People v. Atherton ( 2010 )

No. 2-08-1169 Filed: 12-16-10
_______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Boone County.
)
Plaintiff-Appellee, )
)
v. ) No. 05--CF--289
)
FRANK D. ATHERTON, ) Honorable
) J. Todd Kennedy,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the opinion of the court:
Following a jury trial, the defendant, Frank Atherton, was convicted of two counts of
predatory criminal sexual assault of a child (720 ILCS 5/3--6(j), 12--14.1(a)(1) (West 2002)) and was
sentenced to a total of 24 years' imprisonment. On appeal, the defendant argues that: (1) he was not
convicted beyond a reasonable doubt of one of the counts of predatory criminal sexual assault; (2)
the trial court failed to comply with Supreme Court Rule 431(b) (Official Reports Advance Sheet No.
8 (April 11, 2007), R. 431(b), eff. May 1, 2007) in questioning the prospective jurors during voir dire;
(3) section 115--10 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115--10
(West 2002)) is unconstitutional; (4) the trial court erred in admitting evidence pertaining to the child-
sexual-abuse-accommodation syndrome; (5) he was deprived of the effective assistance of counsel;
(6) the trial court erred in refusing to instruct the jury with Illinois Pattern Jury Instructions, Criminal,
No. 3.15 (4th ed. 2000) (hereinafter IPI Criminal 4th); (7) he was deprived of a fair trial due to the
No. 2--08--1169
cumulative effect of the errors; and (8) the trial court erred in ordering him to pay a Crime Stoppers
fine. We affirm in part and vacate in part.
I. Background
On October 14, 2005, the defendant was charged by indictment with one count of predatory
criminal sexual assault of a child. The indictment alleged that the defendant, who was older than 17,
placed his penis in the vagina of a girl, Ariana O., who was younger than 13. The State subsequently
filed a second superseding bill of indictment. The indictment added a second count, alleging that the
defendant's sex organ had made contact with Ariana's anus. The indictment alleged that all of the
defendant's conduct at issue had occurred between September 8, 2002, and November 30, 2002.
On January 9, 2006, the State filed a motion to admit hearsay testimony pursuant to section
115--10 of the Code. The State sought to admit statements that Ariana had made to her stepmother,
Jennifer O. On May 8, 2006, the trial court conducted a hearing on the State's motion. Jennifer O.
testified that she is married to Eric O. He has three children: Nick (age nine); Ariana (age eight); and
Rebecca (age five). Eric shares custody with the children's mother, Juliana. On July 28, 2005,
Jennifer was talking to the children and they were telling her how mean "Frank" was. Nick told her
that "Frank" put his "wiener" in Ariana. After Nick said this, Ariana started crying. Jennifer asked
Ariana if Nick's statement was true, and Ariana said "yes." Jennifer asked Ariana where "Frank" had
touched her, and Ariana pointed between her legs. Jennifer asked whether Ariana had been wearing
underwear, and Ariana said "no."
Jennifer testified that a month earlier, Ariana and Nick had asked questions about sex, so she
gave them a book entitled, "It's So Amazing." The book upset Ariana and she could not sleep.
Ariana said an illustration in the book depicting a man and woman in bed was "icky." According to
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Jennifer, Ariana told her, "There's something I need to tell you. I can't tell you." Jennifer asked
Ariana if someone hurt her, but Ariana did not respond.
At the close of the hearing, the trial court ruled that the statements were admissible, as there
were sufficient indicia of reliability. The trial court explained that the statements seemed to be "fairly
spontaneous" and not "coached in any way."
On August 20, 2008, the defendant requested that the trial court conduct a Frye hearing as
to whether the State could introduce testimony regarding the child-sexual-abuse-accommodation
syndrome. The trial court denied the request.
Between October 20 and October 27, 2008, the trial court conducted a jury trial on the
charges against the defendant. Ariana testified that she was 11 years old and lived with her older
brother Nick, her younger sister Rebecca, and her mother, Julianna. She visited regularly with her
father Eric, and his wife, Jennifer. When she was six or seven, "Frank" babysat her and her brother
and sister in their apartment. She had known "Frank" for about a year, and she believed he probably
babysat her in the summer because there was no school. She also remembered "Frank" as being over
at her home for Christmas and later in the winter around Valentine's Day, but not around Easter.
"Frank" came over every time her mother went to work at a pancake restaurant, more than 20 times.
Occasionally, "Frank" brought his own children over when he babysat. Once, "Frank's" mother came
over.
Ariana described "Frank" as always having his shirt off, wearing earrings, and having tattoos
on his arms and on his stomach. She was not able to identify in court the defendant as "Frank."
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Ariana testified that she did not like "Frank," because he was mean. "Frank" brought his kids
with him when he babysat, and they messed up her room but he made her clean it up. She told her
father and Jennifer that "Frank" hit Nick.
Ariana further testified that "Frank" took her into the computer room and touched her
"private" with his "private." A "private" is what a boy or girl uses to urinate. She knew boys and
girls had different "privates" because she bathed with her brother. In the computer room with
"Frank," she pulled her pants and underwear partly off, but kept her shirt on. She lay on the blue
carpeted floor on her stomach. "Frank" pulled his own pants down and did "pushups" over her.
"Frank's" "private" touched her "private" on the inside and it hurt. There was no blood. When Ariana
complained, Frank gave her chocolate. She identified a large chocolate bar as the type "Frank" gave
her.
When initially asked if "Frank" touched her anywhere else besides her "private," Ariana
replied, "No." However, when later asked if Frank's "private" touched her anywhere else while she
was on her stomach, Ariana said, "It was kind of in my butt." She stated it was "inside." When asked
how that felt, Ariana responded, "I didn't really feel anything." Ariana stated she poops with her butt
and "[h]e didn't put it inside there. It went in there as it was like going into my private. He didn't put
it in where I poop." She further stated, "He didn't put it exactly in where I poop" and she did not feel
anything when he did that. She was questioned, "You said [Frank's private] didn't go inside that part,
but did it touch that part at all?" Ariana answered, "Yeah."
On cross-examination, Ariana testified that she could not specifically recall when Frank's
touching of her occurred, but she thought it probably happened when she was seven and in the
summer. She could not remember what happened afterward or exactly when it would start. Ariana
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thought it might have lasted for 10 minutes, but she was not certain. She testified that it happened
every time Frank came over, and always in the same place and in the same manner. She stated that
it happened around Christmas, and in late winter around Valentine's Day, as well as in summer. She
did not know where her brother and sister were when it took place. She testified that "it was a really
long time ago and [she] barely remember[ed] anything."
Ariana additionally testified that she did not tell her mother about what happened. She told
her mother only that she did not like "Frank." "Frank" did not tell her not to tell anyone. Ariana told
Nick about what had occurred, probably when she was seven. Nick told Jennifer and she got him a
book about the birds and bees from the library so he could understand what happened. Ariana read
the book and a picture of a guy and a girl in bed scared her. She was worried she was going to have
a baby until she realized that it had been past five months. Jennifer told her that she had to talk about
what had happened.
Ariana stated that she remembered talking with a woman who sat on the floor in a room with
cameras. She did not know that the woman's name was Jackie Weber. She told Weber that "Frank"
never wore a shirt, even in the winter. She did not tell Weber that "Frank" had earrings. She told
Weber that "Frank" hit Nick and that he did not care about his kids. She initially stated that she never
saw "Frank" hit Nick or her younger sister. However, she later testified that "Frank" hit Rebecca and
that Rebecca had bruises at least twice. Ariana testified that she had not seen "Frank" since 2002.
Ariana also testified that her aunt moved in and took over babysitting duties from "Frank."
Her aunt's boyfriend, Jason, also moved in. After Jason moved out, Carl moved in. Carl would
babysit her occasionally. She also spent some time with the man who lived below her apartment,
Lorenzo. She testified that Jason, Carl, and Lorenzo did not touch her the way that Frank had.
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Nurse practitioner Patricia Brandon testified that she examined Ariana on August 7, 2005.
Ariana had a healed injury to her hymen consistent with penetration by a penis. Ariana had no injury
to her anus.
Julianna Lubus testified that she was Ariana's mother. She broke up with Ariana's father, Eric
O., in late 2001 or early 2002. She was involved in custody, visitation, and child support disputes
with Eric from 2002 until 2005. After she broke up with Eric, she began dating Jerome Matuszak
until around Ariana's fifth birthday in September 2002. Matuszak never lived with her.
Julianna testified that the defendant babysat her children from late September 2002 until late
November 2002. Juliana worked at Grandma's Restaurant and then at Bacchus Nibbles. She worked
the late shift from 5 p.m. until 2 a.m. Juliana did not pay the defendant, but instead she would
sometimes watch his children while he worked. She denied that there was anything other than a
working relationship between her and the defendant. She acknowledged that the defendant wanted
to marry her.
Julianna identified the defendant in court. He looked different at trial than when he babysat.
He weighed more and had more facial hair. When he was babysitting, the defendant either was clean-
shaven or just had a mustache. The defendant's hair was also different at trial from the buzz-cut he
had while babysitting. When she first met the defendant, he had a mullet and a goatee and tattoos on
his arms, hands, and chest.
The defendant stopped babysitting Julianna's children in 2002 after the Department of
Children and Family Services (DCFS) investigated allegations he physically abused her children.
Julianna never saw any bruising on Rebecca she felt was consistent with being beaten. After the
allegations, Julianna questioned the children only about whether the defendant hit them. She testified
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that she noticed changes in the children during that time. After the defendant stopped watching the
children, Julianna's sister moved in and her sister's boyfriend, Jason Sturges, began spending a lot of
time at the apartment.
Jennifer O. testified consistently with her testimony at the section 115--10 hearing.
Ann Young testified that she is a child welfare supervisor working for Lutheran Social
Services, a private agency that deals with abused and neglected families. Young testified regarding
child-sexual-abuse-accommodation syndrome (the syndrome). The syndrome is actually a pattern
of five behavioral characteristics often observed in children who have been sexually abused. The
characteristics are secrecy, helplessness, entrapment or accommodation, delayed or unconvincing
disclosure, and retraction. Young stated that secrecy means the child keeps the abuse a secret and
that it can be the result of an explicit or implied threat. Helplessness refers to an imbalance of power
between the child and the authority figure who is abusing. Entrapment or accommodation means the
child feels trapped by the abuse and learns ways to deal with it. Disclosure is usually delayed and
given only in increments. The eventual disclosure may conflict with what actually happened due to
the child's inability to recall detail. Retraction often happens after a child discloses and feels guilt,
fear, or shame. Young acknowledged that some studies had called the syndrome into question;
however, she believed it was generally accepted.
Young further testified that there did not need to be a trusting relationship between the child
and the abuser for the syndrome to apply. The degree of the relationship between the abuser and the
child's parent could affect when disclosure is made. Young stated that a babysitter-child relationship
is consistent with cases where the syndrome appears.
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Young additionally testified that Ariana's assertions that she was alone with the abuser and
was afraid of him were consistent with the secrecy component of the syndrome. Young stated that
if Ariana told her mother that the offender was mean, that would fall into the helplessness portion of
the syndrome. The allegation that the acts happened more than once was consistent with the
entrapment element of the syndrome. Ariana's delayed disclosure was also consistent with the
syndrome. Young explained that the syndrome still applied even though Ariana did not make the
disclosure herself, because the triggering event of the delayed disclosure could be accidental,
spontaneous, or not related to anything. Young further stated that, pursuant to the syndrome,
children have an inconsistent chronology of events because children have underdeveloped concepts
of time and a limited ability to recall detail.
In explaining the syndrome's characteristic of intimidation, Young acknowledged that the
psychiatrist who first set forth the syndrome in an article, Dr. Summit, did not mention examples of
nonverbal intimidation. However, Young believed a bribe could be considered intimidation. Young
further acknowledged that Dr. Summit's article did not discuss implied secrecy and gave examples
only of explicit requests or demands. She believed other research studies had indicated that implied
secrecy was good enough to meet the requirements for the syndrome. She had also learned of
implied secrecy through her personal work with children.
Young further acknowledged that, in his article, Dr. Summit indicated that it had become a
maxim among child sex abuse intervention counselors and investigators that children never fabricate
the type of explicit sexual manipulation they divulge in complaints and interrogations. Thus, it is the
belief of those in such advocacy positions that children never lie about these matters.
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At the close of the State's case, the defendant moved for a directed verdict. Following the
denial of that motion, the defendant presented the testimony of Dorothy Knipprath, Dr. Robert
Meyer, and himself.
Dorothy Knipprath testified that she was the defendant's mother. She testified that once when
she was visiting the defendant at Julianna's apartment, the defendant was doing pushups with his sons
on his back when Ariana slid underneath him. The defendant fell on Ariana and Ariana said that she
was hurt; however, nothing was broken. Knipprath believed the defendant and Julianna were dating,
as she once was awakened by the defendant and Julianna having sexual relations.
Dr. Robert Meyer testified that he is a licensed clinical psychologist and an assistant professor
at Northern Illinois University. He is familiar with the syndrome. He indicated that Dr. Summit, who
originally proposed the syndrome, worked primarily with incestuous families. According to Dr.
Meyer, Dr. Summit wrote a subsequent article in which he indicated the syndrome was not really a
syndrome; rather, it was his opinion regarding children of incest who live in very rigid family systems
with a lot of controlling behavior and the need for secrecy. In 1992, Dr. Summit wrote that the term
"syndrome" is misleading; he explained that the syndrome he had written about was not a clinically
diagnostic instrument and should not be used to determine whether a child had been sexually abused
or to suggest a child is lying. Dr. Meyer testified Dr. Summit wrote that he intended the syndrome
to be a guide in helping with treatment and that he never foresaw it being used in a court of law as
a means of obtaining convictions. Dr Meyer stated that the syndrome is an opinion and was not
developed based on scientific research, validity studies, or reliability studies.
According to Dr. Meyer, there were several flaws discovered in the syndrome theory. The
syndrome was used in the wrong situations, given that it was developed for intact, incestuous, rigid
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families where the perpetrator was either a father or a stepfather who lived within the family and
continued to exert control over it. Further, the syndrome was inappropriately used where the
perpetrator was not even a part of the family and there was no reason to believe the child would have
any reason to accommodate because there was no control being exerted on the child. Dr. Meyer also
testified that some people went so far as to opine that if a child did not demonstrate the syndrome,
he or she was not telling the truth.
Dr. Meyer testified that the only characteristic of the syndrome that further research could
validate was secrecy. That being, if children are left on their own and not questioned, they often
delay reporting longer. Dr. Meyer testified the ideas of denial and recantation of testimony provide
nothing in the way of reliable or valid information to the trier of fact in determining whether abuse
actually occurred. He stated literature now suggests that abused children who disclose generally
provide full disclosure and that only a small minority recant. He further stated that when a child is
abused, generally her memory about what happened does not diminish, because it is a very traumatic
event that is difficult to put out of the mind.
The defendant testified that he met Julianna in the summer of 2002 after she moved into his
building. They developed a deep relationship that began while Julianna's children were staying with
their father. During that time, he began watching Julianna's children. His own children were living
with their mother, but when they visited him, Julianna let them stay in her apartment because she had
extra beds. Julianna watched his children twice.
On one occasion near the first of October, while his mother and sons were visiting, the
defendant played "dog pile," exercising and playing, with the children. Julianna was present and
Ariana was hurt in the play.
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The defendant testified that he punished the children by making them stand in a corner. The
children cried and threatened to tell their parents. He never called Ariana into the computer room
by herself. He never took his shirt off around Ariana. He did remove his clothes in Julianna's
presence because they had a physical relationship.
The defendant denied engaging in sexual activity with Ariana. He denied threatening her or
giving her large chocolate bars.
At the close of the trial, the jury convicted the defendant of two counts of predatory criminal
sexual assault. The trial court sentenced the defendant to serve consecutive terms of 12 years'
imprisonment. The defendant thereafter filed a timely notice of appeal.
II. Sufficiency of the Evidence
The defendant's first contention on appeal is that he was not convicted beyond a reasonable
doubt of touching Ariana's anus with his penis. The defendant argues that the only evidence that he
made sexual contact with Ariana's anus was Ariana's contradictory testimony given in response to
repeated questioning following her initial denial of contact anywhere other than her vagina.
It is not the province of this court to retry the defendant. People v. Collins, 106 Ill. 2d 237,
261 (1985). The relevant question is " 'whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.' " (Emphasis in original.) Collins, 106 Ill. 2d at 261, quoting Jackson
v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). The sufficiency
of the evidence and the relative weight and credibility to be given the testimony of the witnesses are
considerations within the exclusive jurisdiction of the fact finder. People v. Jimerson, 166 Ill. 2d 211,
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214 (1995). The evaluation of the testimony and the resolution of any conflicts or inconsistencies that
may appear are also wholly within the province of the finder of fact. Collins, 106 Ill. 2d at 261-62.
To sustain a conviction of predatory criminal sexual assault of a child, the State must prove
the defendant was 17 years of age or over and committed an act of sexual penetration with a victim
who was under 13 years of age when the act was committed. 720 ILCS 5/12--14.1(a)(1) (West
2002). "Sexual" penetration means any contact, however slight, between the sex organ or anus of
one person and the sex organ or anus of another person, or any intrusion, however slight, of any body
part of one person into the sex organ or anus of another person. 720 ILCS 5/12--12(f) (West 2002).
The State must prove "actual contact" between the defendant's sex organ and the sex organ or anus
of the complainant. People v. Finley, 178 Ill. App. 3d 301, 307 (1988). Evidence that the defendant's
sex organ only touched an area near the complainant's sex organ or anus is insufficient to establish
the element of penetration. People v. Oliver, 38 Ill. App. 3d 166, 170 (1976).
Ariana testified that the defendant did "pushups" over her and that his "private" touched her
"private" on the inside. Ariana explained that a "private" was what someone used to urinate. When
asked if the defendant touched her anywhere besides her "private," Ariana responded that he had not.
Upon further questioning if the defendant had touched her anywhere else, Ariana said "It was kind
of in my butt." When encouraged to clarify if it was inside or outside, Ariana replied "inside." When
asked how that felt, Ariana replied, "I didn't really feel anything." She stated she poops with her butt
and "[h]e didn't put it inside there. It went in there as it was like going into my private. He didn't put
it in where I poop." She repeated, "He didn't put it exactly in where I poop," and she clarified she
did not feel anything when he did that. When again questioned, "You said [the defendant's private]
didn't go inside that part, but did it touch that part at all?" Ariana responded, "Yes."
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We agree with the defendant that Ariana's testimony at times was seemingly contradictory.
However, it was ultimately for the jury to resolve any conflicts or inconsistencies in her testimony.
See Collins, 106 Ill. 2d at 261-62. Ariana testified that the defendant's penis went into her anus as
it was going into her vagina. This testimony was sufficient to convict the defendant of predatory
criminal sexual assault of a child. See Collins, 106 Ill. 2d at 261.
In so ruling, we find unpersuasive the defendant's reliance on People v. Oliver, 38 Ill. App.
3d 166, 170 (1976). In that case, the complainant did not testify that the defendant's penis touched
her anus. Oliver, 38 Ill. App. 3d at 170. Rather, she characterized the defendant's conduct by a
reference to "in my butt." Oliver, 38 Ill. App. 3d at 170. She also made an out-of-court statement
that the defendant's penis went along her "cheeks." Oliver, 38 Ill. App. 3d at 170. In reversing the
defendant's conviction, the reviewing court explained that the State was required to show an act
involving the sex organ of the defendant and the anus of the complainant. Oliver, 38 Ill. App. 3d at
170. The reviewing court found that the State did not meet its burden of proof, because the
complainant's lone reference at trial that the defendant's penis was "in [her] butt" was insufficient to
establish deviate sexual assault in light of her prior characterization that the defendant's penis had just
gone along her "cheeks." Oliver, 38 Ill. App. 3d at 170.
Here, unlike the complainant in Oliver, Ariana did testify that the defendant's penis went inside
her anus.
III. Defendant's Right to a Fair Trial
A. Trial Court's Compliance With Rule 431(b)
The defendant argues that the trial court failed to strictly comply with Rule 431(b) in that it
did not question the prospective jurors whether they understood and accepted each of the
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fundamental principles outlined in People v. Zehr, 103 Ill. 2d 472, 477 (1984). Further, the defendant
contends that the trial court failed to ask any questions at all about one of the principles--that he had
no obligation to present any evidence on his behalf.
Rule 431(b) provides:
"The court shall ask each potential juror, individually or in a group, whether that juror
understands and accepts the following principles: (1) that the defendant is presumed innocent
of the charge(s) against him or her; (2) that before a defendant can be convicted the State
must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not
required to offer any evidence on his or her own behalf; and (4) that the defendant's failure
to testify cannot be held against him or her; however, no inquiry of a prospective juror shall
be made into the defendant's failure to testify when the defendant objects.
The court's method of inquiry shall provide each juror an opportunity to respond to
specific questions concerning the principles set out in this section." Official Reports Advance
Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.
At the outset, we note that the defendant forfeited this issue because he neither objected at
the time of voir dire nor raised this issue in his posttrial motion. Nonetheless, we may review a
forfeited error under the plain-error rule if either the evidence is so closely balanced that the jury's
verdict may have resulted from the error and not the evidence, or the error was so serious that the
defendant was denied a substantial right and thus a fair trial. See People v. Herron, 215 Ill. 2d 167,
178-79 (2005). However, we must first determine whether an error occurred. People v. Blair, 395
Ill. App. 3d 465, 467 (2009).
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As to the first, second, and fourth Zehr principles, the defendant contends that the trial court
failed to adequately question the potential jurors to determine whether they understood and accepted
those concepts. Rather, the trial court asked only whether they would "have any difficulty" with some
of the propositions and whether, if given instructions on the propositions, they would be "willing to
follow" others. The defendant insists that asking the potential jurors if they had "difficulties" with the
propositions did not comply with Rule 431(b). We disagree.
Rule 431(b) does not require the trial court to recite the principles therein verbatim. People
v. Chester, 396 Ill. App. 3d 1067, 1072 (2010). We believe asking the potential jurors whether they
had any "difficulties" with the propositions was just another way of asking if they understood those
propositions. Further, asking the potential jurors if they were "willing to follow" the propositions was
just another way of asking the potential jurors if they accepted those propositions. Thus, the trial
court's questions as to those principles complied with Rule 431(b). Chester, 396 Ill. App. 3d at 1072.
The defendant further argues that the trial court failed to question the potential jurors at all
about the third principle, that he need not present evidence on his own behalf. However, the trial
court did ask whether they would be willing to follow the instruction that "defendant does not have
the burden of proving himself innocent." We believe that the trial court's question sufficiently
conveyed that the defendant was not obligated to present any evidence on his behalf. See Chester,
396 Ill. App. 3d at 1072 ("The court's statement that 'defendant is not required to prove his
innocence' would be interpreted by a reasonable jury to satisfy the third Rule 431(b) principle because
if defendant is not required to prove his innocence, he has no reason to present evidence").
Consequently, no error occurred. Even if we were to find error, the defendant's right to a fair trial
was not compromised, because the defendant did present evidence on his own behalf. See People
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v. Rogers, No. 2--08--0889, slip op. at 13 (August 6, 2010); see also People v. Thompson, No.
109033, slip op. at 12 (October 21, 2010) ("We cannot presume the jury was biased simply because
the trial court erred in conducting the Rule 431(b) questioning").
B. Constitutionality of Section 115--10 in Light of Crawford v. Washington
We next address the defendant's argument that, in light of Crawford v. Washington, 541 U.S.
36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), section 115--10 of the Code (725 ILCS 5/115--10
(West 2002)) is unconstitutional, such that the trial court erred in allowing the jury to consider
testimony pursuant to that section of the Code. In making this argument, the defendant relies on In
re E.H., 355 Ill. App. 3d 564, 576 (2005), vacated 224 Ill. 2d 172, 181-82 (2006).
We considered and rejected an identical argument in People v. Johnson, 363 Ill. App. 3d
1060, 1071 (2005). In that case, we explained:
"The defendant's third contention on appeal is that he is entitled to a new trial due to
the unconstitutionality of section 115--10 of the Code. The defendant relies on In re E.H.,
*** in which one panel of the Illinois Appellate Court, First District, relying on Crawford,
*** determined that section 115--10 is unconstitutional. In Crawford, the Supreme Court
held that testimonial forms of hearsay evidence are inadmissible absent a finding of
unavailability and an opportunity to cross-examine the witnesses. Crawford, 541 U.S. at 53-
54, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365-66. However, when 'the declarant appears for
cross-examination at trial, the [c]onfrontation [c]lause places no constraints at all on the use
of his prior testimonial statements.' Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 197 n.9,
124 S. Ct. at 1369 n.9. In other words, when a child sex abuse victim appears at trial and is
subject to cross-examination, any prior statement of the victim being offered pursuant to
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section 115--10 of the Code is a nonevent. People v. Sharp, 355 Ill. App. 3d 786, 796
(2005).
Here, the victim testified at trial and was subject to cross-examination. As such, none
of the statements admitted pursuant to section 115--10 were improper under Crawford. See
Sharp, 355 Ill. App. 3d at 796. Accordingly, as to the constitutionality of section 115--10 in
light of Crawford, we need not address that issue here because Crawford clearly does not
apply to the facts of the instant case. See People v. Nash, 173 Ill. 2d 423, 432 (1996)
(reviewing court should not reach constitutional issues if the case can be determined on other
grounds)." Johnson, 363 Ill. App. 3d at 1071.
Despite the defendant's implicit invitation to reconsider our decision in Johnson, we decline
to do so. Because Ariana testified in this case, none of the statements that were admitted pursuant
to section 115--10 were improper under Crawford.
C. Admission of Testimony About the Child-Sexual-Abuse-Accommodation Syndrome
1. Admission of testimony without a Frye hearing
The defendant argues that the trial court erred in refusing to conduct a Frye hearing on the
admissibility of evidence regarding the syndrome. The defendant contends that the trial court erred
in relying solely on prior Illinois decisions in admitting such evidence, because none of those decisions
relied on a Frye hearing.
In Illinois, scientific evidence is admissible at trial only if meets the Frye test. People v.
McKown, 226 Ill. 2d 245, 254 (2007). The Frye test is derived from Frye v. United States, 293 F.
1013 (D.C. Cir. 1923), which held scientific testimony is admissible only if the methodology or
scientific principle upon which the opinion is based is sufficiently established to have gained general
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acceptance in its particular field. A court may determine the general acceptance of a scientific
principle either by holding a Frye hearing or by taking judicial notice of "unequivocal and undisputed
prior judicial decisions or technical writings" on the subject. McKown, 226 Ill. 2d at 254. It is well
recognized, however, that relying exclusively upon prior judicial decisions to establish general
scientific acceptance can be a "hollow ritual" if the underlying issue of scientific acceptance has not
been adequately litigated. See In re Commitment of Simons, 213 Ill. 2d 523, 537 (2004). At issue
here is whether it was proper for the trial court to forgo a Frye hearing and determine the general
acceptance of the syndrome theory by taking judicial notice of prior decisions. Our review is de
novo. Simons, 213 Ill. 2d at 531.
Based on prior decisions, the trial court was not required to conduct a Frye hearing. In
particular, in People v. Nelson, 203 Ill. App. 3d 1038, 1040-45 (1990), the appellate court conducted
a comprehensive analysis on the admissibility of evidence regarding the syndrome. Although the
Nelson court did not specifically reference Frye in its decision, it conducted an analysis similar to
what Frye requires. Under the Frye standard, the trial court is not asked to determine the validity of
a particular scientific technique. Simons, 213 Ill. 2d at 532. Rather, the court's responsibility is to
determine the existence, or nonexistence, of a general consensus in the relevant scientific community
regarding the reliability of that technique. Simons, 213 Ill. 2d at 532. Further, because the focus
under a Frye test is primarily on counting scientists' votes, rather than on verifying the soundness of
a scientific conclusion, a reviewing court can conduct a Frye hearing as well as the trial court. See
Simons, 213 Ill. 2d at 532.
In Nelson, after the court considered numerous scholarly articles on the syndrome, it
concluded:
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"What is certain, however, is that children who have been sexually abused behave differently
from children who have not been abused. Explaining such differences is the critical element,
not what label may be selected to aid in the explanations." Nelson, 203 Ill. App. 3d at 1041.
In other terms, the Nelson court determined that it had been generally accepted in the psychological
community that children who have been sexually abused behave differently than those who have not
been abused. This is exactly the underlying basis of the syndrome. Thus, as the Nelson court had
determined that evidence pertaining to the syndrome was generally accepted, the trial court was not
required to conduct its own Frye analysis herein. See McKown, 226 Ill. 2d at 254.
2. Ann Young's testimony
The defendant next complains that Ann Young was not qualified to testify as an expert as to
the syndrome. The defendant argues that Young was not a psychologist and did not have any training
related to the syndrome. Further, as Young never interviewed Ariana, the defendant contends that
Young had no in-depth knowledge of Ariana or her actions to make a diagnosis that Ariana's behavior
was consistent with the syndrome. The defendant additionally argues that Young was not an
impartial observer, because she worked on behalf of sexually abused children.
The indicia of expertise are not measured by a given level of academic qualifications, but by
whether the proposed expert has knowledge and experience beyond the average citizen that would
assist the jury in evaluating the evidence. People v. Douglas, 183 Ill. App. 3d 241, 254 (1989). It
does not matter whether the expert acquired specialized knowledge through education, training,
experience, or a combination of each. People v. Pollard, 225 Ill. App. 3d 970, 976 (1992). The
adequacy of an expert witness's qualifications is a matter within the sound discretion of the trial court
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that will not be disturbed on review absent an abuse of discretion. People v. Petitt, 245 Ill. App. 3d
132, 145 (1993).
The trial court did not abuse its discretion in allowing Young to testify as an expert witness
regarding the syndrome. The evidence at trial established that, through her experience, Young had
obtained knowledge greater than the average citizen regarding the syndrome. Young testified that
she was a child welfare supervisor who worked with staff members who worked with sexually abused
children. She had a bachelor's degree in law enforcement, and a master's degree in human and family
resources, and she was studying for a doctorate in education. She had previously been a sexual abuse
therapist for 6½ years, working with victims and offenders. She was also a child care worker and
dealt with emotionally disturbed, abused, and neglected adolescents. She testified that she was
familiar with the syndrome through reading articles on the subject and her work with children.
Despite the defendant's protests to the contrary, Young did not need to be a psychologist or
an expert in the field of psychology to testify as to the syndrome. See Petitt, 245 Ill. App. 3d at 145-
146 (explaining that although prior version of section 115--7.2 (Ill. Rev. Stat. 1987, ch. 38, par.
115--7.2) allowed only behavioral psychologists, psychiatrists, or physicians to be qualified as experts
to testify in the area of post-traumatic-stress syndrome following sexual abuse, amended version of
statute expanded field of persons to testify in that area). Moreover, because Young testified only
generally as to how children act when they are sexually abused and how offenders act when they
sexually abuse children, there was no need for her to have personally examined Ariana. Further, as
to any alleged bias that Young had against the defendant because of her work on the behalf of
sexually abused children, defense counsel was free to bring this out in his cross-examination of Young
or in closing arguments. Young's profession was not a basis to disqualify her from testifying.
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3. Relevance of the syndrome
The defendant contends that the testimony regarding the syndrome should have been excluded
because it was not relevant. Specifically, the defendant argues that Ann Young's testimony regarding
the syndrome should have been excluded because (1) there was no evidence that Ariana was suffering
from a post-traumatic-stress disorder; (2) the syndrome applies only to a child who has a close
relationship with an abuser, such as a parent, and where the abuse occurs over an extended period
of time; (3) Ariana did not demonstrate any of the symptoms of the syndrome other than she kept the
alleged abuse secret; and (4) evidence regarding the syndrome was intended to be used in rebuttal to
rehabilitate a witness, not in the State's case-in-chief.
Evidence is admissible when it is relevant to an issue in dispute and its probative value is not
substantially outweighed by its prejudicial effect. People v. Gonzalez, 142 Ill. 2d 481, 487 (1991).
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 either more or less probable than it would be without
the evidence. People v. Morgan, 197 Ill. 2d 404, 455-56 (2001). It is within the trial court's
discretion to determine whether evidence is relevant and admissible, and the trial court's decision on
the issue will not be reversed absent an abuse of discretion. Morgan, 197 Ill. 2d at 455. A trial court
abuses its discretion where its decision is arbitrary, fanciful, or unreasonable, or where no reasonable
person would take the trial court's view. Morgan, 197 Ill. 2d at 455.
We do not believe that the trial court abused its discretion in allowing Young to testify
regarding the syndrome. As explained by the court in Nelson, such expert testimony is relevant
because "[f]ew jurors have sufficient familiarity with child sexual abuse to understand the dynamics
of a sexually abusive relationship." Nelson, 203 Ill. App. 3d at 1042. Further, "the behavior exhibited
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by sexually abused children is often contrary to what most adults would expect." Nelson, 203 Ill.
App. 3d at 1042.
We additionally note that the admission of evidence pertaining to the syndrome is specifically
authorized by section 115--7.2 of the Code (725 ILCS 5/115--7.2 (West 2008)). That section
provides:
"In a prosecution for an illegal sexual act perpetrated upon a victim, including but not
limited to prosecutions for violations of Sections 12--13 through 12--16 of the Criminal Code
of 1961, *** testimony by an expert, qualified by the court relating to any recognized and
accepted form of post-traumatic stress syndrome shall be admissible as evidence." 725 ILCS
5/115--7.2 (West 2008).
The Nelson court explained that the legislative intent underlying section 115--7.2 was "to grant the
trial court broad discretion in the admission of evidence of post-traumatic syndromes from a qualified
source." Nelson, 203 Ill. App. 3d at 1046. While acknowledging that the syndrome was not listed
in the Diagnostic and Statistical Manual of Mental Health III (DSM-III), the Nelson court found the
discretion the legislature gave to the trial court through section 115--7.2 was broad enough to include
syndrome-related testimony under the general label of post-traumatic-stress syndrome. Nelson, 203
Ill. App. 3d at 1042, 1046.
In finding that the trial court did not abuse its discretion in admitting Young's testimony, we
note that Young's explanation of the syndrome was different from that of Dr. Summit, who originally
proposed the theory of the syndrome. For example, Young testified that an abuser could use implied
intimidation in order to maintain a victim's secrecy. In his article, Dr. Summit used examples of only
explicit intimidation. Young also testified that the syndrome could apply to a babysitter-child
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relationship whereas Dr. Summit's article described the syndrome as resulting from the actions of a
father-figure to the child. We note that the discrepancies between Young's testimony and Dr.
Summit's article were brought to the jury's attention by defense counsel during his cross-examination
of Young. Thus, we believe that the discrepancies went to the weight of Young's testimony, not its
admissibility.
Further, although the Nelson court did indicate that testimony regarding the syndrome should
be limited to rebuttal (Nelson, 203 Ill. App. 3d at 1045), that part of its holding has since been
modified. See People v. Dempsey, 242 Ill. App. 3d 568, 589 (1993) (explaining that State may
present evidence of syndrome in its case-in-chief where the defendant, through cross-examination of
the State's witnesses, has attacked the victim's credibility by introducing evidence of delayed reporting
or inconsistencies in her testimony). Here, as defense counsel attacked Ariana's credibility during
cross-examination by bringing to the jury's attention her delayed reporting and inconsistencies in her
testimony, the trial court properly allowed Young to testify as to the syndrome. See Dempsey, 242
Ill. App. 3d at 589.
We additionally find the defendant's reliance on People v. Simpkins, 297 Ill. App. 3d 668
(1998), to be misplaced. In Simpkins, the child victim recanted her statements the defendant sexually
abused her. The State elicited testimony from a DCFS investigator that established the victim had
told the investigator of the abuse. The trial court then, over objection, permitted the investigator to
testify "in his experience, recantation occurs in 50% of the cases." Simpkins, 297 Ill. App. 3d at 674.
The investigator then testified that causes of recantation include blame from family members.
Simpkins, 297 Ill. App. 3d at 674-75.
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The reviewing court found the trial court erred by permitting the investigator's testimony
regarding recantation. The court first held the testimony did not assist the jury in reaching its verdict,
given that no evidence was presented to show the victim recanted because she felt blame from her
family. Simpkins, 297 Ill. App. 3d at 682-83. The court further held the testimony constituted
improper commentary on the victim's credibility. Simpkins, 297 Ill. App. 3d at 683.
Here, unlike in Simpkins, the expert testimony found support in the testimony of the
laywitnesses. Ariana acknowledged that she did not tell anyone about the abuse until two years after
it occurred. She also testified that the abuse occurred on multiple occasions. We also note that
Young never commented on Arianna's credibility.
Overall, we believe that Young's testimony could have aided the trier of fact. We also do not
believe that her testimony impinged upon the jury's determination of Ariana's credibility. Simpkins,
therefore, did not bar the expert's testimony in this case.
4. Introduction of syndrome-related evidence deprived the defendant of a fair trial
The defendant contends that the trial court deprived him of a fair trial by allowing Young's
testimony. The defendant argues that, although Young did not explicitly testify that she believed
Ariana had been sexually abused, in order to testify that Ariana exhibited signs of the syndrome, she
necessarily had to operate from an assumption that Ariana had been abused. Therefore, the trial
court's attempt to limit the testimony only to whether Ariana's behavior was consistent with the
syndrome was an impossible fiction. Further, the defendant insists that his expert, Dr. Meyer, could
not ameliorate the effects of Young's testimony as to the syndrome, because studies indicate that once
jurors hear about it, they instantly form beliefs as to its validity.
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The defendant's argument is essentially that the prejudicial effect of Young's testimony
outweighed its probative value. As explained earlier, however, evidence regarding how children act
after being abused is very probative. See Nelson, 203 Ill. App. 3d at 1038. We therefore cannot say
that the trial court's decision to allow this evidence was arbitrary, fanciful, or unreasonable. See
Morgan, 197 Ill. 2d at 455. We therefore decline to disturb the trial court's ruling on this basis.
D. Ineffective Assistance of Counsel
The defendant argues that the trial court erred in denying his motion for a continuance to
allow him to procure an expert to testify regarding the inherent unreliability of a child's memory. The
defendant acknowledges that his attorney, in requesting the continuance, did not submit an offer of
proof as to what the expert would testify. The defendant argues that his counsel was ineffective on
these grounds and therefore he should still be afforded relief.
At a hearing on August 20, 2008, defense counsel requested a Frye hearing as to evidence
pertaining to the syndrome. Relying on People v. Cardamone, 381 Ill. App. 3d 462 (2008), defense
counsel also requested to be allowed to present expert testimony about how children can have their
memories molded or distorted. The trial court denied the defendant's request for a Frye hearing but
indicated that the defendant would be allowed to have his own expert testify to try to discredit the
State's evidence regarding the syndrome. As to defense counsel's request to have an additional expert
testify as to the unreliability of children's memories, the trial court stated:
"But your argument doesn't fly now if you want some other theory and this case has been out
three years and you want to start coming up with other theories and you want the Court to
pay for a fishing expedition about susceptibility and not really to this.
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Then I think you're weak in that, saying after three years now we're getting to trial
now you want to start talking to experts about doing a fishing expedition to see what we can
come up with a defense. I think you're a little late on that."
As the defendant acknowledges, defense counsel did not submit an offer of proof as to what
his additional expert would have testified to. Absent an offer of proof, we will not disturb the trial
court's ruling. See Clayton v. County of Cook, 346 Ill. App. 3d 367, 385 (2003) (failure to make an
offer of proof results in forfeiture of review of whether the evidence was excluded improperly);
People v. Kraft, 277 Ill. App. 3d 221, 225-26 (1995) (when trial court refuses to allow introduction
of evidence, no appealable issue remains unless a formal offer of proof is made).
The defendant insists that we may nonetheless consider the issue on the basis that his counsel
was ineffective for failing to submit an offer of proof. However, as there is no indication in the record
what the offer of proof would have been, we cannot find defense counsel ineffective on this basis.
See People v. Bauer, 393 Ill. App. 3d 414, 424 (2009) (where no offer of proof was part of record,
reviewing court would not speculate as to what expert may have testified; thus, trial counsel could
not be found ineffective due to failure to obtain expert); People v. Neylon, 327 Ill. App. 3d 300, 312
(2002) (when appellate record does not contain adequate offer of proof, the defendant's claims of
ineffective assistance of counsel are better served in the context of a postconviction petition where
a complete record can be made).
E. IPI Criminal 4th No. 3.15
The defendant contends that the trial court erred in refusing to instruct the jury with IPI
Criminal 4th No. 3.15 regarding the circumstances of identification. The defendant argues that his
defense at trial was that he did not commit the offenses and his theory of the case included argument
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that Ariana either was mistaken about the identity of her abuser or was not telling the truth. The
defendant insists that both of these arguments supported an instruction to the jury regarding how it
should view Ariana's inability to identify the defendant in court.
A defendant is entitled to an instruction on his theory of the case if there is "some" evidence
in the record to support it. People v. Mohr, 228 Ill. 2d 53, 65 (2008). Very slight evidence on the
theory of defense will justify giving an instruction. People v. Uptain, 352 Ill. App. 3d 643, 646
(2004). On review, the question is whether the instructions, considered as a whole, fully and fairly
announce the law applicable to the theories of the parties. Mohr, 228 Ill. 2d at 65. Although
instruction of the jury generally rests within the discretion of the trial court, whether the defendant
introduced sufficient evidence to obtain an instruction on his theory of the case is a question of law
that is reviewed de novo. People v. Dunlap, 315 Ill. App. 3d 1017, 1024 (2000).
IPI Criminal 4th No. 3.15 provides:
"3.15 Circumstances of Identification
When you weigh the identification testimony of a witness, you should consider all the
facts and circumstances in evidence, including, but not limited to, the following:
[1] The opportunity the witness had to view the offender at the time of the offense.
[or]
[2] The witness's degree of attention at the time of the offense.
[or]
[3] The witness's earlier description of the offender.
[or]
[4] The level of certainty shown by the witness when confronting the defendant.
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[or]
[5] The length of time between the offense and the identification confrontation"
The Committee Note indicated the instruction simply listed factors well established by the cases of
Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977), People v. Slim, 127
Ill. 2d 302 (1989), and People v. Manion, 67 Ill. 2d 564 (1977). In those cases, at issue was the
victims' ability to identify the persons who had sold them heroin or had robbed them. Manson, 432
U.S. at 101, 53 L. Ed. 2d at 145, 97 S. Ct. at 2246; Slim, 127 Ill. 2d at 305-06; Manion, 67 Ill. 2d
at 568-69. The victims did not have any interaction with the drug sellers or robbers other than when
they bought drugs or were robbed. Manson, 432 U.S. at 101, 53 L. Ed. 2d at 145-46, 97 S. Ct. at
2246; Slim, 127 Ill. 2d at 305-06; Manion, 67 Ill. 2d at 568-69. Those cases are not comparable to
the case at bar. Here, although Ariana did not identify the defendant in court, she testified that she
was abused by "Frank" while he babysat her. Ariana's mother identified the defendant in court and
testified that he had babysat Ariana for a three-month period. Ariana's mother also testified that no
one named "Frank," other than the defendant, had ever babysat Ariana. Further, Arianna's mother
testified that she had never heard Ariana talk about anyone named "Frank" other than the defendant.
Additionally, the defendant acknowledged that he had babysat Ariana. As such, the defendant's
identity as the alleged abuser was not really at issue. Thus, the trial court did not err in not giving
IPI Criminal 4th No. 3.15. See Dunlap, 315 Ill. App. 3d at 1024.
F. Cumulative Error
The defendant next contends that the cumulative errors in this case deprived him of a fair trial.
However, as we have determined that the defendant's prior contentions of error are without merit,
then his last contention necessarily fails as well. People v. Bauer, 393 Ill. App. 3d 415, 430 (2009)
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(where there is no reversible error on any individual issue, these issues cannot cumulatively warrant
a new trial).
IV. Imposition of Crime Stoppers Fine
The defendant's final contention on appeal is that the trial court lacked authority to order him
to pay $100 to Crime Stoppers. The State concedes error, and we accept the State's concession.
Sections 5--6--3(b)(12) and 5--6--3.1(c)(12) of the Unified Code of Corrections provide for the
imposition of fines for the purpose of reimbursing local anticrime programs (730 ILCS
5/5--6--3(b)(12), 5--6--3.1(c)(12) (West 2008)). However, those provisions define possible
conditions of probation, conditional discharge, and supervision. No similar provisions authorize
imposition of such a fine when a sentence of incarceration is imposed. See 730 ILCS 5/5--9--1,
5--9--1.1, 5--9--1.4 (West 2008). Accordingly, we vacate that part of the trial court's sentencing
order imposing the $100 fine for Crime Stoppers. See People v. Beler, 327 Ill. App. 3d 829, 837
(2002).
V. Conclusion
For the foregoing reasons, we vacate the defendant's fine for Crime Stoppers. In all other
respects, the judgment of the circuit court of Boone County is affirmed.
Affirmed in part and vacated in part.
BURKE, J., concurs.
JUSTICE McLAREN, specially concurring:
I specially concur because I have a concern regarding the relevance and admissibility of the
alleged syndrome postulated by Dr. Summit. If Dr. Meyer is to be believed, this is neither an
accredited syndrome nor a scientific tool to aid the trier of fact. Rather, it is a tool to aid the
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counselor in rehabilitating the victim. If the trial court had determined that Dr. Meyer's testimony was
credible and preponderant, or that Dr. Summit did not believe his postulated syndrome was
formulated to be utilized by courts, then I believe it would have been an abuse of discretion to admit
evidence of this syndrome. Giving deference to the court's assessment of credibility, I do not believe
the record establishes that evidence of the syndrome was inadmissible. However, there may come
a day when a court determines that the weight of the evidence regarding relevance and admissibility
will result in a denial of this alleged syndrome as a legal tool and an affirmation that it is solely a
counseling tool.
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