People v. Sundling , 2012 IL App (2d) 070455-B ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Sundling, 2012 IL App (2d) 070455-BAppellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JOSEPH E. SUNDLING, Defendant-Appellant.
District & No. Second District
Docket No. 2-07-0455
Filed January 31, 2012
Rehearing denied February 24, 2012
Held Pursuant to a supervisory order of the Illinois Supreme Court, the
(Note: This syllabus appellate court vacated its judgment upholding defendant’s convictions
constitutes no part of for aggravated criminal sexual abuse over his claims that hearsay
the opinion of the court evidence and prior convictions were improperly admitted, that his right
but has been prepared to confront witnesses was violated and that his counsel was ineffective,
by the Reporter of and upon reconsidering the decision in light of the supreme court’s
Decisions for the decision in Kitch, holding that the direct testimony of the minor victims
convenience of the in that case was sufficient to establish the elements of the charges and
reader.)
allow for effective cross-examination, the appellate court again affirmed
defendant’s convictions.
Decision Under Appeal from the Circuit Court of De Kalb County, No. 04-CF-0733; the
Review Hon. Robbin J. Stuckert, Judge, presiding.
Judgment Affirmed.
Counsel on Patricia Unsinn, Alan D. Goldberg, Michele D. Morris, and Heidi Linn
Appeal Lambros, all of State Appellate Defender’s Office, of Chicago, for
appellant.
Ronald G. Matekaitis, State’s Attorney, of Sycamore (Robert J. Biderman
and Anastacia R. Brooks, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Birkett concurred in the judgment
and opinion.
OPINION
¶1 Following a bench trial, defendant, Joseph E. Sundling, was convicted of two counts of
aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2004)) and was
sentenced to a term of 20 years’ imprisonment with a lifetime term of mandatory supervised
release. On appeal, defendant raises a number of issues regarding the admission of hearsay
evidence, the admission of prior convictions, the denial of his sixth amendment right to
confrontation, and ineffective assistance of counsel.
¶2 We already have issued a decision in this appeal, rejecting defendant’s contentions and
affirming the trial court’s judgment. People v. Sundling, No. 2-07-0455, slip order at 26
(2009) (unpublished order under Supreme Court Rule 23) (Sundling I). The supreme court,
however, in the exercise of its supervisory authority, has directed us to vacate our judgment
and to reconsider it in light of People v. Kitch, 239 Ill. 2d 452 (2011), to determine if a
different result is warranted. People v. Sundling, 2011 IL 109619. Accordingly, we vacate
our judgment and, after reconsidering our decision in light of Kitch, we arrive at the same
conclusions as before. Therefore, we again affirm the trial court’s judgment.
¶3 FACTS
¶4 On November 23, 2004, defendant was indicted on two counts of aggravated criminal
sexual abuse. The indictment alleged that defendant, being over the age of 17, committed an
act of sexual conduct with M.D.B. (count I) and J.M.H. (count II), both of whom were under
the age of 13 when the acts were committed, in that defendant knowingly fondled the penis
of each minor for the purpose of the sexual gratification of defendant.
¶5 Following a hearing pursuant to section 115-10 of the Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/115-10 (West 2006)), the trial court determined that out-of-court
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statements that M.D.B. had made to his mother, Tina, and to Detective Roger Plant were
admissible. The court found that the time, content, and circumstances under which the
statements were made provided sufficient safeguards of reliability for their admission. It
found that the version of events that M.D.B. shared with his mother and with the detective
on videotape, as well as M.D.B.’s notations on a drawing, were substantially consistent. The
court also determined that neither Tina nor Plant prompted or manipulated M.D.B. and that
Plant asked leading questions only to clarify certain details. The court also found that the
evidence was void of any motive to lie, that M.D.B.’s statements were in response to
questions, and that his demeanor appeared to be age appropriate.
¶6 At trial, C.I., M.D.B.’s brother, testified that, sometime in November 2002, he was
playing in the basement of his house with M.D.B. and his cousins, including J.M.H. While
they were in the basement, defendant came downstairs alone and began wrestling with them.
C.I. remembered seeing defendant throw M.D.B. on the waterbed and that defendant tickled
M.D.B. while saying, “tickle here, tickle there,” and then touched M.D.B.’s penis. The
touching occurred over M.D.B.’s underwear. C.I. remembered that M.D.B. wore a shirt and
underwear and that J.M.H. wore a shirt and a diaper. C.I. also saw defendant tickle M.D.B.
on the stomach and armpit. C.I. stated that defendant picked up J.M.H. and threw him on the
waterbed and tickled him. C.I. stated that defendant then reached underneath J.M.H.’s diaper
and told J.M.H. about three times that he was “going to get your penis.” The other cousins
called defendant a faggot. All the cousins jumped on defendant’s back. Before defendant
went upstairs, he said, “Don’t say anything.” Approximately two months later, C.I. told his
mother about the incident after his mother asked him. C.I. stated that he did not tell her
sooner because he was scared.
¶7 M.D.B., who was four years old at the time of the incident and eight during the trial,
testified that he remembered meeting “someone named Joe” and that, one day, he wrestled
with him along with his cousins J.M.H., T., and Z. When asked what he remembered about
the wrestling, M.D.B. stated that he really did not remember. He did remember defendant
touching him but not where he was touched. When prompted further, M.D.B. replied again
that he could not remember.
¶8 Plant testified about his videotaped interview with M.D.B. He initiated investigating
defendant based on Tina’s suspicions after she learned that defendant was a convicted sex
offender. Plant knew about the accusations prior to interviewing M.D.B. Defendant objected
to the admission of the videotaped interview. The trial court overruled the objection and the
videotape was played for the court.
¶9 The State asked Plant about the drawing in which M.D.B. circled the area where
defendant had touched him and J.M.H. The circles were drawn on the genital area, the left
hand, and the center of the back. Defendant objected to the drawing being admitted into
evidence, arguing that the drawing was misleading because it showed a naked boy and there
was no evidence that either of the boys in the present case was naked. The court overruled
the objection and admitted the drawing into evidence.
¶ 10 Plant testified that M.D.B. had hesitated to answer some of the questions during the
interview and sometimes appeared to answer questions in order to satisfy Plant. Plant
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testified that M.D.B. did not hesitate to point to his penis as the place where defendant had
touched him.
¶ 11 Tina testified that defendant came to her house about four times over a three-week period
in November 2002. The third time that defendant visited, he brought toy trucks for the
children. During that visit, he also sought permission from Tina to take her children and her
nephews, N., T., Z., and J.M.H. to the movies and a motel. Tina did not allow the boys to go.
On his fourth visit, defendant played alone with T., Z., C.I., M.D.B., and J.M.H. in the
basement. At the time, Tina was upstairs on the first floor with her sister-in-law, Christy.
¶ 12 In January 2003, about two months after defendant had been alone with the children in
the basement, Tina developed some concerns about how defendant might have interacted
with them, which prompted her to speak to them. Tina first talked to M.D.B., who was
playing in his bedroom. Although she did not remember her exact words, Tina basically
asked M.D.B. if he remembered defendant. M.D.B. responded yes. Tina then asked him if
anything had ever happened with defendant that she needed to know about. M.D.B. would
not answer, and Tina directly asked if defendant had ever touched him inappropriately.
M.D.B. replied that defendant had touched J.M.H. and he pointed to his own penis.
¶ 13 Tina then drove to see C.I., who was in school. She took him out of school and, on the
way to the car, Tina asked him the same basic question that she had asked M.D.B.: had
defendant ever done anything inappropriate to him. C.I. responded no but said that defendant
did something inappropriate to J.M.H. and M.D.B. C.I. told Tina that defendant was tickling
M.D.B. and J.M.H. and saying “I’m going to get your penis.”
¶ 14 When she returned home, Tina talked to M.D.B. again. She told him that she needed to
know if defendant had ever touched him. M.D.B. did not answer. After two minutes,
Katherine, Tina’s mother-in-law, came into the room and told M.D.B. that this was very
important and that he needed to tell them if defendant had ever done anything to him. Tina
stated that M.D.B. screamed “no” and ran out of the room. (At the pretrial hearing, Tina
stated that M.D.B. yelled “yes.” However, on cross-examination, Tina stated that Katherine
actually “got [M.D.B.] to say that [defendant] touched him and his penis.”) After that, he
would not talk about it and Tina went to the police station to report what she had learned.
¶ 15 Kim, J.M.H.’s mother, testified about the conversation she had with defendant that was
recorded on January 15, 2003, and was played at trial. It revealed the following. Kim told
defendant that she was calling about a time when defendant “was downstairs playing with
the boys” at Tina’s. Kim told defendant that the boys said that he tickled their penises while
wrestling. Defendant told her that he recalled wrestling with the boys but did not remember
touching their penises. Defendant told Kim that, if that had happened, it was inadvertent.
Defendant said to Kim that she knew about defendant’s prior history with children and that
it was her family that told him not to inform others. Defendant admitted his attraction to
children, but he told Kim that he would not have been attracted to J.M.H. because J.M.H.
was not circumcised. Kim asked him how he knew that. Defendant replied that he had seen
Kim bathe J.M.H. many times.
¶ 16 Kim testified that defendant was never with her when she bathed J.M.H. or changed his
diapers. She explained that J.M.H. had been circumcised as a baby but that it appeared as if
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he had not been.
¶ 17 Detective Michael Stewart testified that he took over the investigation in 2004, after Plant
left the De Kalb police department. On January 5, 2004, he and another officer went to
defendant’s home to question him about the incident at Tina’s home. Stewart testified that,
when he questioned defendant about the children who were in the basement, defendant
“categorically denied” ever touching them for sexual purposes.
¶ 18 Defendant testified on his own behalf. He stated that he visited Tina’s home several times
in November 2002 to see his friend Jimmy. Jimmy is J.M.H.’s father and was living in Tina’s
basement at the time. Defendant remembered bringing toys for the children and a camera for
Tina one day in November. Defendant stated that these items were “giveaways” from his
work. Defendant also admitted that he had asked Tina if he could take the children to a
movie. Defendant stated that he jokingly asked if he could take the boys to a hotel because
they had asked him if they could come swimming at the hotel where he was staying.
¶ 19 Defendant remembered that he had gone down to the basement one day in November
with Jimmy. Jimmy was preparing J.M.H. for bed. Other children were in the basement
playing, including C.I., M.D.B., and Z. Some were watching television and others were
wrestling on a waterbed. Defendant stated that both he and Jimmy joined the wrestling by
throwing the kids down on the waterbed. Defendant said that he was in the basement for 15
to 20 minutes. He testified that he left the basement before the boys, to find Jimmy upstairs.
¶ 20 Defendant admitted on cross-examination that he was alone in the basement with the
boys. Defendant stated that it was possible that he might have brushed up against the boys’
genital areas while he was wrestling with them but that it was not his intent to commit any
kind of sexual act. The boys were dressed when he wrestled with them.
¶ 21 Defendant testified that he remembered a telephone conversation with Kim, who asked
him if anything had happened in the basement. Defendant told her that nothing had
happened. Kim asked him how he knew that J.M.H. was not circumcised and defendant told
her that he had seen him running around naked several times after he swam in the pool in the
backyard.
¶ 22 Defendant testified that he informed Kim and her sister, Phyllis, about his prior
convictions because he was often in their house. On cross-examination, defendant admitted
that he was sexually attracted to young boys and that he had sexual urges to have contact
with the penises of young boys. He stated that he was aware of this when he was wrestling
with the victims. Defendant denied that he was attracted to boys as young as three.
¶ 23 Following closing argument, the trial court found defendant guilty of aggravated criminal
sexual abuse as to both M.D.B. and J.M.H. Thereafter, the trial court sentenced defendant
to 20 years’ imprisonment. Defendant filed no posttrial motions.
¶ 24 ANALYSIS
¶ 25 Preliminarily, because his counsel did not file a posttrial motion, defendant requests that
we review the issues he presents on appeal under the plain-error exception to the forfeiture
rule. The plain-error doctrine bypasses normal forfeiture principles and allows a reviewing
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court to consider unpreserved error when either (1) the evidence is close, regardless of the
seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.
People v. Herron, 215 Ill. 2d 167, 187 (2005). Under the first prong, the defendant must
prove “prejudicial error.” That is, the defendant must show both that there was plain error
and that the evidence was so closely balanced that the error alone severely threatened to tip
the scales of justice against him. Under the second prong, the defendant must prove that there
was plain error and that the error was so serious that it affected the fairness of the defendant’s
trial and challenged the integrity of the judicial process. People v. Piatkowski, 225 Ill. 2d
551, 565 (2007). Prejudice to the defendant is presumed because of the importance of the
right involved, “regardless of the strength of the evidence.” (Emphasis in original.) People
v. Blue, 189 Ill. 2d 99, 138 (2000).
¶ 26 We thus decide whether the trial court committed error and, if so, whether the evidence
was so closely balanced that the error alone severely threatened to tip the scales of justice
against defendant, or whether the error was so serious that it affected the fairness of the trial
and challenged the integrity of the judicial process.
¶ 27 Admissibility of M.D.B.’s Hearsay Statements Under Section 115-10
¶ 28 Defendant first contends that M.D.B.’s out-of-court statements to Tina and Plant were
improperly admitted into evidence, because they did not possess sufficient indicia of
reliability or trustworthiness required by section 115-10 of the Code (725 ILCS 5/115-10
(West 2008)), the statutory exception to the hearsay rule. Defendant objected to the
admission of M.D.B.’s hearsay statements at trial and, relying on People v. Segoviano, 189
Ill. 2d 228 (2000), he requests that we relax the forfeiture of this issue, even though he failed
to file a posttrial motion.
¶ 29 In Segoviano, because the issues were brought to the attention of the trial court, were
ruled on by the trial court while the court retained jurisdiction over the matter, and involved
the potential of substantial prejudice to the defendant, the supreme court relaxed the
forfeiture rule and addressed the defendant’s cross-appeal. Segoviano, 189 Ill. 2d at 244. We
conclude that, whether or not the forfeiture of this issue is relaxed, we consider the substance
of defendant’s argument in any event, based on a plain-error analysis. See People v. Naylor,
229 Ill. 2d 584, 593 (2008).
¶ 30 Section 115-10 provides in relevant part that hearsay statements made by a victim under
13 years of age are admissible only if the time, content, and circumstances of the statements
provide sufficient safeguards of reliability. 725 ILCS 5/115-10(b)(1) (West 2008); People
v. Zwart, 151 Ill. 2d 37, 44 (1992). There are no precise tests for evaluating trustworthiness
or reliability, but rather particularized guarantees of trustworthiness must be drawn from the
totality of the circumstances surrounding the victim’s statements. People v. West, 158 Ill. 2d
155, 164 (1994); People v. Back, 239 Ill. App. 3d 44, 57 (1992); People v. McMillan, 231
Ill. App. 3d 1022, 1025 (1992).
¶ 31 Important factors in making the determination of reliability include the child’s
spontaneous and consistent repetition of the incident, the child’s mental state, the use of
terminology unexpected of a child of a similar age, and the lack of a motive to fabricate.
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People v. Bowen, 183 Ill. 2d 103, 120 (1998); West, 158 Ill. 2d at 164. A trial court has
considerable discretion in admitting hearsay statements. Thus, a reviewing court will not
disturb a trial court’s decision absent an abuse of discretion. Zwart, 151 Ill. 2d at 44.
¶ 32 The trial court held that the content and circumstances of M.D.B.’s out-of-court
statements provided sufficient safeguards of reliability for admission when considering the
totality of the circumstances. The court noted that the statements were in response to Tina’s
questions occasioned by defendant’s statements that he had done things to children in the
past. The court found that the version of events that M.D.B. shared with his mother and the
detective, as evidenced by the videotape and the minor’s notations on the drawing, were
substantially consistent, that the taped interview demonstrated that Plant did not coach
M.D.B. on what to say, and that Plant asked leading questions only to clarify certain details.
The court observed that, when M.D.B. told his mother that defendant had touched his penis,
she did not initiate further conversations with M.D.B. but told him that he would be talking
to the police about the alleged abuse. The court also considered that the evidence was void
of any motive to lie about the alleged abuse, remarking that the children considered
defendant to be a friend. It also concluded that M.D.B.’s demeanor, responses to questions,
and use of terminology were age appropriate.
¶ 33 Defendant relies on Zwart for the proposition that a statement given five weeks after the
alleged abuse is unreliable and inadmissible under section 115-10. Defendant asserts that in
Zwart the court found that the timing of the victim’s statements (made five weeks after the
incident), standing alone, made the statements unreliable. Zwart, 151 Ill. 2d at 46.
Defendant’s reliance on Zwart for this proposition is incorrect.
¶ 34 In Zwart, the victim was three years old and did not testify at trial. She made the
statements some four to five weeks after the alleged abuse occurred, after she had been
interviewed by several investigators and medical personnel. Zwart, 151 Ill. 2d at 44-45.
While the supreme court in Zwart found the timing to be a factor, it did not rely solely on the
timing. The court stated, “[T]he timing of the victim’s statements, standing alone, does not
make the statements unreliable.” Zwart, 151 Ill. 2d at 46. The court ultimately reversed
because there was no evidence of the prior interviews and, without such evidence, the court
found it impossible for the trial court to have determined whether the victim was questioned
suggestively or encouraged to accuse the defendant of sexual abuse. Zwart, 151 Ill. 2d at 44-
45. The court observed that such evidence was particularly important in that case because the
victim’s age made her particularly susceptible to suggestion, and the defendant was unable
to question the victim about the circumstances of the interviews because she did not testify
at trial. Zwart, 151 Ill. 2d at 45.
¶ 35 Aside from the timing of the statements in the present case, none of the other
circumstances that the supreme court found important in Zwart are present here. M.D.B.
testified at trial and defendant could have cross-examined him. In Zwart, there was evidence
that the victim’s mother had argued with the defendant a day or two before the victim first
made her allegations. See Zwart, 151 Ill. 2d at 40. Here, defendant has not suggested that
either Tina, C.I., or Plant had any motive to encourage M.D.B. to lie about defendant. In fact,
as the trial court noted, the children considered defendant to be a friend.
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¶ 36 Moreover, unlike in Zwart, through testimony the trial court was able to examine the
extent of the adult intervention. Tina’s questions to M.D.B., who was four years old at the
time, were not suggestive of anything untoward. Tina repeated her question during the initial
interview with M.D.B. only because he appeared more interested in playing and did not
respond. As stated in Zwart, courts recognize that child victims of sexual abuse are often
hesitant to discuss the abuse with anyone other than their mothers. Zwart, 151 Ill. 2d at 46.
Given that a child might be unwilling to discuss his own traumatic experience, the question
that Katherine finally asked M.D.B. seemed necessary for M.D.B. to overcome his reluctance
to discuss his own traumatic experience.
¶ 37 Defendant argues that M.D.B.’s statements, made after a five-week delay, were unreliable
because they lacked spontaneity. Although M.D.B.’s first statement to his mother was not
made until approximately five weeks after the abuse occurred, the trial court had the
discretion to conclude that the timing of his statements, given M.D.B.’s age and his initial
reluctance to discuss the abuse, did not make the statements unreliable.
¶ 38 Defendant asserts that M.D.B.’s statements were made only after significant adult
intervention, including incessant questioning by M.D.B.’s family and leading questions from
Plant. Defendant also asserts that M.D.B. made the statements to Plant to placate him. The
fact that a victim’s statements are the result of questioning does not necessarily destroy their
admissibility. People v. Branch, 158 Ill. App. 3d 338, 342 (1987).
¶ 39 After reviewing the taped interview, we agree with the trial court’s assessment that Plant
did not prompt or manipulate M.D.B. into disclosing that defendant touched his penis. Plant
used open-ended questions and never suggested to M.D.B. that M.D.B. physically identify
his own private area as the place where defendant had touched him. He asked only whether
M.D.B. knew someone by the name of Joe, who was Joe, whether Joe had ever touched him
somewhere that he did not like being touched, and where Joe touched him; whereupon
M.D.B. pointed to his groin and later drew a circle on a figure to indicate where he had been
touched. Plant did state that there were “times in the tape I thought [M.D.B.] was giving
answers to satisfy me.” However, contrary to defendant’s assertion, Plant denied that this
occurred when M.D.B. pointed to his groin as the place where defendant had touched him.
We note that, because this particular testimony occurred during the trial, it should not be
considered when reviewing the propriety of the trial court’s pretrial ruling. See People v.
Monroe, 366 Ill. App. 3d 1080, 1086 (2006).
¶ 40 Defendant claims that M.D.B.’s statements were inconsistent, because he changed his
story about where J.M.H. was touched, first indicating on the forehead and later on the back.
We find this inconsistency minor. Of importance is that M.D.B. never wavered from his
position that defendant touched his penis and J.M.H.’s.
¶ 41 Defendant asserts that M.D.B. denied multiple times being touched before he indicated
that he was abused. M.D.B. denied only once that defendant had touched him; the other times
he ignored his mother’s questions. Moreover, this action could be viewed as reasonable
based on M.D.B.’s age and reluctance to discuss the abuse. See Zwart, 151 Ill. 2d at 46.
¶ 42 People v. Simpkins, 297 Ill. App. 3d 668 (1998), and People v. McMillan, 231 Ill. App.
3d 1022 (1992), cases upon which defendant relies, are distinguishable from the present case.
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In Simpkins, the victim had recanted her allegations and admitted that she had lied. Simpkins,
297 Ill. App. 3d at 678. The victim previously had been interviewed by a counselor about the
sexual abuse of a sibling. The court clearly was concerned that professional investigators
might be tempted to encourage very young children to make unfounded allegations through
the use of suggestive questioning techniques. Simpkins, 297 Ill. App. 3d at 677-78. No such
concerns are present here, where M.D.B. first reported the alleged abuse to his mother, he
did not recant, and no suggestive questioning techniques were used.
¶ 43 In McMillan, the trial court suppressed hearsay statements that a six-year-old child made
to an investigator and disqualified him from testifying. The State appealed the suppression
of the hearsay statements. Applying what is now considered the wrong standard of review
(see Zwart, 151 Ill. 2d at 44 (abuse of discretion)), the Appellate Court, Fifth District, held
that the exclusion of the hearsay statements was not against the manifest weight of the
evidence. McMillan, 231 Ill. App. 3d at 1033. In finding the hearsay statements unreliable,
the appellate court relied on the victim’s motive to fabricate and his incompetence as a
witness. The court also relied on the trial court’s assessment of the credibility of the
witnesses, because the record lacked a recording of the interview. McMillan, 231 Ill. App.
3d at 1032-33.
¶ 44 In light of the circumstances–M.D.B.’s age, the fact that his statements were substantially
consistent with C.I.’s account, that he did not recant, and that the statements were not
induced by leading questions or manipulation–we cannot say that the trial court abused its
discretion in finding them admissible under section 115-10. Because we find that the trial
court did not abuse its discretion, we need not proceed to further analysis under the plain-
error doctrine.
¶ 45 Violation of Defendant’s Right to Confront M.D.B.
¶ 46 At the trial, M.D.B. testified that he remembered meeting defendant about four years
before and remembered defendant wrestling with him and his cousins in the basement.
However, M.D.B. could not remember where defendant touched him when they wrestled or
whether defendant said anything to him while they were playing. When the prosecutor asked
again about the incident, M.D.B. said that he did not remember. Defense counsel did not
cross-examine M.D.B. Over defense counsel’s objections, the trial court permitted the State
to introduce M.D.B.’s videotaped statements to Plant where M.D.B. told Plant that defendant
touched his penis and that defendant touched J.M.H. on his back.
¶ 47 In Sundling I, defendant asserted that, even if the statements that M.D.B. made during
the videotaped interview with Plant and the drawing on which M.D.B. circled where
defendant had touched him were admissible under section 115-10, the admission of this
evidence violated his right to confrontation under Crawford v. Washington, 541 U.S. 36(2004), because at trial M.D.B. could not remember the event or making the statements.
Whether a defendant’s constitutional right to confrontation has been violated is a legal issue
subject to de novo review. People v. Leeper, 317 Ill. App. 3d 475, 480 (2000).
¶ 48 In deciding whether defendant’s constitutional right to confrontation was violated, we
relied on this court’s opinion of People v. Garcia-Cordova, 392 Ill. App. 3d 468 (2009)
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(Garcia-Cordova I). In Garcia-Cordova I, like here, the victim could not recall or remember
the details of the sexual abuse. Because the victim could not recall or remember the details
of the sexual abuse, we held that the victim’s testimony fell within the memory-loss rule
pronounced in United States v. Owens, 484 U.S. 554 (1988), Delaware v. Fensterer, 474
U.S. 15 (1985), and People v. Flores, 128 Ill. 2d 66 (1989). Garcia-Cordova I, 392 Ill. App.
3d at 483-84. In Flores, our supreme court held, in applying Fensterer and Owens, that a gap
in a witness’s recollection concerning the content of a prior statement does not necessarily
preclude an opportunity for effective cross-examination. Flores, 128 Ill. 2d at 88. Thus, we
concluded in Garcia-Cordova I that the victim was available for cross-examination purposes
because she appeared at trial and testified under oath. She made an in-court identification of
the defendant; she recalled speaking with an investigator from the Department of Children
and Family Services (DCFS) and recalled that a policeman was present when she spoke with
the investigator; she remembered that she made drawings during her meeting with the
investigator; she identified some of the drawings during her testimony; and, although the
victim did not recall what activities were depicted in the drawings, or why she made them,
she answered all of the prosecutor’s questions on that subject. Garcia-Cordova I, 392 Ill.
App. 3d at 484. Although the defendant chose not to cross-examine the victim, we could not
conclude that the victim was unavailable to cross-examine, had the defendant chosen
otherwise. Garcia-Cordova I, 392 Ill. App. 3d at 484.
¶ 49 Employing the memory-loss rule set forth in Garcia-Cordova I, we determined that it
applied to M.D.B. as well because M.D.B., like the victim in Garcia-Cordova I, could not
recall some of the details of his encounter with defendant. Sundling I, slip order at 17. Thus,
we held that defendant’s sixth amendment right to confrontation was not violated, as M.D.B.
was available for cross-examination purposes because he testified under oath at trial and
answered the questions put to him on the subject. Sundling I, slip order at 17.
¶ 50 On the same date that the supreme court issued a supervisory order to vacate Sundling
I, it also ordered us to vacate Garcia-Cordova I and reconsider it in light of Kitch. Upon
reconsideration, we determined that Kitch did not require a different result than the one we
initially reached. People v. Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 1 (Garcia-
Cordova II).
¶ 51 In Kitch, the defendant was convicted of nine counts of predatory criminal sexual assault
and one count of aggravated criminal sexual abuse. Kitch, 239 Ill. 2d at 455. The evidence
included testimonial out-of-court statements that the child victims, K.J.K. and M.J.B., had
made to a sheriff, one of his employees, and an obstetric gynecologist. Kitch, 239 Ill. 2d at
456-57.
¶ 52 Pursuant to section 115-10 of the Code, the trial court held that the testimonial out-of-
court statements made by the victims to the sheriff and one of his employees were admissible
at trial if the children testified. Kitch, 239 Ill. 2d at 456. The sheriff and his employee
testified at trial to the victims’ statements. Kitch, 239 Ill. 2d at 457-58. The obstetric
gynecologist, who had examined one of the victims, testified that it was highly likely that the
victim had been abused. Kitch, 239 Ill. 2d at 456-57. Forensic scientists testified that a semen
stain on one victim’s comforter matched the defendant’s DNA profile. Kitch, 239 Ill. 2d at
459.
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¶ 53 Both victims testified consistently with their out-of-court statements. Kitch, 239 Ill. 2d
at 458-60. The defendant argued to the supreme court that the victims had not “appeared”
for cross-examination purposes as contemplated by the confrontation clause, because “the
State failed to ask [the victims] ‘about each incident in enough detail to establish each and
every element of every count,’ and [the defendant] was unable to engage in effective cross-
examination.” Kitch, 239 Ill. 2d at 460. The defendant relied on this court’s decision in
People v. Learn, 396 Ill. App. 3d 891 (2009), for the proposition that the victims must give
accusatory testimony.
¶ 54 The supreme court held that both victims’ testimony corresponded to the allegations in
the relevant counts of the charges against the defendant, stating:
“Accordingly, K.J.K.’s and M.J.B.’s direct testimony, standing alone, was sufficient
to establish the elements of the relevant counts against defendant. We also conclude,
largely for this reason, that K.J.K.’s and M.J.B.’s direct testimony was sufficient to allow
for effective cross-examination. Their direct testimony provided enough detail to allow
for cross-examination within the meaning of the confrontation clause. Our review of the
record shows that both K.J.K. and M.J.B. answered all of the questions put to them by
defense counsel on cross-examination. Their answers were forthright. There was no
indication they were being evasive.” Kitch, 239 Ill. 2d at 464.
¶ 55 The Kitch court held that the victims’ direct testimony was sufficient to establish the
elements of the charges against the defendant and, as such, was sufficient to allow for
effective cross-examination. Kitch, 239 Ill. 2d at 464. The supreme court then stated that
there was nothing in the decision in Learn that compelled a different result. Kitch, 239 Ill.
2d at 464. As stated, the defendant relied on Learn as authority regarding the issue of
whether a witness is “available” for cross-examination. The supreme court distinguished the
facts in Kitch, where through their direct testimony the victims accused the defendant of
multiple acts of sexual abuse, from those in Learn, where the victim said that she did not like
the defendant and began to cry and did not answer any subsequent questions about the
allegations. Kitch, 239 Ill. 2d at 464. The supreme court concluded that the trial court did not
err by admitting the victims’ out-of-court statements, because they appeared for cross-
examination within the meaning of the confrontation clause. Kitch, 239 Ill. 2d at 465.
¶ 56 In the present case, defendant relies on the holding in Learn and argues in his
supplemental brief that his case presents a similar scenario regarding the lack of “accusatory”
testimony. He points out that here, as in Learn, M.D.B. did not offer any accusatory
testimony from the witness stand. Instead, M.D.B., after providing some background
information about his age, where he lived, and his family, testified that he remembered
meeting “someone named Joe” and “Joe” wrestling with him and his cousins. When asked
what he remembered about the wrestling, M.D.B. stated, “I don’t remember really.” He
remembered defendant touching him, but not where he was touched. When prompted further,
M.D.B. again stated that he could not remember. Defendant thus asserts that M.D.B. merely
testified to preliminary matters, which Learn dismissed as “[i]mmaterial or general
background ‘testimony.’ ” Learn, 396 Ill. App. 3d at 900.
¶ 57 Defendant believes that the issue in Learn was not that the defendant was deprived of his
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confrontation right because the victim began crying after she had answered some initial
immaterial background questions and could not continue; rather, defendant argues, the issue
was that, for whatever reason, the victim “did not testify at all about the charge in [the] case”
and “did not ‘bear testimony’ against defendant.” Learn, 396 Ill. App. 3d at 900. Defendant
maintains that the only testimony that M.D.B. gave was to uncontested facts and that,
because M.D.B. did not defend or explain his out-of-court statements to Plant and did not
“give accusatory testimony” or “confront and accuse [defendant] of something,” like by
stating that “defendant touched my private parts,” defendant “was not confronted by his
accuser nor given the right to rigorously test the accusation against him through cross-
examination.” (Internal quotation marks omitted.) Kitch, 239 Ill. 2d at 465 (quoting Learn,
396 Ill. App. 3d at 901-02).
¶ 58 Similar to defendant here, the defendant in Garcia-Cordova II argued, pursuant to his
understanding of Learn, that the victim did not give any accusatory testimony against him,
and so neither the Learn nor the Kitch standards was satisfied and his constitutional right to
confront the witnesses against him was violated. Garcia-Cordova II, 2011 IL App (2d)
070550-B, ¶ 53. As stated in Garcia-Cordova I, we determined that the case was akin to the
memory-loss cases of Fensterer and Owens. Because Kitch did not involve memory loss and
did not touch upon the cases dealing with memory loss, nothing in Kitch dissuaded us from
relying on our previous determination. Garcia-Cordova II, 2011 IL App (2d) 070550-B, ¶ 56.
¶ 59 We noted that our supreme court followed Fensterer and Owens in Flores, where it held
that “a gap in the witness’ recollection concerning the content of a prior statement does not
necessarily preclude an opportunity for effective cross-examination.” (Internal quotation
marks omitted.) Garcia-Cordova II, 2011 IL App (2d) 070550-B, ¶ 58 (quoting Flores, 128
Ill. 2d at 88). Additionally, the supreme court in People v. Sutton, 233 Ill. 2d 89, 122-23
(2009), confirmed its earlier decision in Flores that a witness who recalled making out-of-
court statements but could not recall what the statements were was deemed available for
cross-examination. Thus, we concluded that both the United States Supreme Court and the
Illinois Supreme Court have squarely held that a witness’s memory loss does not implicate
the confrontation clause, and Kitch did not hold otherwise. Garcia-Cordova II, 2011 IL App
(2d) 070550-B, ¶ 59.
¶ 60 The defendant in Garcia-Cordova II attempted to distinguish the “Fensterer-Owens-
Flores trilogy” at oral argument, maintaining that Learn took his case outside the memory-
loss cases. The defendant argued that Kitch cited Learn with approval, and the defendant
then drew the conclusion that Learn requires the State to confront a witness with his or her
prior out-of-court statement where the witness testifies that he or she does not remember
giving the out-of-court statement. Garcia-Cordova II, 2011 IL App (2d) 070550-B, ¶ 60.
¶ 61 The defendant’s argument, however, discounted the following: (1) that Learn held that
the victim must give accusatory testimony where the victim is the only witness other than
hearsay reporters who can accuse the defendant of actions constituting the charged offense
(Learn, 396 Ill. App. 3d at 900), but the victim in Garcia-Cordova II was not the only
witness other than hearsay reporters, as the defendant’s statements to the police corroborated
the victim’s out-of-court statements; (2) that the Kitch court did not follow or adopt Learn
and cited Learn only to distinguish it; and (3) that the State does not have the burden to
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confront witnesses; it is the accused who has the right to be confronted with the witnesses
against him. Garcia-Cordova II, 2011 IL App (2d) 070550-B, ¶ 61 (citing Pointer v. Texas,
380 U.S. 400, 404-05 (1965)).
¶ 62 In Learn, the issue was that “there was no ability for the witness to respond at all, even
if only to state a lack of memory, leading also to the inability to cross-examine the witness.”
People v. Martin, 408 Ill. App. 3d 891, 897 (2011) (citing Learn and In re Rolandis G., 352
Ill. App. 3d 776, 784 (2004), rev’d on other grounds, 232 Ill. 2d 13 (2008)). The distinction
between Learn and Garcia-Cordova II was that the witness in Learn actually lacked the
ability to answer the questions propounded by counsel; whereas in Garcia-Cordova II, the
witness answered the questions put to her either verbally or with a head shake, except for the
question of what the defendant’s hand was doing, to which she made no response. Thus, we
concluded, as we did in Garcia-Cordova I, that the witness’s inability to recall why she
spoke with the detective and what happened in her bedroom or on the couch placed the case
within the “Fensterer-Owens-Flores-Sutton doctrine.” Garcia-Cordova II, 2011 IL App (2d)
070550-B, ¶ 62. Noting that “[m]emory loss can occur on a continuum,” we further
concluded that we did not have to decide at what point memory loss might become a denial
of the right of confrontation, because the witness testified in enough detail that she could
have been cross-examined. Garcia-Cordova II, 2011 IL App (2d) 070550-B, ¶ 62. As stated
in Owens, the confrontation clause is not “violated by admission of an identification
statement of a witness who is unable, because of a memory loss, to testify concerning the
basis for the identification.” Owens, 484 U.S. at 564. That defense counsel chose to let the
witnesses’ direct testimony stand did not make the witnesses unavailable for cross-
examination. Garcia-Cordova II, 2011 IL App (2d) 070550-B, ¶ 63 (quoting People v. Lara,
2011 IL App (4th) 080983-B, ¶ 51).
“[L]imitations on the scope of examination by the trial court or assertions of privilege by
the witness may undermine the process to such a degree that meaningful cross-
examination within the intent of the [r]ule no longer exists. But that effect is not
produced by the witness’[s] assertion of memory loss–which, as discussed earlier, is
often the very result sought to be produced by cross-examination, and can be effective
in destroying the force of the prior statement.” Owens, 484 U.S. at 561-62.
¶ 63 Unlike in Learn, where the victim shut down emotionally and was unable to answer
questions, in Garcia-Cordova II, 2011 IL App (2d) 070550-B, ¶ 62, the victim never refused
to answer any questions and, when confronted with questions touching upon the alleged
abuse or the statements the victim made to others detailing the abuse, she indicated that she
could not recall.
¶ 64 We adhere to the rationale of Garcia-Cordova II and determine that the memory-loss rule
applies to M.D.B. as well because he could not recall some of the details of his encounter
with defendant. In Garcia-Cordova II, the victim was asked detailed questions about her
statements to the detective and was specifically asked whether anything actually happened
to her on the couch or in her bedroom, which were where, she had stated, the abuse occurred.
This satisfied the standard of “availability.” In the present case, M.D.B. testified that he
remembered meeting someone named Joe and wrestling with him. He remembered this
person touching him, but he could not recall where. This also satisfies the definition of
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“availability.” See People v. Major-Flisk, 398 Ill. App. 3d 491, 506 (2010) (victim
“available” when he testified that, while they were on the defendant’s porch, the defendant
touched him by making the victim sit on the defendant’s hand, but he could not recall in any
greater detail the manner in which the defendant touched him).
¶ 65 Moreover, M.D.B.’s testimony provided more than the preliminary matter that Learn
dismissed as immaterial or general background information. We do not agree that stating, “I
don’t remember,” is equivalent to “freezing up.” There is no indication that M.D.B. froze.
M.D.B. responded willingly to all the questions asked on direct examination regarding the
incident that gave rise to the allegations and regarding his prior statements relating to such
allegations. 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. M.D.B. never refused to answer any question and, when confronted with questions
touching upon the alleged abuse or his prior statements relating to the abuse, the direct
examination provided enough detail to allow for cross-examination within the meaning of
the confrontation clause, even where he testified that he was unable to recall. Further, unlike
in Learn, M.D.B. was not the only witness other than hearsay reporters to give accusatory
testimony, as C.I.’s account of the abuse corroborated M.D.B.’s statements.
¶ 66 The supreme court did not express approval of the entire analysis in Learn merely
because it denied the State’s petition for leave to appeal in that case. A supervisory order
does not provide a strong indication by the supreme court that a different result is warranted.
See People v. Phillips, 217 Ill. 2d 270, 280 (2005) (the appellate court must “exercise its
independent judgment”). Moreover, the court in Kitch would not intend “to upend all of the
existing case law” on the memory-loss rule without explicitly saying so. Garcia-Cordova II,
2011 IL App (2d) 070550-B, ¶ 70.
¶ 67 The key inquiry is whether M.D.B. was present for cross-examination and answered
questions asked of him. Because he was present for cross-examination and answered
questions, the confrontation clause placed absolutely no constraints on the use of M.D.B.’s
prior statements to Plant. In other words, the question of the admissibility of those prior
statements must be measured only by whether they met the requirements of section 115-10
of the Code (725 ILCS 5/115-10 (West 2008)). For purposes of the confrontation clause,
because M.D.B. “appeared” for cross-examination at trial within the meaning of Crawford,
any of his prior statements offered at trial was a constitutional nonevent. People v. Bryant,
391 Ill. App. 3d 1072, 1083 (2009). Where the declarant appears for cross-examination at
trial, as we conclude happened here, the confrontation clause places no constraints at all on
the use of prior testimonial statements. Bryant, 391 Ill. App. 3d at 1083. Because defendant
cannot prove that an error occurred, he has failed to meet his burden of demonstrating plain
error.
¶ 68 Admissibility of Tina’s Testimony Regarding Out-of-Court Statements
¶ 69 Defendant contends that the trial court abused its discretion by admitting inadmissible
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hearsay when it allowed Tina to testify that (1) C.I. told her that defendant had touched both
of the victims’ penises, and (2) Katherine told her that Phyllis told Katherine that defendant
had admitted to Phyllis, Kim, and Jimmy that he had prior problems with children.
¶ 70 “ ‘Hearsay evidence is an out-of-court statement offered to prove the truth of the matter
asserted, and it is generally inadmissible due to its lack of reliability unless it falls within an
exception to the hearsay rule.’ ” People v. Caffey, 205 Ill. 2d 52, 88 (2001) (quoting People
v. Olinger, 176 Ill. 2d 326, 357 (1997)). Statements offered for their effect on the listener or
to explain the subsequent course of conduct of another are not hearsay. People v. Carroll,
322 Ill. App. 3d 221, 223 (2001). We find that the trial court properly admitted Tina’s
conversation with C.I. to explain why Tina returned home to question M.D.B. again about
whether he had been abused by defendant.
¶ 71 Furthermore, defendant cannot claim error about the statement made by Katherine
regarding defendant’s admission that he had prior problems with children. Defendant
prompted the hearsay of which he now complains. During direct examination, the prosecutor
asked Tina whether, “sometime in January 2003,” she had developed “some concerns about
how [defendant] may have interacted with [her] children.” Tina responded only that this had
prompted her to speak to M.D.B. During cross-examination, defense counsel then elicited
the following:
“MR. NOLAN [Defense Attorney]: At any rate, at sometime in January you were
informed that [defendant] had a conversation with [Jimmy]; is that correct?
THE WITNESS: Yes.
MR. NOLAN: And during that conversation [defendant] had admitted that he had
prior problems with abusing children?
THE WITNESS: Yes.
MR. NOLAN: And had been convicted of that charge on a previous occasion; is that
correct?
THE WITNESS: I believe he told them he was falsely accused–or, no, not at that
time. I’m wrong. Yes, he did. The answer to your question is yes.
MR. NOLAN: Thank you. And where were you when you heard about that
conversation?
THE WITNESS: At my–I lived at my mother-in-law’s.
MR. NOLAN: Who told you that [defendant] had made those statements?
THE WITNESS: I believe Jimmy and Kim.
MR. NOLAN: Were they at your mom’s house when they told you that?
THE WITNESS: I don’t–I honestly don’t remember.
MR. NOLAN: Could [it] have been a telephone call?
THE WITNESS: Yes, it could have been.”
¶ 72 Even if we found that Tina’s statement was not prompted by defendant’s questions, the
admission of that statement explained what had influenced Tina to question M.D.B.
Additionally, defendant cannot show that the statement prejudiced him, because he admitted
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in the overhear recording that he had disclosed that he was a pedophile and had urges to have
contact with the penises of young boys.
¶ 73 Admissibility of Prior Convictions
¶ 74 Defendant next contends that the trial court committed reversible error by admitting his
three prior convictions of child sexual abuse, due to prejudice and lack of factual similarity.
The State filed a motion under section 115-7.3(a)(1) of the Code (725 ILCS 5/115-7.3(a)(1)
(West 2008)) to admit defendant’s three prior convictions of child sex abuse. The trial court
granted the State’s motion and at trial admitted (1) a certified copy of the conviction and
docketing statement for a 1984 Cook County conviction of two counts of indecent liberties
with a child; (2) the charging document and sentencing order for a 1997 Michigan conviction
of attempted criminal sexual conduct, second degree (person under the age of 13); and (3)
the docket sheets, court order, information, and probable cause affidavit for a 1997 Indiana
conviction of child molestation. The State concedes that under section 115-7.3 the out-of-
state convictions were not admissible to prove propensity, because these offenses did not
violate Illinois penal statutes. However, the State argues that all of the convictions were
properly admitted as evidence of other crimes to show intent and absence of mistake.
¶ 75 A trial court’s decision to admit other-crimes evidence will not be reversed absent an
abuse of discretion. People v. Donoho, 204 Ill. 2d 159, 182 (2003); People v. Childress, 338
Ill. App. 3d 540, 552 (2003). We will find an abuse of discretion if the trial court’s
evaluation was unreasonable, arbitrary, or fanciful, or where no reasonable person would
adopt the trial court’s view. Donoho, 204 Ill. 2d at 182.
¶ 76 Under the common law, other-crimes evidence normally is inadmissible if offered only
to demonstrate the defendant’s propensity to commit the charged crime. Donoho, 204 Ill. 2d
at 170; People v. Manning, 182 Ill. 2d 193, 213 (1998). Evidence regarding other crimes
generally is admissible only if offered to prove intent, modus operandi, identity, motive,
absence of mistake, or any relevant fact other than propensity. Donoho, 204 Ill. 2d at 170;
People v. Illgen, 145 Ill. 2d 353, 364-65 (1991). When evidence of other crimes is offered,
the trial judge must weigh its probative value against its prejudicial effect and may exclude
the evidence if its prejudicial effect substantially outweighs its probative value. Illgen, 145
Ill. 2d at 365.
¶ 77 Section 115-7.3 of the Code provides an exception to the general rule in criminal cases
where, as here, a defendant is accused of aggravated criminal sexual abuse. 725 ILCS 5/115-
7.3(a)(1) (West 2008). In such cases, “evidence of the defendant’s commission of another
offense or offenses set forth in paragraph (1), (2), or (3) of subsection (a), or evidence to
rebut that proof or an inference of that proof, may be admissible (if that evidence is otherwise
admissible under the rules of evidence) and may be considered for its bearing on any matter
to which it is relevant.” 725 ILCS 5/115-7.3(b) (West 2008). An analysis under the Code also
involves weighing the probative value of the evidence against the prejudicial effect.
¶ 78 To be admissible, other-crimes evidence must have “some threshold similarity to the
crime charged.” People v. Bartall, 98 Ill. 2d 294, 310 (1983). As factual similarities increase,
so does the relevance, or probative value, of the other-crimes evidence. Bartall, 98 Ill. 2d at
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310. Where such evidence is not being offered under the modus operandi exception, “mere
general areas of similarity will suffice” to support admissibility. Illgen, 145 Ill. 2d at 372-73.
Evidence is considered “relevant” if it has any tendency to make the existence of any fact that
is of consequence to the determination of an action more or less probable than it would be
without the evidence.
¶ 79 The evidence regarding the 1984 Cook County conviction of two counts of indecent
liberties with a child provided no set of facts for the trial court to determine if there were any
similarities between that offense and the present case. The only evidence supplied by the
State was a certified copy of the conviction and a docketing statement. A similar problem
exists for the 1997 Michigan conviction of attempted criminal sexual conduct, second degree
(person under 13). The only evidence that can be gleaned from the conviction and docketing
statement is that defendant had engaged in sexual contact with a boy under 13. Thus, the
Michigan conviction presents little more in factual detail than the Cook County conviction.
We find that the trial court abused its discretion by admitting these convictions, because it
simply had no facts to determine the threshold similarity to the crimes charged.
¶ 80 The probable cause affidavit from the 1997 Indiana conviction of two counts of child
molestation provides more factual detail for analysis than the other two convictions. The
affidavit reveals that defendant performed oral sex on a nine-year-old boy at a motel in 1995.
The State argues that that case contains similarities to the present case because the affidavit
reveals that defendant had requested to take the young victims to a motel and had made
sexual contact with the penises of young boys. Relying on People v. Stanbridge, 348 Ill. App.
3d 351, 356 (2004), the State concludes that evidence of defendant’s sexual abuse of others
was relevant to refute defendant’s argument that his touching a young boy’s penis was
innocent “horseplay” or inadvertent contact and to show intent and lack of accident.
¶ 81 We find two problems with the State’s arguments. First, the Indiana affidavit lacks
indicia of reliability because it related to defendant’s original charges, not to a subsequent
guilty plea entered after the Appellate Court of Indiana overturned the conviction. Sundling
v. State, 679 N.E.2d 988 (Ind. Ct. App. 1997).
¶ 82 Second, we find that the Indiana affidavit was inadmissible hearsay. As previously stated,
“[h]earsay evidence is an out-of-court statement offered to prove the truth of the matter
asserted[ ] and is generally inadmissible unless it falls within a recognized exception.”
People v. Cloutier, 178 Ill. 2d 141, 154 (1997). Recognized exceptions include business
records (see People v. Smith, 141 Ill. 2d 40, 68 (1990)), statements constituting present-sense
impressions (see People v. Stack, 311 Ill. App. 3d 162, 175-76 (1999)), and statements
constituting excited utterances or spontaneous declarations (People v. Smith, 152 Ill. 2d 229,
258 (1992)). The determination of whether a specific statement is hearsay is purely a legal
question reviewed de novo. People v. Saunders, 288 Ill. App. 3d 523, 525 (1997).
¶ 83 The business records exception to the rule against hearsay recognizes that, when made
as a matter of routine in the regular course of business, records or reports of events or
occurrences are generally trustworthy. Smith, 141 Ill. 2d at 70. In criminal cases, the business
records exception to the rule against hearsay is codified in section 115-5 of the Code (725
ILCS 5/115-5 (West 2008)).
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¶ 84 In Smith, the supreme court held that prison incident reports are not admissible under
section 115-5 when offered to prove the details of events, such as confrontations between
inmates and prison employees. Smith, 141 Ill. 2d at 74. The court reasoned that, even when
timely prepared in the ordinary course of business, those reports “generally lack the earmarks
of trustworthiness and reliability which are the true basis for the business records exception
to the rule against hearsay and which business records are assumed to ordinarily have.”
Smith, 141 Ill. 2d at 73. Likening prison incident reports to police reports founded on
observations made at the scene of a crime, the Smith court noted that “writings or records
relating to a police investigation are generally excluded from the business records exception
to the rule against hearsay” because “[t]he information contained in such reports or records
may well call into question the motivation, the recall, or the soundness of conclusions of the
author of the report or the person providing the information contained in the report.” Smith,
141 Ill. 2d at 72-73; see also Camco, Inc. v. Lowery, 362 Ill. App. 3d 421, 434 (2005) (noting
that police reports are generally inadmissible because they state conclusions or contain
inadmissible hearsay). The Smith court expressed concerns over the reliability of “business
records” that by their very nature are akin to those made “during an investigation of an
alleged offense or during any investigation relating to pending or anticipated litigation of any
kind,” “made with an eye toward some form of subsequent discipline,” or made under
circumstances suggesting “a fairly positive counter motive to misrepresent.” (Internal
quotation marks omitted.) Smith, 141 Ill. 2d at 72, 73; see also People v. McClanahan, 191
Ill. 2d 127, 133-34 (2000) (lab report and affidavit from person who prepared report
inadmissible hearsay based on lack of trustworthiness).
¶ 85 The Indiana affidavit was prepared in anticipation of litigation and thus, based on Smith
and McClanahan, cannot qualify under the business records exception to the hearsay rule.
Accordingly, we find that the trial court abused its discretion by admitting the Indiana
convictions.
¶ 86 Having found that the trial court abused its discretion, we must proceed to a plain-error
analysis. Defendant does not contend that the admission of the prior convictions was so
serious that it affected the fairness of his trial and challenged the integrity of the judicial
process. Rather, he contends that the evidence was closely balanced. Defendant points out
that the trial court relied upon the affidavit, specifically the language that defendant was
accused of taking a young child to a motel and performing oral sex on him, to find that
defendant had the requisite intent to commit the offense charged in the present case.
Asserting that evidence of his prior convictions and M.D.B.’s statements to his mother and
Plant were inadmissible, defendant points out that the only evidence remaining was his
testimony and C.I.’s. Defendant concludes that, without M.D.B.’s testimony or evidence of
the prior convictions, his testimony provided a direct challenge to C.I.’s testimony. We
disagree.
¶ 87 We have found that the trial court did not abuse its discretion in finding that the content
and circumstances of M.D.B.’s out-of-court statements provided sufficient safeguards of
reliability for admission. The trial court did not base its decision solely on defendant’s prior
convictions when it concluded that defendant’s testimony, that he did not fondle the victims’
penises for sexual gratification, was not credible. Rather, the court stated that it relied on
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defendant’s “prior criminal history,” as well as the consistent testimony of the State’s
witnesses and defendant’s admission that he was sexually attracted to young boys but had
placed himself in the proximity of young children, knowing his propensities.
¶ 88 Upon a careful review of the record, we find that the evidence was not closely balanced.
Although defendant denied the requisite intent to commit the offenses, the State’s witnesses’
versions of the events were consistent as to where and when the acts took place, what was
said, and how defendant had abused the victims. Furthermore, defendant admitted that he had
sexual urges “to have contact” with the penises of young boys and that he was still attracted
to young boys. He acknowledged that he wrestled with the boys in the basement without
another adult present. He also admitted that he was “too comfortable” when he wrestled with
the boys and that he would re-offend if he let his guard down. C.I. would not have known
about defendant’s sexual proclivity toward young boys when he testified that defendant
tickled the penises of M.D.B. and J.M.H. while saying “I’m going to get your penis.” Based
on the consistency of the testimony and defendant’s admissions, we conclude that the
evidence of intentional sexual contact was not closely balanced and that therefore the plain-
error rule is not satisfied.
¶ 89 Ineffective Assistance of Counsel
¶ 90 Defendant last contends that he received ineffective assistance of counsel. To prove
ineffective assistance, defendant must demonstrate both that (1) his counsel’s performance
was deficient and (2) the defense was prejudiced by counsel’s deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Because we find that the evidence was
not closely balanced, defendant cannot prove the requisite prejudice prong of ineffective
assistance of counsel.
¶ 91 CONCLUSION
¶ 92 Accordingly, upon reconsidering our judgment in light of Kitch, we affirm the judgment
of the circuit court of De Kalb County.
¶ 93 Affirmed.
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