she touched Jimmy; as C.O. demonstrated that in court, it was described in

the record as "rubbing his thigh with his right hand." C.O. asked K.O. when it happened, but, he

testified, "she doesn't have the aspect of time, like what's a week, what's a day, a time limit." She told



                                                   -2-
No. 2--04--1169


him that it happened " 'the other day,' " but he did not know what day she was talking about. K.O.

told him of two occasions, but he could clearly recount only one occurrence. K.O. told him:

                " 'I was in the basement from [sic] the house. And he puts me on top of the bed. And

       we cover ourselves with a blanket or something. He touches my hand. And he puts it

       underneath his pants.' "

She then touched "his part," describing it as "something soft." According to C.O., she repeated that

story "two, three, four times that night." C.O. stopped asking questions after his mother entered the

room and heard what was being discussed; however, his mother took up questioning K.O., and K.O.

repeated her story to both her mother and grandmother that night.

       K.O., and the rest of the family, called defendant "Jimmy." When C.O. asked why she did not

say anything before, she responded that she was scared. Defendant lived in the same house as K.O.'s

grandmother, who babysat K.O. almost every day while C.O. and his wife worked. Until December

26, 2003, K.O. never mentioned anything about defendant making her touch his private parts.

       The trial court ruled:

       "[S]hould the child testify, the time, content, and circumstances of this testimony is

       sufficient--would be sufficiently reliable to allow this testimony to go to the jury pursuant to

       Section 115--10, again, conditional upon the fact that the child does in fact testify in the

       case."

       At a separate hearing, Detective Stokes testified that she interviewed K.O. at the police

department on December 27, 2003.          The interview was conducted in English, but Officer

Montemayor was present in case a Spanish translator was needed. The interview was both

videotaped and audiotaped. Stokes testified that she had been misinformed that K.O.'s grandfather,



                                                 -3-
No. 2--04--1169


not her uncle, was the perpetrator. She asked K.O. if her grandfather had ever touched her

inappropriately or if anybody had grabbed her hand and made her touch him in his private area, and

K.O. said no. K.O. told Stokes that her cousin Kevin had shown her his "pee-pee"; when asked if

anyone else had shown her his pee-pee, K.O. replied no, only Kevin. Stokes showed K.O. anatomical

diagrams of both male and female forms and asked K.O. if she could identify different parts of the

body. When Stokes drew a line to the penis, K.O. did not say anything.

       Stokes and Montemayor interviewed K.O. again on December 30, 2003. K.O.'s mother was

also present in the room, seated behind K.O. This interview was conducted in Spanish, with

Montemayor translating, as K.O. told them she was more comfortable speaking Spanish. No

recording, either video or audio, was made of this interview. According to Stokes, K.O. stated that,

"on several occasions[,] her Uncle Jimmy had taken her hand and placed it on his thingy." Once,

Jimmy placed a blanket over her and placed her hand on his "thingy." K.O. related that Jimmy would

wear long pants with a hole in front and that he would place her hand inside his pants. When Stokes

asked how often this happened, K.O. said that "it was every time that she went over to her Uncle

Jimmy's but not to baby-sit" and that it would happen "on his bed in the basement." Stokes also

specifically testified that K.O. referred to Jimmy's penis as "thingy." Stokes again showed K.O. an

anatomical diagram of a male and asked her to show where her hand had been placed and what it was

called; K.O. pointed to the penis and said "that's the thingy." When asked why the first interview with

K.O. had been videotaped, Stokes replied, "It was at the police department and our goal is not to

have a five year old testify in a trial like this." The second interview was held at the Child Advocacy

Center, which did not have video equipment.




                                                 -4-
No. 2--04--1169


       Montemayor testified that he did not translate anything during the interview on December 26.

He saw no indication that K.O. had any problem understanding or communicating in English. During

the December 30 interview, he translated Stokes' English questions and K.O.'s Spanish responses.

K.O. said that on one occasion, Jimmy grabbed her hand and made her touch his "thingy"; according

to Montemayor, K.O. used the word "tosito," the Spanish word for "thingy." The trial court ruled:

       "[I]f the victim does testify the court believes that the time, content and circumstances of this

       testimony are sufficient, show sufficient areas of reliability and if she is subject to cross

       examination herself the court would allow the statements to go in ***."

       Judge John Phillips then presided over the case. Before trial, the court held a hearing to

determine K.O.'s competency as a witness. K.O.'s examination was conducted with the aid of an

interpreter. K.O. was able to testify about her age, the names of her parents and brother, and where

she lived and went to school. She understood the difference between the truth and a lie and that she

had to tell the truth in court. K.O. did not know when her birthday was or when Santa Claus brought

presents. During the court's questioning, the following took place:

                "THE COURT: *** But you will tell us what's true today? You will tell us the truth?

                THE WITNESS: I don't know.

                THE COURT: Okay. If I ask you to tell me what's true, will you tell the truth and not

       a lie?

                THE WITNESS: I don't know.

                THE COURT: Okay. Tell me if you don't understand me.

                THE INTERPRETER: Okay.

                THE COURT: Have you had a problem with any words I have said to you?



                                                 -5-
No. 2--04--1169


               THE WITNESS: No.

                                               ***

               THE COURT: Would you do this for me: Would you raise your hand for me[?]

               THE WITNESS: (Raising left hand.)

               THE COURT: The other hand. And would you repeat this, would you say, I promise

       I will tell the truth.

               THE INTERPRETER: I promise to tell the truth."

The court then found K.O. to be competent to testify, and the trial began.

       K.O. testified through a Spanish/English interpreter.       K.O. said that she went to her

grandmother's house after school, but she did not go there anymore. Her grandmother and Aunt

Minnie lived there. When asked if she knew if Minnie was married, she answered "No." She also

answered "No" when asked if anyone else lived in the house and if she had any uncles. She did not

remember the incident when she helped her father change her brother's diaper. She was feeling "[a]

little embarrassed" about testifying. At the State's request, the court then took a short break. After

resuming, K.O. testified that, in her grandmother's house, her grandmother slept upstairs, the kitchen

was downstairs, and there was a basement. She did not know who slept in the basement. The State

tried to calm K.O. and reminded her that she made a promise to the judge. K.O. then testified that

she had seen her Aunt Alberteeta in the basement and that Alberteeta was married to Jimmy, whom

she then pointed out as defendant. She stated that Jimmy was not her uncle but that he was married

to Aunt Alberteeta. She liked Alberteeta but did not like Jimmy, although she could not say why she

did not like him. She went to the police station but did not answer any questions. K.O. said that she

had talked to the assistant State's Attorney the day before. She stated that she was nervous and that



                                                 -6-
No. 2--04--1169


she wanted her mother near her. The court took another recess when K.O. put her head down and

began to cry. When the trial resumed, the State asked K.O. if she was feeling better, and after she

responded that she did not know, it stated that it had no more questions.

       The court then ruled that the State had produced K.O. to testify, although it noted:

       "[W]hen the young lady just took the stand again[,] she was still--I wouldn't say that it was

       sobbing, but she was--every time somebody asked her a limited question, she began to cry

       again and it was not a light crying by a child."

The court stated that it was aware of no law that required the State to "go through the event" with

the witness and ruled as follows:

               "THE COURT: Well, she is not unavailable because she is here. So the key is did she

       testify at the proceedings. She did testify at the proceedings. I found her to be competent.

       And if you wish to cross examine, then you can certainly cross examine and I'm not going to

       sustain any objections with respect to scope concerning the event because Mr. Newsome [the

       assistant State's Attorney] did in fact talk about places and people in this case, so [it] has

       opened the door to any of that anyway. So I am not going to overrule Judge Starck with

       respect to his findings because I didn't hear those particular statements. But I would find that

       the prong of having the child testify at the proceedings has been fulfilled. So if you wish to

       cross examine, you certainly can do that. So bring the child in here."

       Other than establishing the fact that K.O. had a "Tio Jimmy," defense counsel asked a total

of five questions about defendant. K.O. responded "I don't know" when asked if Jimmy was mean

to her, if she thought that Jimmy did not like her, and if Jimmy told her to go upstairs when she went




                                                 -7-
No. 2--04--1169


into the basement of her grandmother's house, where Jimmy lived. K.O. answered "No" when asked

if she had ever told her parents a lie about Jimmy or if she had ever told her dad anything about him.

       The State then presented the testimony of C.O., Stokes, and Montemayor, who all testified

similarly to the statements they had previously made to the court.

       Defendant first contends that the trial court erred in admitting K.O.'s out-of-court statements

as substantive evidence at trial. We agree.

       Section 115--10 of the Code, which allows for certain hearsay exceptions, provides in part:

               "(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 an act to another; and

                       (2) testimony of an out of court statement made by the victim describing any

               complaint of such an 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

               the victim.

               (b) Such testimony shall only be admitted if:

                       (1) The court 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



                                                    -8-
No. 2--04--1169


                                 (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

                        2002).

        Defendant argues that his right to confront witnesses against him, guaranteed by both the

United States and the Illinois Constitutions, was violated by the trial court's admission, pursuant to

section 115--10, of K.O.'s out-of-court statements. See U.S. Const., amend. VI; Ill. Const. 1970,

art. I, §8. According to defendant, the court admitted testimonial hearsay without either: (1) the

declarant testifying at trial and being subject to cross-examination; or (2) the declarant being

unavailable to testify and defendant having a prior opportunity to cross-examine. Cases should be

decided on nonconstitutional grounds whenever possible, and constitutional issues should be decided

only as a last resort. In re E.H., 224 Ill. 2d 172, 178 (2006). A trial court's rulings on evidentiary

matters will not be reversed absent a clear abuse of discretion; however, evidentiary rulings involving

questions of statutory interpretation or other questions of law are reviewed de novo. In re T.T., 384

Ill. App. 3d 147, 155 (2008).

       Defendant first argues that K.O. did not testify at trial pursuant to section 115--10(b)(2)(A).

The State did call K.O. as a witness. However, our review of K.O.'s "testimony" leads us to conclude

that she did not testify pursuant to section 115--10. It took 10 pages of questioning before K.O. even

admitted that a person named Jimmy existed; the only information that K.O. gave about Jimmy was that

he was the husband of K.O.'s Aunt Alberteeta and that K.O. did not like Jimmy, although she did not

know why. After a few more pages of questions, during which K.O. was asked about going to the

police station and whether she had been asked some questions there, K.O. put down her head and




                                                  -9-
 No. 2--04--1169


began to cry. After a short recess, the State asked whether K.O. felt better. After K.O. responded that

she did not know, the State informed the court that it had no more questions.

        We conclude that the trial court erred in ruling that K.O. was available and did testify, for

purposes of section 115--10. A child witness is considered unavailable if the child is unwilling or unable

to testify because of fear, unable to communicate in the courtroom setting, or declared incompetent

because she is incapable of expressing herself so as to be understood concerning the matter. T.T., 384

Ill. App. 3d at 156. It makes no difference whether the witness becomes "unavailable" before or after

she takes the witness stand. See People v. Coleman, 205 Ill. App. 3d 567, 583 (1990).

        The State cites to the Fourth District Appellate Court decision in People v. Sharp, 355 Ill. App.

3d 786, 795 (2005), for the proposition "that the key question is whether the declarant was present for

cross-examination and answered defense counsel's questions."1 In Sharp, the victim testified "at some

length" about "what she did and with whom she did it" on the day that she was sexually assaulted.

Sharp, 391 Ill. App. 3d at 953. However, she stopped her narrative after describing how the defendant

pulled her into a room and pushed her to the floor; multiple attempts to get the victim to describe what

happened next were met with " 'No response by witness.' " Sharp, 391 Ill. App. 3d at 954. The victim

later testified, still on direct examination, about what happened after the defendant released her from

the room. The victim then answered all questions put to her on cross-examination, but defense counsel



         1
             Like the case before us, Sharp was also vacated and remanded for reconsideration in light

 of Rolandis G. (see People v. Sharp, 231 Ill. 2d 649 (2009) (nonprecedential supervisory order on

 denial of petition for leave to appeal)). After reconsideration, the Sharp court concluded that "a

 different result is not warranted" and affirmed the defendant’s conviction. People v. Sharp, 391 Ill.

 App. 3d 947, 949 (2009).

                                                   -10-
 No. 2--04--1169


did not ask any questions about what the defendant did with her in the room. Sharp, 391 Ill. App. 3d

at 954. The appellate court concluded that, even in light of the victim's "apparent unwillingness or

inability to testify on direct examination about what defendant did to her in the room," the victim

" 'appeared' for cross-examination at trial." Sharp, 391 Ill. App. 3d at 954.

        We cannot conclude that a witness's mere presence in court to answer general questions without

testifying about the alleged offense is sufficient to qualify as testimony pursuant to section 115--10.

In Crawford v. Washington, 541 U.S. 36, 60 n.9, 158 L. Ed. 2d 177, 198 n.9, 124 S. Ct. 1354, 1369

n.9 (2004), the United States Supreme Court described a declarant's appearance, for purposes of a

constitutional confrontation clause analysis, as a situation where "the declarant is present in court to

defend or explain" his out-of-court statement. (Emphasis added.) While our analysis is not a

confrontation clause analysis, the Supreme Court's definition of appearance is equally applicable here.

        Both the sixth amendment and the Illinois Constitution grant an accused the right "to be

confronted with the witnesses against him." U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8. The

text of the confrontation clause applies to " 'witnesses' " against the accused--those who " 'bear

testimony.' " Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364, quoting 2 N.

Webster, An American Dictionary of the English Language (1828). The central concern of the right

to confront is "to ensure the reliability of the evidence against a criminal defendant by subjecting it to

rigorous testing in the context of an adversary proceeding before the trier of fact." People v. Lofton,

194 Ill. 2d 40, 56 (2000). The "confrontation," then, is a witness's bearing of testimony against the

defendant; the defendant then has the right to rigorously test that testimony through cross-examination.

In order to be confronted by and cross-examine a witness, a defendant must know who the witness is




                                                  -11-
 No. 2--04--1169


and what the witness's testimony is. Section 115--10(b)(2)(A) acknowledges this; it requires that the

child "testifies at the proceeding." 725 ILCS 5/115--10(b)(2)(A) (West 2002). It does not merely

require that the child be "available" to testify or be sworn in and available for cross-examination. If the

child is the only witness (other than hearsay reporters) who can accuse the defendant of actions

constituting the charged offense, the child must testify and accuse if she is to be considered to have

testified at the proceeding under section 115--10(b)(2)(A). Immaterial or general background

"testimony" is not sufficient.

        In the case before us, the trial court told defense counsel that it would not "sustain any

objections with respect to scope concerning the event because Mr. Newsome [the assistant State's

Attorney] did in fact talk about places and people in this case." However, K.O. did not testify at all

about the charge in this case and barely acknowledged the people and places about which she was

questioned. She did not "bear testimony" against defendant. She neither made accusations nor gave

relevant and material testimony. The trial court's statement implicitly admitted that K.O.'s "testimony"

was not incriminating or material; had there been any such testimony, the trial court would not have

had to allow an expanded scope of cross-examination to go into areas clearly not brought up during

the State's questioning.

        However, even such a "generous" expansion of the scope of cross-examination is, at best, a

Trojan horse. In order to get a declarant to "defend or explain" testimony not given on direct

examination, a defendant would be placed in the untenable position of both trying to elicit testimony

about the alleged event and attempting to challenge and refute the very testimony he was forced to

elicit. The dissent notes that defendant did cross-examine K.O. and that "K.O.'s answers may not have

been what counsel was seeking to elicit." Slip op. at 23. However, in the absence of accusatory



                                                   -12-
 No. 2--04--1169


testimony, there would seem to be very few, if any, answers that defense counsel would seek to elicit.

Until facts are in issue, a defendant has no reason to turn a sworn witness into a sworn hostile witness.

        The dissent relies in great part on People v. Garcia-Cordova, 392 Ill. App. 3d 468 (2009), for

support for its conclusion that K.O. was available and testified. However, we find that this court's

analysis in Garcia-Cordova and the State's argument in this case fail to address the lack of confrontation

in the examination of the victim. The dissent details all the questions that the victim in Garcia-Cordova

answered or could not answer but fails to note that all but one question dealt with issues other than the

actual accusation of sexual abuse. In Garcia-Cordova's recitation of the victim's testimony, the only

bit of testimony related to the charges was that "she did not recall anything happening in her bedroom

or on the couch." Garcia-Cordova, 392 Ill. App. 3d at 473. Other than general background

information and identification of the defendant, the vast majority of the State's questions involved the

victim's interview with a child protection investigator and pictures that she drew during the interview.

See Garcia-Cordova, 392 Ill. App. 3d at 472-73. Defense counsel did not cross-examine the victim.

         As in the case before us, there was nothing for defense counsel to cross-examine; the victim

did not confront the defendant and accuse him of anything. No fact was at issue. The Garcia-Cordova

court's observation that the victim's lack of recall regarding the incidents of abuse and other facts could

be considered " 'friendly' cross-examination" (Garcia-Cordova, 392 Ill. App. 3d at 484) is not helpful

in resolving this case. The witness's inability to answer the single question about alleged abuse--to

accuse the defendant--led only to the State's ability to bring in other witnesses to testify about what the

victim said to them at some other time. Again, the defendant was never given the chance to challenge

an accusation against him. None was made. The victim's lack of answers inured to the benefit of the

State, not to the benefit of the defendant.



                                                   -13-
 No. 2--04--1169


        The principal problem at which the confrontation clause was directed was the use of ex parte

examinations as evidence against the accused in criminal cases. Crawford, 541 U.S. at 50, 158 L. Ed.

2d at 192, 124 S. Ct. at 1363. The logic behind this is simple: one cannot cross-examine an out-of-

court report of what he allegedly said or did. A witness must be placed under oath, with implications

(i.e., criminal contempt, perjury, or eternal damnation) for false testimony, and testify before the trier

of fact about the charges, not about irrelevant or mere background information. Here, K.O.'s spoken

testimony was not incriminating; thus, defendant was not confronted by his accuser nor given the right

to rigorously test the accusation against him through cross-examination.

        Sir Walter Raleigh, suspecting that his out-of-court accuser, Lord Cobham, would recant if

forced to testify in court, proclaimed, " '[t]he proof of the Common Law is by witness and jury: let

Cobham be here, let him speak it. Call my accuser before my face....' " Crawford, 541 U.S. at 44, 158

L. Ed. 2d at 188, 124 S. Ct. at 1360, quoting Raleigh's Case, 2 How. St. Tr. 1, at 15-16 (1603).

Raleigh did not say, "let some person to whom Cobham told his story come before this court. Let some

person other than Cobham speak. Call this third person before my face to recant his double hearsay."

Mere presence and general testimony are insufficient to qualify as the appearance and testimony of a

witness. We conclude that K.O. was unavailable as a witness and did not testify for purposes of section

115--10(b)(2)(A).

        Whether the out-of-court statements of an unavailable witness may be admitted at trial depends,

in part, on whether the statements are testimonial in nature. Testimonial statements are subject to the

confrontation clause of the sixth amendment. See Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d

224, 126 S. Ct. 2266 (2006); Rolandis G., 232 Ill. 2d at 26. The testimonial statement of a witness

who does not testify at trial is never admissible 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, 158 L. Ed.

                                                   -14-
 No. 2--04--1169


2d at 194, 124 S. Ct. at 1365; People v. Stechly, 225 Ill. 2d 246, 279-80 (2007). A statement is

testimonial if it is made in a solemn fashion and is intended to establish a particular fact. See Rolandis

G., 232 Ill. 2d at 31; Stechly, 225 Ill. 2d at 280-82. "[A]t a minimum," the term "testimonial" covers

police interrogations as well as statements that are the result of other types of formal questioning where

there was no opportunity for the defendant to cross-examine. See Crawford, 541 U.S. at 68, 158 L.

Ed. 2d at 203, 124 S. Ct. at 1374; Rolandis G., 232 Ill. 2d at 25.

        It is clear that K.O.'s statements to Stokes and Montemayor were testimonial. Both of their

interviews of K.O. were "police interrogations," the primary purpose of which was to "establish or

prove past events potentially relevant to later criminal prosecution." Davis, 547 U.S. at 822, 165 L.

Ed. 2d at 237, 126 S. Ct. at 2273-74. Since K.O. did not testify and defendant had no prior

opportunity to cross-examine her, the testimony of Stokes and Montemayor recounting K.O.'s

statements was admitted in error.

        Defendant also argues that K.O.'s statements to C.O. were testimonial and similarly admitted

in error. When a statement is not the product of law enforcement interrogation, either by the police

or by someone acting on behalf of law enforcement, the proper focus is on the intent of the declarant,

and the inquiry should be whether the objective circumstances would lead a reasonable person to

conclude that her statement could be used against the defendant. Rolandis G., 232 Ill. 2d at 31;

Stechly, 225 Ill. 2d at 288-89. When the declarant is a child, the child's age may be an objective

circumstance to be taken into account in determining whether a reasonable person in her circumstances

would have understood that her statement could be available for use at a later trial. Rolandis G., 232

Ill. 2d at 31; Stechly, 225 Ill. 2d at 295-96.

        We cannot conclude that K.O.'s statements to her father were testimonial. Given K.O.'s age,

we cannot conclude that a reasonable four-year-old child would have understood that her statements

                                                  -15-
 No. 2--04--1169


would be available for use at a later trial. K.O.'s initial statement was not made as an accusation against

defendant. When she was told not to touch her brother's penis, she asked, " 'Why not? Jimmy does

it.' " K.O. did not raise the issue on her own to complain of defendant's actions. K.O.'s question makes

clear that she was not aware that such actions were inappropriate. Compare this to the victim in

Rolandis G., who, after coughing, spitting, and washing out his mouth twice, "spontaneously" told his

mother that the respondent had made him " 'suck his dick.' " Rolandis G., 232 Ill. 2d at 43. His

statements to his mother, who then questioned him about the incident, were considered to be

nontestimonial. See Rolandis G., 232 Ill. 2d at 22, 29. Similarly, while C.O, and, later, his mother,

questioned K.O. about the alleged incidents, those questions were the questions of a concerned father

and a concerned grandmother, asked shortly after K.O. made a stunning statement. This was not

formal questioning by someone acting on behalf of law enforcement. See Stechly, 225 Ill. 2d at 301-02.

The determination of whether a statement is testimonial must be made on a case-by-case basis and

resolved on its own merits. Stechly, 225 Ill. 2d at 298. Under these circumstances, based on K.O.'s

intent in making her statements and C.O.'s and his mother's intent in questioning K.O., we conclude that

K.O.'s statements to C.O. were nontestimonial.

        Where nontestimonial hearsay is at issue, states are granted flexibility in their development of

hearsay law. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374; Rolandis G., 232 Ill.

2d at 25. If a child does not testify at trial, section 115--10(b)(2)(B) still allows the introduction of the

child's nontestimonial out-of-court statement if "there is corroborative evidence of the act which is the

subject of the statement." 725 ILCS 5/115--10(b)(2)(B) (West 2002). However, it is clear that there

was no corroborative evidence of any act alleged in K.O.'s statements. The only evidence presented

in this case was the various recitations of K.O.'s out-of-court statements.



                                                    -16-
No. 2--04--1169


       In Rolandis G., the victim, Von, did not testify. Von's mother, Jacqueline, testified that Von

had been in the company of Rolandis on the day in question. After Von and Rolandis returned to

Jacqueline's home, Rolandis waited outside while Von entered the house. Von "[u]ncharacteristically"

declined to go back outside with Rolandis and went "directly" to the bathroom "and began to act

strangely: coughing, spitting, and washing his mouth out with water" two times. Rolandis G., 232 Ill.

2d at 43. Von then "spontaneously" told Jacqueline that Rolandis had made him perform oral sex on

Rolandis. Rolandis G., 232 Ill. 2d at 43. Our supreme court found that "Von's actions upon his return

home, which Jacqueline witnessed, correlated to the type of sexual abuse Von said occurred and

strongly indicated that the abuse occurred very recently, at a time when Von had been solely in

respondent's company." (Emphases added.) Rolandis G., 232 Ill. 2d at 44. The court then concluded

that "Jacqueline's testimony about her observations of Von's behavior, in addition to her testimony

regarding Von's statement to her, overwhelmingly supports the conviction in this case." Rolandis G.,

232 Ill. 2d at 44. While the court's analysis specifically applied to whether the improper admission of

other testimonial statements resulted in harmless error, we note that Jacqueline was the only witness

for the State whose testimony was found to be proper in the absence of Von's testimony.

       Here, there is no such "correlation" or corroboration. K.O. did reach out on her own and touch

her brother's penis; however, this fact adds little if any weight or credibility to her statement that

defendant "would touch her hand *** and put it on his parts." K.O.'s descriptions of the alleged

incidents were rather fact-specific; K.O. described defendant taking her hand and putting it "inside the

hole that he has in his pants by one of the legs." The other incident involved being covered with a

blanket and, again, having her hand placed underneath defendant's pants. In addition, the manners in

which K.O. touched her brother's penis and allegedly touched defendant's penis were different. C.O.

demonstrated both to the court; the first involved wiggling two fingers while the second involved

                                                 -17-
 No. 2--04--1169


rubbing his thigh with his hand. Unlike Jacqueline's observations in Rolandis G., C.O.'s observations

did not correlate to the type of abuse described by K.O. Furthermore, we disagree with the dissent's

assertion that K.O.'s touching of her brother's penis was necessarily a demonstration of her "knowledge

of sexual matters." See slip op. at 25. Nothing in the context of changing her brother's diaper

necessarily leads to the conclusion that K.O. even knew of the sexual function of the penis. Therefore,

because K.O. did not testify and there was no corroborative evidence presented, the trial court erred

in admitting C.O.'s testimony regarding K.O.'s out-of-court statements.

        Crawford violations are subject to harmless-error review. See Rolandis G., 232 Ill. 2d at 43.

However, since the only evidence presented at trial was the testimony of C.O., Stokes, and

Montemayor, the improper admission of this testimony cannot be held to be harmless error. Therefore,

we must remand this cause for a new trial. As we have decided this issue on statutory grounds, we

need not address defendant's constitutional arguments.

        Defendant next contends that the trial court erred in allowing Stokes to testify regarding K.O.'s

statements made at the second interview, because Stokes' testimony was actually double hearsay.

According to defendant, Stokes did not speak Spanish, the language in which the second interview with

K.O. was conducted. As a result, Stokes did not testify as to what K.O. said; she testified as to what

Montemayor told her K.O. said. The State argues that this issue is forfeited because defendant did not

raise it in his motion for a new trial. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, in

the interests of judicial economy, we will address this issue, as it will probably arise during a retrial.

        "Section 115--10(a)(2) 'clearly mandates that the testifying witness hear the child's remark

personally.' [Citation]." People v. Petitt, 245 Ill. App. 3d 132, 142 (1993). Stokes no more heard

K.O.'s remarks personally than K.O. heard Stokes' questions personally. Only Montemayor could

testify as to what K.O. said. Contrary to the State's assertion, this conclusion does not "preclude the

                                                   -18-
 No. 2--04--1169


application of section 115--10 when the victim cannot speak English." The State must merely present

the testimony of the person who actually heard the child's remarks--the translator. If, on remand, the

State again seeks to introduce K.O.'s out-of-court statements, it would be "plain error" for the trial

court to allow Stokes to testify as to the "hearsay on hearsay" of what K.O. said in the December 30

interview. See Petitt, 245 Ill. App. 3d at 142.

        Defendant next contends that the trial court erred in finding that K.O. was a competent witness

and that the time, content, and circumstances of K.O.'s statements provided sufficient safeguards of

reliability (see 725 ILCS 5/115--10(b)(1) (West 2002)). Because of our disposition of defendant's other

contentions, and the fact that new pretrial hearings would need to be held before trial on remand, we

need not address these issues at this time.

        Defendant next contends that the evidence was insufficient to support his conviction. A

conviction will not be overturned on appeal unless the evidence is so improbable or unsatisfactory that

it creates a reasonable doubt of the defendant's guilt. Petitt, 245 Ill. App. 3d at 135-36. Further, a

conviction will not be overturned if, 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. Petitt, 245 Ill. App. 3d at 136. We will consider all the evidence admitted at the

trial, even evidence that was erroneously admitted. T.T., 384 Ill. App. 3d at 166.

        Reviewing all the evidence in the light most favorable to the prosecution, we conclude that the

evidence was sufficient to prove defendant's guilt. While the evidence was not overwhelming,

especially regarding exactly when the offense allegedly occurred, the testimony of C.O. and Stokes was

consistent as to the identification of defendant as the perpetrator and also as to at least two details, that

defendant allegedly placed K.O.'s hand on his penis through the hole in his pants and that he placed her

on his bed in the basement and put a cover over her. We cannot say that no rational trier of fact could

                                                    -19-
 No. 2--04--1169


have found the essential elements of the crime proven beyond a reasonable doubt. Therefore, while we

reverse the trial court's judgment in this case, we also remand the cause for a new trial.

           For these reasons, the judgment of the circuit court of Lake County is reversed, and the cause

is remanded for a new trial.

           Reversed and remanded.

           HUTCHINSON, J., concurs.

           JUSTICE HUDSON, dissenting:

           I disagree with several aspects of the majority's opinion. First, I believe that K.O. appeared at

trial within the meaning of both section 115--10 of the Code of Criminal Procedure of 1963 (Code)

(725 ILCS 5/115--10 (West 2002)) and Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124

S. Ct. 1354 (2004). Second, I believe that K.O.'s statement to C.O. was admissible. The majority does

correctly conclude that this statement is not testimonial. I do not agree, however, that the statement

lacks corroboration such that it is inadmissible pursuant to section 115--10. Accordingly, I respectfully

dissent.

           The majority holds that "[w]e cannot conclude that a witness's mere presence in court to answer

general questions without testifying about the alleged offense is sufficient to qualify as testimony

pursuant to section 115--10." Slip op. at 11. The majority goes on to cite Crawford for the proposition

that the confrontation clause requires a declarant to be "present at trial to defend or explain" an out-of-

court statement. Crawford, 541 U.S. at 60 n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1369 n.9.

Parenthetically, I do not disagree with the majority's use of Crawford's definition of "present" to analyze

whether the declarant appeared for the purposes of section 115--10; indeed, the standard that has been

articulated for determining whether a child has appeared under section 115--10 is similar to the standard

articulated in Crawford. See People v. Bowen, 183 Ill. 2d 103, 115 (1998) (holding that, absent a

                                                     -20-
 No. 2--04--1169


finding of unavailability, "section 115--10 makes the introduction of the statements expressly contingent

upon the child's production for direct and cross-examination at trial" (emphasis added)).

        Initially, I am not persuaded by the majority's attempt to distinguish People v. Sharp, 391 Ill.

App. 3d 947, 953-54 (2009). In that case, the victim testified to events before and after the crime, but

when the State asked her about the actual crime, the record showed only " ' no response by witness,' "

which indicated that she refused to respond. Sharp, 391 Ill. App. 3d at 954. The victim answered all

questions put to her by defense counsel during cross-examination, and defense counsel made no attempt

to question the victim about the crime itself. Sharp, 391 Ill. App. 3d at 954. The fact that, as the

majority points out, the victim testified at "some length" about events that occurred before and after

the assault does not alter the fact that she did not testify about the assault itself. Sharp, 391 Ill. App.

3d at 953-54. Moreover, unlike the victim in Sharp, who refused to answer certain questions, K.O. at

least responded that she did not know or could not recall certain facts.

        In any event, I believe that the testimony that K.O. did give was sufficient to satisfy the

requirements of the confrontation clause and section 115--10 in accordance with applicable case law.

The following recent cases provide sound guidance for resolving this issue. In People v. Garcia-

Cordova, 392 Ill. App. 3d 468, 472-73 (2009), the victim, after testifying to some preliminary matters,

made an in-court identification of the defendant as her stepfather, but denied that she lived with anyone

besides her mother and sister. She denied remembering going to a medical clinic and telling someone

a secret. She recalled meeting two investigators and drawing pictures during the meeting, but she

stated that she did not recall the purpose of the meeting. She identified one of the drawings, including

stating that it depicted her and the defendant's hand, but she also stated " 'It was a long time ago' " and

could not say what the defendant's hand was doing. Garcia-Cordova, 392 Ill. App. 3d at 472. She

identified other pictures she drew, while stating that she did not recall drawing others. She also testified

                                                   -21-
No. 2--04--1169


that she did not know why she drew any of the drawings. She denied seeing certain anatomical charts,

while acknowledging seeing others. She further denied remembering anything occurring in her

bedroom or on the couch. Finally, she testified that she did not know what part of the body the bottom

part of a bathing suit covered or whether there were parts of the body that should not be touched.

Defense counsel declined to cross-examine. Though the victim's responses may not always have been

what counsel was seeking to elicit, the victim remained responsive throughout the examination and did

not "freeze up." We held that the victim had appeared within the meaning of the confrontation clause.

Garcia-Cordova, 392 Ill. App. 3d at 483-84.

       At the opposite end of the spectrum is In re Rolandis G., 232 Ill. 2d 13 (2008). There, the

victim, after answering a few preliminary questions and identifying the respondent as someone he knew

from the neighborhood, "resolutely refused to respond" to additional questions. Rolandis G., 232 Ill.

2d at 18. The court took a short recess, and the victim spoke with his mother and a child advocate.

When trial resumed, the victim "could not bring himself to answer questions about the allegations."

Defense counsel declined an opportunity to attempt cross-examination. In Garcia-Cordova, we noted

that Rolandis G. provides no detailed discussion of the availability issue and that the case can be read

as standing "for the proposition that where a child answers some preliminary questions unrelated to the

allegations but refuses to answer in any form substantive questions regarding the allegations, the child

is unavailable." Garcia-Cordova, 392 Ill. App. 3d at 481.

       The present case lies somewhere between Rolandis G. and Garcia-Cordova. K.O. testified that

she used to go to her grandmother's house after school but no longer did so. She testified that her Aunt

Minnie lived there as well and that Minnie was not married. She answered "no" when asked if anyone

else lived in the house. She did not recall the occasion upon which she helped her father change her

brother's diaper. She stated that she did not know who slept in her grandmother's basement. However,

                                                 -22-
No. 2--04--1169


she then testified that she had seen her Aunt Alberteeta in the basement and that Alberteeta was married

to Jimmy. She made an in-court identification of defendant as Jimmy. She stated that Jimmy was

married to Alberteeta but denied that he was her uncle. She stated that she did not like Jimmy but

could not say why. She acknowledged that she had visited the police station but denied answering any

questions. She recalled speaking with the assistant State's Attorney the day before the trial. The court

took a recess when K.O. put her head down and started crying. Following the recess, the State said

it had no further questions. During cross-examination, K.O. acknowledged that she had an Uncle

Jimmy, but answered "I don't know" when asked if Jimmy was mean, whether he disliked her, or if he

had ever told her to go upstairs when she went into the basement where he lived. K.O. replied "no"

when asked if she had ever lied to her parents about Jimmy or if she had ever told her dad anything

about him. She responded affirmatively when asked if she got hit with a belt when she did something

bad and admitted that she has told lies in the past. She denied that a cousin had exposed himself to her

or tried to kiss her on the mouth. Defense counsel never actually broached the subject of the alleged

crime, but K.O. did respond to all questions put to her. The trial court ruled that K.O. was available

as a witness.

       I believe that the present case is more akin to Garcia-Cordova. Unlike the child in Rolandis G.,

K.O. never refused to respond. Rather, as in Garcia-Cordova, K.O. continued to answer questions,

despite needing two recesses. Furthermore, unlike both Rolandis G. and Garcia-Cordova, defense

counsel actually engaged in some cross-examination of K.O. K.O.'s answers may not have been what

counsel was seeking to elicit; however, we found that to be of no consequence in Garcia-Cordova. In

this case, many of K.O.'s responses were claims that she did not know certain things or could not

remember various events.



                                                 -23-
 No. 2--04--1169


        The brings us to the question of how we should treat the situation when a declarant asserts lack

of knowledge by answering "I don't know" or "I don't remember." The weight of authority holds that

the fact that a witness does not recall something does not render the witness unavailable. See Garcia-

Cordova, 392 Ill. App. 3d at 483 ("[T]he Illinois Appellate Court has held on numerous occasions that

claims of memory loss and denials of making previous statements do not necessarily require a finding

that the witness was unavailable for cross-examination" (collecting cases)); People v. Bakr, 373 Ill.

App. 3d 981, 987 (2007) ("[N]o confrontation clause problems exist simply because a declarant's

alleged memory problems precluded the declarant from being cross-examined to the extent that defense

counsel would have liked" (emphasis added)); People v. Desantiago, 365 Ill. App. 3d 855, 869 (2006);

see also People v. Sutton, 233 Ill. 2d 89, 122-23 (2009) (holding that, under United States v. Owens,

484 U.S. 554, 98 L. Ed. 2d 951, 108 S. Ct. 838 (1988), a witness is available for cross-examination

even when the witness cannot recall past events). Thus, the fact that K.O. testified that she did not

know of or could not recall certain events did not render her unavailable. The ultimate question, in my

view, is not how the declarant responds, it is whether the declarant does so. In this case, K.O. took

the stand under oath and responded to all questions put to her by defense counsel. I submit that this

is all that is required to satisfy the confrontation clause.

        I also disagree that K.O.'s statement to C.O. was not sufficiently corroborated to warrant its

admission in accordance with section 115--10. "Corroborate" simply means " 'to add weight or

credibility to a thing by additional or confirming facts or evidence.' " In re Alba, 185 Ill. App. 3d 286,

290 (1989), quoting In re Custody of Brunken, 139 Ill. App. 3d 232, 239 (1985). I note that the

legislature did not qualify the term "corroborative evidence" in section 115--10. See 725 ILCS 5/115--

10(b)(2)(B) (West 2002). Since it is improper to read into a statute any limitations or conditions that



                                                    -24-
 No. 2--04--1169


the legislature did not express (People v. Youngblood, 365 Ill. App. 3d 210, 211 (2006)), any amount

of corroboration is sufficient to satisfy the statute.

        In this case, K.O.'s statement was corroborated by her behavior. Specifically, K.O. touched her

younger sibling's penis in an unusual manner as C.O. changed his diaper. See People v. Hill, 289 Ill.

App. 3d 859, 864 (1997) (holding child's knowledge of sexual matters relevant to determining whether

child was abused). It was in this context, after being told not to behave in this manner, that K.O.

uttered, "Jimmy does it." Admittedly, as the majority points out, the evidence available in Rolandis G.,

232 Ill. 2d at 43-44, provided more corroboration for the statements at issue in that case. Slip op. at

17. Nevertheless, in my view, the language of the statute does not require a great degree of

corroboration to allow the admission of such statements. Accordingly, I would also hold that K.O.'s

statement to C.O. is admissible under section 115--10.




                                                   -25-
