                         Docket No. 100202.


                        IN THE
                   SUPREME COURT
                          OF
                 THE STATE OF ILLINOIS




In re E.H., a Minor (The People of the State of Illinois, Appellant, v.
                          E.H., Appellee).

                  Opinion filed December 21, 2006.



   JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
   Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman,
and Karmeier concurred in the judgment and opinion.
   Justice Burke took no part in the decision.



                              OPINION

    In this case the appellate court found section 115–10 of the Code
of Criminal Procedure of 1963 (725 ILCS 5/115–10 (West 2004))
facially unconstitutional, without addressing the nonconstitutional
grounds upon which the case could be decided. 355 Ill. App. 3d 564.
We vacate the appellate court’s judgment and remand to the appellate
court.

                          BACKGROUND
    Due to our disposition of this case, our recitation of the underlying
facts will be brief.
    In November 2000, the State brought a petition in the circuit court
of Cook County for adjudication of wardship against the minor
defendant, E.H. The petition alleged that E.H. had engaged in
numerous instances of improper sexual conduct with the minor victims
K.R. and B.R. while she was their baby-sitter in 1999. During pretrial
proceedings, the court was called upon to determine whether to admit
into evidence at trial out-of-court statements K.R. and B.R. made to
their grandmother. The court determined that the statements were
admissible pursuant to section 115–10 of the Code of Criminal
Procedure (725 ILCS 5/115–10 (West 2000)).
    The case proceeded to a bench trial, where the court found
defendant guilty of aggravated criminal sexual abuse and aggravated
criminal sexual assault of each of the minor victims K.R. and B.R. The
court judged defendant to be delinquent and made her a ward of the
court.
    The appellate court initially affirmed the circuit court’s judgment
in a Rule 23 order (No. 1–01–2776 (2004) (unpublished order under
Supreme Court Rule 23)). The court held that the trial court had
abused its discretion in admitting B.R.’s out-of-court statements
regarding the alleged abuse. The court noted that section 115–10
required as a precondition to admission of statements of a
nontestifying child witness that “ ‘the time, content and circumstances
of the statement provide sufficient safeguards of reliability.’ ” No.
1–01–2776, quoting 725 ILCS 5/115–10(b)(1) (West 2000). The
court held that these factors had not been satisfied with respect to
B.R. However, the court concluded that the error was harmless in
light of the other evidence offered in the case. Accordingly, the court
affirmed the trial court’s finding of delinquency.1
    In a petition for rehearing, defendant argued that the appellate
court had erred in failing to address Crawford v. Washington, 541
U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), a case which
reinterpreted the confrontation clause of the sixth amendment to the


   1
     The appellate court actually affirmed as modified, because the court
held, based on the “one-act, one-crime” doctrine (see People v. King, 66 Ill.
2d 551 (1977)), that the counts of aggravated criminal sexual abuse merged
into the two counts of aggravated criminal sexual assault.

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United States Constitution (U.S. Const., amend. VI). Defendant
argued that the admission of B.R.’s out-of-court statements violated
her right to be “confronted with the witnesses against [her].” U.S.
Const., amend. VI. The appellate court allowed the petition for
rehearing and subsequently filed an opinion in which the court
reversed the trial court’s finding of delinquency, based on defendant’s
confrontation clause claim. 355 Ill. App. 3d 564. Specifically, the
appellate court held that B.R.’s out-of-court statement was
“testimonial” and, thus, because B.R. did not testify at trial, the
admission of B.R.’s statement violated the confrontation clause. 355
Ill. App. 3d at 574-75. Based on the fact that the error was of
constitutional magnitude, the court held that the error was not
harmless. 355 Ill. App. 3d at 575-76.
     Notwithstanding that the above holding sufficed to fully decide the
case, the court went on to “address the constitutionality of section
115–10 under Crawford and the confrontation clause.” 355 Ill. App.
3d at 576. In a paragraph of analysis, the appellate court summed up
section 115–10 as “seek[ing] to admit a declarant’s out-of-court
statement into evidence, without the declarant being present in court,
as long as there is some other evidence that corroborates the out-of-
court statement and the statement is deemed reliable.” 355 Ill. App.
3d at 577. After a brief quote from Crawford, the court concluded,
“The applicability of Crawford to section 115–10 could be no clearer.
Therefore, we find section 115–10 unconstitutional.” 355 Ill. App. 3d
at 577.
     In dissent, Justice Quinn raised numerous objections to the
majority opinion. Relevant to our decision here, the dissent argued
first that the appellate majority erred in reaching E.H.’s Crawford
argument without first addressing her argument that admission of the
statements violated section 115–10. 355 Ill. App. 3d at 578-79
(Quinn, J., dissenting). Justice Quinn contended that it was
inappropriate to decide the case on a constitutional ground without
first considering potential nonconstitutional decision bases, and noted
that a prior decision of the appellate court established the order in
which issues should be addressed in such cases:
             “ ‘It is important to note that in determining whether a
         prior out-of-court statement is admissible, the proponent of
         the statement first must meet the requirements of the

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         applicable statutory hearsay exception as set out in section
         115–10 et seq. (725 ILCS 5/115–10 et seq. (West 2002)). The
         holding in Crawford should be considered only after the court
         determines the proffered statement complies with the
         requirements of the applicable statute.’ ” (Emphases added.)
         355 Ill. App. 3d at 578-79 (Quinn, J., dissenting), quoting
         People v. Martinez, 348 Ill. App. 3d 521, 535 (2004).
The dissent also argued that the majority’s as-applied Crawford
analysis was flawed and that the majority erred in finding section
115–10 facially unconstitutional. 355 Ill. App. 3d at 580-83 (Quinn,
J., dissenting).
     Because the appellate court declared a statute of this state
unconstitutional, this appeal as of right followed. 155 Ill. 2d R. 317.

                              ANALYSIS
     We have repeatedly stated that cases should be decided on
nonconstitutional grounds whenever possible, reaching constitutional
issues only as a last resort. See, e.g., People v. Lee, 214 Ill. 2d 476,
482 (2005); In re Detention of Swope, 213 Ill. 2d 210, 218 (2004),
quoting In re S.G., 175 Ill. 2d 471, 479 (1997); Bonaguro v. County
Officers Electoral Board, 158 Ill. 2d 391, 396 (1994); In re
Application of Rosewell, 97 Ill. 2d 434, 440 (1983); Osborn v. Village
of River Forest, 21 Ill. 2d 246, 249-50 (1961); Donoho v.
O’Connell’s, Inc., 18 Ill. 2d 432, 436 (1960); City of Detroit v.
Gould, 12 Ill. 2d 297, 304 (1957); People ex rel. Downs v. Scully, 408
Ill. 556 (1951); People v. Chiafreddo, 381 Ill. 214, 219 (1942);
Illinois Central R.R. Co. v. Chicago & Great Western Ry. Co., 246
Ill. 620, 624 (1910). Yet our admonitions on this topic seem to fall
not infrequently on deaf ears. The situation has become so untenable
that we have recently taken the somewhat extraordinary step of
adding to our rules a requirement that before deciding a case on
constitutional grounds, the court must state, in writing, that its
decision cannot rest upon an alternate ground. See 210 Ill. 2d R.
18(c)(4) (eff. September 1, 2006). We have also spelled out that we
may “summarily vacate and remand” any circuit court judgment which
fails to comply with this or any other provision of our new Rule 18.
See 210 Ill. 2d R. 18(c)(4).


                                  -4-
     The appellate court’s decision presents yet another example of
reaching constitutional issues unnecessarily. The appellate court
initially filed a decision based on nonconstitutional grounds–the court
ruled the evidence at issue was inadmissible for failure to comply with
the statutory requirements, but that this error was harmless. No.
1–01–2776 (2004). On rehearing, however, the court inexplicably
deleted this analysis and, over dissent on this precise point (see 355 Ill.
App. 3d at 578-79 (Quinn, J., dissenting)), proceeded directly to a
confrontation clause analysis without addressing any possible
nonconstitutional grounds for deciding the case. 355 Ill. App. 3d at
574-75.
     This alone was erroneous, as we have repeatedly attempted to
make plain. However, the appellate court went on, having already
decided the case before it, to evaluate the facial constitutionality of
section 115–10 and declare the entire statute unconstitutional. Not
only did this latter ruling violate the prohibition against deciding
constitutional issues without first exhausting all potential
nonconstitutional grounds for resolving the case, it was entirely
unnecessary to decide the case before it.
     As we recently stated, courts “should not compromise the stability
of the legal system by declaring legislation unconstitutional when a
particular case does not require it.” People v. Lee, 214 Ill. 2d 476, 482
(2005), citing Trent v. Winningham, 172 Ill. 2d 420, 425 (1996). That
being so, it should go without saying that courts should not declare
statutes facially unconstitutional in dictum.
     We agree entirely with the court in Martinez and Justice Quinn’s
dissent. When a court is asked to evaluate the admission of out-of-
court statements into evidence, the first step is determining whether
the statement passes muster as an evidentiary matter. If the proponent
seeks to admit the statement pursuant to section 115–10, the
statement must be evaluated to see whether it meets that statute’s
requirements; if it is sought to be admitted pursuant to an exception
to the hearsay rule, that claim must be evaluated. Only once the
statement has first been found admissible as an evidentiary matter
should constitutional objections–including Crawford-based
confrontation clause claims–be dealt with. 355 Ill. App. 3d at 578-79
(Quinn, J., dissenting), quoting Martinez, 348 Ill. App. 3d at 535. This
is the only analytical “flow chart” that comports with the rule that

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courts must avoid considering constitutional questions where the case
can be decided on nonconstitutional grounds.
     Thus, in this case, the appellate court should have proceeded as
follows. The first question is whether the circuit court erred in ruling
that B.R.’s statements were admissible pursuant to section 115–10. If
this ruling was error, the next question is whether that error was
harmless. If it was error and it was not harmless, that ends the case
and E.H. must receive a new trial. Only if the circuit court’s section
115–10 ruling was not error, or was error but harmless (under the
harmless error analysis applicable to that ruling), should the court turn
to the constitutional challenge to the evidence.
     Even then, if the appellate court ruled the circuit court’s section
115–10 ruling was error but harmless error, the court must first
consider whether it is necessary to consider the constitutional question
in light of the fact that the court had already ruled admission of the
evidence harmless. It is true that there is a somewhat higher bar for
constitutional error than other trial error to be deemed harmless.
Compare, e.g., People v. Nevitt, 135 Ill. 2d 423, 447 (1990)
(evidentiary error is harmless “where there is no reasonable
probability that the jury would have acquitted the defendant absent
the” error (emphasis added)), with Chapman v. California, 386 U.S.
18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828 (1967) (“before
a federal constitutional error can be held harmless, the court must be
able to declare a belief that it was harmless beyond a reasonable
doubt” (emphasis added)). Because of the different standards of
review, there could theoretically exist a narrow set of cases in which
admission of the same evidence is harmless if considered as an
evidentiary error, but not harmless if evaluated pursuant to the
constitutional error standard. If and only if this case is a member of
that exclusive set would it be proper for the appellate court to go on
to evaluate whether admission of the statements did in fact violate
Crawford. For if admission of the statements pursuant to section
115–10 was harmless error, it does not matter whether the statements
violate Crawford, unless the different standards of harmless error
mandate a different outcome.
     This case is only before us as of right because of the appellate
court’s rulings on the constitutional issues. The appellate court
reached those issues improperly, however. Accordingly, we vacate the

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court’s January 2005 judgment and remand the cause to the appellate
court with directions that the court first address the nonconstitutional
issues, reaching constitutional issues only if necessary to decide the
case. See Wade v. City of North Chicago Police Pension Board, 215
Ill. 2d 620, 620 (2005) (supervisory order) (directing appellate court
to vacate judgment which had addressed constitutional question and
to address alternate nonconstitutional ground for resolving case);
Turcol v. Pension Board of Trustees of the Matteson Police Pension
Fund, 214 Ill. 2d 521, 524 (2005) (dismissing appeal and remanding
to appellate court to consider alternate nonconstitutional ground for
resolving case); Illinois Central, 246 Ill. at 623-24 (transferring cause
to appellate court where it appeared that constitutionality was not at
issue due to resolution of other issues in case).

                           CONCLUSION
   For the reasons above stated, we vacate the appellate court’s
judgment and remand to that court with directions that the court first
consider the nonconstitutional issues raised, reaching the
constitutional issues only if necessary.

                                               Vacated and remanded.

    JUSTICE BURKE took no part in the consideration or decision
of this case.




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