                                       2014 IL 116653



                                 IN THE
                            SUPREME COURT
                                   OF
                          THE STATE OF ILLINOIS



                                    (Docket No. 116653)

       In re BRANDON P., a Minor (The People of the State of Illinois, Appellee, v.
                              Brandon P., Appellant).


                                Opinion filed May 22, 2014.



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

        Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis
     concurred in the judgment and opinion.



                                         OPINION

¶1        Respondent, Brandon P., was charged by petition for adjudication of wardship with
     aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(2)(i) (West 2010)). The
     petition alleged that the then 14-year-old respondent committed an act of sexual
     conduct against his 3-year-old cousin, M.J. Following an adjudicatory hearing, the
     circuit court of Vermilion County found respondent guilty and sentenced him to the
     Illinois Department of Juvenile Justice for an indeterminate period not to exceed (1) the
     period for which an adult could be committed for the same act, or (2) the date of
     respondent’s twenty-first birthday, whichever came first. 705 ILCS 405/5-710(7),
     5-750 (West 2010). Respondent appealed, and the appellate court affirmed the
     adjudication. 2013 IL App (4th) 111022. This court allowed respondent’s petition for
     leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013).
¶2                                    BACKGROUND

¶3      On November 15, 2010, respondent was charged by petition for adjudication of
     wardship with aggravated criminal sexual abuse in that he, “being under the age of 17
     years, committed an act of sexual conduct against [M.J.], who was under nine years of
     age when the offense was committed, in violation of 720 ILCS 5/12-16(c)(2)(i).” On
     December 21, 2010, the State filed its notice of intent to present evidence under section
     115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2010)).
     The State gave notice that it intended to offer the statements that M.J. made to her
     mother on October 23, 2010, and to Detective Troy Hogren, of the Danville police
     department, on October 26, 2010. The State indicated that M.J.’s statement to her
     mother was that “Brandon put that stuff in his mouth on her vagina which made her
     vagina hurt and Brandon put his finger in her vagina.” M.J.’s statement to Detective
     Hogren was that “Brandon put his finger in her vagina which made her feel bad and
     Brandon spit on her vagina and put his penis on her at Uncle Mike’s.”

¶4       The section 115-10 hearing began on May 10, 2011. M.J.’s mother, Teresa J.,
     testified that on October 23, 2010, she was living with her children: 19-year-old
     Stephanie; 19-year-old Kayla; 7-year-old Lucas; 5-year-old Alana; and 3-year-old M.J.
     On that day, Teresa picked up respondent, her nephew, from the police station, for
     reasons unrelated to the instant case. Teresa brought respondent to her house, where he
     spent the night. Teresa and Stephanie left the house the next morning to run errands.
     After Teresa returned home, she was sitting at the dining room table with Stephanie,
     Kayla, and Jeff, Kayla’s boyfriend. Lucas, Alana, M.J., and respondent were upstairs
     playing in Lucas’s bedroom. Teresa heard M.J. scream, so Jeff went up to check on the
     kids. Lucas’s bedroom door was shut, and something was tied around the door. Jeff
     opened the door and the kids came downstairs. Teresa then left to pick up her brother,
     Mike, respondent’s father. Mike and Teresa returned to Teresa’s home. Mike and
     respondent left shortly thereafter.

¶5      Teresa testified as follows concerning what happened after respondent left:

                “Q. [Assistant State’s Attorney:] And then what happened after Brandon
            left?

                 A. Uhm, I can’t remember approximately how long it was after Brandon
            left, but [M.J.] had come downstairs; and she was—she was holding herself.

                Q. What do you mean by holding herself?

                                             -2-
                A. She had her hand on her—her pee-pee as she would say, and she had—I
            thought she had to go to the bathroom. And I asked her if she had to go, and she
            said yes but it hurt. And I told her to go ahead and—I believe I told her to go
            ahead and go. Then I asked her why it hurt, and she said because Brandon had
            put spit in her pee-pee.

               Q. And after she said—after she said that, did you ask any further
            questions?

               A. I, uhm, I asked her, uhm—well, then I scooped her up and I took her
            to—I took her to my brother’s house.”

¶6       When they arrived at Mike’s house, Teresa told M.J. to tell Uncle Mike and Aunt
     Aundrea, respondent’s parents, what M.J. had just told Teresa. M.J. told them that
     “Brandon had put had [sic] spit on her pee-pee.” Teresa then called 911 and took M.J.
     to the emergency room.

¶7      On cross-examination, the following exchange took place:

               “Q. [Defense attorney:] So when you were questioning or talking to [M.J.],
            you—she stated to you that her pee-pee hurt; is that correct?

                A. Yes.

                Q. And then what exactly did you say after that?

                A. Her pee-pee hurt, that’s why she couldn’t go pee. I asked her why, and
            she said that Brandon had spit on her pee-pee.

                Q. And she—she used the actual word spit?

                A. She went like—said, ‘He did this and put it on my pee-pee.’

               THE COURT: The record should reflect that the witness inserted her right
            index finger in her mouth indicating the motion by the child.”

¶8       On redirect examination, the assistant State’s Attorney asked Teresa whether M.J.
     “actually said spit or what words she used, did she not actually say it or did she just
     make that motion with her finger?” Teresa replied that M.J. “made the motion with her
     finger, and she said—I’m getting frustrated. I’m sorry. Yeah, she made that motion
     with her finger and said that she had—he had spit—put spit in her pee-pee.”

                                            -3-
¶9         The section 115-10 hearing was continued to May 26, 2011. On that date, Detective
       Troy Hogren testified that he was a police officer for the City of Danville, Illinois, and
       was assigned to the juvenile division of the police department. In October 2010,
       Detective Hogren became involved in the investigation concerning M.J. Detective
       Hogren interviewed M.J. on October 26, 2010, at the public safety building. Teresa was
       present when Detective Hogren interviewed M.J. Detective Hogren introduced himself
       to M.J., explained that he was a police officer and worked with kids, that M.J. was not
       in any trouble, and that he was there to talk with her about something that may have
       happened to her. M.J. sat on her mother’s lap while Detective Hogren was talking to
       her.

¶ 10      With regard to the investigation, Detective Hogren testified:

                  “Well, I explained to [M.J.] that I wanted to talk to her about what she had
              told her mother a couple days ago and that I was here to talk to her about
              something that may have happened to her that she didn’t like, and she told me
              that she was at home there in Lucas’s bedroom and it was her and Lucas and
              Alana and Brandon and they were playing police and cops, some sort of a police
              and cops game, and she couldn’t tell me what Brandon’s last name was she just
              told me that Brandon was Uncle Mike’s son. And then Teresa explained that
              that was his—that was—Uncle Mike was her brother. And she indicated to me
              that they were playing this game and that Brandon stuck his finger in her pee
              pee.

                  Q. She said that he stuck his finger in her pee pee?

                  A. Yes.

                  Q. Did—did you ask her what pee pee was or—

                  A. Well, when she said that she pointed, she made a motion with her finger
              in between her legs.

                  Q. And pointed in between her legs?

                  A. Yes, in the front.

                  Q. And after she made that statement did you inquire more of her from that?

                 A. I asked her if she—if she had her clothes on or off. She said her clothes
              were on. I asked her if she had told anybody what happened to her and she said
                                               -4-
              she told Aundrea and Uncle Mike which would be Brandon’s parents what had
              happened to her. She said she told them that Brandon spit in her pee pee and
              that Brandon put his weiner on her at Uncle Mike’s house.

                  Q. And she said that happened at Uncle Mike’s house?

                 A. Well, she said that Brandon put his weiner on her at Uncle Mike’s
              house.”

¶ 11       Following argument, the trial court ruled that there was a sufficient basis to find
       M.J.’s statements to her mother and to Detective Hogren reliable and therefore held
       that those statements would be admissible at trial pursuant to section 115-10.

¶ 12       Respondent’s adjudicatory hearing began on August 8, 2011. Teresa was the first
       witness, and testified consistently with her testimony at the section 115-10 hearing.
       With regard to the allegations against respondent, Teresa testified that five to ten
       minutes after respondent left her house, M.J. came downstairs and said she had to go to
       the bathroom. Teresa told M.J. to go, but M.J. said she could not go because it hurt.
       When asked if she knew what M.J. was referring to when M.J. said that it hurt, Teresa
       testified, “She said it hurt to go potty. And I asked her why it hurt, and that’s when she
       told me because—because Brandon put spit in her pee-pee.”

¶ 13      After a recess, the proceedings reconvened in the jury room for M.J.’s testimony.
       The State, M.J., Teresa, respondent, defense counsel, and respondent’s father, Mike,
       were present for M.J.’s testimony.

¶ 14      The following exchange took place during the trial court’s preliminary questioning
       of M.J.:

                  “THE COURT: Can you tell me how old you are?

                  A. Four.

                  THE COURT: Four. Did you just turn four?

                  A. (Witness nodding head up and down)

                  THE COURT: Do you know what your birth date is?

                  A. (Witness shaking her head back and forth)

                  THE COURT: No? Did you have a birthday party?
                                               -5-
                  A. (Witness nodding head up and down)

                  THE COURT: Was it a good party?

                  A. (Witness nodding head up and down)

                  THE COURT: Okay. Do you know where we are? Do you know what this
              building is called?

                  A. (Witness shaking head back and forth)

                  THE COURT: No? Okay. Do you know what we’re doing here?

                  A. (Witness shaking head back and forth)

                 THE COURT: Not really? Will you answer some questions for us if we ask
              you some questions?

                  A. (Witness nodding head up and down)”

       When asked if she would tell the truth if she was asked questions, M.J. said yes.

¶ 15       The assistant State’s Attorney then began questioning M.J. M.J. stated her name for
       the record and said that she lived in Oakwood with her mother, her sisters Stephanie,
       Kayla, and Alana, and her brother, Lucas. M.J. said that she was in preschool, but did
       not know when she started school.

¶ 16       The assistant State’s Attorney then began questioning M.J. about the incident at
       issue. The following exchange took place:

                  “Q. [M.J.], do you remember when you had to go to the hospital?

                  A. (Witness shaking head back and forth)

                  Q. You don’t remember?

                  A. (Witness shaking head back and forth)

                  Q. Do you remember having to talk to the police?

                  A. (Witness shaking head back and forth)

                  Q. Can you answer out loud for me?

                                              -6-
   A. No.

   Q. You don’t remember?

   A. (Witness shaking head back and forth)

   Q. Do you remember Mommy taking you to the hospital?

   A. No.

   Q. No? Do you ever—do you have a cousin named Brandon?

   A. (No response)

   Q. Do you?

   A. (Witness shaking head back and forth)

   Q. Can you answer out loud for me?

   A. No.

   Q. No? Did you see Brandon in here today?

   A. (Witness nodding head up and down)

   Q. Can you point to him?

   A. (No response)

   TERESA: Listen to what Lindsay is saying and answer her question, okay?

   Q. Can you point to Brandon?

   A. (Witness shaking head back and forth)

   Q. No? Did something bad happen to you?

   A. (Witness shaking head back and forth)

   Q. You don’t remember having to go to the hospital because something bad
happened?

   A. (Witness nodding head up and down)

                              -7-
                  Q. You do remember going to the hospital?

                  A. Um-um.

                  TERESA: She’s getting confused.

                  Q. Do you want to talk to us?

                  A. (No response)

                  THE COURT: She shrugs her shoulders.

                  Q. Can I have just a minute.

                 THE COURT: No, she’s—she’s being questioned. You can’t talk to her
              separately.

                  Q. Okay.

                  TERESA: Can I say something or no?

                 THE COURT: No. That’s part of the problem. We have to deal with it this
              way.

                  Q. Your Honor, I’m not going to ask any other questions.”

       Defense counsel then declined to question M.J.

¶ 17      The State next called M.J.’s brother Lucas to testify. Lucas testified that he
       remembered when M.J. had to go to the hospital, and testified that he knew why she
       had to go to the hospital. Lucas said that he was with respondent, Alana and M.J. that
       day, and that they were playing games. Lucas testified that he saw something happen to
       M.J. Lucas testified as follows:

                  “Q. And what did you see happen to [M.J.]?

                  A. Thinking.

                  Q. Okay. Can you tell us what you saw.

                  A. Um-um.

                  Q. You said you were thinking. Will you tell us what you saw happen?

                                              -8-
A. I’m thinking.

Q. Did something happen when you were in the bedroom?

A. Yes.

Q. Who all was in the bedroom?

A. Brandon, me, and [M.J.] and Alana.

Q. And what was [M.J.] doing?

A. Laying down.

Q. Laying down. Where was she laying down at?

A. On the floor.

Q. Okay. Did [M.J.] have her clothes on? Did she have a shirt on?

A. Her shirt is on.

Q. Did she have her pants on?

A. No.

Q. No? Okay. And what did you see happen to [M.J.]?

A. (No response)

Q. Can you tell the Judge what you saw happen to [M.J.]?

***

Q. Lucas, can you tell the Judge what you saw.

A. I’m scared.

Q. That’s okay, Bud. You’re scared to tell us?

A. (Witness nodding head up and down)

Q. You can tell us. Nothing is going to happen to you.

THE COURT: Is there anything that would make you less scared?
                           -9-
                  A. (No response)

                  THE COURT: Don’t know. Anything that would make you unscared?

                  A. (Witness shaking head back and forth)

                  Q. Lucas, are you okay?

                  A. I’m scared.

                 Q. Okay. I won’t ask you any more questions. Okay? Do you want to tell the
              Judge what you saw?

                  A. I want to leave.”

       Defense counsel declined to question Lucas, so Lucas was excused.

¶ 18       The State then called Detective Hogren to testify. Detective Hogren began to testify
       concerning his interview with M.J. Defense counsel objected, arguing that M.J. was
       unavailable as a witness. Defense counsel further argued that M.J.’s statement to
       Detective Hogren was testimonial, and thus was not admissible at trial because the
       defense did not have an opportunity to cross-examine M.J. The trial court noted
       defense counsel’s objection for the record, but stated that it could not make a
       determination at that point because the State might recall M.J. to testify. The trial court
       acknowledged that it might find the testimony inadmissible at a later point. Detective
       Hogren then testified concerning his interview with M.J. Detective Hogren’s trial
       testimony concerning that interview was consistent with his testimony at the section
       115-10 hearing.

¶ 19      Detective Hogren also testified that he interviewed respondent on October 25,
       2010. Respondent told Detective Hogren that he was at Teresa’s house on October 24,
       2010. Respondent said he was upstairs with Lucas, M.J., and Alana in Lucas’s
       bedroom, and that he showed the kids some pictures of naked ladies on his cell phone.
       With regard to the allegations against respondent, Detective Hogren testified:

              “I asked him if he had had any contact with [M.J.] or any of the other children.
              He said that he hugged [M.J.] when he got there. When he got there, he hugged
              her. When I explained to him what [M.J.] was alleging had happened, he said he
              didn’t want to talk to us any longer, that he wasn’t a pervert, and that this was
              incest.”

                                               - 10 -
       Detective Hogren did not question respondent any further at that point.

¶ 20       On cross-examination, Detective Hogren testified that neither M.J. nor Teresa
       mentioned anything about a locked door at the house. M.J. also never told Detective
       Hogren that she screamed or yelled loudly that day. Detective Hogren clarified on
       redirect examination that he never interviewed Teresa regarding the complaint.

¶ 21       The State presented numerous witnesses to testify concerning the chain of custody
       of the DNA evidence. With regard to the DNA evidence, Dana Pitchford testified for
       the State that she is a forensic scientist specializing in forensic biology and DNA
       analysis, employed by the Illinois State Police Crime Lab in Springfield. Pitchford
       tested the sexual assault evidence collection kit collected from M.J. for the presence of
       semen. The kit contained vaginal swabs taken from M.J., anal swabs taken from M.J.,
       and a swab taken from M.J.’s underwear.

¶ 22       A P30 analysis of the vaginal swab indicated semen. The P30 analysis is an acid
       phosphatase test, where two chemicals give a bright purple appearance when there is a
       reaction. The bright purple appearance is graded from one to four, with four being the
       most intense color and one being the weakest. Pitchford graded the color in the test as a
       one. Because the P30 analysis gave a reaction, Pitchford then did a slide sperm search,
       which was negative, as no sperm cells were identified. The acid phosphatase reaction
       was negative on the anal swab, so no further testing was done on that swab. The acid
       phosphatase reaction also was negative on the swabbing collected from M.J.’s
       underwear, but given the description of the occurrence, the swab was preserved for
       possible DNA analysis.

¶ 23       Pitchford then explained the difference between semen being indicated or
       identified. Pitchford testified that:

                  “The difference is indicated or identified. And sperm cells being present are
              an identification. The only way sperm cells can be there is if semen is present.

                  Semen is indicated, and that term is utilized because I am utilizing a test
              called P30 that I know can react with other body fluids, with other body fluids
              being some vaginal secretions as well as breast milk have been known to cause
              a reaction depending on the person’s body type. And because of that, P30 is
              found in extremely high levels in semen. You typically would not expect to find
              those high levels in vaginal secretions or breast milk, but we have seen some


                                              - 11 -
              reactions; and because of that, we are not capable of reporting out that semen is
              identified. We only say that it’s indicated.”

¶ 24       Aaron Small testified that he is a forensic scientist employed by the Illinois State
       Police Forensic Science Laboratory in Springfield. Small testified concerning the DNA
       analysis in this case. Small explained that a DNA profile is a collection of DNA types
       over 15 loci. The loci is the marker for the area looked at in the analysis. Small looks at
       15 different areas of the entire genetic code in a cell, and one sex determining locus.
       The profile put together from all those loci is the profile of an individual.

¶ 25       Small testified that he did a differential extraction of the vaginal swab taken from
       M.J., which is done when samples have semen indicated on them. However, the
       vaginal swab taken from M.J. did not contain enough male DNA to obtain a DNA
       profile through the autosomal DNA.

¶ 26       Small also examined the sample taken from M.J.’s underwear. Because there was
       no semen indicated in that sample, Small followed normal non-semen extraction
       protocol, and did not do a differential extraction. This sample contained a mixture of
       male and female DNA. The female DNA profile matched M.J. There was a partial
       DNA male profile, meaning that there was a male DNA profile in some of the loci
       tested, but it was not detected in all the loci. Respondent could not be excluded from the
       areas where the male DNA was detected. The statistics were approximately one in
       100,000 African-Americans, one in 7,400 Caucasians, and one in 16,000 Southwest
       Hispanics.

¶ 27       On cross-examination, Small testified that there were 7 out of 16 loci where
       respondent could not be excluded. When asked whether respondent was excluded from
       the other nine loci, Small explained:

              “There are nine loci where I do not—I interpret the profile as there is no minor
              profile that is showing up in those loci. There is DNA that is to be for the
              victim’s profile. Therefore, it is only at the seven loci that I actually got results.
              It’s not saying that there aren’t—it’s not saying that the person or people are
              excluded from the remaining loci. It’s saying that there’s no result obtained
              from those loci.”

¶ 28       On redirect examination, Small explained that results were not obtained from the
       other nine loci because:


                                               - 12 -
              “The amount of DNA, male DNA, that would have been input into the
              amplification reaction definitely plays into that. This sample contained a
              male-to-female mixture. It contained a male-to-female mixture in a ratio of one
              to thirteen. I could not amplify thirteen nanograms of female DNA versus one
              nanogram of male DNA. Therefore, I had to dilute the sample in order to get a
              profile that would be tolerant in our system.

                  The amount of DNA input into our system is specific, and it needs to be
              within a range. If it’s over a specific range, the amount of total DNA, our tests
              will not work properly. Therefore, in order to get the amount of the DNA in a
              proper range, it was diluted; and that definitely reduced the amount, not the
              ratio, of male to female, diluted the amount of male DNA that was input into the
              sample.”

¶ 29      At the close of the State’s case, defense counsel argued that because M.J. was
       unavailable to testify at trial, Detective Hogren could not testify to statements that M.J.
       made to him. Defense counsel maintained that those statements were testimonial under
       Crawford v. Washington, 541 U.S. 36 (2004). Further, defendant had no prior
       opportunity to cross-examine M.J., and M.J. was unavailable as a witness.
       Consequently, admission of Detective Hogren’s testimony would violate the
       confrontation clause.

¶ 30       The trial court rejected defense counsel’s claim that M.J.’s statements to Detective
       Hogren were inadmissible under section 115-10. The trial court agreed that M.J. was
       unavailable as a witness. The trial court noted that M.J. “[t]estified initially to
       preliminary matters and then essentially froze up. It’s clear the child is unavailable as a
       witness.” The trial court, however, held that M.J.’s statements to Detective Hogren
       were not testimonial and therefore were admissible under section 115-10. Thereafter,
       the trial court also denied respondent’s motion for a directed verdict.

¶ 31       Respondent’s father, Mike, was the sole witness to testify on respondent’s behalf.
       Mike testified that he called Teresa numerous times on the day in question to check on
       respondent. Mike’s impression was that Teresa was gone from her home from early in
       the morning until she met him later in the day.

¶ 32       Following closing arguments, the trial court found respondent guilty of the offense
       of aggravated criminal sexual abuse. The trial court later denied respondent’s motion
       for a new trial.

                                               - 13 -
¶ 33       On appeal, respondent argued that: (1) M.J.’s statement to Detective Hogren was
       testimonial and therefore was inadmissible because M.J. was unavailable to testify; (2)
       M.J.’s statement to Detective Hogren was unreliable under section 115-10; (3)
       respondent’s right to the effective assistance of counsel was violated when counsel
       failed to object to the admission of certain unreliable scientific evidence; and (4)
       respondent’s right to a fair trial was violated by cumulative trial errors.

¶ 34       In response to respondent’s first issue, the State conceded that M.J. was unavailable
       as a witness, so that her statement to Detective Hogren would be admissible at trial only
       if that statement was non-testimonial. The State argued that M.J.’s statement was
       non-testimonial and therefore was properly admitted.

¶ 35        Prior to oral argument, the appellate court directed the parties to be prepared to
       address eight cases that addressed when a witness is unavailable for purposes of the
       confrontation clause. Respondent filed a supplemental brief arguing that the State had
       specifically waived the issue of M.J.’s unavailability by agreeing at trial to the trial
       court’s finding that M.J. was unavailable, and by expressly conceding on appeal that
       M.J. was unavailable. Respondent also argued that the appellate court should affirm the
       trial court’s finding that M.J. was unavailable because she did not testify at trial. The
       State then filed a supplemental brief, withdrawing its concession that M.J. was
       unavailable at trial, and now arguing that M.J. was available.

¶ 36       On appeal, the appellate court first held that the trial court did not abuse its
       discretion in admitting M.J.’s statements to Hogren because those statements were
       reliable. 2013 IL App (4th) 111022, ¶ 41. The appellate court then stated:

                  “Somewhat inexplicably, the State *** initially conceded that M.J. was
              unavailable. Nevertheless, the State argues that M.J.’s statements to Hogren
              were not testimonial and therefore were properly admitted. Because the record
              shows that M.J. was available for cross-examination, we reject the State’s
              concession and conclude that respondent was not denied his constitutional right
              to confront M.J.” Id. ¶ 44.

       The appellate court observed that when a declarant appears for cross-examination at
       trial, the confrontation clause places no constraints on the use of prior testimonial
       statements. Id. ¶ 45.

¶ 37      With regard to its finding that M.J. was available, the appellate court later
       explained further that:

                                              - 14 -
              “M.J. was present for cross-examination but did not answer any questions about
              the events which were the subject of her statements to Hogren because defense
              counsel did not ask M.J. any questions about those events. Despite M.J.’s
              apparent unwillingness or inability to testify on direct examination about these
              events, M.J. ‘appeared’ for cross-examination at trial within the meaning of the
              confrontation clause. M.J. appeared for cross-examination because defense
              counsel could have cross-examined her but chose not to do so. M.J.’s failure to
              testify about her statements to Hogren on direct examination does not relieve
              respondent of his obligation to cross-examine M.J.” Id. ¶ 48.

¶ 38       The appellate court next rejected respondent’s claim that his defense counsel’s
       failure to object to the admission of certain evidence amounted to ineffective assistance
       of counsel. Id. ¶ 56. The appellate court also rejected respondent’s claim that he was
       deprived of a fair trial. Id. ¶ 59. The appellate court therefore affirmed the trial court.
       This appeal followed.



¶ 39                                        ANALYSIS

¶ 40       Respondent raised four issues in his appeal to this court. Respondent argued that:
       (1) M.J.’s statement to Detective Hogren was testimonial hearsay; (2) M.J. was
       unavailable as a witness at respondent’s trial, so that the admission of her testimonial
       hearsay violated respondent’s rights under the confrontation clause; (3) even if M.J.
       was available for purposes of cross-examination, M.J.’s statement to Detective Hogren
       was inadmissible under section 115-10(b)(2)(A) because M.J. did not testify on direct
       examination; and (4) the admission of the improper testimonial hearsay was not
       harmless error.

¶ 41        In response, the State makes two concessions. The State first concedes that, for
       purposes of this appeal, M.J. was unavailable. The State also concedes that the trial
       court erred in deeming M.J.’s statement to Detective Hogren to be non-testimonial. The
       State argues, however, that the trial court’s judgment should be affirmed because the
       trial court’s error in admitting M.J.’s statement to Detective Hogren was harmless
       beyond a reasonable doubt.

¶ 42      In light of the State’s concessions, the only issue remaining before this court is
       whether the admission of M.J.’s statement to Detective Hogren at respondent’s trial


                                               - 15 -
       was harmless error. Before we address that issue, however, we will briefly address the
       appellate court’s rejection of the State’s concession on appeal.

¶ 43        In this case, the trial court, the assistant State’s Attorney, and respondent’s counsel
       all agreed at trial that M.J. was unavailable. The State’s appellate brief also conceded
       that M.J. was not available as a witness at respondent’s trial. Nonetheless, the appellate
       court sua sponte raised the issue of whether M.J. was available and rejected the State’s
       concession that M.J. was not available.

¶ 44       It is true that a reviewing court is not bound by a party’s concession. People v.
       Nunez, 236 Ill. 2d 488, 493 (2010). However, in this case, the appellate court erred in
       rejecting the State’s concession that M.J. was not available and in addressing the issue
       sua sponte.

¶ 45       The issue of unavailable witnesses, in the context of section 115-10, was addressed
       in People v. Stechly, 225 Ill. 2d 246 (2007). Stechly first noted that a trial court’s ruling
       on evidentiary matters will not be reversed absent a clear abuse of discretion. Id. at 312.
       Here, the appellate court did not review the trial court’s ruling on M.J.’s availability for
       abuse of discretion. Rather, the appellate court essentially conducted its own de novo
       review of the record to find that M.J. “appeared” for cross-examination at trial within
       the meaning of the confrontation clause.

¶ 46       In addition, in finding that M.J. was available for cross-examination at trial, the
       appellate court ignored precedent from this court to the contrary. Stechly held that fear
       and youth are factors to be considered by a court in determining whether a child witness
       is unavailable. Id. at 313. The Stechly court stated:

               “Our appellate court has concluded that by the amendment to section 115-10
               the legislature intended ‘to include within the meaning of “unavailable”
               witnesses those children who are unable to testify because of fear, inability to
               communicate in the courtroom setting, or incompetence.’ [Citations.] We agree
               with these opinions. Notwithstanding our holding in [People v. Johnson, 118
               Ill. 2d 501 (1987)] that unwillingness to testify cannot constitute unavailability
               to testify for purposes of Rule 414, we believe that in the separate specific
               context of section 115-10, unavailability includes those child witnesses who are
               unable to testify because of fear.” (Emphasis in original.) Id. at 315.

¶ 47       There is no question, based upon the record in this case, that M.J. was unavailable
       to testify at respondent’s trial based upon both her youth and fear. M.J. could barely

                                                - 16 -
       answer the trial court’s preliminary questions, and then completely froze when the
       State attempted to begin its direct examination of her. The trial court, respondent’s
       counsel, and the assistant State’s Attorney, all of whom were present in the jury room
       and observed M.J.’s attempt to testify, all agreed that M.J. was unavailable. Under the
       circumstances, the trial court did not abuse its discretion in declaring M.J. unavailable.
       The appellate court therefore erred in rejecting the State’s concession and in finding
       that M.J. was available to testify for purposes of section 115-10.

¶ 48       We also agree with the State that M.J.’s statements to Detective Hogren were
       testimonial, so that the admission of Detective Hogren’s testimony concerning those
       statements violated the confrontation clause. The United States Supreme Court in
       Davis v. Washington, 547 U.S. 813 (2006), noted the difference between
       nontestimonial and testimonial statements given to a police officer. The Court
       explained:

              “Statements are nontestimonial when made in the course of police interrogation
              under circumstances objectively indicating that the primary purpose of the
              interrogation is to enable police assistance to meet an ongoing emergency. They
              are testimonial when the circumstances objectively indicate that there is no
              such ongoing emergency, and that the primary purpose of the interrogation is to
              establish or prove past events potentially relevant to later criminal
              prosecution.” Id. at 822.

       Here, the primary purpose of Detective Hogren’s interview with M.J. was to establish
       or prove past events potentially relevant to later criminal prosecution, so that M.J.’s
       statements to Detective Hogren were testimonial.

¶ 49       As noted, in light of the State’s concessions, we need not address the first three
       issues raised by respondent in his appeal. Accordingly, we now address the sole issue
       remaining in the case: whether the erroneous admission of M.J.’s statements to
       Detective Hogren at respondent’s trial was harmless error beyond a reasonable doubt.

¶ 50       Confrontation clause violations are subject to harmless error review. In re Rolandis
       G., 232 Ill. 2d 13, 43 (2008). The test is whether it appears beyond a reasonable doubt
       that the error at issue did not contribute to the verdict obtained at trial. Id. When
       determining whether an error is harmless, a reviewing court may, “(1) focus on the
       error to determine whether it might have contributed to the conviction; (2) examine the
       other properly admitted evidence to determine whether it overwhelmingly supports the

                                               - 17 -
       conviction; or (3) determine whether the improperly admitted evidence is merely
       cumulative or duplicates properly admitted evidence.” Id.

¶ 51       Respondent argues that the focus must be on whether the State has proven beyond a
       reasonable doubt that the error did not contribute to the guilty verdict. Respondent
       maintains that the answer to that question in this case is no, because M.J.’s testimonial
       hearsay statement to Detective Hogren did contribute to the trial court finding
       respondent guilty of aggravated criminal sexual abuse. Respondent characterizes
       M.J.’s statement to her mother as half non-verbal and open to interpretation. Further,
       all Lucas could add was that he saw M.J. lying down on the floor with her shirt on and
       her pants off. The State did not elicit whether it was M.J.’s outer pants or underpants
       that were off. Therefore, the trier of fact never heard evidence whether M.J. was naked
       from the waist down, or was wearing underpants. Further, even though Lucas, Alana,
       M.J., and respondent were in the room, the trier of fact never heard any testimony
       concerning where everyone else in the room was, or what they were doing, when the
       incident occurred.

¶ 52       Given the preceding, respondent argues that Detective Hogren’s testimony was
       essential to buttress the State’s case. Respondent notes that Detective Hogren testified
       that during his interview of M.J., M.J. made several accusatory statements, including
       the specific statement that respondent put his finger and spit in her “pee-pee,” and that
       respondent had put his “weiner” on her.

¶ 53       Respondent further contends that Detective Hogren’s testimony was crucial to
       buttress the State’s case because the remaining evidence in this case was not
       overwhelming. Respondent notes that the evidence adduced at trial was that respondent
       could not be excluded at seven loci, and there was insufficient DNA to come to any
       conclusion as to the other nine loci. The State’s witness, Small, could not say that the
       DNA obtained from M.J.’s underwear matched respondent. Rather, Small could only
       say that respondent could not be excluded from the list of loci where they were
       identified.

¶ 54       In response, the State maintains that the trial court’s error in this case was harmless
       beyond a reasonable doubt. The State asserts that M.J.’s spontaneous, non-testimonial
       statement to her mother, Teresa, given under circumstances that underscore its
       credibility, was the lynchpin of the case against respondent. This properly admitted
       evidence overwhelmingly established respondent’s guilt, and Detective Hogren’s
       testimony, which was duplicative of Teresa’s testimony, did not contribute to

                                               - 18 -
       respondent’s conviction. The State contends that this case is nearly identical to In re
       Rolandis G., 232 Ill. 2d 13 (2008), where the court held that the trial court’s error in
       admitting two testimonial statements from the victim was harmless error.

¶ 55       In Rolandis G., 11-year-old Rolandis was adjudicated delinquent for the aggravated
       criminal sexual assault of 6-year-old Von J. At Rolandis’s trial, Von was called to
       testify and answered some preliminary questions about himself, made an in-court
       identification of Rolandis, and stated that he knew Rolandis from the neighborhood.
       When asked about the events at issue, however, Von refused to respond. Defense
       counsel declined the opportunity to cross-examine Von.

¶ 56       Von’s mother, Jacqueline, testified that on the day at issue, Von came home from
       playing outside, accompanied by Rolandis, and immediately went to the bathroom.
       Rolandis stayed by the front door, but left when Von refused to come back outside with
       him. Jacqueline testified that she saw Von coughing, spitting and rinsing his mouth out
       with water while in the bathroom. When Jacqueline asked Von what was wrong, he
       said his “throat was hot.” After a few minutes, Von returned to the bathroom and
       started coughing and spitting again.

¶ 57        Soon thereafter, Von came into the living room where Jacqueline was sitting and
       told her that, “Rolandis made me suck his dick.” When Jacqueline questioned Von, he
       told her that Rolandis had forced him to a nearby wooded area and threatened him with
       a stick if he did not do what Rolandis wanted. Jacqueline called the police, who arrived
       within 10 minutes.

¶ 58       Officer Cure was the State’s next witness. He testified that Von told him that
       Rolandis had forced Von to “suck his dick,” and that Rolandis was holding a stick
       when he did so. Von told Officer Cure that he choked while performing the act, and that
       a fluid had come out of Rolandis’s penis.

¶ 59       Detective Swanberg also testified that he observed Von’s interview at the Carrie
       Lynn Children’s Center, conducted by child advocate Jackie Weber. The interview was
       videotaped. The videotape was played for the court. In the interview, Weber asked Von
       to identify various parts of a boy’s body using two anatomical drawings. Weber wrote
       down Von’s responses on the drawings. In response to Weber’s questioning, Von
       repeated what he had told his mother and Officer Cure, and also added some additional
       details.



                                              - 19 -
¶ 60        The trial court in Rolandis G. held that, even though Von had been unable to answer
       questions at trial concerning Rolandis’s conduct, Von had “testified” within the
       meaning of section 115-10(b)(2)(A). In re Rolandis G., 232 Ill. 2d at 20. Therefore, the
       trial court held that the testimony of Von’s mother and Officer Cure concerning Von’s
       out-of-court statements, as well as Von’s videotaped interview with Weber, were
       admissible as exceptions to the hearsay rule. Id.

¶ 61       On appeal, the State conceded that Von was unavailable to testify. The appellate
       court reversed and remanded Rolandis’s adjudication, finding that Von’s statements to
       Officer Cure and to Jackie Weber were testimonial and inadmissible under Crawford.
       Id. at 22. The State was granted leave to appeal.

¶ 62      The Rolandis G. court held that the trial court erred in allowing the testimony of
       Officer Cure and the videotape of Von’s interview with Weber into evidence at trial, as
       both statements were testimonial and Von was unavailable as a witness. However, the
       court found that the properly admitted evidence overwhelmingly supported Rolandis’s
       conviction, so that the admission of Von’s testimonial statements to Officer Cure and
       Weber was harmless beyond a reasonable doubt. Id. at 43.

¶ 63       In finding harmless error, the court noted that: there was no inconsistency
       concerning the perpetrator’s identity; Von spontaneously revealed to his mother, in
       properly admitted testimony, that Rolandis made him “suck his dick”; Von’s actions
       upon returning home correlated to the type of sexual abuse Von said occurred; and
       Von’s actions strongly indicated that the abuse occurred very recently, at a time when
       Von was solely in Rolandis’s custody. Id. at 43-44. Rolandis admitted at trial that he
       alone walked Von home, through the wooded area. Id. at 44. Consequently,
       Jacqueline’s testimony concerning her observations of Von’s behavior, in addition to
       her testimony regarding Von’s statement to her, overwhelmingly supported Rolandis’s
       conviction. Id. Jacqueline’s testimony was clear and uncontroverted. Id. at 46.
       Moreover, the improperly admitted evidence was largely repetitive of the evidence
       presented by Jacqueline, and did not resolve any material issue. Id. For those reasons,
       the admission of Von’s testimonial statements to Officer Cure and Weber, although
       error, was harmless beyond a reasonable doubt. Id.

¶ 64       The State argues that considerations identical to those in Rolandis G. compel a
       finding of harmless error in this case. The State notes that M.J.’s statement to her
       mother was given spontaneously, almost immediately after respondent left the house,
       M.J.’s complaint of pain upon urination was consistent with the type of abuse she

                                              - 20 -
       alleged, and respondent spent the morning with M.J. in Lucas’s bedroom. In addition,
       forensic evidence, which was not present in Rolandis G., corroborated M.J.’s
       statement. Small testified that a swab from M.J.’s underwear contained both her DNA
       and the DNA of a male contributor, and respondent could not be excluded from the
       DNA profile at seven loci, which would be expected to occur randomly in the
       population once every 7,400 unrelated Caucasian individuals. These findings
       corroborate M.J.’s assertion that a male touched her genitals, and that the male was
       respondent. Although the DNA profile could not be described as a match to respondent,
       the partial match at seven loci is highly probative given that M.J. was in respondent’s
       company for much of the day before the swabs were taken, making it highly unlikely
       that the male DNA was left by someone else.

¶ 65       Respondent disagrees, arguing that the instant case is distinguishable from
       Rolandis G. on a number of grounds. Respondent notes that in contrast to six-year-old
       Von, M.J. was three years old and minimally verbal. Moreover, M.J.’s statement to her
       mother was half gesture, and was vague enough that it is unclear exactly what
       happened, while Von clearly told his mother that Rolandis had made Von “suck his
       dick.”

¶ 66       Respondent contends that this case is closer to In re T.T., 384 Ill. App. 3d 147
       (2007), and People v. Stechly, 225 Ill. 2d 246 (2007). Respondent states that in In re
       T.T., the appellate court held that the error in admitting testimonial hearsay was not
       harmless beyond a reasonable doubt because the testimonial statements of the
       complainant, who was unavailable at trial, provided significantly more detail about the
       assault than the properly admitted evidence. Likewise, in Stechly, the court could not
       conclude beyond a reasonable doubt that the admission of hearsay statements did not
       contribute to the finding of guilt. Here too, the State cannot show beyond a reasonable
       doubt that the admission of M.J.’s hearsay statements to Detective Hogren did not
       contribute to the finding of guilt.

¶ 67       In Stechly, M.M., the five-year-old complainant, did not make an immediate
       outcry. Rather, Brenda Galete, who began babysitting M.M. in November 1998,
       testified at defendant’s trial that on January 13, 1999, M.M. told Galete about an
       incident of sexual abuse by “Bob” that took place in December 1998. M.M. never
       specified which Bob. Galete testified that Joan, M.M.’s mother, had other people
       babysitting M.M., including Joan’s nephew Bob Reilly, who lived in Joan’s apartment
       building, and who babysat for M.M. “a lot.” When M.M. told Galete about the sexual
       abuse, Galete took M.M. to Joan’s place of employment and insisted that they take
                                             - 21 -
       M.M. to the hospital. Galete testified that during the ride to the hospital, she did not
       recall hearing Joan ask M.M. what happened. On cross-examination, Galete testified
       that she thought there were other people that had molested M.M., and that she told the
       police that she thought Joan was molesting M.M.

¶ 68        Joan testified at the State’s section 115-10 hearing that Galete came to her place of
       employment and told Joan that they needed to take M.M. to the hospital. During the
       ride to the hospital, when Joan asked M.M. what was wrong, M.M. described an
       incident of sexual abuse by “Bob.” Joan understood “Bob” to be the defendant, Robert
       Stechly, who lived in Joan’s apartment building and was in a relationship with Joan.
       Joan said that defendant babysat M.M. in his apartment about two weeks before
       Christmas 1998. Joan denied that her nephew, Bob Reilly, ever babysat M.M. Joan’s
       trial testimony was largely consistent with her testimony at the section 115-10 hearing,
       although Joan testified at the section 115-10 hearing that during the ride to the hospital,
       M.M. identified her abuser as “Bob,” while Joan’s testimony at trial was that M.M.
       identified her abuser as “Robert Stechly” during the trip to the hospital.

¶ 69       Ann Grote, a clinical specialist in charge of the hospital’s child abuse team, spoke
       with Joan at the hospital. Joan told Grote that the perpetrator was “the babysitter,” a
       man with whom Joan was in a relationship. Grote interviewed M.M. and asked her why
       she had come to the hospital. M.M. said she was there because of what “Bob” had done
       to her. M.M. described the incident of sexual abuse that she had previously described to
       Joan. Grote’s testimony at defendant’s trial was essentially consistent with her
       testimony at the section 115-10 hearing.

¶ 70       Perry Yates, a social worker at M.M.’s school, testified that he interviewed M.M.
       on January 14, 1999. Yates began his interview with M.M. by asking M.M. what she
       could tell him about “Robert Stechly.” M.M. described an incident of sexual abuse
       similar to what she had described to Joan and to Grote. Although Yates mentioned the
       name “Robert Stechly” in his initial question to M.M., M.M. never mentioned
       defendant by name during the interview. Yates’s testimony at trial also was consistent
       with his testimony at the section 115-10 hearing.

¶ 71       The defendant in Stechly had signed a confession. However, the defendant recanted
       that confession at trial. The defendant also presented testimony from a psychiatrist that
       the defendant did not understand the ramifications of signing a statement.

¶ 72      The Stechly case was originally tried before a jury, but the jury could not reach a
       decision and a mistrial was declared. The parties then proceeded with a bench trial and
                                               - 22 -
       stipulated to the testimony from defendant’s trial. The trial court found the defendant
       guilty, and the appellate court affirmed.

¶ 73        The Stechly court found that M.M.’s statements to her mother were nontestimonial,
       and that her statements to Grote and Yates were testimonial, and should not have been
       admitted at defendant’s trial because M.M. was unavailable as a witness, and defendant
       had not had an opportunity to cross-examine M.M. The court further held, in a plurality
       opinion, that the error in admitting M.M.’s testimonial statements was not harmless
       error. Stechly, 225 Ill. 2d at 305. The court found that the improperly admitted
       statements could not be considered merely duplicative of the properly admitted
       evidence. Id. at 306. The court noted that M.M.’s statements to Grote and to Yates were
       substantially similar to her statement to Joan, but “the fact that the testimony was
       coming from adults who had no personal stake in the matter at hand, no acquaintance
       with Joan or defendant, and little or no acquaintance with M.M., and the strong
       similarity of the statements, gave them a power beyond simple duplication of Joan’s
       testimony as to what her daughter told her.” Id. at 305. The court also found significant
       the fact that both Grotes and Yates testified that M.M. demonstrated the conduct at
       issue through the use of dolls, another fact that reinforced the believability of M.M.’s
       statements and distinguished them from M.M.’s statements to Joan. Id. Further, the
       conversation between Yates and M.M. began with Yates asking M.M. what she could
       tell him about “Robert Stechly.” The fact that M.M. recounted the events in question in
       response to a generic question about the defendant was crucial evidence, particularly
       where the defense at trial concerned the identity of the abuser. Id. at 305-06.

¶ 74       The Stechly plurality concluded that M.M.’s consistent repetition of the story
       strongly reinforced its believability, and that reinforcement could have overridden any
       doubts which might have arisen in light of the significant conflicts and inconsistencies
       between Galete’s testimony, Joan’s testimony, and defendant’s confession. Stechly,
       225 Ill. 2d at 309. Finally, the court stated that the conclusion that the evidence against
       defendant was not overwhelming was buttressed by the fact that the jurors at the
       defendant’s first trial could not agree on a verdict. Id. at 310.

¶ 75       In In re T.T., the 14-year-old respondent was adjudicated delinquent for
       committing two offenses of aggravated criminal sexual assault against seven-year-old
       G.F. In re T.T., 384 Ill. App. 3d 147. At a section 115-10 hearing, G.F.’s mother, P.F.,
       testified that she left G.F. at Denise T.’s house for two and a half days. Denise T. was
       respondent’s mother. G.F.’s sister picked G.F. up on December 18, 2000, and when
       G.F. walked into the house, she told her mother, without prompting or questioning, that
                                               - 23 -
       “ ‘Pooh [respondent]’ had ‘juiced’ her and put his ‘ding-a-ling’ in her ‘bootie’ and her
       ‘fannie.’ ” Based upon G.F.’s prior use of those terms, her mother understood G.F. to
       mean that respondent had sexual intercourse with her, and put his penis in her buttocks
       and vagina. G.F. said that when she told Denise T. and respondent’s sister about the
       incidents, they bathed her. G.F.’s mother did not contact the police or take G.F. for
       medical treatment.

¶ 76       G.F. was interviewed by DCFS investigator Lewis on May 4, 2001, nearly five
       months later, after Lewis received a hotline report concerning G.F. G.F. was not
       examined by a physician until May 7, 2001. G.F. told Lewis that “Pooh” stuck his
       “thing” in her “fannie” and in her, pointing to indicate her vaginal area. G.F. also told
       Lewis that respondent brought her into the bathroom and stuck his “thing” into her
       “bootie.” G.F. said that a “thing” was a “ding-a-ling.” G.F. said that she told Denise T.
       and respondent’s sister what had happened, and also told her mother, P.F., as soon as
       she saw her.

¶ 77       G.F. also was interviewed by Detective Dwyer. G.F. told Detective Dwyer that
       respondent put his “thing” in her “privates.” G.F. said that a “thing” is what boys pee
       from, and “privates” are what girls pee from, pointing to her vaginal area. G.F. told
       Detective Dwyer that respondent then brought her into the bathroom and put his
       “thing” in her “bootie” and in her “privates.” G.F. pointed to her behind to indicate
       what a “bootie” was. G.F. said that she told Denise T. and respondent’s sister about the
       incidents.

¶ 78       At trial, the parties stipulated to the testimony of G.F.’s mother, investigator Lewis,
       and Detective Dwyer from the section 115-10 hearing. G.F. was called to testify and
       answered some preliminary questions. When the questions about the assault became
       more specific, G.F. stopped answering questions, saying that she did not remember or
       that nothing happened. Following a break, G.F. testified that respondent unbuttoned
       her pajama suit in Denise T.’s bedroom but would not respond when asked what
       happened next. The State asked that G.F. be declared unavailable. Defense counsel
       responded that G.F. was responsive, she said that nothing happened, and “ ‘her
       demeanor was one of kind of giggling at times or smiling.’ ” In re T.T., 384 Ill. App. 3d
       at 154. The trial court determined that G.F. was unavailable.

¶ 79       Denise T., respondent’s mother, testified at trial that G.F. never complained that
       respondent had touched her. Denise T. remained friends with G.F.’s mother, P.F., after
       the incident. They played cards and saw one another almost daily. Denise T. testified

                                               - 24 -
       that she spoke with G.F. and P.F. in April 2001, and she asked G.F. if respondent had
       touched her. G.F. said “no,” grinned, laughed, and put her hand over her mouth. Denise
       T. testified that P.F. heard her conversation with G.F., but made no comment.

¶ 80       In rebuttal, P.F. acknowledged having a conversation with Denise T. in April 2001,
       but denied that G.F. was present. P.F. never heard G.F. tell Denise T. that the incident
       never happened. P.F. testified that she and Denise T. lived in the same neighborhood
       and sometimes saw one another or went shopping, but said they did not see one another
       for several months because of the case.

¶ 81       The appellate court found that G.F.’s statements to investigator Lewis and
       Detective Dwyer were testimonial, and held that the confrontation clause errors were
       not harmless beyond a reasonable doubt. The appellate court stated:

              “Here, P.F. provided testimony describing G.F.’s outcry that respondent had
              ‘juiced’ her. The evidence also included Dr. Lorand’s physical findings and
              expert opinion that G.F. was sexually abused. However, at trial, G.F. was not
              able to testify about the incidents of alleged abuse during her limited direct
              examination before she froze, and Denise T. testified that G.F. recanted her
              allegations against respondent. The testimonial statements made by G.F. to
              Detective Dwyer, DCFS investigator Lewis, and Dr. Lorand were the only
              other evidence presented at trial to identify respondent as the perpetrator.
              Moreover, those testimonial statements provided significantly more detail
              about the assault than did P.F.’s testimony regarding G.F.’s statements. There is
              a reasonable probability the admission of the testimonial evidence contributed
              to the adjudication of delinquency. In addition, the evidence in this case was not
              overwhelming.” In re T.T., 384 Ill. App. 3d at 166.

       The appellate court therefore reversed the judgment of the trial court and remanded for
       further proceedings.

¶ 82       Respondent contends that the instant case is similar to Stechly and In re T.T.
       Respondent argues that the evidence in this case was not overwhelming, nor was
       Detective Hogren’s testimony duplicative of M.J.’s initial outcry to her mother. Rather,
       similar to the testimony at issue in Stechly and In re T.T., Detective Hogren’s testimony
       was significantly more detailed than Teresa’s testimony. Respondent also asserts that
       the State’s scientific evidence was equivocal at best, and merely failed to exclude
       respondent from a group of individuals whose DNA profile might have matched at
       seven loci. The finding of male DNA on M.J.’s underwear merely means that a male
                                              - 25 -
       touched M.J.’s underwear. Respondent posits several innocent explanations for the
       male DNA, including the possibility that: a male folded M.J.’s underwear; a male put
       M.J.’s laundry away; a male picked M.J.’s clothes out of the closet for her; or a male
       helped M.J. get dressed. Consequently, respondent maintains that the State has not
       proven beyond a reasonable doubt that M.J.’s statements to Detective Hogren did not
       contribute to his adjudication for aggravated criminal sexual abuse, so that the error in
       this case was not harmless.

¶ 83       Upon review, we disagree with respondent that the facts of this case are analogous
       to Stechly and In re T.T., and distinguishable from Rolandis G. There was a question in
       Stechly concerning the identity of the perpetrator, and the properly admitted testimony
       was inconsistent and contradictory. Given those inconsistencies and contradictions, the
       court could not say that the improperly admitted testimony played no part in the trial
       court’s finding of guilt.

¶ 84       Likewise in In re T.T., the evidence against the respondent was not overwhelming.
       The properly admitted testimony of P.F. was contradicted by the testimony of Denise
       T. Further, P.F.’s testimony was not clear and convincing, given that P.F. never
       contacted the police or took G.F. for a medical examination following her spontaneous
       outcry. The assault only came to the attention of authorities through a hotline call to
       investigator Lewis several months later. Under the circumstances, it was likely that
       G.F.’s repetition of the story to investigator Lewis and Detective Dwyer, in even
       greater detail, reinforced the believability of P.F.’s testimony. As in Stechly, the
       properly admitted evidence in In re T.T. was not so overwhelming that it was clear
       beyond a reasonable doubt that the improperly admitted testimony played no part in the
       adjudication of guilt.

¶ 85       In contrast to the evidence in Stechly and In re T.T., the properly admitted evidence
       in this case overwhelmingly established respondent’s guilt. We agree with the State
       that this case is similar to Rolandis G. As in Rolandis G., and in contrast to Stechly,
       there was no inconsistency here concerning the perpetrator’s identity. Further, unlike
       Stechly and In re T.T., there were no conflicts and inconsistencies in the properly
       admitted testimony in this case. Similar to Von’s outcry to his mother in Rolandis G.,
       soon after respondent left Teresa’s house, M.J. spontaneously revealed to her mother
       that respondent had put spit on her “pee-pee.” Respondent describes M.J.’s outcry to
       her mother as half gesture and vague, based upon Teresa’s cross-examination
       testimony at the section 115-10 hearing. On cross-examination, Teresa testified that
       M.J. said, respondent “did this and put it on my pee-pee,” with the court explaining that
                                              - 26 -
       Teresa inserted her right index finger into her mouth indicating the motion by M.J. We
       note, however, that Teresa clarified on redirect examination during the section 115-10
       hearing that M.J. both made a motion with her finger and said that respondent had “put
       spit in her pee-pee.”

¶ 86       M.J.’s actions after respondent left the house also correlated to the type of sexual
       abuse M.J. said had occurred, and strongly indicated that the abuse occurred very
       recently. Teresa testified that five or ten minutes after respondent left her house, M.J.
       was holding herself and complained that she had to go to the bathroom but it hurt.

¶ 87      In addition to Teresa’s testimony, Lucas testified that something happened to M.J.
       when she was in the bedroom with him, Alana, and respondent. Lucas testified that
       M.J. was lying down on the floor and did not have pants on.

¶ 88       During his interview with Detective Hogren, respondent confirmed that he was in
       the bedroom with Lucas, Alana, and M.J., and admitted that he showed the children
       some pictures of naked women on his cell phone.

¶ 89       As the State observes, in addition to the properly admitted testimonial evidence,
       this case also included forensic evidence, which was not present in Rolandis G., Stechly
       or In re T.T. Although the DNA evidence was not a match for respondent, respondent
       could not be excluded from seven loci in the DNA profile, which would be expected to
       occur randomly in the population once every 7,400 unrelated Caucasian individuals.
       This evidence certainly is probative, given that the evidence is consistent with M.J.’s
       statement that respondent touched her genitals. It is clear, then, that the properly
       admitted evidence in this case overwhelmingly supports respondent’s conviction.

¶ 90       As noted, respondent also contends that the error in this case was not harmless
       because Detective Hogren’s testimony contained additional details not included in
       Teresa’s testimony. Respondent argues that those additional details contributed to his
       conviction. The additional details were that M.J. said that respondent had “stuck his
       finger in her pee pee,” and pointed between her legs, and that M.J. told her Aunt
       Aundrea and Uncle Mike that respondent spit in her pee-pee and put his weiner on her.
       Respondent asserts that in light of the additional details, Detective Hogren’s testimony
       cannot be considered repetitive of Teresa’s testimony.

¶ 91       We disagree. The court in Rolandis G. noted that the improperly admitted
       testimony of Officer Cure, and the videotaped evidence of Von’s interview with
       Weber, contained additional details not present in the properly admitted testimony of

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       Von’s mother, but concluded nonetheless that the evidence presented was largely
       repetitive of the properly admitted evidence, and did not resolve any material issues in
       the case. Notably, the videotaped evidence in Rolandis G. showed Weber asking Von
       to identify various parts of a boy’s body using two anatomical drawings, front and
       back, with Von’s responses written on the drawings.

¶ 92       Here, the improperly admitted testimonial evidence added even less to the case
       against respondent than the evidence found repetitive and cumulative in Rolandis G.
       This case involves the improper testimonial evidence of only one witness. We do not
       find it compelling that M.J.’s statement to Teresa may have been slightly less verbal
       than her statement to Detective Hogren. Although M.J. told Detective Hogren the
       additional detail that respondent “put his weiner” on her, that detail did not resolve any
       material issue in the case. Upon review, we find that Detective Hogren’s testimony was
       merely cumulative of Teresa’s properly admitted testimony. The error in admitting
       Detective Hogren’s testimony did not contribute to respondent’s conviction.



¶ 93                                     CONCLUSION

¶ 94       We find therefore, beyond a reasonable doubt, that the improperly admitted
       testimony of Detective Hogren was cumulative of the properly admitted evidence, that
       the improperly admitted testimony of Detective Hogren did not contribute to
       respondent’s adjudication of guilt, and that the properly admitted evidence in this case
       overwhelmingly supports respondent’s adjudication. The admission of Detective
       Hogren’s improper testimonial hearsay was harmless error beyond a reasonable doubt.
       For those reasons, we affirm the appellate court’s decision affirming respondent’s
       adjudication of aggravated criminal sexual abuse.



¶ 95      Appellate court judgment affirmed.




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