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                               Appellate Court                           Date: 2016.02.23 08:27:09
                                                                         -06'00'




                  People v. Burnett, 2015 IL App (1st) 133610



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JAMAAL BURNETT, Defendant-Appellant.



District & No.    First District, Fifth Division
                  Docket No. 1-13-3610



Filed             December 18, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 12-CR-08331; the
Review            Hon. Carol A. Kipperman, Judge, presiding.



Judgment          Affirmed.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Samuel M. Hayman, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  John E. Nowak, and Mary A. Laird, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             JUSTICE GORDON delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Reyes concurred in the judgment and opinion.
                  Justice McBride specially concurred, with opinion.
                                              OPINION


¶1        Defendant Jamaal Burnett was found guilty, after a bench trial, of one count of violating an
     order of protection (720 ILCS 5/12-3.4(a) (West 2012)) obtained by his former girlfriend,
     Shanan Krefft. He was sentenced to three years with the Illinois Department of Corrections
     (IDOC).
¶2        On appeal, defendant raises only one claim: that his sixth amendment right to confront the
     witnesses against him (U.S. Const., amend. VI) was violated by the admission of a prior
     statement by his former girlfriend.
¶3        In the case at bar, the trial court admitted the former girlfriend’s prior statement, pursuant
     to a statutory hearsay section which required the court to first make a determination that she
     was “unavailable” for cross-examination. 725 ILCS 5/115-10.2a(a) (West 2010). At trial, she
     testified to a lack of memory about the facts of the alleged offense. On appeal, defendant
     agrees with the trial court that the witness was unavailable for cross-examination and argues
     that it was her unavailability which violated his sixth amendment rights.
¶4        When this statutory exception was enacted by our legislature in 2003, it was designed to
     conform to then-existing sixth amendment rules. In re Rolandis G., 232 Ill. 2d 13, 23-24
     (2008) (hearsay exceptions adopted in 2003 were designed to comport with then-existing sixth
     amendment rules). However, in 2004, the United States Supreme Court rejected those prior
     rules and adopted a completely different confrontation clause analysis in Crawford v.
     Washington, 541 U.S. 36 (2004). In re Rolandis G., 232 Ill. 2d at 24 (in 2004, the United States
     Supreme Court “overturned” prior rules and “devised a fundamentally new procedure for
     analyzing confrontation clause claims”). Defendant claims that this pre-Crawford statute, as
     applied to him, violates his sixth amendment rights. As we discuss below, a constitutional
     challenge to a statute may be raised at any time. People v. Cleary, 2013 IL App (3d) 110610,
     ¶ 35; People v. Martin, 408 Ill. App. 3d 891, 895 (2011); People v. Emmett, 264 Ill. App. 3d
     296, 297 (1994).
¶5        There is no dispute on appeal that the former girlfriend’s statement was testimonial, that it
     was made out of court, and that defendant lacked any prior opportunity to cross-examine her.
     Crawford v. Washington, 541 U.S. 36, 68 (2004) (a testimonial out-of-court statement is
     admissible under the sixth amendment only if the witness is available for cross-examination at
     trial or the defendant had a prior opportunity to cross). Thus, the statement was properly
     admitted only if the witness can be said to be both unavailable for purposes of this statutory
     hearsay exception, but available for purposes of the sixth amendment right to confrontation.
¶6        For the following reasons, we affirm.

¶7                                        BACKGROUND
¶8                                          I. Indictment
¶9       On May 1, 2012, defendant was indicted on seven counts: four counts of aggravated
     stalking and three counts of violating a protective order. The trial court later found defendant


                                                  -2-
       not guilty of all four counts of aggravated stalking, as well as two of the counts of violating a
       protective order.
¶ 10       The only count of which defendant was convicted, count V, charged that defendant had
       violated a valid protective order and stated that he “harassed Shanan Krefft.” Count V did not
       specify the acts that constituted the harassment or the time period or the place of the
       harassment.
¶ 11       The trial court found defendant not guilty of the other two counts of violating a protective
       order, namely, counts VI and VII, which had charged that defendant violated the protective
       order by stalking Krefft and by interfering with her “personal liberty.” Thus, the trial court
       acquitted defendant of all counts related to stalking.

¶ 12                                            II. The First Trial
¶ 13        In May 2013, defendant was tried on charges, other than the charges described above, that
       he had violated the protective order obtained by Krefft. After hearing testimony from Krefft
       and other witnesses, the trial court found defendant not guilty, on the ground that Krefft was
       not a credible witness. The court ruled:
                    “THE COURT: I will consider the evidence in this case and I have consider[ed] the
                complaining witness’s testimony as she testified to the court considering her demeanor
                while she testified[. This court] does not find her a credible witness. Further, she
                testified that she did have a telephone conversation with the defendant from the jail ***
                which he made. She told him don’t call me again and she said stop calling me.
                    If you look at the Call Detail Report from Cook County, which the State
                introduced, there’s no call which shows that any contact was made. Therefore, the
                Court finds that [the] testimony that she gave based upon the evidence that I have in
                front of me with regard to the detail call report[,] that [her] testimony is not credible.
                    Considering further her testimony that she did not feel threatened or harassed, all I
                have left is the number of telephone calls that were made. In this case, the Court would
                find given her testimony that she did not feel harassed for what that was worth, given
                her demeanor on the stand, given her attitude as she testified, the Court would find the
                defendant not guilty in this case.
                    However, he has another case.”
¶ 14        The statements that the trial court referred to above, that Krefft did not feel threatened or
       harassed, were elicited on cross-examination. On redirect, Krefft had stated: “I told the State
       earlier I was done and I didn’t want nothing else to do with this case.” The other case referred
       to by the trial court above is the case on this appeal, which the court and counsel scheduled for
       a bench trial in June 2013, and a status conference on May 21, 2013. The trial court asked
       “[w]ill she come?” and the prosecutor replied that “[s]he has to come back” because she is the
       “victim.”
¶ 15        On May 21, 2013, at a status conference, the assistant State’s Attorney (ASA) asked the
       trial court to admonish Krefft, who was present in court, that she must appear in court on June
       14, 2013, when the second trial was scheduled. The trial court stated: “You must appear in
       court at the date and time in question. If you fail to appear, a warrant will issue for your arrest.”
       The witness replied “[y]es” after the ASA requested that the witness acknowledge that she had



                                                     -3-
       been so instructed.

¶ 16                                       III. The Second Trial
¶ 17       On June 14, 2013, defendant signed a jury waiver in open court, and the parties proceeded
       to a bench trial on the charges involved in this appeal.
¶ 18       The State called three witnesses: (1) Shanan Krefft, defendant’s former girlfriend and the
       complainant; (2) Officer Wyees Williams, the arresting officer; and (3) Detective Johnny
       Thorns, who investigated the case. The defense also called Marcos Ryes, a Cook County
       public defender who witnessed Krefft stating that defendant had not harassed her.

¶ 19                                          A. Shanan Krefft
¶ 20       Shanan Krefft testified that she had been in a relationship with defendant for five years;
       that she had four children; that defendant was the biological father of her two youngest sons;
       and that he also acted as a father to her two oldest sons.
¶ 21       During the initial part of Krefft’s testimony, the ASA observed that Krefft appeared to be
       in distress, and Krefft explained that she had cervical cysts, that she was supposed to have
       surgery today, that the cysts were starting to burst and that “they hurt.”
¶ 22       Krefft testified that, in March 2012, she had an order of protection against defendant. She
       identified People’s exhibit No. 1 as “the original order of protection” which, she stated, was in
       effect until February 6, 2013. However, the document identified in the appellate record as
       People’s exhibit No. 1 is an order of protection issued on October 31, 2013, which states that a
       prior protective order was entered on November 30, 2010, and that the prior order is extended
       to October 28, 2015.
¶ 23       Then the ASA stated that he was showing the witness People’s exhibit No. 2. The witness
       testified that it was entered on February 9, 2011. However, the document identified in the
       appellate record as People’s exhibit No. 2 is an order of protection entered November 30, 2010.
       Krefft testified that People’s exhibit No. 2 prohibited defendant from stalking or harassing her
       and from any unlawful contact.
¶ 24       Krefft testified that, in March 2012, she was living in a hotel near O’Hare Airport, and
       defendant drove by the hotel in his cab five times during March 2012 and that he called her
       after each time.
¶ 25       The State then repeatedly attempted to ask Krefft about events that occurred on March 3,
       2012. Krefft testified that she could not remember anything from that date. She stated: “I just
       assume forget and just let everything go from back then.” The State then tried to refresh
       Krefft’s recollection by showing her People’s exhibit No. 3, a typed statement she made to the
       “police.”1 Krefft testified that her memory was not refreshed about what happened on March
       3, 2012. She explained: “I’m reading it, and it–I mean, if that’s what I stated on there, then I
       guess that’s what happened, but I don’t remember.” Krefft recalled meeting with Detective
       Johnny Thorns at the Cook County sheriff’s office with a female detective and telling Thorns
       that defendant drove by her building in March 2012.


           1
            The statement was marked People’s exhibit No. 3 and it is described in the next section of this
       opinion.

                                                    -4-
¶ 26       When the ASA asked Krefft specifically about March 3, 2012, she replied: “Honestly, if
       I’m not looking at that [statement,] I don’t remember.” Defense counsel then objected, stating:
                   “DEFENSE COUNSEL: Well, [Y]our Honor, we assert she’s already had the
               opportunity to review the document that the State had presented to her, and she still
               continues to indicate she cannot recall. We assert the document could not be used any
               further because it does not refresh her recollection.”
¶ 27       Krefft testified that, on March 9, 2012, defendant was arrested at the motel, on the
       sidewalk, after she went to the front office and called the police. On March 9, 2012, prior to
       defendant’s arrest, Krefft had received more than one telephone call and text message from
       defendant; however, she could not remember an exact number of calls or messages. Between
       March 1 and March 9, 2012, Krefft observed defendant driving down Mannheim Road, where
       her hotel was located. When she observed him, she could have been at her hotel or at a nearby
       gas station. On March 8, 2012, she received a text message from defendant, and there was
       probably more than one, but she did not remember.
¶ 28       Krefft testified that, during March 2012, she received a text message from defendant in
       which he said that he saw her. After defendant was arrested, the sheriff took him away and he
       appeared in court. Defense counsel objected on the ground that the events after March 9, 2012,
       “had no bearing on this case.” The trial court then instructed the prosecutor to “[t]ie it up.”
       Krefft testified that on April 6, 2012, she came to “this building” and spoke with an ASA, and
       that she and the ASA went to the sheriff’s department “across from the courthouse,” where
       they met with Detective Johnny Thorns and a female detective named Detective Amegatcher.
       After meeting with the two detectives, Krefft met with a different ASA and she gave a
       statement regarding the case.
¶ 29       On cross-examination, Krefft testified that she had no independent recollection of events
       that occurred between March 2, 2012, and March 9, 2012.

¶ 30                                 B. Krefft’s Statement to the ASA
¶ 31       After Krefft’s testimony, the State offered her prior statement into evidence. The parties
       reached the following stipulation:
                   “ASA: Well, [Y]our Honor, at this time, it is stipulated by and between the parties
               that People’s Exhibit 3 is signed by Shanan Krefft, and that at this time we would seek
               leave to publish it.
                   THE COURT: Okay.
                   DEFENSE COUNSEL: We’ll acknowledge that she signed the document. We’ll
               stipulate that she signed the document.”
¶ 32       Defense counsel objected to any part of the statement that did not concern the period of
       time in the charging instrument, which was from March 2 to March 9, 2012. However, the trial
       court ruled that “the statement comes in as a whole.”
¶ 33       When the ASA read the statement into the record, the ASA omitted portions. We describe
       the entire statement below, since the trial court stated that the court would consider the
       statement as “a whole.” However, we indicate the portions that the ASA did not read into the
       record at trial.
¶ 34       The appellate record contains a typed statement identified as People’s exhibit No. 3, with
       the following heading:

                                                  -5-
                                         “Statement of Shanan Krefft
                                      Taken April 6, 2012 at 3:47 p.m.
                         At Cook County Sheriff’s Police Station, Maywood, IL.
                                          Present Are: Shanan Krefft
                                     Assistant State’s Attorney [Name]
                     Cook County Sheriff’s Police Detective Johnny Thorns #953.”
¶ 35       Each page of the 5½ page document is signed at the bottom in pen by Krefft, the ASA and
       the detective. The typed document contains no handwritten corrections. Attached to the
       document are two exhibits, which are also signed at the bottom by the same three people.
       Exhibit A is a photograph of defendant; and Exhibit B is a photograph of Krefft. The statement
       begins by stating that it is “a summary and not word for word.”
¶ 36       The statement recites that Krefft was born in 1982 and has been employed at Gottlieb
       Memorial Hospital for three weeks doing secretarial work. Before the secretarial job, she drove
       for a cab company. She has four children, aged 10, 6, 3 and 2, who are currently living with her
       parents in Melrose Park, Illinois. Defendant is the father of her two youngest children.
¶ 37       Krefft met defendant in August 2007 through a mutual friend and they were in a
       relationship from then until November 28, 2010. During the relationship, defendant “hit her
       hundreds of times” and she became “fed up” and ended the relationship on November 28,
       2010, when she pressed charges against him for domestic battery.
¶ 38       After defendant’s arrest in November 2010, she obtained a protective order against him on
       November 30, 2010. Defendant was in custody on that domestic battery charge from
       November 28, 2010, until March 28, 2011. According to Krefft, that order is still in effect and
       does not expire until February 6, 2013.
¶ 39       After defendant was released in March 2011, he continued to contact her, “but the contact
       was not harassing or intimidating in nature,” and “she did not have any problems with
       [defendant] until September 17, 2011.”
¶ 40       The prosecutor then stated that he would not read the portion of the statement, which
       concerned September 17, 2011. The typewritten statement recites that, on September 17, 2011,
       she let him come to the hotel room in Addison, Illinois, where she was living, in order to take a
       shower while she was out. When she arrived back at the room, they started fighting and he
       struck her. Krefft called the police, and domestic battery charges were filed against him in Du
       Page County. Defendant was in custody for two weeks and released toward the end of
       September 2011. He called her for a ride from jail which she refused.
¶ 41       The prosecutor continued reading at trial with the fact that Krefft remained in contact with
       defendant after his September 2011 release. The contact was civil until the end of January
       2012, when defendant became angry at her refusal to reunite. During February 2012, defendant
       called her repeatedly on her cell phone and made threatening comments, such as saying “he
       should have killed her a long time ago.”
¶ 42       On March 2, 2012, Krefft was walking on the sidewalk on Mannheim Road near O’Hare
       Kitchenettes, where she was living at the time, and she observed defendant drive by in his cab
       and look at her when he drove by. Two hours later, he called her on her cell phone, and she told
       him to leave her alone. She hung up, and he tried to call back, but she did not answer. Then she
       received a text message from his cell phone number which said “1 day.”


                                                   -6-
¶ 43        The next day, she was walking back to her hotel room from the gas station across the street,
       when she observed defendant drive by in his cab and she ran back to her room. Defendant
       called her “multiple times” that day from his cell phone number and she answered one of the
       calls. The statement does not recount the contents of this conversation.
¶ 44        On March 5, 2012, she was exiting a bus near her hotel on Mannheim Road at 7 a.m. when
       she observed defendant sitting in his cab at the gas station across the street from her hotel.
       However, she did not believe that he observed her. Krefft then went into a nearby restaurant
       and waited until she observed him depart in his cab before returning to her hotel room.
       Defendant “called her non-stop that day” and she answered “a couple of times.” Although
       Krefft stated that she answered only “a couple of times,” she stated that “she told [defendant]
       numerous times that day to stop calling her.” Krefft stated that defendant was “cursing and
       threatening her,” and that he again told her that “he should have killed her.”
¶ 45        On March 6, 2012, Krefft was in her motel room when she received a text message at 5:20
       a.m. from defendant’s cell phone number stating “I c u.” Krefft then pushed the couch against
       the hotel room door and did not leave her room that day.
¶ 46        On March 8, 2012, she exited her room to walk to the front office to pay her bill, when she
       observed defendant drive past her hotel in his cab. She received “numerous phone calls and
       text messages” from defendant that day. Although the statement notes that she asked him to
       stop calling, it does not indicate how many times she answered or replied.
¶ 47        On March 9, 2012, she began receiving text messages from defendant’s cell phone at 6:30
       a.m. which continued throughout the day. He also called her “repeatedly.” At 8:15 p.m., she
       opened the door to her hotel room and observed defendant in his cab in the parking lot. When
       defendant observed her, he exited his cab and yelled at her that he “should have stomped [her]
       head in a long time ago” and that he had “people that will kill for me.” Krefft ran to the front
       desk, and the person there called the police.
¶ 48        When the prosecutor read the statement aloud, he stated: “Shanan [Krefft] states that she
       speaks Greek and writes English.” However, the typed statement has no reference to Greek. It
       states only that she speaks and writes English. Both the prosecutor and the typed statement
       indicate that Krefft was given the opportunity to make changes but that she did not wish to do
       so.
¶ 49        After the prosecutor finished reading the statement aloud to the court, defense counsel
       objected to its admission as a prior inconsistent statement. The prosecutor responded that it
       was admissible as a prior inconsistent statement pursuant to section 115-10.1 of the Code of
       Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 2012)). Defense counsel replied that
       this statutory section required that the statement be “inconsistent with his [or her] testimony at
       the hearing or trial” and he argued that the statement was not inconsistent since Krefft stated at
       trial only that she could not recall.
¶ 50        The prosecutor responded that “it is inconsistent. When she sits there and says, I can’t
       remember these events, it’s like saying I’m not going to testify.” The trial court agreed. 2



           2
            However, at the end of the State’s case, when the State moved to admit the statement into
       evidence, the trial court admitted the statement pursuant to a different statutory hearsay exception, as
       we describe below (infra ¶¶ 60-62).

                                                      -7-
¶ 51                                     C. Officer Wyees Williams
¶ 52       Wyees Williams testified that he was a police officer with the Cook County sheriff’s office.
       On March 9, 2012, he was on patrol in uniform and in a marked police vehicle when he was
       dispatched at 8:20 p.m., to a motel on Mannheim Road, where he met Krefft in the front office.
       Krefft was distraught, and had scratches on her neck and bruising on her arm. Krefft showed
       Williams an order of protection that she had against defendant, and he observed that the order
       was still in effect. When the officer, who was in uniform, knocked on the door of a motel room,
       defendant answered it and then identified himself in response to the officer’s question.
       Defendant then stated: “I haven’t done anything, I’m sitting here watching TV.” Williams then
       asked about the alleged altercation, and defendant was “vague.” Williams then arrested
       defendant for domestic battery and violating a protective order.
¶ 53       On cross-examination, Williams could not recall whether defendant was dressed when he
       answered the door or whether Williams had to instruct defendant to put on clothes. When
       Williams first observed defendant, defendant was laying on the bed. When Williams first
       observed Krefft, she was in the motel’s office. Williams responded to the dispatch in a “matter
       of minutes.” Defendant gave his address as the motel room where Williams found him, which
       was the same room that Krefft provided as her address. The prosecutor objected to Krefft’s
       address as hearsay, and the trial court struck that information. Williams did not call an
       ambulance for Krefft and did not transport her to receive medical attention.

¶ 54                                   D. Detective Johnny Thorns
¶ 55       Detective Johnny Thorns testified that he was employed by the Cook County sheriff’s
       police department. On April 6, 2012, Krefft was brought to his office by an ASA. Thorns was
       asked whether there was also “a female detective with [him] during part of the time that [he]
       spoke” with Krefft, and he replied yes, his partner, Detective Karen Amegatcher. Thorns was
       asked “when Shanan Krefft gave you a handwritten statement, was it typed by [the] ASA,” and
       he responded “[y]es, it was.” The prosecutor then asked whether “that handwritten statement
       memorialize[d] her statements to you,” and Thorns replied that it did. Thorns then identified
       People’s exhibit No. 3 as “the statement that was typed up by the ASA from Shanan Krefft.”
¶ 56       On cross, Thorns testified that the “handwritten statement that [he] referred to” was
       actually the typed statement identified as People’s exhibit No. 3 and that there was no
       handwritten statement in this case. Thorns also testified that his partner “wasn’t there for the
       statement that was taken.” Only he and the ASA were present when Krefft’s statement was
       “taken.”
¶ 57       On cross-examination, Thorns testified that on April 6, the same day that the statement was
       taken, he had a conversation with Krefft that he memorialized in his police report. During this
       conversation, Krefft told him that she had filed a police report against her children’s father, and
       the report classified the incident as a domestic battery. However, Krefft related that the
       incident was not a domestic battery, that she had not been battered, and that her ex-boyfriend
       had followed her for five days. Krefft was referring to the report made by Officer Williams on
       March 9, 2012, which covered the incidents in this case.
¶ 58       On redirect, Thorns testified that on April 6, 2012, when Krefft came to speak to him, she
       seemed “upset” and “distraught.” Krefft was concerned that defendant was going to kill her
       and that defendant should be charged with the appropriate charge. On recross, Thorns admitted
       that Krefft’s concern, that defendant be appropriately charged, was not reflected in his report.

                                                    -8-
¶ 59       The State then moved to admit People’s exhibit Nos. 1, 2 and 3. The first two exhibits were
       orders of protection, and the third exhibit was Krefft’s typed statement. The defense objected
       to the admission of People’s exhibit No. 3, arguing that it had not stipulated to the exhibit’s
       admissibility, that Krefft had no independent recollection, that there was no indicia of
       reliability, and that the statement did not satisfy the requirements for a prior inconsistent
       statement.
¶ 60       In response to defendant’s argument that the statement did not qualify as a prior
       inconsistent statement, the trial court held that it was admitting the statement pursuant to
       section 115-10.2a of the Code of Criminal Procedure of 1963 (Code), which permits the
       admission of certain prior statements in domestic violence prosecutions. 725 ILCS
       5/115-10.2a(a) (West 2010) (domestic violence exception). This exception applies only if the
       statement is “not specifically covered by any other hearsay exception.” 725 ILCS
       5/115-10.2a(a) (West 2010).
¶ 61       Reading the statute aloud, the trial court observed that, for this exception to apply, the court
       had to make a determination that the witness was unavailable. 725 ILCS 5/115-10.2a(c) (West
       2010) (defining “[u]navailability”). The trial court then found that Krefft was, in fact,
       unavailable due both “to a lack of memory” (725 ILCS 5/115-10.2a(c)(3) (West 2010)) and a
       refusal “to testify concerning the subject matter” of her statement “despite an order of the court
       to do so.” 725 ILCS 5/115-10.2a(c)(2) (West 2010). The trial court held that it was admitting
       the statement “[b]ased upon that” finding. The State made no objection to the trial court’s
       finding that Krefft was unavailable or to the trial court’s decision to admit the statement
       pursuant to the domestic violence exception, which required a determination that no other
       exception was available.
¶ 62       After the admission of its exhibits, the State rested. The defense made a motion for a
       directed finding, which the trial court denied.

¶ 63                                         E. Marcos Reyes
¶ 64       Defendant called Marcos Reyes, the chief of the Maywood Office of the Cook County
       public defender, who testified that he was present on May 21, 2013, when defense counsel had
       a conversation with Krefft in a hallway outside of a courtroom. During this conversation,
       Krefft stated that, between March 2, 2012, and March 9, 2012, she never felt harassed by
       defendant. The defense then rested its case, and the trial court heard argument from both sides.
       During closing argument, defense counsel argued that the court had learned from the police
       that defendant lived in the same motel as Krefft and thus, when defendant drove by, “that’s not
       stalking, they live together.”

¶ 65                                   F. Conviction and Sentencing
¶ 66       On June 14, 2013, the trial court found defendant not guilty of all counts but count V,
       thereby acquitting defendant of all counts of stalking. Count V charged defendant with
       violating a protective order by harassing Krefft. Explaining its ruling, the trial court indicated
       that it relied almost exclusively on Krefft’s statement, particularly defendant’s “threats to [her]
       to watch her back.” The court stated that it found defendant had violated paragraph one of the
       protective order which prohibited harassment. On August 13, 2013, the trial court entered a
       written order which reflected that defendant was guilty of count V and not guilty of all the
       other counts.

                                                    -9-
¶ 67       On September 9, 2013, defendant filed posttrial motions to vacate the finding of guilty and
       to grant him a new trial, on several grounds, including that Krefft’s statement lacked any
       indicia of reliability and was not properly admitted into evidence.
¶ 68       On October 31, 2013, the parties appeared for sentencing. First, the presentence report was
       corrected to indicate that defendant had lived with Krefft for five years, including for a brief
       time at the motel when this incident was occurring.
¶ 69       Next, the trial court heard argument on defendant’s motions. Defense counsel argued that
       the finding of guilt on count V was inconsistent with the acquittal on the other counts. He also
       argued that the trial court relied on Krefft’s statement and that her statement should not have
       been admitted into evidence “principally because when Shanan [Krefft] came to court she said
       she couldn’t recall any of the information” in it. Defendant argued that he was “denied any
       opportunity to effectively cross-examine her” because she did not “remember anything.” In
       addition, he argued that the statement lacked any “indicia of reliability.” The trial court denied
       both motions and proceeded to sentencing.
¶ 70       In mitigation, the trial court heard from defendant that he had been employed and was
       supporting his family at the time of his arrest. In aggravation, the court considered his prior
       arrest for domestic battery. The court sentenced defendant to three years with IDOC, followed
       by one year of mandatory supervised release. Defendant filed a notice of appeal on November
       19, 2013, and this appeal followed.

¶ 71                                            ANALYSIS
¶ 72       Defendant’s sole claim on appeal is that the trial court erred in admitting Krefft’s prior
       statement into evidence, because its admission violated his sixth amendment right to confront
       and cross-examine the witnesses against him. The issue is whether Krefft was available for
       cross-examination on the sole charge of which defendant was convicted, namely, harassment
       in violation of a protective order. For the following reasons, we affirm.

¶ 73                                             I. Forfeiture
¶ 74        As an initial matter, the State argues that defendant forfeited this sixth amendment issue by
       failing to raise it in the court below. Defendant argues that he did preserve this issue by
       challenging the admission of Krefft’s statement in the trial court.
¶ 75        “Ordinarily, a defendant must both specifically object at trial and raise the specific issue
       again in a posttrial motion ***.” People v. Woods, 214 Ill. 2d 455, 470 (2005) (citing People v.
       Enoch, 122 Ill. 2d 176, 186 (1988)); People v. Nieves, 193 Ill. 2d 513, 524 (2000) (State argued
       that defendant needed “to object on this particular ground before the trial court” and raise it
       again in a posttrial motion, and the supreme court “agree[d]”).
¶ 76        For example, in People v. Casillas, 195 Ill. 2d 461, 491 (2000), our supreme court held that
       a defendant’s objection in the trial court to the testimony of two witnesses “on the grounds of
       hearsay” did not preserve an objection to the same witnesses’ testimony “on the grounds of
       unreliability.” Similarly, in the case at bar, defendant’s objection in the court below to Krefft’s
       statement on the grounds that the statement did not fit various statutory exceptions to the
       hearsay rule did not preserve an objection to the same statement on sixth amendment grounds.
       Defendant forthrightly states in his reply brief to this court: “The State is correct, however, that



                                                    - 10 -
       counsel did not specifically invoke the Sixth Amendment or Confrontation Clause.” Thus,
       defendant did not preserve this issue for appeal.
¶ 77       However, this conclusion does not end our inquiry. Last year, our supreme court held that
       “three types of claims are not subject to forfeiture” in criminal cases. People v. Cregan, 2014
       IL 113600, ¶ 16 (citing Enoch, 122 Ill. 2d at 190). The three types are: “(1) constitutional
       issues that were properly raised at trial and may be raised later in a postconviction petition; (2)
       challenges to the sufficiency of the evidence; and (3) plain errors.” Cregan, 2014 IL 113600,
       ¶ 16 (citing Enoch, 122 Ill. 2d at 190). In the case at bar, defendant argues, first, that the sixth
       amendment issue qualifies for appellate review under the constitutional issue exception.3
¶ 78       Defendant argues that we should review the issue under the constitutional issue exception.
       Recently, our supreme court described this exception as follows:
               “[T]he constitutional-issue exception recognized in Enoch is based primarily in the
               interest of judicial economy. The Post-Conviction Hearing Act provides a mechanism
               for criminal defendants to assert that a conviction or sentence resulted from a
               substantial denial of their rights under the United States Constitution, the Illinois
               Constitution, or both. 725 ILCS 5/122-1(a) (West 2008). Postconviction proceedings
               permit inquiry into constitutional issues that were not, and could not have been,
               adjudicated on direct appeal. [Citation.] If a defendant were precluded from raising a
               constitutional issue previously raised at trial on direct appeal, merely because he failed
               to raise it in a posttrial motion, the defendant could simply allege the issue in a later
               postconviction petition. Accordingly, the interests in judicial economy favor
               addressing the issue on direct appeal rather than requiring defendant to raise it in a
               separate postconviction petition.” Cregan, 2014 IL 113600, ¶ 18.
¶ 79       However, the sixth amendment issue does not fall into this exception because, as the
       Cregan court explained, this exception covers only “constitutional issues that were properly
       raised at trial” (emphasis added) (Cregan, 2014 IL 113600, ¶ 16), and where defendant’s only
       omission was “merely *** fail[ing] to raise it in a posttrial motion.” Cregan, 2014 IL 113600,
       ¶ 18. In the case at bar, defendant failed to object both (1) at trial and (2) in a posttrial motion.
       Thus, under Cregan, defendant cannot claim the benefit of this exception.
¶ 80       However, defendant argues that, since the domestic violence exception permitted the State
       to use a testimonial hearsay statement against him, this statute violated his right under the
       confrontation clause and was unconstitutional as applied to him. “[G]enerally, a challenge to
       the constitutionality of a statute may be raised at any time.” People v. Cleary, 2013 IL App (3d)
       110610, ¶ 35. Thus, defendant argues that forfeiture does not apply.
¶ 81       The facts in Cleary are similar to the facts in the case at bar. As in our case, the trial court in
       Cleary admitted hearsay statements made by a domestic violence victim pursuant to section
       115-10.2a of the Code. Cleary, 2013 IL App (3d) 110610, ¶ 1. As in our case, the defendant in
       Cleary argued that, pursuant to Crawford v. Washington, 541 U.S. 36 (2004), admitting these
       statements violated his right under the confrontation clause of the sixth amendment. Cleary,
       2013 IL App (3d) 110610, ¶ 1. As in our case, the defendant in Cleary failed to raise the sixth

           3
            Defendant also argues, in the alternative, for plain error review for the first time in his reply brief.
       People v. Ramsey, 239 Ill. 2d 342, 412 (2010) (“although defendant did not argue plain error in his
       opening brief, he has argued plain error in his reply brief, which is sufficient to allow us to review the
       issue for plain error”); People v. Williams, 193 Ill. 2d 306, 347-48 (2000).

                                                        - 11 -
       amendment issue at trial or in a posttrial motion. Cleary, 2013 IL App (3d) 110610, ¶ 35. The
       appellate court concluded that, since defendant was challenging the constitutionality of the
       statute as applied to him and since the constitutionality of a statute may be raised at any time,
       the defendant “has not forfeited appellate review of this issue.” Cleary, 2013 IL App (3d)
       110610, ¶ 35; People v. McCarty, 223 Ill. 2d 109, 123 (2006) (“as this court has noted in the
       past, a challenge to the constitutionality of a statute may be raised at any time”). Defendant is
       correct that, under Cleary, forfeiture does not apply. See also People v. Martin, 408 Ill. App.
       3d 891, 895 (2011) (although the issue was not raised below, defendant did not forfeit his
       challenge to the admission of a domestic battery victim’s statement, on the ground that her
       memory loss negated his confrontation rights).
¶ 82        Like the Second and Third Districts in Martin and Cleary, this court has also held that the
       forfeiture rule does not apply to as applied constitutional challenges to a statute. People v.
       Emmett, 264 Ill. App. 3d 296, 297 (1994). In Emmett, as in our case, the State argued that, since
       defendant failed to raise his constitutional challenge in the trial court, he forfeited the issue for
       appeal. Emmett, 264 Ill. App. 3d at 297. We acknowledged that, while it is generally true that a
       failure to raise an issue in the trial court will forfeit it on appeal, a constitutional challenge to a
       statute can be raised at any time. Emmett, 264 Ill. App. 3d at 297 (citing People v. Bryant, 128
       Ill. 2d 448 (1989)). In Emmett, we observed that “[t]he State attempts to circumvent this rule
       by claiming that where a statute is being challenged as unconstitutional as applied to a
       particular defendant, rather than on its face, the [forfeiture] rule still applies.” Emmett, 264 Ill.
       App. 3d at 297. We stated that we “found no case *** which makes this distinction,” and we
       did not apply the forfeiture rule. Emmett, 264 Ill. App. 3d at 297; see also People v. Rush, 2014
       IL App (1st) 123462, ¶ 2; People v. Garvin, 2013 IL App (1st) 113095, ¶ 13 (although
       defendant failed to raise an as applied challenge before the trial court, “a constitutional
       challenge to a statute may be raised at any time, and thus, the issue is properly before this court
       for consideration” (citing People v. Bryant, 128 Ill. 2d 448, 454 (1989))). Thus, defendant is
       correct that, under Cleary, Martin, and Emmett and similar cases, the forfeiture rule does not
       apply to the sixth amendment issue which defendant now raises on appeal.

¶ 83                                      II. Standard of Review
¶ 84       Generally, we review a trial court’s decisions concerning the admission of evidence or
       testimony only for an abuse of discretion. In re Brandon P., 2014 IL 116653, ¶ 45 (“a trial
       court’s ruling on evidentiary matters will not be reversed absent a clear abuse of discretion”);
       People v. Lovejoy, 235 Ill. 2d 97, 141 (2009); People v. Sutherland, 223 Ill. 2d 187, 281
       (2006). However, claims under the sixth amendment often present questions of law, and we
       review those questions de novo. Lovejoy, 235 Ill. 2d at 141-42; In re Rolandis G., 232 Ill. 2d
       13, 23 (2008). For example, questions of whether the complained-of statements were
       testimonial or qualified as hearsay are questions of law, to which our supreme court has
       applied a de novo standard of review. Lovejoy, 235 Ill. 2d at 141-42; In re Rolandis G., 232 Ill.
       2d at 23 (“whether a statement is ‘testimonial’ is a question of law and our review, therefore, is
       de novo”). See also People v. Leach, 2012 IL 111534, ¶¶ 64, 67, 122 (our supreme court
       reviewed de novo whether a statement was hearsay and whether it was testimonial).
¶ 85       In contrast, whether a witness is available for cross-examination is a question to which our
       supreme court has applied the abuse-of-discretion standard of review generally applied to
       evidentiary questions. In re Brandon P., 2014 IL 116653, ¶ 45. Last year, our supreme court

                                                     - 12 -
       criticized an appellate court because it “essentially conducted its own de novo review of the
       record to find that [a child witness] ‘appeared’ for cross-examination at trial within the
       meaning of the confrontation clause.” In re Brandon P., 2014 IL 116653, ¶ 45. Our supreme
       court held that the appellate court should have reviewed “the trial court’s ruling on [the
       witness’s] availability for abuse of discretion.” In re Brandon P., 2014 IL 116653, ¶¶ 45, 47
       (holding that “the trial court did not abuse its discretion in declaring [the witness]
       unavailable”).4
¶ 86        However, Brandon P. is distinguishable from the case at bar because, in the case at bar, the
       trial court never ruled on whether the witness was available for purposes of the confrontation
       clause. Thus, we must consider, in the first instance, whether a witness may be unavailable for
       the statutory exception as the trial court ruled, but available for purposes of the confrontation
       clause. This is a purely legal question which we review de novo. Lovejoy, 235 Ill. 2d at 141-42.

¶ 87                                    III. Confrontation Clause
¶ 88        The sixth amendment’s confrontation clause provides that, “[i]n all criminal prosecutions,
       the accused shall enjoy the right *** to be confronted with the witnesses against him.” U.S.
       Const., amend. VI. This clause guarantees “confrontation plus cross-examination of
       witnesses.” Perry v. New Hampshire, 565 U.S. ___, ___, 132 S. Ct. 716, 723 (2012). “[T]he
       basic objective of the Confrontation Clause *** is to prevent the accused from being deprived
       of the opportunity to cross-examine the declarant about statements taken for use at trial.”
       Michigan v. Bryant, 562 U.S. 344, 358 (2011). “[T]his bedrock procedural guarantee applies to
       both federal and state prosecutions.” Crawford, 541 U.S. at 42 (citing Pointer v. Texas, 380
       U.S. 400, 406 (1965)). Cross-examination is a bedrock right because it is the engine by which
       an accused may expose “motive or bias or other factors that might influence
       testimony.” People v. Davis, 337 Ill. App. 3d 977, 984 (2003); see also People v. Kliner, 185
       Ill. 2d 81, 130 (1998) (“Any permissible matter which affects the witness’s credibility may be
       developed on cross-examination.”).
¶ 89        In Crawford, the United States Supreme Court held that, under the confrontation clause, a
       witness’s out-of-court statement could be admitted only if the witness was available for
       cross-examination at trial or the defendant had had an opportunity to cross-examine her.
       Crawford, 541 U.S. at 68; see also Ohio v. Clark, 576 U.S. ___, ___, 135 S. Ct. 2173, 2179
       (2015). Prior to Crawford, the rule had been that an unavailable witness’s out-of-court
       statement could be admitted if it fell under a “ ‘firmly rooted hearsay exception’ ” or the
       statement had “ ‘particularized guarantees of trustworthiness.’ ” Crawford, 541 U.S. at 42, 60
       (discussing and quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)); see also Clark, 576 U.S. at
       ___, 135 S. Ct. at 2179; In re Rolandis G., 232 Ill. 2d 13, 23 (2008). In its 2004 Crawford
       decision, the United States Supreme Court rejected the Roberts rule, with its reliance on
       established hearsay exceptions, and thereby created a sweeping change in sixth amendment

           4
            We do not find persuasive People v. Garcia-Cordova, 2011 IL App (2d) 070550-B, where the trial
       court held that the witness was not available at trial for cross-examination, and the appellate court
       applied its own de novo review in order to reach the opposite conclusion. Garcia-Cordova, 2011 IL
       App (2d) 070550-B, ¶¶ 32, 53, 62. This case is not persuasive because our supreme court has since held
       that an appellate court should review a trial court’s ruling on a witness’s availability only for an abuse
       of discretion. In re Brandon P., 2014 IL 116653, ¶ 45.

                                                      - 13 -
       jurisprudence. Crawford, 541 U.S. at 62 (the Roberts rule is “not what the Sixth Amendment
       prescribes”); Clark, 576 U.S. at ___, 135 S. Ct. at 2179 (in Crawford, “we adopted a different
       approach”); Bullcoming v. New Mexico, 564 U.S. ___, ___, 131 S. Ct. 2705, 2713 (2011)
       (describing Crawford as “[r]ejecting Roberts[ ]”); In re Rolandis G., 232 Ill. 2d at 24 (in
       Crawford, “the United States Supreme Court overturned Roberts and devised a fundamentally
       new procedure for analyzing confrontation clause claims”).
¶ 90       In Crawford, the Supreme Court held that “the principal evil at which the Confrontation
       Clause was directed” was the “use of ex parte examinations as evidence against the accused.”
       Crawford, 541 U.S. at 50. “An accuser who makes a formal statement to government officers
       bears testimony in a sense that a person who makes a casual remark to an acquaintance does
       not.” Crawford, 541 U.S. at 51. The Court held that “[s]tatements taken by police officers”
       during questioning “fall squarely” within the class of statements covered by the sixth
       amendment. Crawford, 541 U.S. at 52-53. In the case at bar, there is no dispute that the former
       girlfriend’s statement was testimonial and thus fell squarely within the class of statements
       affected by Crawford.5
¶ 91           As previously noted, a testimonial out-of-court statement is admissible under Crawford
       only if: (1) the witness is available for cross-examination; or (2) the defendant had an
       opportunity to cross-examine her. Crawford, 541 U.S. at 68. Thus, Krefft’s testimonial
       out-of-court statement was properly admitted under the sixth amendment only if she was
       available for cross-examination at trial, for purposes of the sixth amendment.

¶ 92                                  IV. Domestic Violence Exception
¶ 93       In the case at bar, the trial court found that the witness was unavailable for purposes of a
       hearsay exception, due to either her memory loss or her refusal to testify.
¶ 94       In the case at bar, the trial court admitted the statement into evidence pursuant to section
       115-10.2a of the Code (725 ILCS 5/115-10.2a (West 2010)). In order for this exception to
       apply, the trial court had to find that the statement is “not specifically covered by any other
       hearsay exception.” 725 ILCS 5/115-10.2a(a) (West 2010).
¶ 95       This statutory provision, “when enacted by our legislature [in 2003], was tailored to
       comport with sixth amendment confrontation clause requirements [citation] as delineated”
       under Roberts. In re Rolandis G., 232 Ill. 2d at 23.6 However, as we observed above, in 2004
       the United States Supreme Court “overturned Roberts and devised a fundamentally new
       procedure for analyzing confrontation clause claims.” In re Rolandis G., 232 Ill. 2d at 24. This
       exception has not been amended substantively since Crawford was decided. 7 Defendant

           5
              The State observes in its brief to this court: “In the present case, whether the victim’s out-of-court
       statement was testimonial is not in dispute.” The State noted that the issue was whether she was
       available “for cross-examination where she did not remember or recall particular facts about the
       offense.”
            6
              Although the court discussed section 115-10 in In re Rolandis G. and we are concerned here with
       section 115-10.2a, we are faced with the same issue of whether an exception that was designed to
       conform to Roberts now complies with Crawford.
            7
              The exception was added by Public Act 93-443 (Pub. Act 93-443, § 10 (eff. Aug. 5, 2003)). It was
       amended by Public Act 97-1150 (Pub. Act 97-1150, § 635 (eff. Jan. 25, 2013)), only to change the
       reference to the Criminal Code of 1961 (720 ILCS 5/1-1 et seq. (West 2010)) to the Criminal Code of

                                                        - 14 -
       claims that this exception, as now applied to him, violates his confrontation clause rights in a
       post-Roberts world.
¶ 96       In relevant part, this section states as follows:
                   “(a) In a domestic violence prosecution, a statement, made by an individual
               identified in Section 201 of the Illinois Domestic Violence Act of 1986 [(750 ILCS
               60/201 (West 2010))] as a person protected by that Act, that is not specifically covered
               by any other hearsay exception but having equivalent circumstantial guarantees of
               trustworthiness, is not excluded by the hearsay rule if the declarant is identified as
               unavailable as defined in subsection (c) and if the court determines that:
                       (1) the statement is offered as evidence of a material fact; and
                       (2) the statement is more probative on the point for which it is offered than any
                   other evidence which the proponent can procure through reasonable efforts; and
                       (3) the general purposes of this Section and the interests of justice will best be
                   served by admission of the statement into evidence.
                                                      ***
                   (c) Unavailability as a witness includes circumstances in which the declarant:
                       ***
                       (2) persists in refusing to testify concerning the subject matter of the declarant’s
                   statement despite an order of the court to do so; or
                       (3) testifies to a lack of memory of the subject matter of the declarant’s
                   statement[.]” 725 ILCS 5/115-10.2a (West 2010).
¶ 97       On appeal, defendant does not contest that this exception applies to his former girlfriend’s
       statement. Thus, there is no issue that the trial court properly found that her prior statement
       satisfied the requirements of this statute. 725 ILCS 5/115-10.2a (West 2010). However,
       satisfying a hearsay exception is no longer enough for admission. Crawford, 541 U.S. at 62
       (the Roberts rule is “not what the Sixth Amendment prescribes”); Clark, 576 U.S. at ___, 135
       S. Ct. at 2179 (in Crawford, “we adopted a different approach”); Bullcoming, 564 U.S. at ___,
       131 S. Ct. at 2713 (describing Crawford as “[r]ejecting Roberts[ ]”). To be properly admitted,
       an out-of-court statement must satisfy both a hearsay exception and a defendant’s rights under
       the sixth amendment. Martin, 408 Ill. App. 3d at 896.
¶ 98       As quoted above, this exception required the trial court to find that the witness was
       “unavailable,” as the statute defines it. 725 ILCS 5/115-10.2a (West 2010). In People v. Learn,
       the appellate court held that, whether we were analyzing the confrontation clause or a hearsay
       exception, the United States Supreme Court’s definition of availability was “equally
       applicable.” People v. Learn, 396 Ill. App. 3d 891, 899 (2009). However, in Learn, the court
       was discussing a different hearsay exception which used the word “unavailable” generally but
       which did not define the term specifically for purposes of that exception, as the exception does
       here. Learn, 396 Ill. App. 3d at 898-99 (citing 725 ILCS 5/115-10 (West 2002)). Thus, that
       statement in Learn does not apply here.
¶ 99       In support of its argument that unavailability under this hearsay exception does not
       translate into unavailability under the sixth amendment, the State cites a number of

       2012 (720 ILCS 5/1-1 et seq. (West 2012)). Thus, this is the same section in substance which the
       legislature enacted to conform to Roberts.

                                                    - 15 -
        pre-Crawford cases. People v. Flores, 128 Ill. 2d 66, 87 (1989); United States v. Owens, 484
        U.S. 554, 556 (1988); Delaware v. Fensterer, 474 U.S. 15 (1985). However, the law that
        applied to those cases was the Roberts rule, which held that well-established hearsay
        exceptions also satisfied the sixth amendment. Crawford, 541 U.S. at 42, 60 (citing and
        quoting Roberts, 448 U.S. at 66). That rule was overruled in Crawford, thereby rendering those
        earlier cases less persuasive on the question facing us.
¶ 100       Neither party cites a case where a court considered whether a witness was unavailable for
        purposes of this particular hearsay exception but available for purposes of Crawford.8
¶ 101       In Crawford, the Court held that the confrontation “[c]lause does not bar admission of a
        statement so long as the declarant is present at trial to defend or explain it.” Crawford, 541 U.S.
        at 59 n.9. Since defendant was convicted solely of harassment that violated a protective order,
        the question is whether Krefft was “present at trial to defend or explain” her prior accusations
        of harassment. See Crawford, 541 U.S. at 59 n.9; Learn, 396 Ill. App. 3d at 899 (“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 ***.”).
¶ 102       The Illinois Domestic Violence Act of 1986 (Act) states that harassment, for purposes of a
        protective order, occurs when a defendant knowingly acts in a way that would cause a
        reasonable person emotional distress and which does, in fact, cause emotional distress to the
        protected person, and which was not necessary to accomplish a purpose that was reasonable
        under the circumstances. 750 ILCS 60/103(7) (West 2010).
¶ 103       The Act states, in relevant part, that the following types of conduct are presumed to cause
        emotional distress:
                    “(ii) repeatedly telephoning petitioner’s *** home or residence;
                    (iii) repeatedly following petitioner about in a public place or places;
                    (iv) repeatedly keeping petitioner under surveillance by remaining present outside
                his or her home ***[.]” 750 ILCS 60/103(7) (West 2010).
¶ 104       In the case at bar, the witness did answer questions at trial about “telephoning,”
        “following” and being kept “under surveillance,” all of which qualify as harassment under the
        Act, which is the one count defendant was convicted of. 750 ILCS 60/103(7) (West 2010).
        First, Krefft responded to preliminary questions at trial, answering: that she had been in a
        relationship with defendant for five years; that she had four children; that defendant was the
        biological father of her two youngest sons; and that he also acted as a father to her other two
        children.
¶ 105       Next, she responded to questions concerning the offense of conviction, which was
        violating a valid protective order by harassment. With respect to that charge, she testified: that
        she had obtained a valid order of protection against defendant which prohibited him from
        harassing her; that, during March 2012, he drove by her residence five times and called her
        after each time; that she received a text message from him in March 2012 in which he stated
            8
              The State relies heavily on Martin, where the particular hearsay exception at issue required the
        trial court to find that the witness was also “ ‘subject to cross-examination’ ” for purposes of that
        exception. Martin, 408 Ill. App. 3d at 894-95 (quoting 725 ILCS 5/115-10.1 (West 2006)). By contrast,
        the hearsay exception at issue here required the trial court to find that the witness was “unavailable” as
        the exception defined the term (725 ILCS 5/115-10.2a (West 2010) (“unavailable as defined” in this
        section)).

                                                       - 16 -
        that he saw her; that, on March 8, 2012, she also received a text message from defendant; that,
        on March 9, 2012, she received more than one telephone call and text message from defendant;
        that, on March 9, 2012, she went to the front office of her motel and called the police, and
        defendant was subsequently arrested there; that she met with police officers on April 6, 2012,
        and informed them that defendant had driven by her residence in March 2012; and that she
        provided a written statement concerning the case.
¶ 106       The State argues that the cases cited by defendant are inapposite because they involved
        more of a lack of memory regarding the event, while, in the case at bar, the victim was able to
        answer some questions. In re Brandon P., 2014 IL 116653, ¶ 47 (“There is no question” that
        the witness was unavailable where, after a few preliminary questions, he did not answer out of
        fear.); In re Rolandis G., 232 Ill. 2d 13, 18, 22 (2008) (the State conceded on appeal that the
        witness was unavailable, where he answered a few preliminary questions and then refused to
        respond and defense counsel declined the court’s invitation to cross). We agree.
¶ 107       Although, in the case at bar, the witness testified to a lack of memory and the trial court
        credited either her memory loss or refusal to testify in finding that she was unavailable to
        testify for purposes of the hearsay exception, the degree is different. The domestic violence
        exception defines “unavailability” specifically for purposes of this one exception as
        “persist[ing] in refusing to testify” or “testif[ying] to a lack of memory.” 725 ILCS
        5/115-10.2a (West 2010). Persisting in refusing to testify about some of the facts is different
        than an absolute or blanket refusal to testify about the offense. The Merriam-Webster
        Dictionary defines the word “persist” to mean “to continue to do something or to try to do
        something even though it is difficult or other people want you to stop.” Merriam-Webster
        Dictionary, http://www.merriam-webster.com/dictionary/persist (last visited Dec. 2, 2015). In
        the case at bar, Krefft “continue[d]” to assert a refusal to testify to some questions, thus
        satisfying the requirements of this particular hearsay exception, as the trial court found.
        However, she still answered both preliminary questions, as well as a number of questions
        about the offense of conviction described in her statement, thereby making her available under
        Crawford. Crawford, 541 U.S. at 59 n.9 (the confrontation “[c]lause does not bar admission of
        a statement so long as the declarant is present at trial to defend or explain it”). Thus, this
        particular statutory exception, as applied to defendant, did not violate the sixth amendment.

¶ 108                                         CONCLUSION
¶ 109       For the foregoing reasons, we affirm the trial court’s decision to admit the former
        girlfriend’s testimonial hearsay statement into evidence pursuant to the domestic violence
        exception (725 ILCS 5/115-10.2a (West 2010)) and find that this statutory exception, as
        applied to defendant, did not violate his sixth amendment right to confrontation.

¶ 110      Affirmed.

¶ 111       JUSTICE McBRIDE, specially concurring.
¶ 112       I write to specially concur since I agree that the order of the circuit court should be
        affirmed. However, I disagree with the majority’s analysis regarding forfeiture of
        constitutional issues. Therefore, I concur only in the decision to affirm, because no error
        occurred.


                                                  - 17 -
