                             2019 IL App (2d) 160991
                                  No. 2-16-0991
                            Opinion filed June 19, 2019
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of De Kalb County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 13-CF-928
                                       )
JEREMIAH RIGGS,                        ) Honorable
                                       ) Robbin J. Stuckert,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       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
2019 IL App (2d) 160991


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



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2019 IL App (2d) 160991


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

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.



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2019 IL App (2d) 160991


¶ 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.



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2019 IL App (2d) 160991


¶ 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.

¶ 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.



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2019 IL App (2d) 160991


¶ 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 benzodiazeprine (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



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2019 IL App (2d) 160991


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.

¶ 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,



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2019 IL App (2d) 160991


“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



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2019 IL App (2d) 160991


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 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.




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¶ 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



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2019 IL App (2d) 160991


       purposes of the confrontation clause, because M.S. ‘appeared’ 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



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2019 IL App (2d) 160991


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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