People v. Graves , 2021 IL App (5th) 200104 ( 2021 )

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Appellate Court Date: 2022.06.16
10:15:41 -05'00'
People v. Graves, 2021 IL App (5th) 200104Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JOSHUA GRAVES, Defendant-Appellant.
District & No. Fifth District
No. 5-20-0104
Rule 23 order filed May 25, 2021
Motion to
publish allowed June 8, 2021
Opinion filed June 8, 2021
Decision Under Appeal from the Circuit Court of Monroe County, No. 17-CF-125; the
Review Hon. Dennis B. Doyle, Judge, presiding.
Judgment Affirmed.
Counsel on Donna Morrison Polinske, of Edwardsville, for appellant.
Appeal
Christopher Hitzemann, State’s Attorney, of Waterloo (Patrick
Delfino and Patrick D. Daly, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE WELCH delivered the judgment of the court, with opinion.
Justices Barberis and Wharton concurred in the judgment and opinion.
OPINION
¶1 This is a direct appeal from the circuit court of Monroe County. The defendant, Joshua
Graves, was convicted of one count of aggravated criminal sexual abuse. On February 26,
2020, he was sentenced to three years’ imprisonment followed by two years of mandatory
supervised release (MSR). The defendant raises five points on appeal: (1) that the trial court
erred in admitting evidence, (2) that the court erred in denying his motion for directed verdict
after the State initially rested its case, (3) that the court erred in granting the State’s motion to
reopen its proofs and admit further evidence, (4) that the court erred in failing to give a jury
instruction, and (5) that defense counsel was ineffective for failing to tender the same
instruction. For the reasons that follow, we affirm.
¶2 I. BACKGROUND
¶3 On September 22, 2017, the defendant was charged by information with two counts of
aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2016)), relating to events
that occurred on September 3, 2017. On March 29, 2019, the State filed an amended
information. As to both counts, it was alleged that the defendant was over the age of 17; that
the victim, K.F., was under the age of 13; and that the defendant committed an act of sexual
conduct with the victim “for the purpose of the sexual arousal or sexual gratification of the
defendant or the victim.” The sexual conduct alleged in count I was that the defendant
knowingly rubbed the victim’s vagina over her underwear. The sexual conduct alleged in count
II was that the defendant knowingly fondled the victim’s breast over her shirt.
¶4 Prior to trial, the State filed a motion in limine regarding hearsay statements made by the
victim pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725
ILCS 5/115-10 (West 2016)), along with a memorandum of law and argument in support of
the motion. The State argued that, pursuant to the statute, out-of-court statements made by the
victim should be admitted at trial. The trial court entered a written order granting the motion
on June 20, 2019. In the order, the court determined that the hearsay statements would be
admitted subject to the victim being made available for cross-examination.
¶5 On June 17, 2019, the defendant’s three-day jury trial commenced. The State first presented
testimony of the victim’s mother, Kelly F. 1 Kelly testified that the defendant’s son was the
victim’s best friend and the victim would stay at the defendant’s house on weekends when the
defendant’s son was staying there. The defendant’s father is the cousin of the victim’s father.
¶6 The victim went to stay at the defendant’s house over Labor Day weekend of 2017. Kelly
dropped the victim off at the defendant’s house on Saturday, and the plan was for the victim
to stay there until Monday. However, the victim called on Sunday to say she was sick and
wanted to go home, which Kelly found unusual because it was normally “like pulling teeth to
get [the victim and the defendant’s son] apart.” The victim’s aunt took the victim to her father’s
house, and the victim did not talk to her mother the rest of the day. Kelly worked the following
Monday. When she returned home from work, the victim asked if she could talk to Kelly, who
Because the victim’s parents share a last name, we will refer to them individually by their first
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names for ease of reference.
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asked if it could wait until later. At approximately 10 p.m. on Monday, Kelly sat down with
the victim to talk.
¶7 At this point, the State asked Kelly what the victim said to her. The defendant’s trial counsel
objected to that line of questioning being pursued in front of the jury, and the objection was
overruled. Kelly then testified that the victim told her that on Sunday morning, she woke up to
the defendant touching her vagina above her clothes. The victim also said that the defendant
touched her left breast and squeezed her hip. Kelly said the victim looked uneasy, worried, and
“nervous about even saying anything.” Because it was late in the evening, they did not call the
police at that time. Kelly called the police the next day after she got off work.
¶8 The State next called Detective Brian Etherton of the Columbia Police Department, who
testified that he and another detective were leading the investigation into the victim’s
allegations against the defendant. During the investigation, Etherton interviewed the victim’s
parents and the defendant; he also observed the victim’s child advocacy center (CAC)
interview. Etherton testified that he interviewed the defendant at the police department and
conducted a home visit along with the Illinois Department of Children and Family Services
(DCFS). During the interview at the police department, the defendant said that when his son
and the victim spent the night at his house, they would all share a bed. The defendant would
sleep on one side of the bed near the air conditioner, his son would sleep in the middle, and the
victim would sleep on the other side of the bed. Etherton testified that the defendant knew the
sleeping arrangement was a bad idea and that allegations could arise. The defendant said he
was in the process of remedying the situation by getting bunk beds. He also had an air mattress
that the kids sometimes slept on, but they did not like it as much because they could not see
the television. However, after visiting the defendant’s residence, Etherton believed that “you
could have put an air mattress down next to the bed and been able to view the television.”
Etherton testified that the defendant maintained his innocence throughout the interview.
¶9 The jury next heard testimony from Emily Matecki, who conducted the victim’s CAC
interview. Prior to Matecki’s testimony, the defendant’s trial counsel objected to the
introduction of the CAC video subject to the victim being available for cross-examination. The
trial court noted the objection and allowed Matecki to testify as follows. On September 7, 2017,
Matecki was employed by the St. Clair County Child Advocacy Center as a forensic
interviewer. As part of her employment, she facilitated the forensic interview of a child who
made allegations of abuse or neglect. Matecki testified that there are four stages to the interview
protocol: (1) rapport building to orient the child to the interview, (2) transitioning to the topic
of concern, (3) exploring the details, and (4) closure, which includes making sure the child
feels comfortable. Prior to her interview, she would review police reports and/or DCFS reports
relevant to the case.
¶ 10 Matecki interviewed the victim on September 7, 2017, when the victim was 11 years old.
Matecki observed that the victim appeared “very comfortable” in the interview room, she “was
able to give a clear episodic narrative of what *** happened,” and she was also “able to correct
the interviewer during the interview and demonstrate an adequate understanding of all the
questions asked.” The victim’s interview was recorded, and the video recording was shown to
the jury during Matecki’s testimony. Defense counsel was asked if he had any objection; he
relied on his “previously noted” objection.
¶ 11 During the CAC interview, Matecki initially told the victim that everything they talked
about had to be truthful, she had the victim explain what that meant to her, and the victim
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promised that everything she said would be truthful. Matecki also told the victim she could say
if she did not know the answer to a question and that she could correct Matecki if she got
something wrong. When Matecki asked the victim to tell her everything that happened, the
victim said that she played with the defendant’s son on Saturday, they went to bed, and the
next morning, she “felt something touching” her. The victim looked over and saw the
defendant touching her “below the waist.” The victim said she could not say anything because
she was startled, and she did not know that the defendant “liked [her] in that way.” She rolled
over and cried because she could not say anything. After the defendant realized the victim was
crying, he asked if she was awake, to which she said “yeah.” The defendant asked if the victim
was okay, and she said “no.” The defendant then said, “Well, I thought you would like it.” The
victim did not respond. The defendant said, “You’re just cute. You’re cute. I’m sorry.” The
defendant also said that he wanted the victim to keep what happened a secret; she did not
respond. The victim said the incident lasted several minutes.
¶ 12 After the victim gave her narrative of what happened, Matecki asked for specifics. When
asked where the defendant touched her, the victim motioned to her groin area and described it
as “the place where you go to the bathroom.” He was touching that area with his hand and on
top of her shorts. When asked if the defendant touched her anywhere else on her body, the
victim said he grabbed her breast over her clothes. The victim also said the defendant massaged
her on the hip. The defendant’s son was sleeping next to the victim while all of this was going
on. The victim explained that they went to bed with the defendant on one side of the bed, his
son sleeping in the middle, and the victim sleeping on the other side of the bed. However, when
she woke up, the defendant had moved and was lying beside her.
¶ 13 The victim said that after the incident, she first told her mother that the defendant touched
her below the waist for several minutes. She later told her mother that the defendant also
grabbed her breast for a “quick second.” The victim was scared to tell her mother, who was
mad after the victim told her what happened. The victim’s mother told the victim’s father, so
the victim’s father also talked to her about it. The victim told Matecki that the defendant never
touched her with anything other than his hand. The defendant had his clothes on during the
incident, and he was lying flat on his back. The victim said that prior to the incident, she stayed
with the defendant every two or three weeks when the defendant’s son was there. She said that
every time she stayed the night at the defendant’s house, they would all sleep in the defendant’s
bed.
¶ 14 After the video was played, the State asked Matecki about an instance during the interview
when the victim corrected her about the length of time that the defendant touched the victim’s
breast. Matecki testified that the correction was significant because “[w]hen a child
demonstrates that they’re able to correct the interview, it tells the interviewer that they are no
more suggestible than any adult.”
¶ 15 Detective Sergeant Karla Heine of the Columbia Police Department then testified that she
interviewed the defendant along with Etherton. Heine was present when the defendant
discussed the victim spending the weekends at his house and the sleeping arrangements. Heine
described the victim’s relationship with the defendant’s son as “close,” in that the victim
enjoyed spending time with the defendant’s son. Heine further testified that the defendant said
his house was a “safe place” for the victim to go; officers were aware of the victim’s home life
and that her father was a registered sex offender.
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¶ 16 The State next called the victim’s father, Ronald F., to testify. The defendant’s trial counsel
objected to Ronald’s hearsay testimony subject to the victim’s testimony. Ronald testified that
he had a felony conviction for possession of child pornography. When asked what the victim
told him about Labor Day weekend of 2017, Ronald testified that the victim said she awakened
to the defendant rubbing her on her vagina over her clothes and that he grabbed her breast over
her clothes. Ronald and Kelly talked with the victim for about an hour to get an idea of what
happened. They discussed how going to the police might affect the victim’s friendship with
the defendant’s son and what she should expect. Ronald testified that the victim had changed
since the incident. She used to engage in physical play, have tickle fights, or wrestle with him,
but since then she shied away from those activities and was very uncomfortable.
¶ 17 The victim then testified that she was 12 years old, and she was going to be starting eighth
grade at Columbia Middle School. She liked school, and her favorite subject was science. The
State asked the victim if she recalled being interviewed by the CAC. The victim testified that
she told the truth during the interview. The victim remembered Labor Day 2017. Her best
friend at the time was the defendant’s son, who would stay with the defendant every other
weekend. She would go over to the defendant’s house when his son was there, and they would
play video games or ping pong. The State asked the victim about the layout of the defendant’s
house and had her identify photographs of the defendant’s bedroom. The victim testified that
she had not seen the defendant’s son since Labor Day weekend of 2017, and that upset her.
The victim agreed that she went home on the Sunday of that weekend, she told her parents
what happened on Monday, and they discussed whether they should go to the police on
Tuesday. During these discussions, the victim was concerned she would not get to see the
defendant’s son again.
¶ 18 On cross-examination, the victim said she was not forced to sleep in the defendant’s bed
and that the defendant’s son was also in the bed. The victim testified that she interacted with
the defendant at her aunt’s house after the incident, but she did not act afraid. The victim also
testified that she met with the prosecutor multiple times in preparing for her testimony. On
redirect examination, the victim testified that the defendant’s son was asleep when the incident
happened.
¶ 19 After the victim’s testimony, the State rested. At that point, defense counsel moved for a
directed verdict, arguing that the State failed to meet its burden of proof. Defense counsel
asserted that based on the jury instructions, there were three propositions that the State was
required to meet. Two of the propositions related to the ages of the defendant and the victim,
and the third was that the defendant committed an act of sexual conduct. Sexual conduct was
defined as an “intentional or knowing touching or fondling by the accused, either directly or
through the clothing of the sex organ or breast of the victim for the purpose of sexual
gratification or arousal of the victim or the accused.” Defense counsel argued that there was
no testimony on the third proposition relating to the alleged sexual conduct.
¶ 20 The State responded that the motion for directed verdict should be denied because the
victim testified to the intentional or knowing touching during her CAC interview. The trial
court asked if the State was referring to the CAC interview as testimony, to which the State
responded in the affirmative. The court then stated that the victim was not under oath and asked
how the video could be considered testimony. The State responded, “The purpose of the statute
is to allow victims that are under 13 to have their CAC—their interviews played—to be played
in lieu of testimony as far as they’re available.” The State further argued that the victim testified
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under oath at trial that “she was, in fact, truthful” during her CAC interview. At that point, the
court took a recess so that the State could produce case law.
¶ 21 After the recess, the defendant’s trial counsel said that he did not intend to call any
additional witnesses and his client would not testify, “[s]o depending upon what Your Honor
rules on the directed verdict, we would rest.” The trial court inquired of the defendant whether
that was his intent, and he agreed that it was. The court brought the jury back in, indicated that
the State had rested, and asked defense counsel if he intended to present evidence. Defense
counsel announced that the defense had rested. The court then told the jurors that the evidence
portion of the trial was concluded, instructed them not to discuss the case, and dismissed them
for the day.
¶ 22 The following morning, the trial court heard continued arguments about whether the victim
had been available for cross-examination in compliance with its prior order about her out-of-
court statements and whether the State’s evidence was sufficient to withstand the motion for
directed verdict. The State argued that there was testimony elicited from both Kelly and Ronald
as to the victim’s statements about the sexual acts committed by the defendant, as well as the
CAC interview. The court responded that the testimony from the victim’s parents and the CAC
interview were all hearsay statements, which would only be admissible if the victim was
available for cross-examination or if the victim was unavailable to testify at trial, but the
statements were corroborated. The State agreed. The court then stated that “as far as I can see,
there is no corroboration, other than hearsay statements,” and “[y]ou have two hearsay
statements corroborating one another.” The State agreed that the hearsay statements
corroborated each other.
¶ 23 The State further argued that, based on Crawford v. Washington, 541 U.S. 36 (2004), the
victim was in court and available to answer questions. The trial court indicated that it did not
believe that was sufficient because the victim did not make any allegations during her direct
examination. The court’s statements indicated that it may have been inclined to grant the
defendant’s motion for directed verdict.
¶ 24 The State then requested to reopen its evidence and that the victim be allowed to provide
additional testimony. Defense counsel objected to the State being allowed to reopen its case
since the State and the defense had both rested. Defense counsel then asserted that it was the
State’s fault that it did not meet its burden because it failed to ask the right questions when the
victim was on the stand. The defendant’s counsel further argued that the defendant would be
prejudiced by the State reopening its case to get the victim to say what it failed to the first time
around. After arguments, the trial court allowed the State to reopen its case-in-chief so that the
victim could testify as to the allegations and be subject to cross-examination.
¶ 25 The State then called the victim to testify again. The victim testified that she went over to
the defendant’s house the Friday before Labor Day 2017 and planned to stay there until
Monday afternoon. However, when the victim woke up that Sunday morning, the defendant
was using his left hand to rub her vagina over her clothes for six to seven minutes. The victim
then testified that she rolled over, and she assumed the defendant used his right hand to grab
her waist, squeeze her breast, and went back to her waist. The night before, the defendant’s
son was in the middle of the defendant and the victim in the bed. However, when she woke up,
the defendant’s son was closest to the wall, she was in the middle, and the defendant was on
the right side of the bed. The victim said she started crying. After the defendant realized she
was awake, he stated, “Oh, you’re awake,” and then, “Are you okay?” The victim replied “no”
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to which he stated, “I’m sorry. You’re cute. You’re cute. You’re just cute. Do me a favor and
keep this a secret, please.”
¶ 26 On cross-examination, the victim admitted that she did say during the CAC interview that
the defendant used his left hand to rub her vagina over her clothes or that he went from touching
her waist to her breast back to her waist. The victim agreed that she was prepared by the State’s
counsel prior to giving her testimony that day, but that she was using her own words. She also
testified that, being older at the time of trial than she was during the interview, she used more
words to be more descriptive to the jury. She said that she went to her aunt’s house after the
incident, but she did not say anything to her aunt about what happened with the defendant.
After the victim’s testimony, the State rested again.
¶ 27 The defendant’s trial counsel then renewed his motion for directed verdict. The trial court
denied the motion, and the defense rested. The defense moved for a directed verdict at the close
of all the evidence, which the court denied.
¶ 28 After closing arguments, the trial court instructed the jury, inter alia, that:
“You have before you evidence that [the victim] made statements concerning the
offenses charged in this case. It is for you to determine whether the statements were
made, and, if so, what weight should be given to the statements. In making that
determination, you should consider the age and maturity of [the victim], the nature of
the statements, and the circumstances under which the statements were made.”
The jury found the defendant guilty on count I and not guilty on count II.
¶ 29 On July 18, 2019, the defendant filed a motion for judgment notwithstanding the verdict
or, alternatively, for a new trial alleging, in part, that the trial court erred in admitting hearsay
evidence pursuant to section 115-10 of the Code (725 ILCS 5/115-10 (West 2016)), in denying
the defendant’s motion for directed verdict after the State rested its case for the first time, and
in granting the State’s motion to reopen. On February 26, 2020, a hearing was held on the
posttrial motion and sentencing. The court denied the defendant’s posttrial motion and
sentenced him to three years’ imprisonment followed by two years of MSR.
¶ 30 The defendant filed his notice of appeal on March 20, 2020.
¶ 31 II. ANALYSIS
¶ 32 On appeal, the defendant makes five contentions of error. First, he argues that the trial court
erred in admitting the victim’s out-of-court statements pursuant to section 115-10. Second, he
asserts that the court erred in denying his motion for directed verdict after the State initially
rested its case. Third, he contends that the court erred in granting the State’s motion to reopen.
Fourth, he maintains that the court erred in failing to give a jury instruction pursuant to section
115-10(c). Fifth, he argues that defense counsel was ineffective for failing to tender the same
instruction.
¶ 33 A. The Victim’s Out-of-Court Statements
¶ 34 The first issue raised by the defendant is whether the trial court erred in admitting the
victim’s out-of-court statements, i.e., the statements she made during the CAC interview and
the statements that she made to her parents, pursuant to section 115-10 of the Code (id.). The
defendant argues that the admission of the victim’s out-of-court statements violated both
section 115-10 as well his right to confront witnesses as guaranteed by the United States and
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Illinois Constitutions. We review a trial court’s ruling on the admissibility of evidence for an
abuse of discretion. People v. Dabney, 2017 IL App (3d) 140915, ¶ 17. Further, we review
questions of law, such as whether a defendant’s constitutional rights under the confrontation
clause were violated by the admissibility of evidence, de novo. Id.¶ 35 Section 115-10 of the Code provides that, in a prosecution for a sexual act perpetrated
against a child under the age of 13, certain out-of-court statements made by the child victim
may be admitted at trial as an exception to the hearsay rule where (1) the trial court conducts
a hearing outside the presence of the jury to determine the reliability of the statements and
(2) the victim testifies at trial or is unavailable but evidence corroborating the statement is
presented. People v. Riggs, 2019 IL App (2d) 160991, ¶ 26; see also 725 ILCS 5/115-10(a),
(b)(2)(B) (West 2016). At issue here is whether the victim testified at trial so as to satisfy this
requirement of the statute.
¶ 36 However, for an out-of-court statement of a minor victim to be admissible at trial, the
statement must comply with the requirements of section 115-10 as well as the confrontation
clause of the United States and Illinois Constitutions. People v. Kitch, 239 Ill. 2d 452, 469-70
(2011). “The confrontation clause guarantees a criminal defendant the right to confront the
witnesses against him or her.” Dabney, 2017 IL App (3d) 140915, ¶ 18; U.S. Const., amend.
VI; Ill. Const. 1970, art. I, § 8. The United States Supreme Court has declared that the
confrontation clause places no restrictions on the admission of an out-of-court statement when
the declarant testifies at trial and is present to defend or explain the statement. Crawford, 541
U.S. at 59 n.9; Kitch, 239 Ill. 2d at 467. Stated differently, the declarant must appear at trial
for cross-examination. See Crawford, 541 U.S. at 59 n.9; Kitch, 239 Ill. 2d at 467.
¶ 37 In support of his argument, the defendant relies primarily on People v. Learn, 396 Ill. App.
3d 891 (2009). In that case, witnesses were allowed to testify about hearsay statements made
by the minor victim indicating she had been sexually abused by defendant. Id. at 893-97. At
trial, it took extensive questioning on direct examination before the victim acknowledged
defendant’s existence, and the only information she gave about defendant was that he was her
aunt’s husband. Id. at 896-98. The victim did not testify that defendant touched her, and she
did not testify about her out-of-court statements. Id. When questioned further by the
prosecution, the victim began to cry, and after a recess, the prosecution did not resume
questioning her. Id. Defense counsel asked the victim only five questions and did not elicit any
damaging testimony against defendant. Id. at 897-98.
¶ 38 The Second District found that the minor victim was unavailable as a witness and that she
did not “testify” for purposes of section 115-10(b)(2)(A). Id. at 898-902. In so concluding, the
appellate court held that “[i]f the child is the only witness (other than hearsay reporters) who
can accuse the defendant of actions constituting the charged offense, the child must testify and
accuse if she is to be considered to have testified at the proceeding under section 115-
10(b)(2)(A).” (Emphasis omitted.) Id. at 900. The court also held that the declarant’s mere
presence or general background testimony “are insufficient to qualify as the appearance and
testimony of a witness.” Id. at 900-02. Reviewing the testimony given at trial, the court noted
that the minor victim did not testify at all about the charge against defendant and that she
“barely acknowledged the people and places about which she was questioned.” Id. at 900.
Thus, according to the reviewing court, the victim did not “bear testimony” against defendant
because she did not make accusations or give relevant and material testimony. Id. The court
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also noted that there was nothing for defense counsel to cross-examine because the victim “did
not confront the defendant and accuse him of anything.” Id. at 901.
¶ 39 The defendant’s reliance on Learn is precarious for multiple reasons. First, we find it
important to highlight the extensive negative treatment Illinois courts have ascribed to Learn
since that decision was issued. It has been noted on several occasions that the Second District
has subsequently distanced itself from Learn. People v. Vannote, 2012 IL App (4th) 100798,
¶ 31 (citing People v. Sundling, 2012 IL App (2d) 070455-B, People v. Garcia-Cordova, 2011
IL App (2d) 070550-B, and People v. Martin, 408 Ill. App. 3d 891 (2011)). Moreover, our
research reveals that no court has cited Learn approvingly. People v. Smith, 2019 IL App (3d)
160631, ¶ 36; In re Brandon P., 2013 IL App (4th) 111022, ¶ 44; see also Sundling, 2012 IL
App (2d) 070455-B, ¶ 66; Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 62. Even courts
that have stopped short of expressly disagreeing with Learn have found ways to distinguish it
from the facts before them. See, e.g., Kitch, 239 Ill. 2d at 464-65; People v. Kennebrew, 2014
IL App (2d) 121169, ¶ 38; People v. Major-Flisk, 398 Ill. App. 3d 491, 507-08 (2010).
¶ 40 We similarly find that the circumstances presented in this case are distinguishable from
those involved in Learn. Here, the victim testified on direct examination about the defendant
and her relationship to him, and she described in detail the layout of his house and the bedroom
where the crimes took place. Moreover, the victim was specifically asked about the statement
she gave during the CAC interview, and she confirmed that what she said during that statement
was truthful. The victim also testified that she went home that Sunday of Labor Day weekend
2017, she told her parents what happened on Monday, and they discussed whether they should
go to the police on Tuesday. The victim answered all of the questions asked of her by the State
as well as defense counsel. We find that this rose above the level of mere presence and
background testimony that the Learn court found insufficient to amount to testimony. The
victim never became unwilling, unable, or incompetent to testify during her testimony. She did
not shut down when asked about her out-of-court statements or the circumstances surrounding
the offenses; she simply just was not asked to provide more details about the defendant’s
conduct. Under these circumstances, we find that the victim testified at the defendant’s trial as
required by section 115-10(b)(2)(A) of the Code (725 ILCS 5/115-10(b)(2)(A) (West 2016)).
Therefore, the trial court did not abuse its discretion in admitting her out-of-court statements
under the statute.
¶ 41 To the extent that our decision here can be read as being inconsistent with the appellate
court’s ruling in Learn, we respectfully disagree with the conclusion reached by the court in
that case and do not believe that it reflects the current state of Illinois law on this issue. See
Dabney, 2017 IL App (3d) 140915, ¶ 21 (similarly holding); see also Kennebrew, 2014 IL App
(2d) 121169, ¶ 47 (Schostok, J., specially concurring) (collecting cases to support the position
that the Learn court misinterpreted Crawford). In holding that the statute required a victim to
“testify and accuse,” the Learn court implicitly found that the testimony requirement of section
115-10(b)(2)(A) required more than availability for cross-examination to satisfy the
confrontation clause. Kennebrew, 2014 IL App (2d) 121169, ¶ 38 (majority opinion). It is the
only court to do so. Instead, other courts have found, pursuant to Crawford, 541 U.S. at 59 n.9,
that when a declarant is available for cross-examination, the confrontation clause places no
other restrictions on the use of his or her out-of-court statements. Kennebrew, 2014 IL App
(2d) 121169, ¶¶ 49-57 (Schostok, J., specially concurring); Brandon P., 2013 IL App (4th)
111022, ¶¶ 45-46. We choose to align ourselves with the majority of Illinois courts.
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¶ 42 Additionally undermining the defendant’s reliance on Learn is the fact that the Learn court
explicitly stated that it was deciding the case on statutory rather than constitutional grounds.
Learn, 396 Ill. App. 3d at 899-900, 905. Although the court relied on—and perhaps
conflated—the constitutional and statutory principles relating to a child victim’s hearsay
statements, it cautioned that its analysis was “not a confrontation clause analysis.” Id. at 899;
see also Kennebrew, 2014 IL App (2d) 121169, ¶ 36 (noting that the holding in Learn was
based on a section 115-10 analysis rather than a confrontation clause analysis). Therefore, we
now turn to case law analyzing whether out-of-court statements admitted under section 115-
10 violated the confrontation clause in order to address that question in this case.
¶ 43 As previously stated, the confrontation clause places no restrictions on the admission of an
out-of-court statement when the declarant testifies at trial and is present to defend or explain
the statement. Crawford, 541 U.S. at 59 n.9; Kitch, 239 Ill. 2d at 467. Stated differently, the
declarant must appear at trial for cross-examination. See Crawford, 541 U.S. at 59 n.9.
“ ‘Where the declarant appears for cross-examination, even where the declarant does not testify
to the substance of [her] hearsay statement, its admission is a nonevent under the confrontation
clause.’ ” Smith, 2019 IL App (3d) 160631, ¶ 31 (quoting Garcia-Cordova, 2011 IL App (2d)
070550-B, ¶ 66). In fact, many Illinois cases have held that child victims of sex offenses were
available for cross-examination for confrontation clause purposes where they testified at trial
and answered the questions asked of them on cross-examination even if they did not testify to
all or some of the charged conduct. Id.; Dabney, 2017 IL App (3d) 140915, ¶ 20 (collecting
cases). “[T]he key inquiry when determining whether a declarant is available for cross-
examination is whether the declarant was present for cross-examination and answered
questions asked of her by defense counsel.” (Internal quotation marks omitted.) Brandon P.,
2013 IL App (4th) 111022, ¶ 46.
¶ 44 In this case, it is undisputed that the victim was present for cross-examination and answered
all the questions asked of her by the State as well as defense counsel. Therefore, we conclude
that she was available for cross-examination, as required by the confrontation clause, and the
admission of her out-of-court statements was a “ ‘nonevent under the confrontation clause.’ ”
Smith, 2019 IL App (3d) 160631, ¶ 31 (quoting Garcia-Cordova, 2011 IL App (2d) 070550-
B, ¶ 66).
¶ 45 Although the victim did not testify to the charged conduct, we note that there was nothing
stopping defense counsel from cross-examining her about the allegations made in her out-of-
court statements. Counsel had notice of the out-of-court statements that were going to be
admitted in advance of trial. Counsel was also present when such evidence was elicited and
during the State’s direct examination of the victim. The defendant argues that he should not
have been expected to elicit details of the offenses so that he could cross-examine the victim
about them. However, “[w]here a defendant does not attempt to cross-examine a witness on
her out-of-court statements, he cannot complain that the witness was unavailable for cross-
examination.” Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 63 (citing People v. Lewis, 223
Ill. 2d 393, 405 (2006)). Further, “a defendant’s right to confront witnesses cannot be recast as
the State’s burden to confront witnesses.” Riggs, 2019 IL App (2d) 160991, ¶ 38 (citing
Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 61). The confrontation clause guarantees only
the opportunity for cross-examination, which the defendant was given in this case.
¶ 46 Finally, we address the defendant’s assertion that Dabney and other “memory-loss cases”
cited herein do not apply to the facts of this case, where the victim did not suffer memory loss.
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Our research has revealed that memory-loss cases have been cited in cases dealing with a
victim not testifying to charged conduct simply because he or she was not asked. See, e.g., id.
¶ 36. As did the Second District in Riggs, we find that the same rationale applies, regardless of
whether the victim answered that she did not recall events or whether she simply was not asked.
See id. In either situation, we must still consider whether the victim was present and willingly
answered all questions put to her by both parties. In this case, we find that she did. Therefore,
we conclude that the admission of the victim’s out-of-court statements did not violate the
defendant’s constitutional rights to confront the witnesses against him.
¶ 47 B. Motion for Directed Verdict
¶ 48 The defendant also contends that the trial court erred in denying his motion for directed
verdict after the State initially rested its case. In reviewing a defendant’s challenge to the trial
court’s denial of his motion for a directed verdict, we must determine whether the evidence
presented, viewed in the light most favorable to the State, established defendant’s guilt beyond
a reasonable doubt. People v. Schronski, 2014 IL App (3d) 120574, ¶ 19.
¶ 49 The defendant in this case was charged with aggravated criminal sexual abuse. To sustain
the conviction as to count I, the State was required to prove that (1) the defendant committed
an act of sexual conduct with the victim, (2) the defendant was 17 years of age or older, and
(3) the victim was under the age of 13 when the act was committed. See 720 ILCS 5/11-
1.60(c)(1)(i) (West 2016). The act of sexual conduct charged in count I was that the defendant
touched the victim on her vagina over her underwear.
¶ 50 It is undisputed that the defendant was over the age of 17 and the victim was under the age
of 13 when the sexual act was committed. Therefore, the only element at issue is whether the
defendant committed the act of sexual conduct of touching the victim on her vagina over her
underwear. Having found that the CAC interview and the victim’s out-of-court statements to
her parents were properly admitted during the State’s initial case-in-chief, we find that the
State presented sufficient evidence to support a finding that the defendant committed
aggravated criminal sexual abuse. The State’s evidence demonstrated that the victim came
home early from the defendant’s house, which Kelly, her mother, found unusual. The next day,
the victim wanted to talk to Kelly; when the two eventually were able to talk, the victim told
Kelly that she woke up to the defendant touching her vagina over her underwear. Kelly
observed that the victim looked uneasy, worried, and “nervous about even saying anything.”
Similarly, the victim’s father, Ronald, testified that the victim said she woke up to the
defendant rubbing her on her vagina over her clothes. Ronald noted that the victim had changed
since the incident; while she used to engage in physical play, have tickle fights, or wrestle with
him, those activities now made her uncomfortable.
¶ 51 During the CAC interview, the victim revealed that on Sunday morning, she woke up and
“felt something touching” her. The victim looked over and saw the defendant touching her
“below the waist.” The victim could not say anything because she was startled, and she did not
know that the defendant “liked [her] in that way.” She rolled over and cried because she could
not say anything. After the defendant realized the victim was crying, he asked if she was awake,
to which she said “yeah.” The defendant asked if the victim was okay, and she said “no.” The
defendant then said, “well, I thought you would like it.” The victim did not respond. The
defendant said, “You’re just cute. You’re cute. I’m sorry.” The defendant also said that he
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wanted the victim to keep what happened a secret; she did not respond. The victim said the
incident lasted several minutes.
¶ 52 When the victim was asked to be more specific about where the defendant touched her
“below the waist,” the victim motioned to her groin area and described it as “the place where
you go to the bathroom.” She said the defendant touched that area with his hand and on top of
her shorts. The victim subsequently reported to her mother that the defendant touched her
below the waist for several minutes. The victim’s mother told the victim’s father, so the
victim’s father also talked to her about it. The victim told Matecki that the defendant had his
clothes on during the incident, and he was lying flat on his back. The victim said that prior to
the incident, she stayed with the defendant every two or three weeks when the defendant’s son
was there. She said that every time she stayed the night at the defendant’s house, they would
all sleep in the defendant’s bed.
¶ 53 During the interview, Matecki initially told the victim that everything they talked about
during the interview had to be truthful, she had the victim explain what that meant to her, and
the victim promised that everything she said would be truthful. Matecki also told the victim
she could say if she did not know the answer to a question and that she could correct Matecki
if she got something wrong. At trial, Matecki observed that the victim appeared “very
comfortable” in the interview room, she “was able to give a clear episodic narrative of what
*** happened,” and she was also “able to correct the interviewer during the interview and
demonstrate an adequate understanding of all the questions asked.” When the State asked
Matecki about an instance during the interview when the victim corrected her about a detail in
the narrative, Matecki testified that the correction was significant because “[w]hen a child
demonstrates that they’re able to correct the interview, it tells the interviewer that they are no
more suggestible than any adult.” Moreover, the victim testified during her direct examination
that she recalled giving the CAC interview, and everything she said during that interview was
true.
¶ 54 We find that the foregoing evidence, viewed in the light most favorable to the State,
established the defendant’s guilt beyond a reasonable doubt. The victim’s statements to her
parents and during the CAC interview were sufficient to establish that the defendant committed
an act of sexual conduct in that he touched the victim on her vagina over her underwear, which
is the only element of the offense that is disputed on appeal. Accordingly, the trial court did
not err in denying the defendant’s motion for directed verdict after the State rested its case for
the first time.
¶ 55 C. Motion to Reopen
¶ 56 The defendant additionally maintains that the trial court erred in granting the State’s motion
to reopen. However, as we have already concluded that the victim’s out-of-court statements
were properly admitted during the State’s initial case-in-chief, and that the evidence was
sufficient to establish the defendant’s guilt when the State initially rested its case, we need not
address this point because it was not necessary for the State to reopen its proofs and admit
evidence in the first place.
¶ 57 D. Jury Instruction
¶ 58 The defendant’s remaining contentions both relate to the jury instruction required under
section 115-10(c) of the Code (725 ILCS 5/115-10(c) (West 2016)). He initially maintains that
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the trial court erred in failing to tender the instruction. He additionally argues that his trial
counsel was ineffective for failing to request the instruction.
¶ 59 Section 115-10(c) provides in part:
“If a statement is admitted pursuant to this Section, the court shall instruct the jury that
it is for the jury to determine the weight and credibility to be given the statement and
that, in making the determination, it shall consider the age and maturity of the child,
*** the nature of the statement, the circumstances under which the statement was made,
and any other relevant factor.” Id.Illinois Pattern Jury Instructions, Criminal, No. 11.66 (4th ed. 2000), which was intended to
implement the statutory requirement, states:
“You have before you evidence that ____ made statements concerning the offenses
charged in this case. It is for you to determine whether the statements were made, and,
if so, what weight should be given to the statements. In making that determination, you
should consider the age and maturity of ____, the nature of the statements, and the
circumstances under which the statements were made.”
¶ 60 In this case, the jury was instructed that:
“You have before you evidence that [the victim] made statements concerning the
offenses charged in this case. It is for you to determine whether the statements were
made, and, if so, what weight should be given to the statements. In making that
determination, you should consider the age and maturity of [the victim], the nature of
the statements, and the circumstances under which the statements were made.”
The foregoing instruction satisfied the requirements of the statute and complied with the
Illinois pattern jury instruction. Under these circumstances, the defendant’s claims that the trial
court failed to give the appropriate instruction and that defense counsel was ineffective for
failing to request it are clearly without merit.
¶ 61 III. CONCLUSION
¶ 62 For the foregoing reasons, the judgment of the circuit court of Monroe County is hereby
affirmed.
¶ 63 Affirmed.
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