People v. Garcia ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Garcia, 2012 IL App (1st) 103590Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption BALDOMERO GARCIA, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-10-3590
Filed November 30, 2012
Rehearing denied January 16, 2013
Held Based on defendant’s confession and the testimony of the victim and
(Note: This syllabus three other witnesses, defendant’s convictions for predatory criminal
constitutes no part of sexual assault were upheld, the admission of the victim’s out-of-court
the opinion of the court statements was not an abuse of discretion in view of the safeguards of
but has been prepared reliability, a prosecution expert was properly allowed to testify that the
by the Reporter of lack of physical trauma was “consistent” with sexual abuse, and the trial
Decisions for the court’s failure to conduct a hearing on defendant’s fitness to stand trial
convenience of the did not violate defendant’s right to due process.
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-06996; the
Review Hon. John J. Scotillo, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Sarah Curry, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Tasha-
Marie Kelly, and Koula A. Fournier, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE R. GORDON delivered the judgment of the court, with
opinion.
Justices Hall and Garcia concurred in the judgment and opinion.
OPINION
¶1 After a jury trial, defendant Baldomero Garcia was convicted of two counts of predatory
criminal sexual assault and sentenced to two eight-year consecutive sentences in the Illinois
Department of Corrections for his conduct toward L.P. (the victim), the five-year-old
daughter of defendant’s live-in girlfriend. On appeal, defendant argues: (1) the State did not
prove him guilty beyond a reasonable doubt, (2) the trial court erred by admitting the victim’s
out-of-court statements into evidence, (3) the trial court erred by permitting the State’s expert
to testify to a medical opinion for which there was no foundation, and (4) defendant’s due
process rights were violated when he did not receive a fitness hearing and no independent
judicial determination of defendant’s fitness was made. For the reasons that follow, we
affirm.
¶2 BACKGROUND
¶3 On April 7, 2008, defendant was charged with multiple counts of predatory criminal
sexual assault, criminal sexual assault, aggravated criminal sexual abuse, and criminal sexual
abuse, for conduct occurring between January 1, 2008, and March 5, 2008. Defendant was
charged with a total of 48 counts.
¶4 I. Pretrial Proceedings
¶5 On October 6, 2008, the State filed a motion seeking a hearing pursuant to section 115-10
of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-10 (West 2006)) in
order to admit certain statements made by the victim to several witnesses into evidence.
¶6 On November 18, 2008, defendant filed a motion to suppress any statements that
defendant made to police, and on January 12, 2009, defendant filed an amended motion to
suppress, claiming that he was not advised of his Miranda rights and did not knowingly,
intelligently, and voluntarily waive them.
-2-
¶7 A. Fitness
¶8 On January 12, 2009, the parties came before Judge John Scotillo in Rolling Meadows1
on both the State’s section 115-10 motion and defendant’s motion to suppress. Prior to the
hearing, Assistant Public Defender (APD) Larry Kugler informed the trial court that he had
attempted to speak with defendant several times about the case and had a bona fide doubt of
defendant’s fitness; consequently, defense counsel requested a fitness evaluation, which the
court ordered.
¶9 On March 5, 2009, a letter was received by the trial court from Andrew Segovia Kulik,
M.D., a forensic psychiatrist with Forensic Clinical Services, stating that Dr. Kulik attempted
to evaluate defendant on February 23, 2009, but was unable to render a fitness opinion
because defendant was uncooperative during the interview. Dr. Kulik believed that
defendant’s refusal to cooperate was volitional in nature and not due to any severe
psychiatric illness.
¶ 10 On the same day, APD Kugler requested that defendant be reevaluated, since he still had
a bona fide doubt of defendant’s fitness. After speaking with defendant, APD Calvin Aguilar,
APD Kugler’s partner on the case, agreed, stating that he also had a bona fide doubt of
defendant’s fitness based on defendant’s responses. The trial court entered another court
order for an evaluation of defendant’s fitness to stand trial, telling APD Kugler that “[w]e
have to have a hearing if you have a bona fide doubt.”
¶ 11 On April 23, 2009, the parties returned before the court concerning defendant’s fitness
evaluation. The trial court read a letter2 dated April 17, 2009, in which Dr. Kulik stated that
he attempted to evaluate defendant for a second time and was unable to render an opinion
due to defendant’s continued refusal to cooperate. The trial court suggested the matter be set
for trial, but APD Kugler stated that “I’m unable to represent this defendant. I still have a
bona fide doubt as to his fitness. I’m not a psychiatrist. All that I know is that I have a client
who is not working with me. I’m unable to work with this client.” The State stated that in
light of APD Kugler’s statement that he had a bona fide doubt of defendant’s fitness, the
matter needed to be set for a fitness hearing. The trial court entered an order transferring
defendant’s case to 26th and California for the purpose of a fitness hearing.
¶ 12 On May 12, 2009, another fitness evaluation was ordered by Judge Joseph Claps at 26th
and California. On July 1, 2009, a letter was received from Roni Seltzberg, M.D., a staff
forensic psychiatrist with Forensic Clinical Services, that stated that Dr. Seltzberg attempted
to evaluate defendant on June 30, 2009, and that defendant responded that he “ ‘didn’t
remember’ or ‘didn’t know’ ” to most of the questions posed to him concerning fitness
issues. Dr. Seltzberg stated that “[t]his was in contradistinction from his apparent ability to
retain explanations of courtroom terminology that he reported having no previous knowledge
of, and further in contradistinction to other information that he did offer upon questioning.”
1
Throughout the proceedings, whenever defendant appeared in court, he was provided with
a Spanish interpreter.
2
The letter is not contained in the record on appeal.
-3-
Dr. Seltzberg opined that defendant was malingering. Dr. Seltzberg concluded that “[a]t this
time, there is no evidence to suggest that Mr. Garcia is unaware of the nature of the charges
or purpose of the proceedings against him, nor that he would be unable to assist counsel in
his defense if he chose to do so,” but stated that she would nevertheless refer him for
psychological testing, which could further help to determine defendant’s fitness.
¶ 13 On July 23, 2009, another letter from Dr. Seltzberg was received. The letter stated that
psychological testing was scheduled for July 22, 2009, but had been canceled because an
interpreter was not available. The letter requested a continuance in order to complete the
evaluation, and the court granted a continuance. Several additional letters requesting
continuances were subsequently received, and on September 18, 2009, a letter from Dr.
Seltzberg to the trial court was received in which Dr. Seltzberg concluded within a
reasonable degree of medical and psychiatric certainty that defendant was fit to stand trial
based on her review of the available records, including psychological testing and clinical
examinations.
¶ 14 On the same day, the parties came before the court for the fitness hearing. The court and
APD Arthur Willis engaged in the following colloquy:
“APD WILLIS: Your Honor, this matter was transferred to us for fitness testing back
in May of this year. We finally have a report from Dr. Seltzberg. The report states that
Mr. Garcia is fit to stand trial.
THE COURT: You don’t want a hearing?
APD WILLIS: Fitness is presumed, Judge. There’s no hearing.”
The case was transferred back to Judge Scotillo in Rolling Meadows the same day.
¶ 15 On September 24, 2009, the parties came before Judge Scotillo and discussed the
proceedings before Judge Claps:
“APD DANIEL NARANJO: Before this was sent to 26th Street, I believe Mr. Garcia
was–this is Larry Kugler’s client. I believe he’s a public defender client, Judge.
THE COURT: I don’t know. I think maybe that you’re right. He was sent for a fitness
hearing.
APD NARANJO: Correct.
THE COURT: Do you know the outcome of that?
APD NARANJO: I don’t.
ASSISTANT STATE’S ATTORNEY [(ASA)] LYNN PALAC: Your Honor, he was
found fit.
THE COURT: He was found fit?
ASA PALAC: Yes.
THE COURT: Okay.”
¶ 16 On October 14, 2009, the parties came before the trial court to set a date for defendant’s
motion to suppress and the State’s section 115-10 hearing. The trial court recounted the
proceedings concerning fitness:
“THE COURT: Okay. The defendant was–the defense indicated that they had a bona
-4-
fide doubt as to fitness. A hearing was held, and he was found fit.”
¶ 17 On October 26, 2009, the parties again came before the court, and the ASA informed the
court that, in reviewing the court file, she noticed that Forensic Clinical Services had found
defendant fit to stand trial, but had not examined him for ability to understand his Miranda
rights or sanity at the time of the offense. In discussing whether the court should enter
another order, the court noted that “because the public defender indicated there was a bona
fide doubt as to fitness, a fitness hearing had to be held,” and APD Naranjo stated that “now
that the fitness hearing has been had, Judge, and he has been found fit, I believe we’re in a
better position to speak to him regarding the other issues we need evaluated.” The court
reordered evaluations for the issues of sanity and Miranda.
¶ 18 On January 7, 2010, a letter from Dr. Seltzberg to the trial court was received. In the
letter, Dr. Seltzberg stated that she evaluated defendant a number of times, most recently on
December 2, 2009, concerning defendant’s sanity at the time of the offense and his ability
to understand his Miranda rights. Dr. Seltzberg opined, to a reasonable degree of medical
and psychiatric certainty, that defendant was legally sane at the time of the offense. Due to
defendant’s lack of cooperation, Dr. Seltzberg had no opinion as to defendant’s ability to
understand his Miranda rights.
¶ 19 No other proceedings concerning defendant’s fitness were held.
¶ 20 B. Section 115-10 Hearing
¶ 21 On February 11, 2010, the parties came before the trial court for a hearing on the State’s
section 115-10 motion to admit certain statements made by the victim into evidence. The
State’s first witness was Elvia G., who was “like a cousin” to Elizabeth, the victim’s mother.
Elvia testified through an interpreter that on March 14, 2008, she was living in an apartment
in Palatine with Carlos, her husband; Elizabeth; defendant; and the victim, who was five
years old at the time. Elizabeth, defendant, and the victim had been living with Elvia and
Carlos for approximately two weeks. Elvia testified that she had known the victim since she
was a year old and would babysit her when Elizabeth and defendant were not home.
¶ 22 Elvia testified that on the morning of March 14, 2008, she asked the victim if she wanted
eggs for breakfast, and the victim began talking about defendant’s “eggs.” The victim told
Elvia that defendant “put his eggs in her parts” and that he did so both “[i]n the front” and
“from the back.” When the victim discussed her “part,” she touched her vaginal area and her
buttocks. The victim told Elvia that she was facedown when defendant touched her and that
it hurt her; the victim told Elvia that she would cry and defendant would place his hand over
her mouth so that she would not scream. The victim told Elvia that defendant was clothed
and forced the victim to take her clothes off.
¶ 23 The victim told Elvia that the incidents occurred on the bed in the bedroom where
Elizabeth slept at the apartment they lived in prior to moving in with Elvia. The victim told
Elvia that this occurred during the day “[a]ll the time while her mother was working,” but
could not tell Elvia the number of times it occurred because she did not know; Elvia testified
that the victim did not know how to count. She also told Elvia that if she did not remove her
clothes, defendant would hit her.
-5-
¶ 24 Elvia testified that after the victim told her about the incidents, Elvia called Carlos, her
husband, who told her to call the victim’s aunt, Maria Elena P. When Elvia called Maria,
Maria came to the apartment and spoke with the victim.
¶ 25 Elvia testified that her conversation with the victim lasted between 20 and 30 minutes.
She further testified that she had never heard the victim call male private parts “eggs” before,
nor had she ever heard the victim use any word to describe male genitalia. She testified that
she did not ask the victim any questions but that the victim simply told her everything.
¶ 26 The State’s next witness was Maria Elena P., Elizabeth’s sister-in-law, who also testified
through an interpreter. Maria testified that she had known the victim all her life and that
Elvia was her cousin’s wife. Maria testified that she did not visit the victim at all when the
victim lived with defendant, but that when the victim had lived with her father, Maria’s
brother,3 she saw her every day, since Maria lived there as well.
¶ 27 Maria testified that on March 14, 2008, she received a phone call from Elvia and went
to Elvia’s home. On the phone, Elvia told Maria that “the girl was telling her things,” but did
not tell Maria what the victim had told Elvia. When she arrived, Maria spoke to the victim
in the living room with Elvia present; Maria did not speak with Elvia prior to talking to the
victim. Maria asked the victim “what was happening with her” and the victim told Maria that
defendant “put his eggs on her parts.” The victim pointed to her vaginal area as the area
where defendant “put his eggs.” The victim told Maria that defendant told her to take off her
clothes and that one evening, defendant came to her room to turn off the heater and touched
her. The victim indicated that defendant would touch her in the vaginal area and in the chest
area. Maria did not ask the victim any other questions but was angry and called the police.
¶ 28 Maria testified that she did not ask the victim what an “egg” was, because in Mexico,
where Maria was from, “we know what the eggs are. *** That’s how they call the man’s
part, eggs.” Maria testified that in Mexico, both adults and children refer to a man’s penis
as “eggs,” but that she had never previously heard the victim use that term. Maria testified
that the victim told her the incidents occurred in the bedroom of their previous home.
¶ 29 The State’s next witness was Ninfi Martinez, a forensic interviewer and therapist at the
Children’s Advocacy Center (the CAC) of North and Northwest Cook County. Martinez
testified that on March 14, 2008, she interviewed the victim at the CAC; the interview was
conducted in Spanish. Martinez met the victim in the waiting room and introduced herself
to Elizabeth, then walked the victim to the interview room reserved for small children,
known as the “Mickey Mouse” room. The room contained a one-way mirror, behind which
were several individuals observing the interview, including a detective from the Palatine
police department and an assistant State’s Attorney; the room did not contain any recording
devices. Prior to the interview, Martinez had been given the names of the child, Elizabeth,
and defendant, and knew that there had been some inappropriate contact, but had no
additional information.
¶ 30 Martinez testified that the victim was five years and nine months old at the time of the
3
It is not clear when the victim lived with her father, Maria’s brother, and when defendant
began living with Elizabeth and the victim.
-6-
interview and appeared “somewhat scared” and timid. Martinez asked the victim her name
and age, which the victim gave; when the victim said she was five years old, she held up five
fingers. Martinez asked if she could count her fingers, and the victim was able to count them
correctly from one to five. The victim told Martinez that she was not attending school
because she had moved. Martinez asked the victim who she was living with and the victim
answered that she lived with Elvia, Carlos, and Elizabeth. Martinez asked the victim where
she lived before, and she said that she lived in another house with Elizabeth and nobody else.
The victim stated that there were no beds in the previous home and that they slept on
blankets; the victim told Martinez that Elizabeth only slept with her and nobody else. The
victim testified that she had no siblings or cousins, but only friends.4 Martinez asked if
anyone was behaving badly with her, and the victim replied only that a girl at school had
bitten her chest.
¶ 31 Martinez asked the victim if she knew the difference between the truth and a lie, and the
victim did not answer. Martinez then explained that she gave the victim three examples and
the victim was required to tell her if the example was the truth or a lie. First, Martinez said
that Elizabeth was sitting in the room, and the victim stated that was the truth. Next,
Martinez said that the victim’s name was L.P., and the victim stated that was the truth.
Finally, Martinez said that it was raining inside the interview room, and the victim stated that
was the truth. They then took a break from the interview, which lasted approximately 10
minutes.
¶ 32 After the break, Martinez asked the victim if she liked to draw, and they began drawing
pictures of Mickey Mouse. After they began drawing, the victim suddenly and quietly told
Martinez not to tell Elizabeth, but defendant was putting his “huevos,” or “eggs,”5 “[r]ight
here,” pointing to her vaginal area. She further stated that when he put his “eggs” there, he
moved back and forth. She told Martinez that when Elizabeth was not at home, defendant
would remove the victim’s clothes and his pants. Martinez asked the victim what happened
after defendant removed her clothes and his pants, and the victim did not respond. Martinez
asked the victim if she had actually seen defendant’s “eggs,” and the victim said yes; she
grabbed a crayon and made a long u-shape on the paper and said that those were defendant’s
“eggs.”
¶ 33 Martinez testified that the victim told her that the incidents occurred when Elizabeth went
to work and defendant stayed home with the victim. Martinez asked the victim why she did
not mention that defendant lived with her earlier, but the victim did not answer. Martinez
also asked the victim why she said not to tell Elizabeth, and the victim replied that Elizabeth
would be angry.
¶ 34 Martinez then gave the victim an anatomically correct drawing of a male child,
explaining to the victim that “it is a special drawing and not for playing because it has all the
body parts.” Martinez asked the victim to mark on the drawing the parts of the body that the
4
The record indicates that the victim actually had a brother who did not live with her.
5
For the sake of consistency, we refer to the term as “eggs” and not “huevos.”
-7-
victim called the “eggs.” The victim took a crayon and made a mark on the drawing’s penis;
Martinez testified that the victim specifically made a mark on the penis and not the testicles.
Martinez asked the child how many times she saw that part of defendant’s body, and the
victim told her “[m]any, many, many times.”
¶ 35 Martinez then gave the victim an anatomically correct drawing of a female child, again
explaining to the victim that it was a special drawing because it had all of its body parts. She
asked the victim to mark the parts of the body that defendant had touched with his “eggs.”
The victim marked the drawing’s vagina and buttocks. Martinez pointed to the mark that the
victim had made on the drawing’s vagina and asked the victim what defendant did with his
“eggs” on that part of her body. The victim replied that he “put them in there” and moved her
hips back and forth. The victim said that defendant did that to her “many, many, many
times.” Martinez then pointed to the mark that the victim had made on the drawing’s
buttocks and asked how defendant had touched that part of her body. The victim replied that
he had touched it with his “eggs.” Martinez asked the victim how she felt about it and the
victim replied that she “felt bad,” but was unable to explain what “bad” meant. Martinez
asked the victim how many times defendant had put his “eggs” on her buttocks, and the
victim replied, “many, many, many times, 1, 2, and 3” and wrote numbers on a piece of
paper. The victim later said that defendant touched her buttocks “more times, many times
and she said eight and nine. And then she wrote eight and nine on the piece of paper.” The
victim said that nobody else had ever done anything like that to her.
¶ 36 Martinez asked the victim where she was when defendant put his “eggs” in those parts
of her body, and the victim stated that it was in Elizabeth’s bedroom and that defendant laid
her down on the floor, then lay on top of her and began moving back and forth. Martinez
asked the victim if she told anyone about what defendant was doing to her, but the victim
said “nobody.” Martinez testified that the interview lasted approximately an hour, after which
Martinez took the victim back to Elizabeth.
¶ 37 Martinez testified that the purpose of a forensic interview such as the one she conducted
with the victim is not to determine whether or not a child has been sexually abused but to
“conduct a fact finding interview.” Martinez further testified that the questions she asked the
victim were open-ended and that it was not normal for a five-year-old to have knowledge of
the acts that the victim described; Martinez testified that the victim had age-appropriate use
of the terminology that she used. She further testified that the victim did not have any names
for her vaginal area or her buttocks.
¶ 38 Martinez testified that the term “huevos,” or “eggs,” is widely used in Mexico, including
in movies, television, and songs. The term is not used to describe the breakfast food, but is
used to describe the penis and testicles, “in the same way that [Martinez had] heard the word
balls used in the U.S.A. to describe the male parts.” It is an adult term, “but if the children
listen to them they will use those words.” Martinez testified that “it is very common” to hear
other Spanish-speaking children the victim’s age use the word to describe the penis.
¶ 39 After the three witnesses had testified, the trial court found their testimony as to the
victim’s statements about the charged offenses admissible pursuant to section 115-10 of the
Code.
-8-
¶ 40 C. Suppression Hearing
¶ 41 On March 11, 2010, the parties came before the court for a hearing on defendant’s
motion to suppress any statements he made to police. The defense’s first witness was
Detective Carlos Gonzalez of the Palatine police department. Gonzalez testified that he
interviewed defendant at approximately 10 p.m. on March 14, 2008, along with Detective
Art Delgadillo, the lead detective on the case. Prior to interviewing defendant, Gonzalez read
defendant his Miranda rights. Gonzalez interviewed defendant again just after midnight on
March 15, 2008, in the presence of Delgadillo and ASA Heightross.6 Gonzalez testified that
he is fluent in both English and Spanish, and he often assisted in interpreting between
Spanish and English in the course of the 10 years he had been with the Palatine police
department. Gonzalez testified that he was present during the interviews of defendant to
serve as a witness as well as to serve as an interpreter.7
¶ 42 Gonzalez testified that the 10 p.m. interview was conducted mostly by Delgadillo and
was conducted entirely in Spanish. Prior to the interview, Delgadillo read defendant his
Miranda rights in Spanish from a preprinted form. Gonzalez testified that the preprinted form
had a top portion that was in English and a bottom portion in Spanish. Defendant indicated
that he understood each right, after which Delgadillo asked him to sign and print his name,
which he did, and Delgadillo and Gonzalez signed the form as witnesses.
¶ 43 During the midnight interview, ASA Heightross was present along with Gonzalez and
Delgadillo; Heightross did not speak Spanish, so Gonzalez served as an interpreter while
Heightross asked questions in English. Gonzalez testified that he read defendant his Miranda
rights, again in Spanish. As he read defendant each right, defendant indicated that he
understood, then initialed the paper next to what was being interpreted. After Gonzalez had
read defendant all of his rights, defendant printed his name on the top portion of the
preprinted form, and Gonzalez, Delgadillo, and Heightross signed as witnesses. After
defendant’s second interview, Heightross prepared a handwritten statement. The statement
was placed on the table and Gonzalez translated it from English to Spanish; defendant signed
each page after it was translated.
¶ 44 The defense’s second witness was defendant, who testified through an interpreter.
Defendant testified that he was born in Guatemala and did not speak or understand English.
Defendant testified that on March 14, 2008, he was interviewed at the Palatine police
department. He testified that he was informed that he had the right to remain silent and that
anything that he said could be used against him in a court of law, but was not informed that
he had the right to consult an attorney, to have an attorney present during the interrogation,
or to have an attorney provided if he could not afford one. Defendant testified that before
being questioned by the police officers, he told them that he wished to call his friends so that
they could look for an attorney to represent him, and the police officers agreed, but later told
6
The record, and the parties, refer to the ASA as “Heightross” and “Heighross.” For the sake
of consistency, we use the spelling “Heightross.”
7
Gonzalez testified that Detective Delgadillo also spoke Spanish fluently.
-9-
him that there was no time for that. Defendant testified that he did not sign any documents
concerning his Miranda rights and testified that he was interviewed in English by a woman;
he did not recall being interviewed in Spanish. Defendant testified that he could not read or
write and was unable to sign even his name.
¶ 45 The trial court denied defendant’s motion to suppress.
¶ 46 II. Trial
¶ 47 Defendant’s first trial began on April 26, 2010, and ended on April 29, 2010, when the
trial court declared a mistrial because of a hung jury.
¶ 48 Defendant’s retrial began on August 9, 2010. The State proceeded on two counts of
predatory criminal sexual assault, one for contact between defendant’s penis and the victim’s
vagina and the other for contact between defendant’s penis and the victim’s anus; the
remaining counts were nol-prossed.
¶ 49 The State’s first witness was the victim, who was eight years old at the time of trial. The
victim testified that she spoke both Spanish and English, and mostly spoke Spanish when she
was at home. The victim testified that she was currently living with her aunt, but before that,
she lived with Elizabeth and Elvia. The ASA asked the victim several questions to test
whether the victim knew the difference between the truth and a lie, and the victim answered
appropriately. The victim then identified several body parts, such as the nose and mouth, then
was shown a picture of an unclothed female child. The victim identified the part of the body
used to go to the bathroom as the “[p]rivate part” and identified another part used to go to
the bathroom as the “[b]utt,” which was located “[o]n the back.” The victim testified that
both the front private part and the butt “have an inside and an outside part.”
¶ 50 The victim was then shown a picture of an unclothed male child. The victim identified
the part of the body that a boy uses to go to the bathroom as the “[p]rivate part,” but
explained that it was different than a girl’s private part, and testified that a boy also has a
“butt.”
¶ 51 The victim testified that when she was five years old, she lived with Elizabeth and Elvia,
her aunt. She also lived with Carlos, Elvia’s boyfriend, and defendant, Elizabeth’s boyfriend.
Prior to living with Elvia, she lived in a different apartment with Elizabeth and defendant.
When Elizabeth went to work, defendant would stay home and babysit the victim; defendant
did not have a job. The victim testified that defendant abused her by hitting her and
“touching [her] private parts” with his “private part.” In response to questions asking where
defendant touched her, the victim marked the picture of the unclothed female child on the
places she had identified as the “private part” and the “butt.” The victim testified that when
defendant touched her private part with his private part, it went inside her private part, which
she knew because she “feeled it”; the victim testified that “[i]t hurts a lot.” She further
testified that when defendant touched her butt with his private part, it went inside her butt,
which she knew because she “feeled it”; the victim again testified that “[i]t hurts.”
¶ 52 The victim testified that she told defendant to stop but he did not. She further testified
that both she and defendant were unclothed when defendant touched her; defendant took her
clothes off, as well as his own. When defendant touched her private part with his private part,
-10-
the victim was “laying down” on a bed “on [her] tummy.” She could not recall the number
of times that defendant had touched her, but testified that it was more than three times; each
time, it was in the apartment and the victim was lying on her “tummy” or on her back.
¶ 53 The victim testified that once they moved in with Elvia, she told Elvia about what
defendant had done. After she told Elvia, she told her Aunt Maria and another aunt; she told
them what had occurred in Spanish. The victim testified that she did not say anything earlier
because she was “scared” of defendant. After she told her aunts what had occurred, she was
taken to a place to talk to another woman about what had happened. She talked to the woman
in Spanish and told her what defendant had done to her.
¶ 54 The victim testified that approximately a year later, she spoke to the same woman again
about Elizabeth. She told the woman that Elizabeth had touched her private part with her
finger, and showed her on a picture what she meant by “private part.” Several years after that,
the victim came to a courtroom and was asked about Elizabeth touching her. On that day,
Elizabeth was in the courtroom, and it had been a long time since the victim had seen her.
When she was asked whether Elizabeth had touched her, the victim had testified that she had
not; the victim testified that she had missed Elizabeth then. The victim testified that she had
not seen Elizabeth since then and that she still missed her and wanted to see her again.
¶ 55 On cross-examination, the victim testified that she could not recall how long they lived
in the apartment, but knew it was through the spring and summer, but not the winter. The
victim testified that she and Elizabeth had separate bedrooms. The victim testified that she
could not recall the time of day when defendant first touched her, but knew that it was during
the spring and not during a school day, so she was home all day. The victim testified that she
was in her room and Elizabeth’s room when defendant touched her. She was sleeping on a
bed when defendant first approached her; the victim testified that she never told the woman
that she spoke to that she did not have a bed in her room. The victim testified that she was
sleeping in her school clothes, which defendant removed. She woke up when she heard the
door open, but defendant did not say anything; the victim testified that she was afraid of
defendant. When he came into the room, he turned off a fan, and then climbed “on top of”
the victim, which hurt her. He grabbed the victim and carried her to Elizabeth’s room, where
he placed her on the bed. He took the victim’s clothes off and touched her. The victim
testified that he hit her in her private part with his private part and that it lasted “[a] long
time.” The victim testified that she had never seen a man’s private part before that first time
and that nothing came out of his private part. When he was finished, he carried the victim
back to her room, and he went back to Elizabeth’s room. The victim did not tell Elizabeth
when she came home.
¶ 56 The victim testified that she had marks on her back because defendant hit her with a
“cleaner,” which was a hard object. She did not tell the woman she spoke to about the marks.
¶ 57 The victim testified that the second time that defendant did something bad to her was the
next day. She was sleeping in her room because it was a Saturday; the victim was wearing
her pajamas. Defendant came into her room and woke her by turning on the fan. He carried
her into Elizabeth’s room, where he touched her. The victim testified that this time, he spoke
to her. He took both of their clothes off, but did not hit her; the victim testified that the
-11-
bruises were gone from the first time.
¶ 58 The victim testified that defendant touched her private parts with his private parts “[a]
lot of times,” approximately 20 times; more specifically, she testified that he put his penis
in her front private part 20 times and in her back private part 20 times. The victim never told
Elizabeth what defendant was doing to her, and other than the first time, she never had any
marks or bruises.
¶ 59 The victim testified that she also talked to the same woman many months later about
Elizabeth and told the woman that Elizabeth put her finger in the victim’s front private part,
demonstrating it on a doll. Later, when she came to a courtroom, she stated that it was not
true. The victim testified that she told the woman that Elizabeth had done so “[b]ecause Elvia
told me” to tell her that. The victim testified that when she came to court and saw her mother,
she wanted to be back with her mother. She testified that defendant was not her father and
that prior to living with defendant, she lived with Elizabeth and her father; the victim
testified that she did not want to live with defendant.
¶ 60 The State’s next witnesses were Maria Elena P. and Elvia G., both of whom testified
through an interpreter. Both Maria and Elvia testified similarly to their testimony during the
hearing on the State’s section 115-10 motion. Additionally, Elvia testified that in Mexico,
the term “huevos” was also used to mean a man’s penis.
¶ 61 The State’s next witness was Dr. Afsoon Karimi, who was employed by Loyola
University as an assistant professor and director of its child abuse division; Dr. Karimi
testified that she was a board-certified pediatrician with a subspecialty in the area of child
abuse and neglect. Dr. Karimi testified that she evaluated the victim on March 18, 2008, at
the Hoffman Estates CAC. Dr. Karimi had been informed by the advocate that worked at the
CAC that the victim had a victim-sensitive interview in which she had disclosed genital-
genital and genital-anal contact or penetration, and that the perpetrator was an adult male.
Dr. Karimi received a medical history from Elizabeth prior to the examination, then
performed a head-to-toe examination of the victim, which was normal.
¶ 62 Dr. Karimi then performed a genital examination of the victim; she testified that in her
experience of examining over 3,000 patients, over 95% of the time, the genital examination
is normal. She testified that in the victim’s case, the victim had a normal genital examination.
Dr. Karimi explained that penetration was still consistent with a normal genital evaluation:
“It’s very normal to have a normal exam in cases of allegations of child sexual abuse.
Even though there are genital-to-genital contact, genital-to-genital penetration, genital-
anal contact, genital-anal penetration, we can still have normal examination. It’s not
surprising. More than 95 percent of the time, a normal exam.”
Dr. Karimi testified that this could still be the case where an adult male had inserted his penis
into a five-year-old girl’s vagina because of the flexibility and elasticity of the vagina and
hymen, as well as its capability of healing quickly without leaving scars; Dr. Karimi further
testified that “penetration” could include rubbing the penis between the labia and not
necessarily intravaginal penetration.
¶ 63 Dr. Karimi testified that it was not unusual for there to be no tear in the victim’s vaginal
or hymen area. Dr. Karimi then testified:
-12-
“Q. So is it your testimony that trauma to the vaginal area can occur with injury? It’s
possible to have injury?
A. Correct.
Q. But is it also your testimony that trauma can occur to the vaginal area and present
no injury whatsoever?
A. Correct.
Q. It doesn’t matter whether there are signs of injuries or not. That would still be
consistent with the allegation of genital-to-genital contact with penetration in this case;
is that right?
A. Yes, correct.”
¶ 64 Dr. Karimi testified that after examining the victim’s vaginal area, she examined the
victim’s anal area, and the anal exam was also normal. She testified that a normal anal exam
was even more common than a normal vaginal exam due to its flexibility and fast healing,
and that out of her 3,000 patients, only one had an anal finding. She further testified:
“Q. If there were anal penetration as late as February 2008, how is that–the fact that
there was penetration, how is that consistent with you not finding any injury to the anal
area on March 18th?
A. That’s not unusual to have no findings, especially anal findings, during that
examination in March of 2008.
Q. So is it your testimony that trauma to the anal area can occur with signs of injury?
A. Yes.
Q. And is it also your testimony that trauma can occur to the anal area without any
sign of injury whatsoever?
A. Correct.
Q. It doesn’t matter whether there were signs of injuries in this case. It still would be
consistent with [the victim] having genital-to-anal contact with possible penetration?
A. Correct.”
¶ 65 Dr. Karimi testified that no sexual assault kit was completed in the instant case, because
“[t]here wasn’t any point of doing it,” given the amount of time that had passed since the last
contact between the victim and defendant. Dr. Karimi opined, within a reasonable degree of
medical certainty, that the victim’s “constellation of medical findings was consistent with
child sexual abuse, genital-genital contact, genital-anal contact, genital-genital penetration,
genital-anal penetration.” Dr. Karimi further testified that her opinion was “[b]ased on [her]
experience, [her] education, based on literature, other people who had the same experience.”
¶ 66 On cross-examination, Dr. Karimi repeated that all of the victim’s tests were “absolutely
normal.” Dr. Karimi further testified:
“Q. *** [T]hese findings are completely consistent with a child who has never been
sexually abused; isn’t that correct?
A. A normal exam doesn’t mean that a child is abused or not abused. I don’t know.
I wasn’t there.
-13-
Q. I understand, but if it’s a normal exam, that’s completely consistent with a child
who was never sexually abused; isn’t that correct, a normal exam?
A. A normal exam is consistent with–really, if there is any history of child sexual
abuse, it might or might not be. I don’t know.
***
But in this case there was a history of child sexual abuse. Well, now when we have
the history and normal exam, I’m not surprised because most of the time the kids who
have the history of sexual abuse have the normal examination.
And I’m not the one who determines that the kids have been sexually abused or not
because there are investigators, there are DCFS workers. I mean–
***
–my job as a physician–I’m sorry. My job as a physician is just to look at the child
medically to see if they are healthy or not, and she was healthy.
Q. Exactly.
And that would be consistent with a child who was not sexually abused?
A. A child who is not sexually abused can have [a] normal examination or not have
a normal examination for whatever reason.
Q. [The victim], her examination was consistent with a child who had not been
sexually abused; isn’t that true?
***
A. [The victim’s] examination was normal, including general exam and genital-anal
exam. And a kid who hasn’t been sexually abused can have a normal examination, yes,
and any kid who has been sexually abused can have a normal exam, too.
So she’s which one of them? I don’t know.
But it’s another part of the investigation that has nothing to do with my job.”
¶ 67 The State’s next witness was Ninfa Martinez, who testified consistently with her
testimony at the hearing on the State’s section 115-10 motion. Additionally, she testified that
she was a licensed clinical professional counselor and a licensed marriage and family
therapist and had performed approximately 1,000 forensic interviews with children from 3
to 18 years old, 95% of which had been conducted in Spanish. She further testified that her
interview with the victim was not recorded in any way because, while the CAC now had the
capability to record, in 2008, it did not.
¶ 68 The State’s final witness was Detective Carlos Gonzalez, who testified consistently with
his testimony at the suppression hearing. Additionally, he testified that on March 14, 2008,
he received a dispatch call sometime after 3 p.m. to go to an address in Palatine because
Cook County sheriff’s police were there with an individual who had alleged that she was
sexually abused; Gonzalez was the first officer from Palatine to respond. Gonzalez testified
that he met the victim, who was accompanied by Elizabeth, Maria, and Elvia; defendant was
also present. Based on the information that he had received, Gonzalez asked them if they
would accompany him to the police department for further investigation. The victim,
-14-
Elizabeth, Maria, and Elvia drove separately, but defendant told Gonzalez that he had no way
to go to the police station since he did not have a driver’s license. Gonzalez testified that two
detectives offered him a ride to the police station; defendant was not handcuffed at that time.
At the police station, defendant sat in a conference room while the others sat either in the
lobby or in a smaller conference room; defendant was not handcuffed or otherwise restrained.
¶ 69 Gonzalez testified that he spoke with each adult individually and away from the others;
he did not speak with the victim but instead sent her for a forensic interview with the
Hoffman Estates CAC, which was standard procedure for a child that age. After the interview
had concluded, Gonzalez returned to the police station, where he and Detective Delgadillo
spoke with defendant.
¶ 70 Gonzalez testified that after reading defendant his Miranda rights, he and Delgadillo
began questioning defendant; defendant’s demeanor was “calm and cooperative and very
forthcoming. He was honest. He was remorseful.” Once they confronted defendant with the
allegations that the victim had made, defendant admitted what he had done. The detectives
contacted ASA Heightross.
¶ 71 After defendant was again read his Miranda rights, ASA Heightross spoke with
defendant, with Gonzalez translating; Gonzalez testified that he translated word-for-word
what was said. After speaking with defendant, ASA Heightross prepared a six-page written
statement, which Gonzalez translated. After the statement was prepared, Gonzalez translated
what was written into Spanish for defendant. Gonzalez testified that statements are written
in English because when they are presented in court “it needs to be legible and the people
need to be able to read it.”
¶ 72 Defendant’s statement was then offered and received into evidence and then published
to the jury. In the statement, defendant stated that in January 2008, he began having sexual
relations with the victim while Elizabeth was at work. This happened a total of four times,
twice in January 2008 and twice in February 2008. All four times, it occurred in a small room
where the victim slept on the floor. Defendant pulled down the victim’s underwear and
placed his penis in her vagina or buttocks from behind while the victim was laying on her
stomach. The victim told him to stop but he did not. He ejaculated on the victim’s buttocks
and cleaned her off with a towel. The last time, defendant did not remove his or the victim’s
underwear and rubbed his penis on the victim’s vagina and buttocks until he ejaculated in
his underwear. The first two times, defendant told the victim not to tell her mother.
Defendant also admitted to placing his penis into the victim’s vagina for sexual gratification.
¶ 73 The State rested and defendant made a motion for a directed finding, which the trial court
denied. The defense did not present any evidence and defendant did not testify.
¶ 74 The jury found defendant guilty of both counts of predatory criminal sexual assault.
¶ 75 On September 8, 2010, defendant filed a posttrial motion for a new trial, and filed an
amended posttrial motion on September 16, 2010, which the trial court denied.
¶ 76 On October 12, 2010, after presenting evidence in mitigation,8 defendant was sentenced
8
The State stated that it did not wish to present any evidence in aggravation.
-15-
to eight years in the Illinois Department of Corrections on each of two counts of predatory
criminal sexual assault, to be served consecutively.
¶ 77 On November 1, 2010, defendant filed a motion to vacate or reduce his sentence, which
the trial court denied. Defendant timely filed a notice of appeal.
¶ 78 ANALYSIS
¶ 79 On appeal, defendant argues: (1) the State did not prove him guilty beyond a reasonable
doubt, (2) the trial court erred by admitting the victim’s out-of-court statements into
evidence, (3) the trial court erred by permitting the State’s expert to testify to a medical
opinion for which there was no foundation, and (4) defendant’s due process rights were
violated when he did not receive a fitness hearing and no independent judicial determination
of defendant’s fitness was made. We consider each argument in turn.
¶ 80 I. Reasonable Doubt
¶ 81 Defendant first argues that the State did not prove him guilty of predatory criminal sexual
assault beyond a reasonable doubt because (1) the victim’s testimony was incredible, (2) the
victim’s statements to Elvia, Maria, and Martinez were incredible, (3) there was no physical
evidence presented, and (4) defendant’s statement to the police was not reliable. In order to
be convicted of predatory criminal sexual assault of a child, the accused must be 17 years of
age or over, the victim must be under 13 years of age, and the accused must commit “an act
of sexual penetration” with the victim. 720 ILCS 5/12-14.1(a)(1) (West 2006). “Sexual
penetration” is further defined as “any contact, however slight, between the sex organ or anus
of one person by an object, the sex organ, mouth or anus of another person.” 720 ILCS 5/12-
12(f) (West 2006).
¶ 82 When reviewing the sufficiency of the evidence in a criminal case, we must determine
whether, after viewing the evidence in the light most favorable to the State, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Smith, 185 Ill. 2d 532, 541 (1999).
“[A] reviewing court will not reverse a criminal conviction unless the evidence is so
unreasonable, improbable or unsatisfactory as to create a reasonable doubt of the defendant’s
guilt.” People v. Rowell, 229 Ill. 2d 82, 98 (2008). A reviewing court does not retry the
defendant or substitute its judgment for that of the trier of fact with regard to the credibility
of witnesses or the weight to be given to each witness’s testimony. People v. Jackson, 232
Ill. 2d 246, 281 (2009); People v. Ross, 229 Ill. 2d 255, 272 (2008). Instead, “it is our duty
to carefully examine the evidence while bearing in mind that the trier of fact is in the best
position to judge the credibility of witnesses, and due consideration must be given to the fact
that the fact finder saw and heard the witnesses.” People v. Herman, 407 Ill. App. 3d 688,
704 (2011) (citing People v. Cunningham, 212 Ill. 2d 274, 280 (2004), and People v. Smith,
185 Ill. 2d 532, 541 (1999)).
¶ 83 Defendant first focuses on the victim’s statements, both in court and to Elvia, Maria, and
Martinez, arguing that her testimony was impeached through “inconsistencies,
contradictions, [the victim’s] inability to differentiate between the truth and a lie, and the
-16-
similar false allegations [the victim] made against her mother.” Defendant claims that the
fact that the victim made similar false accusations against Elizabeth “significantly
undermines her credibility,” as does the fact that there are inconsistencies in what the victim
told Elvia, Maria, and Martinez. We do not find defendant’s argument persuasive.
¶ 84 “[A] complainant’s testimony need not be unimpeached, uncontradicted, crystal clear,
or perfect in order to sustain a conviction for sexual abuse. [Citations.] Where minor
inconsistencies or discrepancies exist in a complainant’s testimony but do not detract from
the reasonableness of her story as a whole, the complainant’s testimony may be found to be
adequate to support a conviction for sexual abuse. [Citations.]” People v. Soler, 228 Ill. App.
3d 183, 200 (1992). In the case at bar, we cannot find that the inconsistencies in the victim’s
testimony and prior outcry to Elvia, Maria, and Martinez are so egregious as to detract from
the reasonableness of her story as a whole. The victim consistently stated that defendant “put
his eggs in her parts,” meaning her vagina and buttocks, and that he did so at their previous
apartment while Elizabeth was at work. The victim was also able to identify a male’s “eggs”
in a drawing and drew a picture of defendant’s “eggs.” By contrast, the discrepancies pointed
to by defendant involve such minor matters as whether the incidents occurred on a bed or on
a blanket, or whether they occurred in the victim’s room or in Elizabeth’s. Defendant argues
that if the victim was coached or her testimony was otherwise suggested, it “make[s] sense”
that the victim would be consistent in the major allegations but inconsistent in the smaller
details, “because she would have had to invent that information on her own.” However, it is
not our function as a reviewing court to engage in this sort of speculation. Instead, we
examine the evidence in the record to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S.
at 319; Smith, 185 Ill. 2d at 541. Here, we cannot find that any inconsistencies in the victim’s
account are so serious as to prevent a rational trier of fact from finding defendant guilty
beyond a reasonable doubt.
¶ 85 Additionally, “discrepancies in testimony *** do not necessarily destroy the credibility
of a witness, but go only to the weight to be afforded his testimony.” People v. Ranola, 153
Ill. App. 3d 92, 98 (1987); People v. Tirado, 254 Ill. App. 3d 497, 513 (1993). In the case at
bar, all of the testimony, from the victim and from Elvia, Maria, and Martinez, was before
the jury, and the jury was able to hear any inconsistencies in the victim’s account and
determine the proper weight to be afforded that testimony. The jury was also able to hear that
the victim incorrectly answered Martinez’s questions about the difference between the truth
and a lie, and observe her answer similar questions when testifying. Given the fact that the
jury was in the best position to observe the witnesses and judge their credibility, we cannot
find that its decision to believe the victim’s account was in error.
¶ 86 Defendant also argues that “child testimony should be viewed suspiciously because
children are more vulnerable to suggestion and are unable to separate recollected suggestion
from reality.” However, defendant fails to recognize that several of the cases he cites, while
supporting that claim, also note that one way to help alleviate concerns about a statement’s
reliability is to ensure a face-to-face confrontation between the child and the accused. See,
e.g., Coy v. Iowa, 487 U.S. 1012, 1020 (1988) (noting that a face-to-face confrontation
between the accused and the accuser may serve to “confound and undo the false accuser, or
-17-
reveal the child coached by a malevolent adult”); Maryland v. Craig, 497 U.S. 836, 869
(1990) (Scalia, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.) (pointing to
“[t]he value of the confrontation right in guarding against a child’s distorted or coerced
recollections” in preventing convictions of innocent people based on a child’s erroneous
testimony). Here, there was such a face-to-face confrontation: the victim was present and
testified in court.
¶ 87 Finally, while it is troubling that the victim falsely accused Elizabeth of assaulting her
and testified that she did so “[b]ecause Elvia told [her]” to, we cannot say this fact alone
renders the victim’s testimony and prior outcry incredible. The accusation against Elizabeth
was made a year after the allegations in the case at bar. We also must bear in mind that the
Illinois Supreme Court has “specifically rejected the use of evidence of specific past
instances of untruthfulness to impeach a witness’ truthfulness.” People v. Cookson, 215 Ill.
2d 194, 216 (2005). Here, we are dealing with a later instance of untruthfulness and the jury
was apprised of the false accusation and still found sufficient evidence to find defendant
guilty. Accordingly, for the false accusation against Elizabeth to be used to attack the
victim’s credibility, it would need to be used as evidence that the victim possessed an
improper interest, bias, or motive to lie. See Cookson, 215 Ill. 2d at 216. Here, defendant
argues that the false accusation against Elizabeth demonstrates the victim’s motive to lie:
“[b]ecause Elvia told [her]” to. Defendant argues if Elvia told the victim to lie about
Elizabeth, “it is certainly possible” that Elvia also told the victim to lie about defendant, and
that this information undermines both the victim’s and Elvia’s testimony. We do not find this
argument persuasive, since, as we have noted, the jury was able to hear both that the victim
falsely accused Elizabeth and that she did so because Elvia told her to. Moreover, our review
does not focus on what is “possible,” but on whether, taking the evidence in the record in the
light most favorable to the State, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Smith, 185
Ill. 2d at 541.
¶ 88 In the case at bar, each claim that defendant makes to the victim’s statements was before
the jury and the jury was able to consider it in deciding what weight to give to the victim’s
testimony. For instance, the jury heard that the victim had accused Elizabeth of touching her,
then recanted that testimony at Elizabeth’s trial. The jury also heard the victim, Elvia, Maria,
and Martinez testify as to defendant’s conduct and was able to hear any contradictions in the
victim’s account, and also heard Martinez’s testimony about the victim’s difficulty telling
the difference between the truth and a lie. Essentially, defendant argues that the victim’s
statements should not have been given any weight by the jury because the victim was
impeached. However, as noted, we may not substitute our judgment for that of the trier of
fact with regard to the credibility of witnesses and will not do so here. See Jackson, 232 Ill.
2d at 281; Ross, 229 Ill. 2d at 272.
¶ 89 Defendant next points to the fact that there was no physical evidence to demonstrate that
he was proven guilty beyond a reasonable doubt. Defendant is correct in stating that there
was no medical evidence showing trauma to the victim’s genitals. However, courts have held
that evidence of trauma is unnecessary because the statute considers penetration to have
occurred as a result of “any contact, however slight, between the sex organ or anus of one
-18-
person by an object, the sex organ, mouth or anus of another person.” (Emphasis added.) 720
ILCS 5/12-12(f) (West 2006); see, e.g., People v. Hillier, 392 Ill. App. 3d 66, 69 (2009) (“A
jury may reasonably infer than an act of penetration occurred based on testimony that the
defendant ‘rubbed,’ ‘felt’ or ‘handled’ the victim’s vagina.” (quoting People v. Bell, 234 Ill.
App. 3d 631, 636 (1992))); People v. Fryer, 247 Ill. App. 3d 1051, 1058 (1993) (finding the
defendant’s argument that there was insufficient evidence to show penetration because there
was no medical evidence “untenable,” since “[i]t has been expressly rejected”); People v.
Diaz, 201 Ill. App. 3d 830, 834 (1990) (“Although medical testimony is of value in cases of
sexual abuse, even where there is no such testimony, the testimony of the victim alone will
support a conviction unless that testimony is unbelievable as a matter of law.”); People v.
Morgan, 149 Ill. App. 3d 733, 738 (1986) (“It is not necessary that corroborating medical
evidence be admitted to prove that penetration did occur.”). For instance, the defendant in
People v. Moore, 199 Ill. App. 3d 747, 773 (1990), argued that without evidence of trauma
and with the victim’s hymen still intact there could not have been penetration. We rejected
that argument, holding that “it is clear that the statutory definition does not require physical
penetration but merely requires contact.” Moore, 199 Ill. App. 3d at 773. Likewise, here, the
jury could properly have found defendant guilty beyond a reasonable doubt despite the lack
of physical evidence. In addition, the medical testimony of Dr. Karimi demonstrated that
trauma or penetration can occur and “present no injury whatsoever.”
¶ 90 Finally, defendant argues that his statement to the police was unreliable and therefore
insufficient to support a finding of guilt. Defendant points to the fact that the statement he
signed was written in English, but he neither speaks nor reads English. We do not find
defendant’s argument persuasive. The record clearly demonstrates that defendant was read
his Miranda rights, twice, in Spanish, was interviewed in Spanish, and had a word-for-word
Spanish translation of his statement read to him by Detective Gonzalez. Thus, defendant’s
argument that his “signed written statement was written in a language that [defendant] could
not read, write or speak” is not an accurate statement of the record and does not provide a
basis for finding the statement so unreliable that no rational jury could have found defendant
guilty beyond a reasonable doubt. Defendant attempts to cast doubt on the accuracy of
Gonzalez’s translation, “given the extent to which [D]etective Gonzalez was involved in the
investigation,” but there is absolutely no evidence in the record that Gonzalez behaved
improperly and we will not speculate that he did. Furthermore, as in the case of the reliability
of the victim’s statements, the jury was able to hear testimony concerning the circumstances
under which defendant signed his written statement and was able to weigh the testimony and
the content of the statement accordingly.
¶ 91 In light of the victim’s testimony; the testimony of Elvia, Maria, and Martinez; and
defendant’s statement admitting to the crime, we find that a rational jury certainly could have
found defendant guilty beyond a reasonable doubt and, accordingly, affirm the trial court.
¶ 92 II. Section 115-10 Statements
¶ 93 Defendant’s second argument on appeal is that he is entitled to a new trial because the
trial court erred in admitting the victim’s out-of-court statements to Elvia, Maria, and
-19-
Martinez pursuant to section 115-10 of the Code because the State failed to prove the
reliability of the statements.
¶ 94 Section 115-10 provides:
“(a) In 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:
(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 act or physical act
against that victim.” 725 ILCS 5/115-10(a) (West 2006).
However, section 115-10 further provides:
“(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury 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
which is the subject of the statement; and
(3) In a case involving an offense perpetrated against a child under the age of 13,
the out of court statement was made before the victim attained 13 years of age or
within 3 months after the commission of the offense, whichever occurs later, but the
statement may be admitted regardless of the age of the victim at the time of the
proceeding.” 725 ILCS 5/115-10(b) (West 2006).
In the case at bar, defendant argues that the victim’s outcry to Elvia, Maria, and Martinez was
not sufficiently reliable based on the time, content, and circumstances of the outcry, and
therefore, the trial court erred in admitting the testimony of the outcry witnesses.
¶ 95 “When conducting a section 115-10 hearing, a trial court must evaluate the totality of the
circumstances surrounding the making of the hearsay statements.” People v. Simpkins, 297
Ill. App. 3d 668, 676 (1998); People v. Sharp, 391 Ill. App. 3d 947, 955 (2009). “In
determining the reliability of the child’s hearsay statement, relevant factors include, but are
not limited to, (1) the spontaneity and consistent repetition of the statement; (2) the mental
state of the child in giving the statement; (3) the use of terminology not expected in a child
of comparable age; and (4) the lack of a motive to fabricate.” People v. Bowen, 183 Ill. 2d
103, 120 (1998) (citing People v. West, 158 Ill. 2d 155, 164 (1994)).
¶ 96 “The State, as the proponent of the challenged statements, [bears] the burden of
establishing that the statements were reliable and not the result of adult prompting or
manipulation.” People v. Zwart, 151 Ill. 2d 37, 45 (1992). The admission of evidence
pursuant to section 115-10 of the Code is reviewed for an abuse of discretion. Bowen, 183
-20-
Ill. 2d at 120; Zwart, 151 Ill. 2d at 44. “ ‘An abuse of discretion occurs when the [court’s]
ruling is arbitrary, fanciful, or unreasonable, or when no reasonable person would take the
same view.’ ” Sharp, 391 Ill. App. 3d at 955 (quoting People v. Robertson, 312 Ill. App. 3d
467, 469 (2000)).
¶ 97 In the case at bar, the trial court found the statements made to Elvia, Maria, and Martinez
to contain sufficient safeguards of reliability. The court noted that the victim’s repeated
statements were consistent, that there was no motive to falsify, and that she spoke in age-
appropriate terms; the court further noted that the victim’s difficulty in answering Martinez’s
questions about the difference between the truth and a lie “goes to the weight of the
testimony.” The jury also heard all of this testimony during trial and made its own credibility
determinations. We cannot find that the trial court’s decision was an abuse of discretion.
¶ 98 First, the victim’s statement to each outcry witness was substantially consistent with the
statements she made to the other outcry witnesses. See Sharp, 391 Ill. App. 3d at 956 (noting
that statements were “substantially consistent” as a factor in favor of the statement’s
reliability). As in his argument concerning the sufficiency of the evidence, defendant here
argues that there were several significant contradictions in the statements. However, as noted,
the discrepancies pointed to by defendant involve such minor matters as whether the
incidents occurred on a bed or on a blanket, or whether they occurred in the victim’s room
or in Elizabeth’s. There is no dispute that the victim consistently stated that defendant “put
his eggs in her parts,” meaning her vagina and buttocks, and that he did so at their previous
apartment while Elizabeth was at work.
¶ 99 The statements were also spontaneous and not the result of leading questions. Elvia
testified that she was asking the victim about breakfast when the victim began speaking
about defendant’s “eggs,” and that Elvia did not ask the victim any questions. Likewise,
Maria testified that the only question she asked the victim was “what was happening with
her” and that she did not even know about the content of the victim’s statement to Elvia prior
to speaking with the victim. Finally, Martinez testified that the only information she knew
prior to her interview with the victim was the names of the victim, Elizabeth, and defendant
and that there had been some inappropriate conduct. Martinez also testified that the purpose
of a forensic interview such as the one she conducted with the victim is not to determine
whether or not a child has been sexually abused but to “conduct a fact finding interview.”
Martinez further testified that the questions she asked the victim were open-ended and that
the victim spontaneously brought up the subject of defendant’s conduct while they were
drawing.
¶ 100 Defendant points to the fact that the victim could not tell the difference between the truth
and a lie before Martinez, and told her several untrue statements, as weighing against the
reliability of the statements. Likewise, defendant notes that Martinez specifically asked the
victim if anyone was behaving badly toward her and the victim only told Martinez about a
girl who had bitten the victim’s chest. If Martinez was the sole outcry witness and the victim
had lied to her, it would weigh against the statement’s reliability. However, in the case at bar,
the victim spoke to Elvia, Maria, and Martinez individually and repeated the same account
of defendant “put[ting] his eggs in her parts.” Thus, as noted above, the victim consistently
and spontaneously made the same statement to three different people, which weighs in favor
-21-
of finding the victim’s statements reliable. Consequently, we cannot say that the trial court
abused its discretion by finding the victim’s statements reliable despite the victim’s behavior
before Martinez.
¶ 101 Defendant claims that the victim’s delay in her initial outcry to Elvia weighs against the
trial court’s finding of reliability. However, defendant agrees that a “delay in reporting abuse
or initial denials of abuse will not automatically render a victim’s statements inadmissible
under section 115-10.” Zwart, 151 Ill. 2d at 46. Here, the victim made the initial outcry to
Elvia approximately two weeks after moving in with her. It is not clear from the record how
often the victim had been alone with Elvia since moving in; Elvia testified that defendant
normally babysat the victim and that she only filled in when both Elizabeth and defendant
were unavailable. Additionally, delays of longer than two weeks have been found acceptable
in determining a statement’s reliability under section 115-10. See, e.g., People v. Jahn, 246
Ill. App. 3d 689, 704 (1993) (statements made nearly eight months after the incident); People
v. Anderson, 225 Ill. App. 3d 636, 649 (1992) (statements made a month after the victim left
the home of his abusers and after denying any sexual abuse more than 20 times over the
course of a year). Thus, without more, we cannot say that the two weeks that passed prior to
the victim making her initial outcry cause her statements to be unreliable.
¶ 102 Next, defendant argues that the victim used age-inappropriate terminology, which weighs
against a finding of reliability. Defendant agrees that the victim’s lack of terminology for her
own vagina and buttocks was age-appropriate, but argues that the use of the term “huevos,”
or “eggs,” was age-inappropriate and calls into question the reliability of her statements.
Martinez testified that the victim had age-appropriate use of the terminology that she used,
and that the term “huevos,” or “eggs,” is widely used in Mexico, including in movies,
television, and songs. Martinez testified that it is an adult term, “but if the children listen to
them they will use those words” and further testified that “it is very common” to hear other
Spanish-speaking children the victim’s age use the word to describe the penis. Accordingly,
the victim’s description of defendant’s “eggs” does not weigh against the statements’
reliability.
¶ 103 Defendant argues that defendant had a motive to fabricate her account, since defendant
was not the victim’s father and the victim testified that she did not want to live with him; she
also made the first two outcry statements to Elvia and Maria, two individuals who were
estranged from the victim and Elizabeth while they were living with defendant and “may
have disapproved of” defendant. At trial, the victim testified that defendant was not her
father and that prior to living with defendant, she lived with Elizabeth and her father; the
victim testified that she did not want to live with defendant and was afraid of defendant. We
cannot say that this testimony indicates a motive to fabricate the account against defendant,
nor is there any indication in the record that Maria or Elvia “disapproved” of defendant, or
that the victim knew of this disapproval such that she would fabricate a story to take
advantage of it.
¶ 104 Defendant also points to the victim’s fabrication of the allegations against Elizabeth, and
the fact that the victim testified that Elvia told her to lie, as weighing against the statements’
reliability. However, as noted, the allegations against Elizabeth occurred nearly a year after
the events in the case at bar. Additionally, the record only indicates that the victim told
-22-
Martinez about Elizabeth’s alleged conduct; here, by contrast, the victim made three separate
statements to three different people. Most importantly, even if this fact weighed against the
statements’ reliability, the other factors all weigh in favor of reliability. Consequently, we
cannot say the trial court’s decision to admit the statements pursuant to section 115-10 was
an abuse of discretion.
¶ 105 As a final matter, defendant argues that the fact that the victim’s interview with Martinez
was not recorded makes the statement unreliable. Defendant is correct that recording
interviews is preferred whenever possible. See Simpkins, 297 Ill. App. 3d at 677-78 (noting
that recording an interview “provides the best evidence that no adult prompting or
manipulation occurred”). However, here, Martinez testified that at the time she interviewed
the victim, the CAC did not have the capability to record interviews. Thus, this is not a case
where Martinez could have recorded the interview, but chose not to; instead, Martinez was
unable to record the interview because the CAC did not have the capability. Accordingly, the
lack of a recording does not render the statement unreliable and we affirm the trial court’s
decision.
¶ 106 III. Medical Opinion
¶ 107 Defendant next argues that he is entitled to a new trial because the trial court erred in
permitting Dr. Karimi to testify that her medical findings were consistent with vaginal and
anal penetration, an opinion for which defendant argues there was no foundation laid. It is
left to the discretion of the trial court to determine whether to permit the introduction of an
expert’s testimony. People v. Mack, 128 Ill. 2d 231, 250 (1989). However, “the admission
of an expert’s testimony requires an adequate foundation establishing that the information
upon which the expert bases his opinion is reliable.” People v. Bush, 214 Ill. 2d 318, 333
(2005). “It is the function of the trial court to determine whether the foundational
requirements have been met. That determination presents a question of law.” People v.
Safford, 392 Ill. App. 3d 212, 221 (2009). As such, it is reviewed de novo. Safford, 392 Ill.
App. 3d at 221. De novo consideration means we perform the same analysis that a trial judge
would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 108 Defendant acknowledges that he has forfeited this claim by failing to object during trial
or raise the issue in his posttrial motion. The Illinois Supreme Court has held that a
“defendant must both specifically object at trial and raise the specific issue again in a
posttrial motion to preserve any alleged error for review.” People v. Woods, 214 Ill. 2d 455,
470 (2005); People v. Piatkowski, 225 Ill. 2d 551, 564 (2007).
¶ 109 Nevertheless, defendant urges us to review his claim under plain error. “[T]he plain-error
doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious
error occurred and the evidence is so closely balanced that the error alone threatened to tip
the scales of justice against the defendant, regardless of the seriousness of the error, or (2)
a clear or obvious error occurred and that error is so serious that it affected the fairness of the
defendant’s trial and challenged the integrity of the judicial process, regardless of the
closeness of the evidence.” Piatkowski, 225 Ill. 2d at 565. In a plain error analysis, “it is the
defendant who bears the burden of persuasion.” Woods, 214 Ill. 2d at 471. However, in order
-23-
to find plain error, we must first find that the trial court committed some error. Piatkowski,
225 Ill. 2d at 565 (“the first step is to determine whether error occurred”).
¶ 110 In the case at bar, defendant argues that there was no foundation or factual basis for Dr.
Karimi’s opinion that the victim’s lack of physical injury was consistent with vaginal and
anal penetration and so her opinion should not have been admitted. We do not find this
argument persuasive. Dr. Karimi testified extensively about the basis for her conclusion, and
was cross-examined thoroughly on the issue. Dr. Karimi testified that in her experience of
examining over 3,000 patients, over 95% of the time, the genital examination is normal, and
explained that penetration was still consistent with a normal genital evaluation:
“It’s very normal to have a normal exam in cases of allegations of child sexual abuse.
Even though there are genital-to-genital contact, genital-to-genital penetration, genital-
anal contact, genital-anal penetration, we can still have normal examination. It’s not
surprising. More than 95 percent of the time, a normal exam.”
Dr. Karimi testified that this could still be the case where an adult male had inserted his penis
into a five-year-old girl’s vagina because of the flexibility and elasticity of the vagina and
hymen, as well as its capability of healing quickly without leaving scars; Dr. Karimi further
testified that “penetration” could include rubbing the penis between the labia and not
necessarily intravaginal penetration.
¶ 111 Dr. Karimi also testified that it was not unusual for there to be no tear in the victim’s
vaginal or hymen area. Dr. Karimi then testified:
“Q. So is it your testimony that trauma to the vaginal area can occur with injury? It’s
possible to have injury?
A. Correct.
Q. But is it also your testimony that trauma can occur to the vaginal area and present
no injury whatsoever?
A. Correct.
Q. It doesn’t matter whether there are signs of injuries or not. That would still be
consistent with the allegation of genital-to-genital contact with penetration in this case;
is that right?
A. Yes, correct.”
¶ 112 Similarly, Dr. Karimi testified that a normal anal exam was even more common than a
normal vaginal exam due to its flexibility and fast healing, and that out of her 3,000 patients,
only one had an anal finding. She further testified:
“Q. If there were anal penetration as late as February 2008, how is that–the fact that
there was penetration, how is that consistent with you not finding any injury to the anal
area on March 18th?
A. That’s not unusual to have no findings, especially anal findings, during that
examination in March of 2008.
Q. So is it your testimony that trauma to the anal area can occur with signs of injury?
A. Yes.
-24-
Q. And is it also your testimony that trauma can occur to the anal area without any
sign of injury whatsoever?
A. Correct.
Q. It doesn’t matter whether there were signs of injuries in this case. It still would be
consistent with [the victim] having genital-to-anal contact with possible penetration?
A. Correct.”
Dr. Karimi then opined, within a reasonable degree of medical certainty, that the victim’s
“constellation of medical findings was consistent with child sexual abuse, genital-genital
contact, genital-anal contact, genital-genital penetration, genital-anal penetration.” Dr.
Karimi further testified that her opinion was “[b]ased on [her] experience, [her] education,
based on literature, other people who had the same experience.” We find that Dr. Karimi’s
testimony included the basis for her conclusion that the victim’s lack of physical trauma was
consistent with vaginal and anal penetration, and accordingly find no error in admitting her
testimony.
¶ 113 We also note that defendant’s argument that the jury would have put great weight on Dr.
Karimi’s opinion does not take into account the fact that, on cross-examination, Dr. Karimi
also testified that a lack of physical injury could be consistent with a child who had not been
abused. On cross-examination, Dr. Karimi repeated that all of the victim’s tests were
“absolutely normal.” Dr. Karimi further testified:
“Q. *** [T]hese findings are completely consistent with a child who has never been
sexually abused; isn’t that correct?
A. A normal exam doesn’t mean that a child is abused or not abused. I don’t know.
I wasn’t there.
Q. I understand, but if it’s a normal exam, that’s completely consistent with a child
who was never sexually abused; isn’t that correct, a normal exam?
A. A normal exam is consistent with–really, if there is any history of child sexual
abuse, it might or might not be. I don’t know.
***
But in this case there was a history of child sexual abuse. Well, now when we have
the history and normal exam, I’m not surprised because most of the time the kids who
have the history of sexual abuse have the normal examination.
And I’m not the one who determines that the kids have been sexually abused or not
because there are investigators, there are DCFS workers. I mean–
***
–my job as a physician–I’m sorry. My job as a physician is just to look at the child
medically to see if they are healthy or not, and she was healthy.
Q. Exactly.
And that would be consistent with a child who was not sexually abused?
A. A child who is not sexually abused can have [a] normal examination or not have
a normal examination for whatever reason.
-25-
Q. [The victim], her examination was consistent with a child who had not been
sexually abused; isn’t that true?
***
A. [The victim’s] examination was normal, including general exam and genital-anal
exam. And a kid who hasn’t been sexually abused can have a normal examination, yes,
and any kid who has been sexually abused can have a normal exam, too.
So she’s which one of them? I don’t know.
But it’s another part of the investigation that has nothing to do with my job.”
Thus, defense counsel had the opportunity to cross-examine Dr. Karimi as to the basis for
her opinion, and did so, even eliciting the testimony that a lack of physical evidence could
also be consistent with a child who had not been sexually abused. Consequently, the jury was
able to consider all of Dr. Karimi’s testimony and determine what weight it should receive,
and we cannot agree with defendant’s contention that the jury was overpersuaded by Dr.
Karimi’s testimony.
¶ 114 Moreover, even if Dr. Karimi’s testimony should not have been admitted, the error does
not rise to the level of plain error because the evidence was not closely balanced. In the case
at bar, the victim testified at trial that defendant abused her, and Elvia, Maria, and Martinez
all testified that the victim had earlier made statements to them about defendant’s abuse.
Additionally, defendant made a statement to police in which he admitted to sexually abusing
the victim. Thus, we cannot say that Dr. Karimi’s testimony would have tipped the scales in
favor of finding defendant guilty and, accordingly, affirm the trial court.
¶ 115 As a final matter, we note that defendant argues that defense counsel was ineffective for
failing to object to Dr. Karimi’s testimony. The Illinois Supreme Court has held that, to
determine whether a defendant was denied his or her right to effective assistance of counsel,
an appellate court must apply the two-prong test set forth in Strickland v. Washington, 466
U.S. 668 (1984). People v. Colon, 225 Ill. 2d 125, 135 (2007) (citing People v. Albanese, 104
Ill. 2d 504 (1984) (adopting Strickland)). Under Strickland, a defendant must prove both (1)
his attorney’s actions constituted errors so serious as to fall below an objective standard of
reasonableness; and (2) absent these errors, there was a reasonable probability that his trial
would have resulted in a different outcome. People v. Ward, 371 Ill. App. 3d 382, 434 (2007)
(citing Strickland, 466 U.S. at 687-94).
¶ 116 Under the first prong of the Strickland test, the defendant must prove that his counsel’s
performance fell below an objective standard of reasonableness “under prevailing
professional norms.” Colon, 225 Ill. 2d at 135; People v. Evans, 209 Ill. 2d 194, 220 (2004).
Under the second prong, the defendant must show that, “but for” counsel’s deficient
performance, there is a reasonable probability that the result of the proceeding would have
been different. Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. “[A] reasonable
probability that the result would have been different is a probability sufficient to undermine
confidence in the outcome–or put another way, that counsel’s deficient performance rendered
the result of the trial unreliable or fundamentally unfair.” Evans, 209 Ill. 2d at 220; Colon,
225 Ill. 2d at 135. In other words, the defendant was prejudiced by his attorney’s
performance.
-26-
¶ 117 To prevail, the defendant must satisfy both prongs of the Strickland test. Colon, 225 Ill.
2d at 135; Evans, 209 Ill. 2d at 220. “That is, if an ineffective-assistance claim can be
disposed of because the defendant suffered no prejudice, we need not determine whether
counsel’s performance was deficient.” People v. Graham, 206 Ill. 2d 465, 476 (2003). We
do not need to consider the first prong of the Strickland test when the second prong cannot
be satisfied. Graham, 206 Ill. 2d at 476.
¶ 118 In the case at bar, we cannot say that defense counsel was ineffective. As we noted, Dr.
Karimi’s testimony was properly admitted. Thus, defense counsel’s performance in failing
to object to her testimony did not fall below an objective standard of reasonableness, and
defendant was not prejudiced by the failure to object.
¶ 119 IV. Fitness Hearing
¶ 120 Defendant’s final argument on appeal is that his due process rights were violated when
the trial court ordered a fitness hearing, but no such hearing was conducted and no
independent judicial determination of defendant’s fitness was made. Defendant
acknowledges that he did not raise this issue in a posttrial motion, but asks us to review his
claim for plain error. A trial court’s failure to conduct a meaningful fitness hearing “may be
reviewed as plain error” because “it concerns a substantial right.” People v. Contorno, 322
Ill. App. 3d 177, 180 (2001) (citing People v. Basler, 193 Ill. 2d 545, 549 (2000)).
¶ 121 As noted, when a defendant has failed to preserve an error for review, we may still
review for plain error. People v. Piatkowski, 225 Ill. 2d 551, 562-63 (2007); Ill. S. Ct. R.
615(a) (“Plain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the trial court.”). “[T]he plain-error doctrine allows a
reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and
the evidence is so closely balanced that the error alone threatened to tip the scales of justice
against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error
occurred and that error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the evidence.”
Piatkowski, 225 Ill. 2d at 565; People v. Woods, 214 Ill. 2d 455, 471 (2005). However, in
order to find plain error, we must first find that the trial court committed some error.
Piatkowski, 225 Ill. 2d at 565 (“the first step is to determine whether error occurred”).
Defendant carries the burden of persuasion under both prongs of the plain error rule. People
v. Lewis, 234 Ill. 2d 32, 43 (2009).
¶ 122 A defendant is presumed fit to stand trial (725 ILCS 5/104-10 (West 2000)) and is
entitled to a fitness hearing “only when a bona fide doubt of his fitness to stand trial or be
sentenced is raised.” People v. McCallister, 193 Ill. 2d 63, 110 (2000) (citing People v.
Johnson, 183 Ill. 2d 176, 193 (1998)); People v. Eddmonds, 143 Ill. 2d 501, 512 (1991). A
defendant is unfit “if, because of his mental or physical condition, he is unable to understand
the nature and purpose of the proceedings against him or to assist in his defense.” 725 ILCS
5/104-10 (West 2000).
¶ 123 “Relevant factors which a trial court may consider in assessing whether a bona fide doubt
of fitness exists include a defendant’s ‘irrational behavior, his demeanor at trial, and any
-2
27-
prior medical opinion on competence to stand trial.’ [Citation.] The representations of
defendant’s counsel concerning the competence of his client, while not conclusive, are
another important factor to consider.” Eddmonds, 143 Ill. 2d at 518 (quoting Drope v.
Missouri, 420 U.S. 162, 180 (1975)). However, “there are ‘no fixed or immutable signs
which invariably indicate the need for further inquiry to determine fitness to proceed; the
question is often a difficult one in which a wide range of manifestations and subtle nuances
are implicated.’ ” Eddmonds, 143 Ill. 2d at 518 (quoting Drope, 420 U.S. at 180).
Accordingly, the question of whether a bona fide doubt of fitness exists is a fact-specific
inquiry (People v. Tapscott, 386 Ill. App. 3d 1064, 1077 (2008)) and is generally a matter
within the discretion of the trial court (People v. Sandham, 174 Ill. 2d 379, 382 (1996)). As
noted, “ ‘[a]n abuse of discretion occurs when the [court’s] ruling is arbitrary, fanciful, or
unreasonable, or when no reasonable person would take the same view.’ ” Sharp, 391 Ill.
App. 3d at 955 (quoting People v. Robertson, 312 Ill. App. 3d 467, 469 (2000)).
¶ 124 In the case at bar, the parties disagree as to whether the trial court ordered a fitness
hearing pursuant to section 104-11(a) or 104-11(b) of the Code. Sections 104-11(a) and 104-
11(b) provide, in relevant part:
“(a) The issue of the defendant’s fitness for trial, to plead, or to be sentenced may be
raised by the defense, the State or the Court at any appropriate time before a plea is
entered or before, during, or after trial. When a bona fide doubt of the defendant’s fitness
is raised, the court shall order a determination of the issue before proceeding further.
(b) Upon request of the defendant that a qualified expert be appointed to examine him
or her to determine prior to trial if a bona fide doubt as to his or her fitness to stand trial
may be raised, the court, in its discretion, may order an appropriate examination.
However, no order entered pursuant to this subsection shall prevent further proceedings
in the case.” 725 ILCS 5/104-11 (West 2006).
Section 104-11(a) “places a mandatory burden on the trial judge to order a determination of
a defendant’s fitness when a bona fide doubt of that fitness is raised.” People v. Mitchell, 189
Ill. 2d 312, 330 (2000). By contrast, if the trial court has not been convinced that a bona fide
doubt of fitness has been raised, section 104-11(b) gives a court the discretion to grant the
defendant’s request for appointment of an expert to aid in that determination. People v.
Hanson, 212 Ill. 2d 212, 217 (2004). “In sum, the primary distinction between sections 104-
11(a) and 104-11(b) is that section 104-11(a) ensures that a defendant’s due process rights
are not violated when the trial court has already found bona fide doubt to have been raised,
while section 104-11(b) aids the trial court in deciding whether there is a bona fide doubt of
fitness.” Hanson, 212 Ill. 2d at 218.
¶ 125 In the case at bar, defendant argues that the trial court implicitly found a bona fide doubt
of defendant’s fitness to stand trial and, therefore, a fitness hearing was required under
section 104-11(a) and the absence of one was reversible error. The State, however, argues
that the trial court did not have a bona fide doubt of defendant’s fitness to stand trial but
merely ordered a fitness evaluation in its discretion under section 104-11(b) when defense
counsel indicated that he had a bona fide doubt of defendant’s fitness; thus, it argues that the
absence of a fitness hearing does not result in reversible error.
-2
28-
¶ 126 In order to determine whether the trial court ordered a fitness hearing pursuant to section
104-11(a) or 104-11(b), it is helpful to recount the proceedings before the court. On January
12, 2009, APD Kugler informed Judge Scotillo in Rolling Meadows that he had attempted
to speak with defendant several times about the case and had a bona fide doubt of
defendant’s fitness; consequently, defense counsel requested a fitness evaluation, which the
court ordered.
¶ 127 On March 5, 2009, after a letter from Dr. Kulik was received stating that he was unable
to render a fitness opinion because defendant was uncooperative during the interview, APD
Kugler requested that defendant be reevaluated, since he still had a bona fide doubt of
defendant’s fitness. After speaking with defendant, APD Calvin Aguilar, APD Kugler’s
partner on the case, agreed, stating that he also had a bona fide doubt of defendant’s fitness
based on defendant’s responses. The trial court entered another court order for an evaluation
of defendant’s fitness to stand trial, telling APD Kugler that “[w]e have to have a hearing if
you have a bona fide doubt.”
¶ 128 On April 23, 2009, after reading a letter in which Dr. Kulik stated that he attempted to
evaluate defendant for a second time and was unable to render an opinion due to defendant’s
continued refusal to cooperate, the trial court suggested the matter be set for trial, but APD
Kugler stated that “I’m unable to represent this defendant. I still have a bona fide doubt as
to his fitness. I’m not a psychiatrist. All that I know is that I have a client who is not working
with me. I’m unable to work with this client.” The State stated that in light of APD Kugler’s
statement that he had a bona fide doubt of defendant’s fitness, the matter needed to be set for
a fitness hearing. The trial court entered an order transferring defendant’s case to 26th and
California for the purpose of a fitness hearing.
¶ 129 On May 12, 2009, another fitness evaluation was ordered by Judge Joseph Claps at 26th
and California. After several attempts to evaluate defendant and several continuances, on
September 18, 2009, a letter from Dr. Seltzberg to the trial court was received in which Dr.
Seltzberg concluded within a reasonable degree of medical and psychiatric certainty, that
defendant was fit to stand trial based on her review of the available records, including
psychological testing and clinical examinations.
¶ 130 On the same day, the parties came before the court for the fitness hearing. The court and
APD Arthur Willis engaged in the following colloquy:
“APD WILLIS: Your Honor, this matter was transferred to us for fitness testing back
in May of this year. We finally have a report from Dr. Seltzberg. The report states that
Mr. Garcia is fit to stand trial.
THE COURT: You don’t want a hearing?
APD WILLIS: Fitness is presumed, Judge. There’s no hearing.”
The case was transferred back to Judge Scotillo in Rolling Meadows the same day.
¶ 131 The record indicates that after the case was transferred back to Judge Scotillo, the parties
and the trial court were under the impression that a fitness hearing had been held and that
defendant had been found fit to stand trial. On October 26, 2009, the parties again came
before the court, and the ASA informed the court that, in reviewing the court file, she noticed
that Forensic Clinical Services had found defendant fit to stand trial, but had not examined
-2
29-
him for ability to understand his Miranda rights or sanity at the time of the offense. In
discussing whether the court should enter another order, the court noted that “because the
public defender indicated there was a bona fide doubt as to fitness, a fitness hearing had to
be held,” and APD Naranjo stated that “now that the fitness hearing has been had, Judge, and
he has been found fit, I believe we’re in a better position to speak to him regarding the other
issues we need evaluated.” The court reordered evaluations for the issues of sanity and
Miranda, and Dr. Seltzberg sent the court a letter opining, to a reasonable degree of medical
and psychiatric certainty, that defendant was legally sane at the time of the offense.
¶ 132 After examining the record, we agree with the State that the trial court ordered a fitness
hearing pursuant to section 104-10(b) and not section 104-10(a) and, accordingly, the
absence of a fitness hearing was not reversible error under the facts of this case. The trial
court’s comments make it clear that it ordered the fitness hearing because defense counsel
had a bona fide doubt of defendant’s fitness and the trial court did not indicate that it ever
had a bona fide doubt itself. For instance, even after the case had been transferred back to
Judge Scotillo, he noted that “because the public defender indicated there was a bona fide
doubt as to fitness, a fitness hearing had to be held.” (Emphasis added.) Additionally, prior
to transferring the case to 26th and California, the trial court suggested proceeding with the
trial and setting a trial date when defendant failed to cooperate with Dr. Kulik a second time;
it was defense counsel who again stated he had a bona fide doubt of defendant’s fitness and
the State who agreed that a hearing should be held. This leads to the conclusion that it was
not the trial court that had a bona fide doubt of defendant’s fitness such that a fitness hearing
was required under section 104-11(a). We cannot agree with defendant that “it is clear in this
case that the court shared Kugler’s concern about [defendant’s] fitness, or at least accepted
Kugler’s opinion that a bona fide doubt existed, and was not merely humoring him.”
Defendant points to the fact that the trial court transferred the case to 26th and California in
order to have a fitness hearing prior to proceeding further as demonstrating that the trial court
did, in fact, have a bona fide doubt of defendant’s fitness. We do not find this argument
persuasive.
¶ 133 We agree with the State that the Illinois Supreme Court case of People v. Hanson, 212
Ill. 2d 212 (2004), is instructive. In that case, our supreme court considered whether “the
grant of defendant’s request for a fitness examination implicitly signaled the trial court’s
belief that there was a bona fide doubt as to defendant’s fitness, necessitating a fitness
hearing.” Hanson, 212 Ill. 2d at 216. The court noted that the defendant was arguing that an
examining expert was appointed under section 104-11(a) of the Code, while the State argued
that the expert was appointed under section 104-11(b), and explained the difference between
the two sections, stating that “[i]n sum, the primary distinction between sections 104-11(a)
and 104-11(b) is that section 104-11(a) ensures that a defendant’s due process rights are not
violated when the trial court has already found bona fide doubt to have been raised, while
section 104-11(b) aids the trial court in deciding whether there is a bona fide doubt of
fitness.” Hanson, 212 Ill. 2d at 218. The court first pointed out that the defendant’s motion
for a fitness evaluation did not make any reference at all to either section 104-11(a) or 104-
11(b), belying the defendant’s claim that the motion was filed pursuant to section 104-11(a).
Hanson, 212 Ill. 2d at 219. The court then distinguished the appellate court’s reliance on
-3
30-
People v. Cleer, 328 Ill. App. 3d 428 (2002), in part because, in that case, the defense
counsel had expressly sought a fitness hearing pursuant to section 104-11(a). Hanson, 212
Ill. 2d at 220-21. “More importantly,” however, the court distinguished the defendant’s
reliance on Cleer because “defendant’s interpretation of Cleer directly conflicts with our
pronouncement in Eddmonds, [citation].” Hanson, 212 Ill. 2d at 221.
¶ 134 The court stated:
“In Eddmonds, this court unequivocally stated that ‘there are “no fixed or immutable
signs which invariably indicate the need for further inquiry to determine fitness to
proceed; the question is often a difficult one in which a wide range of manifestations and
subtle nuances are implicated.” ’ [Citation.] The mere act of granting a defendant’s
motion for a fitness examination cannot, by itself, be construed as a definitive showing
that the trial court found a bona fide doubt of the defendant’s fitness. If this were not true,
the factors enumerated in Eddmonds would be rendered superfluous and irrelevant. Thus,
defendant’s argument is contrary to our unambiguous statement in Eddmonds, [citation].
The appellate court erroneously relied on Cleer to conclude in this case that ‘upon
accepting a motion for a fitness hearing and appointing a qualified expert, the trial court
implicitly concludes that a bona fide doubt as to defendant’s fitness exists.’ To the extent
that Cleer may be read as holding that the grant of a motion for fitness examination, by
itself, required the trial court to hold a fitness hearing, it is overruled.” Hanson, 212 Ill.
2d at 222 (quoting Eddmonds, 143 Ill. 2d at 518, quoting Drope, 420 U.S. at 180)).
¶ 135 Our supreme court also found unpersuasive the defendant’s argument that the trial court
must have found a bona fide doubt of the defendant’s fitness because the trial court
scheduled a fitness hearing in response to defense counsel’s request for a fitness evaluation.
The court noted:
“It is equally likely that the court was simply attempting to manage its docket efficiently
and, thus, permit a timely fitness hearing if the court should later determine there was a
bona fide doubt after reviewing the expert’s report. We cannot rely on defendant’s
speculative assertions in the face of his ‘burden of proving that, at the time of trial, there
were facts in existence which raised a real, substantial and legitimate doubt as to his
mental capacity to meaningfully participate in his defense and cooperate with counsel.’ ”
Hanson, 212 Ill. 2d at 223 (quoting Eddmonds, 143 Ill. 2d at 518).
¶ 136 In the case at bar, we cannot say that because the trial court ordered a fitness hearing in
response to defense counsel’s request means that the trial court also had a bona fide doubt
of defendant’s fitness. As noted, none of the trial court’s comments or conduct supports this
conclusion. Thus, we cannot find that there was any error in the trial court’s proceeding with
defendant’s trial in the absence of a fitness hearing and affirm the trial court.
¶ 137 We also note that the record indicates that even if a fitness hearing had been held,
defendant would have been found fit. Dr. Seltzberg’s report found that defendant was fit to
stand trial, and defendant has pointed to no evidence to support a claim that he was not fit
to stand trial other than defense counsel’s initial statements. Thus, we cannot find that the
record leaves a bona fide doubt of defendant’s fitness to stand trial.
-3
31-
¶ 138 V. Vehicle Code Fines and Fees
¶ 139 As a final matter, defendant argues that his total balance of fines and fees should be
reduced by $55. Defendant claims that the trial court was not statutorily authorized to assess
a $35 traffic court supervision fee or a $20 serious traffic violation fine, since he was not
convicted of any crimes under the Illinois Vehicle Code (625 ILCS 5/1-100 et seq. (West
2006)). The State agrees that defendant’s total balance of fines and fees should be reduced
by $55, as do we.
¶ 140 CONCLUSION
¶ 141 First, we find that the State proved defendant guilty beyond a reasonable doubt where the
victim and three outcry witnesses testified and defendant confessed to the crime. Second, we
find that the trial court did not abuse its discretion in admitting the victim’s out-of-court
statements into evidence because they contained sufficient safeguards of reliability. Third,
we find that the trial court did not abuse its discretion in permitting the State’s expert to
testify that a lack of physical trauma was “consistent” with sexual abuse. Fourth, we find that
defendant’s due process rights were not violated because the trial court did not find a bona
fide doubt of defendant’s fitness to stand trial and therefore was not required to conduct a
fitness hearing. Fifth, we order the mittimus corrected to reflect a reduction of defendant’s
total balance of fees and fines by $55.
¶ 142 Affirmed.
-3
32-