Trinidad C. v. Augustin L. , 92 N.E.3d 475 ( 2017 )

2017 IL App (1st) 171148
SECOND DIVISION
November 21, 2017
No. 1-17-1148
TRINIDAD C., ) Appeal from the
) Circuit Court of
Petitioner-Appellee, ) Cook County, Illinois.
)
v. ) No. 16 OP 72812
)
AUGUSTIN L., ) Honorable
) Megan E. Goldish,
Respondent-Appellant. ) Judge Presiding.
JUSTICE MASON delivered the judgment of the court, with opinion.
Presiding Justice Neville and Justice Hyman concurred in the judgment and opinion.
OPINION
¶1 Respondent Augustin L. appeals the trial court’s issuance of a plenary order of protection
in favor of petitioner, Trinidad C., and her three minor children. Augustin asserts that his
stepdaughter L.C.’s outcry of sexual abuse that served as a basis for the order of protection
should have been excluded as inadmissible hearsay. Because we find that the trial court did not
abuse its discretion in declaring L.C. unavailable to testify and that her outcry of sexual abuse
was reliable and corroborated by other independent evidence, we affirm the plenary order of
protection.
¶2 BACKGROUND
¶3 Trinidad filed a petition for an order of protection on May 3, 2016, on behalf of herself
and her three minor children: L.C., P.L., and R.M. In the petition, Trinidad alleged that Augustin
sexually molested five-year old L.C., which Trinidad reported to the Department of Children and
Family Services (DCFS) on April 29, 2016, and that all of her children were confused and
affected emotionally. L.C. was Augustin’s stepdaughter at the time of the incident.
No. 1-17-1148
¶4 During the evening of April 28, Trinidad left the home to do laundry. Augustin stayed
with L.C. and P.L. The following morning, Trinidad woke L.C. to change and clean her before
school because L.C. had not bathed the day before. Trinidad noticed that L.C.’s vaginal area was
very red. Trinidad asked L.C. if anyone touched her in her private area, and L.C. covered her
face. Trinidad asked her a second time, and L.C. told her that she was very afraid to tell her the
truth. L.C. then told Trinidad that Augustin touched her in the vaginal area. L.C. said it happened
when Trinidad was at school and doing laundry. Trinidad asked L.C. why she did not tell her and
L.C. said because Augustin told her that if she told anyone what happened, he was going to leave
the house and they would be without a father. Trinidad described L.C. as being very afraid.
Trinidad noticed a hole in L.C.’s leggings “down there” roughly the size of two fingers. Trinidad
finished changing L.C. and took her to school.
¶5 Vanessa Salcedo was L.C.’s prekindergarten teacher for approximately two school years:
2014-15 and 2015-16. When Trinidad arrived at school with L.C. on April 29, 2016, she told
Salcedo about her conversation with L.C. Salcedo called DCFS. With Salcedo’s help, Trinidad
filled out a police report.
¶6 Ada Perez-Almuhtaseb, an investigator for DCFS, arrived at L.C.’s school the same day
and interviewed Trinidad at 11:30 a.m., L.C. at 11:50 a.m., and Salcedo at 12:20 p.m. Perez-
Almuhtaseb interviewed each individual separately, and no one else was present during the
interviews.
¶7 Trinidad stated during the interview with Perez-Almuhtaseb that she left the house the
night before to do laundry and Augustin stayed with L.C. and P.L. Trinidad also related
discovering the redness in L.C.’s vaginal area and told Perez-Almuhtaseb about her conversation
with her daughter and reporting the incident to Salcedo.
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¶8 During Perez-Almuhtaseb’s interview with L.C., L.C. accurately differentiated between
good and bad touches, and she also accurately identified her private parts calling her vagina
“cola.” When asked if she had ever been touched on her private parts, L.C. told Perez-
Almuhtaseb that her “dad” touched her on her “cola” when they were at home. L.C.’s mother
was not home at the time because she was doing laundry, and Augustin was babysitting her and
her brother. She was watching television in her parents’ bedroom, and her brother was sleeping.
L.C. told Perez-Almuhtaseb that when Augustin touched her, he moved his hand from side to
side and that this happened while they were in her parents’ bedroom. Augustin told L.C. not to
tell anyone or else he would have to leave the home. L.C. did not want that to happen.
¶9 Finally, Perez-Almuhtaseb interviewed Salcedo as follow-up to the conversation they had
when she reported the incident to DCFS.
¶ 10 Later that day at around 6 p.m., Trinidad took L.C. to see a doctor concerning her vaginal
redness. According to Trinidad, the doctor stated that the redness could have been hygiene
related because L.C. might not be cleaning herself properly.
¶ 11 Approximately a week later on May 5, 2016, Rebekah Stevenson, a forensic interviewer
at the Chicago Advocacy Center, conducted an interview of five-year-old L.C., which was
recorded as a victim sensitive interview (VSI). L.C. stated that she lived with her mom, sister,
and older brother but not with her “dad,” Augustin, “because he went on vacation.” Before L.C.
described the incident involving Augustin, Stevenson asked L.C. questions about telling the truth
and lies, and L.C. accurately identified whether a statement was the truth or a lie.
¶ 12 During the interview, L.C. stated that Augustin touched her in her vaginal area when they
went to the garden. L.C. elaborated that they were in the garage inside the house on a lower level
where Augustin looks for his things. L.C.’s younger brother was outside making bubbles with his
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Spiderman, and L.C.’s mother was inside the house eating. Augustin stood in front of L.C., who
was also standing. Augustin touched and rubbed L.C. in her vaginal area with his hand over her
clothes. L.C. demonstrated Augustin’s touch by rubbing her hand up and down her vaginal area,
and also patted an arm rest to demonstrate how Augustin’s hand moved. L.C. told Stevenson that
Augustin touched her one time when she was five years old. Augustin did not touch L.C.
anywhere else and did not ask her to touch him or do anything to him.
¶ 13 L.C. told Stevenson she did not tell anyone what happened because Augustin told her not
to say anything and, if she did, he would leave the house. L.C. later decided to tell her mom what
happened because her mom would get mad if she told a lie. L.C. stated that she was scared that
“my daddy will leave the house and he already left the house.”
¶ 14 When the hearing on the order of protection commenced, Trinidad filed a motion
in limine seeking to admit L.C.’s out-of-court statements regarding the sexual abuse under
section 8-2601 of the Code of Civil Procedure (Code) (735 ILCS 5/8-2601 (West 2016)), which
permits the admission of hearsay statements of sexual abuse reported by a minor under the age of
13 when the minor is unavailable to testify and the statements are reliable and supported by
corroborating evidence. Augustin moved to continue the hearing so that he could obtain L.C.’s
medical records, which he claimed would show a recantation of her claim that he abused her.
Alternatively, asserting lack of proper notice, Augustin requested that the hearsay statements be
barred. The motion for a continuance was denied, and the court took Trinidad’s motion in limine
with the hearing on the order of protection.
¶ 15 During the hearing, Perez-Almuhtaseb testified regarding the three interviews she
conducted on April 29, 2016. With respect to L.C., Perez-Almuhtaseb was permitted, over
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objection, to state her belief that L.C. was truthful and that, during the interview, L.C. appeared
afraid to talk.
¶ 16 Trinidad recounted the events of April 29 and testified that later that evening, after L.C.
fell asleep, L.C. woke up very scared and began to cry “Augustin.” Since the incident, Trinidad
noticed that L.C. had become very aggressive. Several months later on August 16, 2016,
Trinidad was present when L.C. indicated that she wanted to draw, but did not know what to
draw, so L.C. started drawing and drew a picture that looked like a penis. A copy of the picture
was introduced into evidence.
¶ 17 Salcedo, who also testified, indicated that she had seen L.C. five days a week for 2.5
hours each day for the past two years and had a good understanding of L.C.’s typical behavior in
the classroom. Salcedo described L.C. as having been very happy, outgoing, helpful with the
other children and just happy to be in school. After the incident, Salcedo noticed a change in
L.C. because she became more easily angered and started identifying things in story books that
she did not identify before that were connected to an increased knowledge of sexual behavior.
¶ 18 After hearing the testimony relating to the sexual abuse allegations and viewing the VSI,
which the trial court found Stevenson conducted in a neutral manner, the trial court admitted
L.C.’s out-of-court statements, finding L.C. to be unavailable to testify and that her outcry
statements were reliable and corroborated by other evidence. Based on the preponderance of
evidence, including L.C.’s outcry of sexual abuse, the trial court found that the alleged sexual
abuse occurred and issued a plenary order of protection for one year effective from January 17,
2017, to January 17, 2018. Augustin filed a motion for a new trial and to reconsider, which the
trial court denied.
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¶ 19 ANALYSIS
¶ 20 Augustin asserts that L.C.’s out-of-court statements of sexual abuse were inadmissible
hearsay. Specifically, Augustin claims that the trial court erred in finding L.C. unavailable to
testify and that her statements were both reliable and supported by independent corroborating
evidence. Augustin contends that the order of protection must be vacated because its issuance
was improperly based on inadmissible hearsay statements.
¶ 21 Section 205(a) of the Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/205(a)
(West 2016)) governs any proceeding to obtain, modify, reopen, or appeal an order of protection.
Such proceedings, including the admission of evidence of statements by victims of abuse, are
conducted under the Code. In re Marriage of Flannery, 328 Ill. App. 3d 602, 606 (2002).
Specifically, under section 8-2601 of the Code, the following two requirements must be satisfied
to admit an out-of-court statement made by a child under the age of 13 involving an unlawful
sexual act: (1) the court conducts a hearing outside the jury’s presence and finds that the time,
content, and circumstances of the statement provide sufficient safeguards of reliability and (2)
the child either (a) testifies at the proceeding or (b) is unavailable as a witness and there is
corroborative evidence of the act that is the subject of the hearsay statement. 735 ILCS 5/8­
2601(a) (West 2016); Countryman v. Racy, 2017 IL App (3d) 160379, ¶ 10. We review the trial
court’s rulings regarding the admissibility of evidence for an abuse of discretion. People v.
Chambers, 2016 IL 117911, ¶ 75. A trial court abuses its discretion when its decision is
arbitrary, fanciful, or unreasonable or where no reasonable person would take the view adopted
by the trial court. Seymour v. Collins, 2015 IL 118432, ¶ 41.
¶ 22 Augustin first claims that the trial court erred in finding L.C. unavailable to testify based
on her age and fear. But contrary to Augustin’s position, fear and youth are relevant factors to
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consider in determining whether a child witness is unavailable to testify regarding sexual abuse
allegations even under the more strict criminal proceedings standards. People v. Stechly, 225 Ill.
2d 246, 315 (2007).
¶ 23 Augustin relies heavily on People v. Johnson, 118 Ill. 2d 501 (1987), but such reliance is
misplaced. In Johnson, the court held that a five-year-old’s reluctance to testify did not render
the child witness unavailable under Illinois Supreme Court Rule 414 (eff. Oct. 1, 1971). Johnson,
118 Ill. 2d at 510. After Johnson, the Illinois Supreme Court decided Stechly, 225 Ill. 2d 246,
312 (2007), which addressed whether a child victim was unavailable for purposes of the statutory
hearsay exception for sexual abuse victims under the age of 13 set forth in section 115-10 of the
Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 1998)). In Stechly, the Illinois
Supreme Court found Johnson distinguishable because Johnson involved Rule 414, which is a
general rule applicable to all criminal cases. Stechly, 225 Ill. 2d. at 313. In contrast, section 115­
10 deals specifically with evidence in criminal proceedings regarding the sexual assault of
children. Id. The Stechly court went on to find that notwithstanding the court’s holding in
Johnson (that unwillingness to testify cannot constitute unavailability under Rule 414), under
section 115-10, unavailability includes minor witnesses who are unable to testify because of fear.
Id. at 315. Stechly also noted that after and presumably in response to Johnson, the legislature
amended section 115-10 to permit the introduction of a child’s out-of-court statement when the
child is unavailable. Id. at 314.
¶ 24 Section 8-2601 of the Code is the civil counterpart to section 115-10 of the Code of
Criminal Procedure of 1963. In re Marriage of Flannery, 328 Ill. App. 3d at 609; In re Marriage
of Rudd, 293 Ill. App. 3d 367, 373 (1997). Indeed, section 115-10 and section 8-2601 contain
essentially identical language and permit admission of a child’s hearsay statements detailing
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instances of sexual abuse. Rudd, 293 Ill. App. 3d at 373. Consequently, contrary to Augustin’s
position, Johnson and Illinois Supreme Court Rule 414 are inapplicable.
¶ 25 The Stechly court also found Johnson distinguishable because no expert testimony or
evidence regarding the child’s unavailability was offered in that case. Stechly, 225 Ill. 2d at 315.
Here, as in Stechly, there was sufficient evidence supporting a finding of unavailability. Id.
Specifically, L.C.’s teacher of two years noted mood changes that she noticed in L.C.’s behavior
after the incident, as well as an advanced sexual knowledge. L.C.’s mother also observed a
negative change in L.C.’s behavior after the incident, noting she had become very aggressive.
Likewise, L.C. expressed fear and anxiety in the VSI about her dad going away if she talks. The
existence of the VSI is crucial because L.C.’s demeanor may be easily observed. Particularly
relevant is the fact that L.C. looked down and remained still when answering questions about the
touching and if Augustin had touched any other part of her body. Also relevant is the fact that
when L.C. was asked if she was afraid, she responded “yes.” Moreover, L.C.’s mother and the
DCFS investigator observed that L.C. was afraid to talk. Indeed, L.C. explained to her mother
that Augustin told her that if she said anything, he would leave and she and her siblings would be
without a father. The record consistently demonstrates L.C.’s fear that if she said anything “my
daddy will leave the house.” Although Augustin had already left the house by the time of the
hearing, L.C. stated during the VSI that “he is on vacation,” leading to a reasonable presumption
that L.C. was still afraid that what she said may cause Augustin to leave for good. Taking into
consideration L.C.’s age in conjunction with her demonstrated fear and notable personality
changes after the incident, the trial court did not abuse its discretion in finding L.C. unavailable
to testify. Importantly, the determination of whether a child under the age of 13 who was a
victim of sexual abuse is unavailable to testify is a fact specific inquiry subject to the trial court’s
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exercise of discretion. In re Brandon P., 2014 IL 116653, ¶ 47. Here, the record, and in particular
the VSI, amply support the trial court’s finding of unavailability. Moreover, the hearing on the
order of protection occurred within months of the VSI and nothing in the record suggests that
L.C.’s fear as exhibited during the VSI had dissipated such that she could be deemed available to
testify at the order of protection hearing.
¶ 26 Augustin next challenges the trial court’s finding that L.C.’s statements were
corroborated, especially given the absence of any supporting medical testimony. Augustin claims
that because the individual factors that the trial court considered could not establish
corroboration, consideration of the factors in the aggregate also failed to establish corroboration.
¶ 27 Corroborating evidence of alleged abuse or neglect requires independent evidence that
“ ‘would support a logical and reasonable inference that the act of abuse or neglect described in
the hearsay statement occurred.’ ” Flannery, 328 Ill. App. 3d at 610 (quoting In re A.P., 179 Ill.
2d 184, 199 (1997)). Stated differently, corroborating evidence is evidence making “ ‘it more
probable that a minor was abused or neglected.’ ” Id. (quoting In re A.P., 179 Ill. 2d at 199). The
form of the corroboration is case specific and may include physical or circumstantial evidence.
Id.
¶ 28 Here, the trial court found two types of corroborating evidence: (1) physical evidence
consisting of redness of L.C.’s vaginal area and (2) testimony relaying the statements L.C. made
constituting the act of abuse. Augustin asserts that the appearance of vaginal redness was
insufficient corroboration without any supporting medical testimony. But, as the trial court
noted, medical testimony is not required to establish corroboration, particularly where other
corroborative evidence is included in the record. In re An. W., 2014 IL App (3d) 130526, ¶ 63;
People v. Uselding, 217 Ill. App. 3d 1063, 1073 (1991). Specifically, the record demonstrates
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that L.C. consistently identified her vaginal area as the place where Augustin touched her, both
in the VSI and to her mother and the DCFS investigator, which was consistent with the location
of the redness. There was also testimony from L.C.’s teacher indicating that L.C. had an
increased sexual awareness after the incident, which was further evidenced by L.C.’s drawing of
a penis. Likewise, both L.C.’s mother and teacher observed a negative change in L.C.’s behavior
after the incident. L.C.’s multiple statements detailing the abuse were consistent in all material
respects, including where on her body Augustin touched her and that he used his hand in a
rubbing motion. Augustin’s claim might be persuasive if there had been only one piece of
corroborating evidence. But the record amply demonstrates that there was more than a single
piece of corroborating evidence, and the record in total provided sufficient evidence to support a
logical and reasonable inference that the act of abuse described by L.C. occurred.
¶ 29 Finally, Augustin challenges the trial court’s finding that L.C.’s statements were reliable,
claiming that when the evidence elicited during the proceedings is considered collectively,
insufficient indicia of reliability exists.
¶ 30 The reliability of a statement is determined based on the time, content and circumstances
surrounding the making of the statement and the totality of the circumstances. 735 ILCS 5/8­
2601(a) (West 1996); Stechly, 225 Ill. 2d at 313. Relevant factors to determine reliability
include: (1) the spontaneity and consistent repetition of the statement, (2) the child’s mental
state, (3) the use of terminology unexpected for a child of similar age, and (4) the lack of a
motive to fabricate. Stechly, 225 Ill. 2d at 313.
¶ 31 Here, the record supports a finding of reliability. Regarding timing, L.C.’s outcry was
immediate to her mother and the DCFS investigator the day after the incident and approximately
a week later during the VSI. As to content, all of L.C.’s statements were consistent regarding
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when it occurred, that Augustin touched her with his hand, how he moved his hand while
touching her, where on her body Augustin touched her, and that Augustin was standing while
touching her. Although, as the trial court noted, there were discrepancies in L.C.’s statements
such as where the abuse occurred (in her parents’ bedroom as opposed to the lower-level
“garage”) and where her mother was (out doing the laundry as opposed to eating in the house),
we would not expect a five-year-old to consistently relate every detail of an incident. In fact, the
discrepancies refuted any inference that L.C.’s statements were scripted and not the product of
her experience. Moreover, L.C. used language typical of a child of similar age when describing
the incident. Consequently, there was ample evidence in the record supporting the trial court’s
finding of reliability.
¶ 32 Because Trinidad offered evidence satisfying the requirements of section 8-2601, the trial
court did not abuse its discretion by admitting into evidence L.C.’s out-of-court statements
having found L.C. unavailable to testify and that her out-of-court statements were reliable and
supported by corroborating evidence. Augustin limits his claim on appeal to the admissibility of
L.C.’s hearsay statements and does not challenge the issuance of the order of protection on any
other grounds. Consequently, we find that because L.C.’s statements were properly admitted into
evidence, the trial court properly issued the plenary order of protection for the benefit of Trinidad
and her three minor children.
¶ 33 Affirmed.
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