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                              Appellate Court                          Date: 2019.08.12
                                                                       14:20:18 -05'00'



                  People v. Riggs, 2019 IL App (2d) 160991



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



District & No.    Second District
                  Docket No. 2-16-0991



Filed             June 19, 2019



Decision Under    Appeal from the Circuit Court of De Kalb County, No. 13-CF-928; the
Review            Hon. Robbin J. Stuckert, Judge, presiding.



Judgment          Affirmed.


Counsel on        James E. Chadd, Thomas A. Lilien, and Darren E. Miller, of State
Appeal            Appellate Defender’s Office, of Elgin, for appellant.

                  Richard D. Amato, State’s Attorney, of Sycamore (Patrick Delfino,
                  David J. Robinson, and Barry W. Jacobs, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE BURKE delivered the judgment of the court, with opinion.
                  Justices Jorgensen and Spence concurred in the judgment and opinion.
                                             OPINION

¶1       Following a jury trial, defendant, Jeremiah Riggs, was convicted of nine counts of
     predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)). He
     appeals, contending that he was deprived of his constitutional right to confront witnesses when,
     although the court admitted the victim’s out-of-court statements describing all of the conduct
     with which defendant was charged, she testified at trial about only three incidents. Defendant
     contends that he was thus unable to effectively cross-examine her about the remaining
     incidents. We affirm.
¶2       Defendant was charged with 15 counts of predatory criminal sexual assault involving I.H.
     The State moved to introduce I.H.’s hearsay statements pursuant to section 115-10 of the Code
     of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2012)). At a hearing, Tracy
     Paszotta testified that she was I.H.’s kindergarten teacher in 2013. One day, a parent called
     Paszotta and said that I.H. had told the caller’s daughter that I.H.’s father had inappropriately
     touched her. Paszotta took I.H. out of her music class and asked if anything was bothering her.
     After some prompting, I.H. said that her father, whom she called “Uncle Miah,” had taken her
     and another child into the bathroom, where he made I.H. watch a pornographic movie on his
     phone. He then pulled down her pants and touched her. Paszotta did not ask any further
     questions. She returned I.H. to class and called the Department of Children and Family
     Services (DCFS) hotline.
¶3       While Paszotta waited for DCFS to call her back, the school psychologist said that I.H. had
     more to tell her. I.H. then said that “ ‘he put his finger inside [her].’ ” Paszotta called DCFS
     again and said that she needed to speak to someone right away because the students were about
     to be released from school. She was then connected with someone who took the report.
¶4       Monique Heilmeister testified that she interviewed I.H. at the Children’s Advocacy Center.
     During the interview, I.H. said that she was lying on Aunt Angie’s bed when defendant took
     her into the bathroom, pulled down his pants, locked the door, and “stuck his thing in [her]
     private part.”
¶5       I.H. was initially unsure how old she was when this occurred but later said that it happened
     after her sixth birthday party in May. Defendant put his finger under her underwear, removed
     her clothes, and made her lie on the bed. He put his finger inside her and got on top of her and
     was “humping” her with his clothes off. I.H. said that when she fell asleep defendant hit and
     choked her. He made her suck his “private part.” I.H. used a Coke bottle to show what he did.
     She said that this happened more than once that day. It happened only at Aunt Angie’s house.
     When asked what defendant did to her “pee pee,” she made a humping motion. When asked if
     anything went inside her “pee pee,” she replied a finger. When asked if anything touched the
     skin around her “pee pee,” she shook her head no. Defendant humped her neck and her back.
     When asked what part of her body defendant’s penis touched, she pointed to the back of her
     neck. She also said that his penis touched her mouth and that he made her suck it. She did not
     remember what his penis looked like and did not see anything come out of it. However, she
     later said that his penis was big and long.
¶6       I.H. said that defendant put his penis inside her “butt” and inside her “pee pee” more than
     once. He made her suck his penis more than once. She thought that he said he would kill her if
     she told anyone what happened. He put makeup on her and almost stabbed her. Defendant had
     shown her sex videos before. He also made her suck his penis in the bathroom at her house in

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       De Kalb more than 10 times on the same day. This last happened at the De Kalb house “a long
       time ago.” Defendant last made her suck his penis more than two months earlier.
¶7         The court found that the time, content, and circumstances of the statements provided
       sufficient safeguards of reliability. See id. § 115-10(b)(1). The court thus ruled them
       admissible, provided that I.H. testified at trial.
¶8         At trial, I.H. testified that she lived with her mother and defendant. Defendant touched her
       with his penis where she went to the bathroom. She called this body part her “pee pee.”
       Defendant’s penis also touched her butt and her mouth.
¶9         On cross-examination, I.H. testified that she had met several times with various people in
       preparation for her testimony. She had been brought into the courtroom with no one else
       present and told what to expect during the trial. She did not recall her kindergarten teacher
       asking her if anything bad was happening to her. She did not remember seeing a doctor. She
       did remember telling her teacher that something bad had happened to her. Paszotta and
       Heilmeister testified as they had at the section 115-10 hearing.
¶ 10       Detective Mark Nachman testified that defendant voluntarily went to the De Kalb police
       station, where Nachman interviewed him. The pair took the elevator to an interview room on
       the second floor. Defendant was able to walk without assistance and had no apparent difficulty
       with his balance.
¶ 11       Defendant was agitated at first, claiming that everyone knew what was going on but him.
       Nachman said that he believed that inappropriate things had happened between defendant and
       I.H. Defendant angrily denied the allegations, calling them “disgusting” and “gross.” Nachman
       said that it was possible that defendant had been abused himself. Defendant calmed down and
       began to cry.
¶ 12       After some further questioning, defendant described an incident in which he was watching
       pornography and masturbating in bed when I.H. entered. I.H. asked if she could touch
       defendant’s penis, and he agreed. Defendant said that he touched her vagina and butt with his
       hands and put his penis inside her mouth. This interview was not recorded. However, defendant
       agreed to a second, recorded interview.
¶ 13       The recorded interrogation started with Nachman reflecting that defendant had earlier
       claimed that he blacked out what he had done to I.H., because he was abused as a child. They
       discussed various incidents at houses in Yorkville and De Kalb. Defendant recounted how one
       day he was in bed masturbating while watching pornography on his phone when I.H. entered
       the room and asked what he was doing. When he replied that he was watching a movie, she
       asked if she could watch, and defendant agreed. I.H. then said that she always wanted to “touch
       one,” so defendant let her touch his penis. When the movie depicted a man and woman having
       oral sex, I.H. asked if men like that. Defendant replied that some men like it and asked if she
       wanted to try. I.H. just licked it.
¶ 14       When the movie depicted a couple having sex, I.H. said that she wanted to have sex.
       Defendant said, “ ‘Okay,’ ” so he pulled her underwear down and rubbed his penis between
       her buttocks. Later, he rubbed his penis on the outside of her vagina.
¶ 15       Nachman told defendant that he wanted to tell his boss that defendant was being completely
       honest about what happened in Yorkville but that he had to explain certain discrepancies
       between defendant’s and I.H.’s versions. Defendant insisted that he did not enter any “hole”
       but that if it did happen he did not remember.


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¶ 16        Nachman retrieved a garbage can because defendant was feeling sick, and defendant
       continued to deny insertion. Defendant later admitted that he “might have came really close”
       to insertion. Eventually, defendant admitted that his penis accidentally and briefly went inside
       I.H.’s anus and vagina during the incident.
¶ 17        Defendant said that things first started to happen between him and I.H. at the De Kalb
       house. Defendant was lying naked in bed when I.H. jumped on him to play. Defendant became
       erect and thought that it was not right. When I.H. noticed his erect penis and asked to play with
       it, defendant replied, “ ‘Yeah, sure.’ ” She touched and licked it. Defendant initially recalled
       only one such incident in De Kalb. He did acknowledge that he “jerked off—in front of her a
       few times” in De Kalb. When pressed, defendant eventually admitted that they had oral sex
       about three times in the De Kalb house. He clarified that he remembered only one time but,
       because Nachman said that it was more than once, it must have been two or three times.
¶ 18        At the end of the interrogation, Nachman went to get defendant water. When he returned
       to the interview room, defendant was unresponsive and was subsequently taken to the hospital.
       Surveillance video indicated that defendant took pills while Nachman was getting him water.
       Nachman recovered an empty pill bottle while defendant was unconscious.
¶ 19        De Kalb County Sheriff’s Deputy Naomi Faivre testified that she encountered defendant
       on December 13, 2013, at Kishwaukee Hospital. Defendant told Faivre, “ ‘I rubbed my dick
       on my daughter.’ ”
¶ 20        An emergency room physician testified that when defendant arrived at the hospital he was
       lethargic and minimally responsive. He tested positive for benzodiazepine (a generic term for
       Xanax) and tetrahydrocannabinol (THC).
¶ 21        Defendant testified that he picked up his wife’s Xanax prescription on the day of the
       interview. Throughout the day, he ingested Xanax, smoked marijuana, and drank alcohol. He
       was heavily under the influence of Xanax by the time he arrived at the police station. He
       remembered only “bits and pieces” of the interview, was in and out of consciousness
       throughout the process, and did not recall signing a Miranda waiver. See Miranda v. Arizona,
       384 U.S. 436 (1966). He denied ever placing his penis inside I.H. or putting his finger in her
       vagina.
¶ 22        The jury found defendant not guilty of six counts of penis-to-mouth predatory criminal
       sexual assault but guilty of four counts of penis-to-mouth predatory criminal sexual assault.
       The jury also found him guilty of five additional counts, including two instances of penis-to-
       sex-organ contact, two counts of penis-to-anus contact, and one count of finger-to-sex-organ
       contact. The court sentenced defendant to nine consecutive terms of seven years’
       imprisonment. Defendant timely appeals.
¶ 23        Defendant contends that he was deprived of his constitutional right to confront I.H.
       because, although the court admitted her hearsay statements accusing him of numerous
       offenses, she testified on direct examination about only three such incidents. Thus, defendant
       contends, she was not available to “defend or explain” her out-of-court statements about the
       other offenses. Defendant cites People v. Learn, 396 Ill. App. 3d 891 (2009), where we held
       that a witness who testified about some general information but was unable to answer
       substantive questions about the offense was not available to defend or explain her hearsay
       statements. He further cites People v. Kitch, 239 Ill. 2d 452 (2011), which, he claims, adopted
       the rationale of Learn.


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¶ 24        The State responds that Kitch cited Learn only to distinguish it and that subsequent cases
       have refused to extend Learn beyond its specific facts. Those cases, according to the State,
       have uniformly held that, as long as a witness testifies at trial and is willing to answer all
       questions put to her, she has testified for purposes of the confrontation clause.
¶ 25        The confrontation clause of both the state and federal constitutions guarantees a defendant
       the right to confront his or her accusers. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8.
       The confrontation clause bars the admission of a declarant’s testimonial statements if (1) the
       declarant is unavailable at trial and (2) the defendant did not have a prior opportunity to cross-
       examine the declarant. Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
¶ 26        Section 115-10 of the Code provides that, in a prosecution for a physical or sexual act
       perpetrated upon or against a child under the age of 13, certain of the child’s out-of-court
       statements may be admitted at trial as an exception to the hearsay rule where (1) the trial court
       holds a hearing outside the presence of the jury and determines the reliability of the statements
       and (2) the child testifies at trial or the child is unavailable and there is corroborating evidence
       of the act that is the subject of the statements. 725 ILCS 5/115-10(b)(1), (b)(2) (West 2012);
       People v. Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 54. Tension between section 115-
       10 and the confrontation clause can arise where a child testifies but does so incompletely.
¶ 27        In Learn, the young witness answered some general questions but became emotionally
       distraught and did not answer any questions about the offense for which the defendant was on
       trial. Learn, 396 Ill. App. 3d at 896. We held that the witness was not available as a witness,
       stating, “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.” Id. at 899. We reasoned that Crawford required that the witness
       be available to “ ‘defend or explain’ ” her out-of-court statements, and the witness could not
       “defend or explain” her statements when she was never asked about them. (Emphasis omitted.)
       Id. (quoting Crawford, 541 U.S. at 59 n.9).
¶ 28        In Kitch, the defendant argued that, because the State did not ask the young witnesses
       “ ‘about each incident in enough detail to establish each and every element of every count,’ ”
       the defendant was unable to effectively cross-examine them. Kitch, 239 Ill. 2d at 460. The
       court held that the witnesses’ direct testimony, standing alone, established the elements of the
       relevant counts and “largely for this reason” their direct testimony was sufficient to allow for
       effective cross-examination. Id. at 464. The court stated that Learn did not compel a different
       result. There, the victim’s testimony was not incriminating and thus did not “accuse” the
       defendant of anything. In Kitch, by contrast, the witnesses “ ‘accused’ ” the defendant of
       multiple acts of sexual abuse. Id. at 465.
¶ 29        Defendant contends that Kitch and Learn created a rule that a witness must testify to each
       element of each count with which a defendant is charged in order for the witness’s prior
       statements relating to those counts to be admissible. However, subsequent cases have rejected
       this premise, holding instead that, so long as a witness appears at trial and willingly answers
       all questions put to him or her, the witness is available for cross-examination.
¶ 30        In Garcia-Cordova, we held that, where the victim testified and willingly answered all
       questions, she was available for confrontation-clause purposes. In so doing, we made two
       preliminary observations. We noted that Learn required that a victim give accusatory testimony
       where the victim is the only witness other than the hearsay reporters who could accuse the
       defendant of a crime. Because Garcia-Cordova’s statements to police corroborated the

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       witness’s accounts, Learn did not even apply. We also observed that Kitch cited Learn only to
       distinguish it. We stated, “We reject defendant’s attempt to recast his right to confront
       witnesses as the State’s burden to confront witnesses. It is the accused who has the right to be
       confronted with the witnesses against him.” Garcia-Cordova, 2011 IL App (2d) 070550-B,
       ¶ 61.
¶ 31        Turning to the primary issue, we observed that Crawford held that, where a declarant is
       available for cross-examination at trial, the confrontation clause places no restrictions at all on
       the use of the witness’s prior testimonial statements. Id. ¶ 66 (citing Crawford, 541 U.S. at 59
       n.9). Given that the victim in Garcia-Cordova had testified at trial and willingly answered all
       questions put to her, even though she did not testify to the substance of her hearsay statement,
       its admission was a constitutional “nonevent.” Id. ¶¶ 66-69; see also People v. Smith, 2019 IL
       App (3d) 160631, ¶ 31.
¶ 32        In People v. Sundling, 2012 IL App (2d) 070455-B, ¶ 65, the witness, M.D.B., was not
       asked about the defendant’s conduct that was the basis for the criminal charge. We relied on
       Garcia-Cordova to hold that the witness was nevertheless available for cross-examination. We
       stated:
                “The lack of an accusatory statement about past behavior is not a baseline for avoiding
                a confrontation problem in a memory-loss case. Moreover, M.D.B. was never asked by
                either the State or defense counsel whether defendant touched his private parts, and
                there is no reason to believe that M.D.B. would have refused to answer had he been
                asked that question.” Id.
¶ 33        In People v. Kennebrew, 2014 IL App (2d) 121169, ¶ 35, we held that a witness was
       available for cross-examination where she testified and willingly answered all questions
       although in some instances the answer was that she could not remember. We stated that
       defendants “should not rely on Learn beyond the situation that Learn addressed: the situation
       where a child-witness, though physically present at trial, failed to provide any testimony
       regarding the alleged offenses—and, importantly, ‘any testimony’ may include testimony to a
       lack of memory.” Id. In a special concurrence, Justice Schostok went further, concluding that
       Learn was wrongly decided. Id. ¶¶ 47-57 (Schostok, J., specially concurring).
¶ 34        Meanwhile, the Fourth District has rejected the precise argument defendant makes here. In
       People v. Bryant, 391 Ill. App. 3d 1072, 1073 (2009), the defendant was convicted of two
       counts of predatory criminal sexual assault alleging that he placed his penis in M.S.’s anus and
       mouth. The trial court admitted M.S.’s out-of-court statements describing both offenses. At
       trial, M.S. testified repeatedly that the defendant put his “private part in her bottom,” but she
       did not state that he made her put her mouth on his penis. Id. at 1083. The court rejected the
       defendant’s argument that M.S. was not available for cross-examination regarding the penis-
       to-mouth count, stating:
                    “Despite M.S.’s apparent unwillingness or inability to testify on direct examination
                about defendant’s making her put her mouth on his private part, this record
                demonstrates that M.S. ‘appeared’ for cross-examination at trial within the meaning of
                Crawford and the confrontation clause. The key inquiry is whether she was present for
                cross-examination and answered questions asked of her by defense counsel. Because
                she was present for cross-examination and answered defense counsel’s questions, the
                confrontation clause places absolutely no constraints on the use of M.S.’s prior
                statements ***. *** For purposes of the confrontation clause, because M.S. ‘appeared’

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               for cross-examination at trial within the meaning of Crawford, any of her prior
               statements offered at trial is a nonevent.” Id.
       See also People v. Dabney, 2017 IL App (3d) 140915, ¶ 20; People v. Lara, 2011 IL App (4th)
       080983-B, ¶¶ 45-52.
¶ 35       Defendant contends, however, that the above-cited cases are “memory-loss” cases, to
       which a special set of rules applies. Defendant does not fully explain why this is so. Presumably
       the distinction is that in memory-loss cases the witness willingly answers all questions, albeit
       that the answer is sometimes that the witness cannot remember, while other cases imply an
       unwillingness or inability to testify about a given topic. In any event, we reject it.
¶ 36       In Sundling, which we referred to generally as a memory-loss case, we held that the
       confrontation clause was not implicated where the witness was not asked by either the
       prosecutor or defense counsel whether the defendant had touched the witness’s private parts.
       Sundling, 2012 IL App (2d) 070455-B, ¶ 65. Further, in Garcia-Cordova we cited Bryant and
       Lara with approval. Thus, to the extent the present case differs from the memory-loss cases
       cited above and is a case of first impression in this district, we find that the same rationale
       applies, regardless of whether the witness answers that she does not recall events or whether
       she is simply not asked. In both situations, the witness is present and willingly answers all
       questions put to her by both parties. We thus follow Bryant, Lara, and Dabney.
¶ 37       Turning to the facts of this case, we note initially that defendant’s confession corroborated
       I.H.’s testimony. Thus, it is doubtful that Learn could apply at all. Even if it could, I.H.
       willingly answered all questions put to her by the prosecutor and defense counsel. On direct
       examination, she said that defendant’s penis touched her “pee pee,” her butt, and her mouth.
       She was not asked whether defendant did these things more than once. On cross-examination,
       defense counsel did not ask about any of the offenses but asked only general questions. Thus,
       Learn does not apply.
¶ 38       Defendant argues that he should not be expected to have brought out details of additional
       offenses so that he could cross-examine I.H. about them. As we noted in Garcia-Cordova,
       however, a defendant’s right to confront witnesses cannot be recast as the State’s burden to
       confront witnesses. Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 61. The confrontation
       clause guarantees only the opportunity for cross-examination. Kennebrew, 2014 IL App (2d)
       121169, ¶ 40.
¶ 39       We note that defendant does not contend that I.H.’s statements to Paszotta and Heilmeister
       were inadmissible under section 115-10. He argues only that his right to confront witnesses
       was violated. Because we conclude that I.H. was available for cross-examination, her prior
       statements were properly admitted.
¶ 40       The judgment of the circuit court of De Kalb County is affirmed. As part of our judgment,
       we grant the State’s request that defendant be assessed $50 as costs for this appeal. 55 ILCS
       5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978).

¶ 41      Affirmed.




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