In the Interest of D.D. , 2024 IL App (1st) 232321-U ( 2024 )

2024 IL App (1st) 232321-USIXTH DIVISION
July 12, 2024
No. 1-23-2321
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
IN THE INTEREST OF D.D., a Minor, )
Appeal from the
)
Circuit Court of
(THE PEOPLE OF THE STATE OF ILLINOIS, )
Cook County
)
Petitioner-Appellee, )
No. 18 JD 1187
)
v. )
The Honorable
)
Patricia Mendoza,
D.D., a Minor, )
Judge Presiding.
)
Respondent-Appellant. )
JUSTICE TAILOR delivered the judgment of the court.
Justices Hyman and C.A. Walker concurred in the judgment.
ORDER
¶1 Held: The judgment is affirmed where the trial court properly exercised its discretion to
admit the victim’s statements to his mother under section 115-10 of the Code.
¶2 I. BACKGROUND
¶3 On July 19, 2018, when D.D. was 14 years old, he was charged in a petition for adjudication
of wardship with multiple counts of aggravated criminal sexual assault and aggravated criminal
sexual abuse against two victims, C.H. and L.H.. The charges were based on an alleged incident
that occurred on June 20, 2018, where D.D. forced C.H. and L.H. to put their mouths on his penis.
No. 1-23-2321
At the time, C.H., D.D.’s half-brother, was six years old, and L.H., D.D.’s step-cousin, was seven
years old.
¶4 Before the adjudication hearing, the State filed a motion for a hearing pursuant to 725 ILCS
5/115-10(b)(1) (West 2018), informing the parties that it intended to introduce L.H.’s outcry
statement to his mother, Crystal, as well as the statements that C.H. and L.H. made to Jacqueline
Castillo, a forensic interviewer from the Chicago Child Advocacy Center (CAC).
¶5 At the section 115-10 hearing, Crystal testified. She said that in June 2018, she lived on
the first floor of her grandmother Melody’s house with her four kids, including L.H., and her
grandmother. Crystal’s mother, Donna, lived on the second floor of the home, in the attic
apartment. At the time, Crystal’s sister-in-law, Tasha, and Tasha’s children, D.D. and C.H., visited
the house regularly. There were no problems and “everybody got along fine.” Then, on June 22,
2018, Crystal’s daughter informed her that C.H. and L.H. told her that D.D. had “pulled out his
dick,” told them to put it in their mouths, and threatened to “punch the shit out of them” if they
said anything. Crystal was “shocked” when she heard this. She then asked L.H. to tell her what
happened. “[A]t first [L.H.] didn’t say anything.” Crystal told L.H. she was “going to pop him” if
he didn’t say anything, and then “popped him twice” on the shoulder before he told her that D.D.
“pulled out his dick and told [him and C.H.] to put it in their mouth.” In addition, L.H. told Crystal
that D.D. told them they had to do it, that “[t]hey better not tell anybody,” and that “if they said
anything, that he was going to punch the shit out of them.” Crystal did not ask L.H. anything other
than “what happened” before he made these statements, and he was “crying and looking scared”
when he told her what D.D. had done.
¶6 Crystal then went upstairs to speak with C.H.. Crystal’s mother Donna was present, and
Crystal told C.H. to “tell [his] grandma what happened.” C.H. said that D.D. “pulled out his thing”
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No. 1-23-2321
and “told [him and L.H.] to put it in their mouth.” C.H. also said that D.D. said “he was going to
hit they ass” if they did not do so. Crystal then “popped [D.D.] upside the head” which led her
mother to call the police. When the police arrived, Crystal told them what C.H. and L.H. had
disclosed to her. She later took L.H. to the CAC to be interviewed in connection with the incident.
¶7 Jacqueline Castillo, a forensic interviewer at the CAC, testified at the section 115-10
hearing as well. She explained that a forensic interview is a “neutral and developmentally
appropriate method of gathering factual information involving any allegations of abuse or
exposure to violence.” After stating that she had conducted over 150 forensic interviews, the
parties agreed that she was qualified as an expert in forensic interviewing. She interviewed L.H.
on July 5, 2018, when he was 7 years old. The interview took place at the CAC and lasted
approximately 50 minutes. During this interview, she was alone in a room with L.H.. Detective
Michael Mega and DCFS worker Michelle Paulis were present in the observation room next door.
Castillo asked L.H. “open-ended questions” and only used clarifying questions “when needed.”
She explained that she does not work for the Department of Children and Family Services or the
police, and said her job is to work for the court, to “be neutral and gather the information that is
being provided.” A disk containing her recorded video interview with L.H. was admitted into
evidence without objection.
¶8 Castillo started the interview by asking L.H. general questions about school, his family,
and what he likes to do for fun. She told him it was okay to say “I don’t know” or “I don’t
remember” and that the most important thing was to “only talk about the truth.” She made sure he
understood the difference between the truth and a lie, and then made him promise to only tell her
the truth. Castillo asked L.H. why he came to talk to her, and if someone had done something to
him. L.H. told her that his big cousin D.D. made him and his cousin, C.H., suck his “D”. He
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explained that D.D.’s “D” was his “dick,” a private part that boys use to pee. L.H. said that after
D.D. asked him to suck his “D” he said no, but D.D. said he would punch him and C.H. if they
didn’t do it, so they did. L.H. said that D.D. was lying on the floor, that D.D.’s shirt and shorts
were on the bed, and that D.D. pulled his underwear down to his knees when he made L.H. suck
his “D” with his mouth. L.H. said that D.D. made C.H. suck his “D” too. L.H. said D.D. told them
to stop because their grandma was coming home. Afterwards, L.H. told his sister what happened,
and she told their mom. L.H. said his mom got mad and asked him what happened. After L.H. told
his mom what D.D. made him do, she ran upstairs and hit D.D..
¶9 Exhibit 2, containing Castillo’s video-recorded interview with C.H., was also admitted into
evidence at the hearing without objection. This video is not part of the record on appeal.
¶ 10 At the conclusion of the hearing, the State informed the court that it intended to call both
C.H. and L.H. if the case proceeded to trial. The court reserved ruling on the State’s motion and
did not issue a decision for some time due to the COVID pandemic shutdown and a series of
subsequent delays. On June 13, 2023, after reviewing the transcripts from the section 115-10
hearing as well as the videos of the forensic interviews with L.H. and C.H., the court found that
“the time, content, and circumstances of the statements made to the witnesses contain sufficient
safeguards of reliability and therefore should be admitted at trial pursuant to [725 ILCS 5/115-
10].”
¶ 11 The case proceeded to an adjudication hearing on September 7, 2023. L.H. testified first.
At the time of the hearing, he was 12 years old. He said that in June of 2018, when he was seven
years old, he and his cousin C.H. went upstairs to lay down. D.D. came too and laid down on the
floor with them. No one else was there except L.H.’s grandma, who was down the hall in her
bedroom. L.H. testified that D.D. told him to do something when he was lying on the floor, but he
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No. 1-23-2321
found it “difficult to talk about” what had happened. When the prosecutor asked L.H. if “anything
bad happen[ed] upstairs” he said yes. L.H. testified that he touched a part of D.D.’s body, but he
wouldn’t say what body part because he “d[id]n’t feel comfortable saying what happened.” Upon
further questioning, he admitted that he touched D.D.’s body part that D.D. uses “to pee” with both
his hand and his mouth and confirmed that he didn’t want to touch it. L.H. said he did not see
anything happen with C.H.. L.H. said he told his mom, his sister, and a lady who asked him
questions about what D.D. had done to him. L.H. said that when his mother asked him what
happened he told her; he denied that she threatened him or hit him before he told her what
happened. He testified that he did not remember if the police were called.
¶ 12 Crystal, L.H.’s mother, testified next. She said that on June 22, 2018, she had a
conversation with her daughter and spoke with L.H. afterwards. When she asked L.H. what
happened, he “looked at [her] startled, like he was shocked.” When she asked him again what
happened and he started crying, she told him he wasn’t going to get in trouble, she just needed to
know what happened. L.H. told her that D.D. “made him put his dick in his mouth” and said that
“if he didn’t he was going to punch [him and C.H.].” L.H. told her that both he and C.H. had to
put D.D.’s dick in their mouth. Crystal admitted that she hit D.D. afterwards, and that the police
came to the house because her mother had called them. Crystal said she took L.H. to a place where
he could speak with someone about the incident a few weeks later. Although Crystal initially
denied telling L.H. she was going to hit him and said she never struck L.H., she was impeached
with her testimony from the section 115-10 hearing where she admitted threatening to “pop” L.H.
and “popping him” before he told her what D.D. had done.
¶ 13 Jacqueline Castillo testified next. She explained that she had worked as a forensic
interviewer with the CAC, and said her sole job was to gather factual information regarding any
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No. 1-23-2321
allegations of abuse. The State then admitted Exhibit 1, the video recording of her interview with
L.H., into evidence without objection and it was played in open court. The State then rested its
case, and the defense presented no witnesses. During closing arguments, defense counsel argued
that L.H. made up the allegations against D.D. because he did not want the police to arrest his
mother for striking D.D.. The court reserved ruling and took the matter under advisement.
¶ 14 On October 20, 2023, the trial court issued its decision. It found that the State failed to
meet its burden of proof as to the allegations regarding C.H. because “we only have the testimony
of [L.H.] who on the stand testified that he did not observe anything happen between [C.H.] and
[D.D.],” which contrasts with his testimony during the forensic interview where he claimed that
something did happen.” However, the court adjudicated D.D. delinquent based on the counts
against L.H., and merged them all into a single count of aggravated criminal sexual assault. The
court said it found L.H. “extremely credible.” It acknowledged that L.H. was “hesitat[ing] at times
in his testimony” and that he “appeared nervous and scared” but the court found this
“understandable given the allegations.” The court noted that L.H. “testified credibly and
consistently with earlier statements made by him to the forensic interviewer and his mother.” It
noted that L.H.’s outcry to his mother happened “immediately after the event” and that his
statements to the forensic interviewer took place “a mere week after the incident.” It rejected
defense counsel’s suggestion that L.H. made up the story because his mother “threatened to and
perhaps did hit him.” It noted that L.H. “made the outcry to his sister, verified it to his mother, and
then restated the events to the forensic interviewer.”
¶ 15 At the disposition hearing, after hearing arguments from the parties, the court adjudicated
D.D. a ward of the court, and placed him on probation until his 21st birthday. The court also
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ordered D.D. to undergo sex offender training and treatment and advised him that he was required
to register as a sex offender. He timely appealed.
¶ 16 II. ANALYSIS
¶ 17 D.D. raises a single issue on appeal. He argues that he was denied a fair trial when the trial
court allowed the State to present L.H.’s out-of-court statement to L.H.’s mother, Crystal, under
section 115-10 (725 ILCS 5/115-10 (West 2018)). He argues that this statement “lacked sufficient
safeguards of reliability” because it was “directly induced by a threat of violence and being
‘popped’ in the head by Crystal, which amounted to undue adult influence and inducement rather
than spontaneity.” He contends that the admission of this statement was not harmless, because the
court relied on it to support its delinquency finding.
¶ 18 The parties agree that we review a trial court’s decision to admit statements under section
115-10 for an abuse of discretion. People v. Applewhite, 2016 IL App (4th) 140558, ¶ 57. “A trial
court has a considerable amount of discretion in determining the admissibility of hearsay
statements.” People v. West, 158 Ill. 2d 155, 164 (1994). We will find an abuse of discretion only
if “the trial court’s determination [wa]s arbitrary, fanciful, or unreasonable or when no reasonable
person would agree with the stance adopted by the trial court.” Applewhite, 2016 IL App (4th)
140558, ¶ 57.
¶ 19 Section 115-10 of the Code sets forth a “specific hearsay exception tailored to minors under
13 years old who have been victims of a sexual offense.” Applewhite, 2016 IL App (4th) 140558,
¶ 65. It states,
“[i]n a prosecution for a physical or sexual act perpetrated upon or against a child under
the age of 13, *** the following evidence shall be admitted as an exception to the hearsay
rule:
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(1) testimony by the victim of an out of court statement made by the victim that he or she
complained of such act to another; and
(2) testimony of an out of court statement made by the victim describing any complaint of
such act or matter or detail pertaining to any act which is an element of an offense
which is the subject of a prosecution for a sexual or physical act against that victim.”
725 ILCS 5/115-10(a)(1), (2) (West 2018).
¶ 20 “Section 115-10 was originally passed in response to the difficulty in convicting persons
accused of sexually assaulting young children.” People v. Holloway, 177 Ill. 2d 1, 9 (1997). In
Holloway, our supreme court observed that “[i]t appears that the legislature, in providing for the
admission of evidence of outcry statements as exceptions to the hearsay rule in certain cases, was
concerned with *** the reluctance many victims have relating the details of the incident at trial.”
Id.¶ 21 Under section 115-10, testimony “shall only be admitted” if the court find that “the time,
content, and circumstances of the statement provide sufficient safeguards of reliability” and the
child either testifies at the proceeding or is unavailable as a witness and there is corroborative
evidence of the act. 725 ILCS 5/115-10(b)(1), (2)(A),(B) (West 2018). Because L.H. testified at
trial, the only issue here is whether his statements to his mother were sufficiently reliable.
¶ 22 To make this reliability determination, a trial court must evaluate the totality of the
circumstances surrounding the making of the out-of-court statements. People v. Simpkins, 297 Ill.
App. 3d 668, 676 (1998); People v. Soto, 2022 IL App (1st) 201208, ¶ 121; Idaho v. Wright, 497
U.S. 805, 820 (1990). The court should also consider “the child’s spontaneous and consistent
repetition of the incident, the child’s mental state, use of terminology unexpected of a child of
similar age, and the lack of motive to fabricate.” People v. Burgund, 2016 IL App (5th) 130119, ¶
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247 (quoting West, 158 Ill. 2d at 164). It is the State that bears the burden of establishing that the
out-of-court statement was reliable and not the result of adult prompting or manipulation. People
v. Zwart, 151 Ill. 2d 37, 45 (1992); People v. Garcia, 2012 IL App (1st) 103590, ¶ 96.
¶ 23 After considering the totality of circumstances, we find that L.H.’s statements to his mother
contain sufficient safeguards of reliability. First, L.H. made his outcry statement to his mother just
two days after the incident occurred, and he gave a consistent statement to forensic interviewer
Castillo less than two weeks later. His prompt outcry weighs in favor of a finding of reliability.
See People v. Guajardo, 262 Ill. App. 3d 747, 760 (1994) (finding a few weeks’ delay in reporting
sexual abuse did not render the minor victim’s statement unreliable, noting that the “failure of a
young assault victim to make a prompt complaint is easily understandable because of the natural
sense of shame, fear, revulsion, and embarrassment felt by children under such circumstances”);
People v. Sharp, 391 Ill. App. 3d 947, 955-56 (2009) (finding a 33-day delay in reporting did not
render a victim’s statements inadmissible under section 115-10); Compare with Zwart, 151 Ill. 2d
at 46 (finding the time and circumstances of the victim’s statements did not “provide sufficient
safeguards of reliability” when the victim did not make her first statement to her mother until
approximately five weeks after the abuse occurred).
¶ 24 Second, L.H.’s statements about oral sex reflected a knowledge of sexual activity that is
unusual for a seven-year-old child, further supporting the court’s reliability finding. See, e.g.,
Guajardo, 262 Ill. App. 3d at 760 (finding the content of the minor victim’s statement to be
reliable, reasoning that it was “unlikely that a seven-year-old boy in his circumstances would have
such complete knowledge of oral sex, and it is highly doubtful that such a child could fabricate the
details testified to”).
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¶ 25 Third, L.H. was consistent in his statements to his mother and Castillo, and in his testimony
at trial, that D.D. forced him to put his mouth on D.D.’s penis. And L.H. told both Castillo and his
mother that D.D. threatened to punch him if he refused to do so. See, e.g., People v. Burgund, 2016
IL App (5th) 130119, ¶¶ 249, 254 (the consistency of the victim’s out-of-court statements
“provide[d] sufficient guarantees of reliability to satisfy section 115-10”); compare with Simpkins,
297 Ill. App. 3d at 678 (finding a child’s statements were not reliable enough to be admissible
under section 115-10 because the child’s statements were inconsistent, she recanted her allegations
against the defendant before the section 115-10 hearing, and she told her mother that she lied about
defendant sexually abusing her); Zwart, 151 Ill. 2d at 44-45 (finding the victim’s statements were
not sufficiently reliable where she initially denied she was sexually abused and did not make her
outcry statements until after substantial adult intervention).
¶ 26 Fourth, no evidence was submitted to indicate that L.H. had a motive to fabricate the
allegations against D.D.. Compare with Simpkins, 297 Ill. App. 3d at 678 (finding the victim’s
statement unreliable where the victim told her mother she lied about defendant sexually abusing
her “because she was mad at defendant for hitting her and her siblings”).
¶ 27 Although Crystal testified at the section 115-10 hearing that she threatened to “pop” L.H.
unless he told her what happened and that she “popped him twice” on the shoulder before his
outcry, nothing in the record indicates that Crystal prompted or manipulated L.H. to say anything
about D.D. or otherwise encouraged him to accuse D.D. of sexual abuse. Compare with Zwart,
151 Ill. 2d at 44-45 (finding the circumstances surrounding a victim’s statements “particularly
troubling” because the victim had been interviewed by at least three people regarding the alleged
abuse before she made statements implicating the defendant and no evidence regarding the
substance of these prior interviews was admitted, making it ”impossible for the trial court to
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No. 1-23-2321
determine whether the victim was questioned in a suggestive manner or was encouraged to accuse
the defendant of sexual abuse”). Crystal consistently testified that she asked L.H. what happened,
nothing more. We do not find this open-ended question inherently coercive or suggestive. See
Garcia, 2012 IL App (1st) 103590, ¶ 99 (finding a child’s statements were “not the result of leading
questions” when a child was simply asked “what was happening with her”); see also Soto, 2022
IL App (1st) 201208, ¶ 122 (“Because a child may understandably be reluctant to be candid about
a traumatic experience, asking a child questions is not inherently coercive or suggestive.”)
¶ 28 After considering the totality of the circumstances, including the timing, nature, and
circumstances surrounding L.H.’s outcry statement to his mother, we find that the trial court did
not abuse its discretion when it found L.H.’s statement sufficiently reliable.
¶ 29 Moreover, even if the trial court erred by admitting L.H.’s statement to his mother, we find
any error was harmless, because the statement was merely “cumulative or duplicate[d] properly
admitted evidence.” People v. Patterson, 217 Ill. 2d 407, 428 (2005). See also People v. Littleton,
2014 IL App (1st) 121950, ¶ 65 (quoting People v. Prince, 362 Ill. App. 3d 762, 776 (2005)) (“The
erroneous admission of hearsay evidence is harmless error ‘when it is merely cumulative or is
supported by a positive identification and other corroborative circumstances.’ ”) L.H. testified at
trial and the court found him “extremely credible.” Although he “hesitate[d] at times in his
testimony,” and “appeared nervous and scared,” L.H. testified that he put his hand and his mouth
on D.D.’s penis, and that he did not want to do so. His testimony, standing alone, was sufficient to
support the court’s decision. See People v. Murray, 194 Ill. App. 3d 653, 656 (1990) (“A
conviction may rest upon the testimony of a single witness, if positive and credible[.]”) His trial
testimony was also consistent with his earlier videotaped statement to forensic interviewer Castillo,
which was admitted into evidence without objection. Because L.H.’s trial testimony was
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No. 1-23-2321
corroborated by his earlier statements to Castillo, any error relating to the admission of his outcry
statement to his mother was harmless. See, e.g., In re Brandon P., 2014 IL 116653, ¶ 92 (finding
that the improper admission of the victim’s statement under section 115-10 of the Code was
harmless because the disputed statement was “merely cumulative” of properly admitted
testimony); In re Rolandis G., 232 Ill. 2d 13, 46 (2008) (finding that any error stemming from the
erroneous admission of the victim’s statement under section 115-10 of the Code was harmless
where the statement was “largely repetitive” of properly admitted evidence, which
overwhelmingly established the defendant’s guilt).
¶ 30 III. CONCLUSION
¶ 31 For the foregoing reasons, the judgment of the trial court is affirmed.
¶ 32 Affirmed.
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