Appeal from the Circuit Court of Adams County; the Hon. Edward
B. Dittmeyer, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 15, 1986.
After a jury trial defendant was found guilty of two counts of aggravated criminal sexual abuse in violation of section 12-16(c)(1) of the Criminal Code of 1961 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-16(c)(1)). He was sentenced to two concurrent terms of three years' imprisonment. Defendant appeals his conviction. We affirm.
Defendant was charged with aggravated criminal sexual assault, two counts of aggravated criminal sexual abuse, and residential burglary based on an incident which occurred on August 7, 1985. Defendant, a man in his mid-fifties, entered the home of an acquaintance, John Taylor, ostensibly to watch the Taylor family's four children while both parents were away. The testimony at trial differed as to whether defendant was given permission to enter the home or merely asked to make sure the children were not playing outside as he walked by. The residential burglary claim draws its basis from this dispute. We need not consider it, however, as the jury found defendant not guilty of that charge. While in the house, defendant allegedly fondled the breasts and genitals of the eldest Taylor girl, 12 years old. The girl escaped defendant's grasp and ran out of the house just as a family friend, Vicky Smith, was driving by. The girl waved the car to a halt and explained, at least to a certain degree, what had occurred. Vicky and the young girl then went to the home of the regular baby sitter, Linda Smith (no relation). All three then returned to the Taylor home, where Vicky Smith confronted defendant. Linda Smith phoned Beverly Taylor, the children's mother, who was taking nursing classes. Beverly went home and then took her daughter to Blessing Hospital. On the way she asked her daughter what had happened. At trial, over defendant's objection, Beverly was allowed to testify as to what her daughter told her. The complainant told her mother that defendant had "bothered" her; defendant had been messing with her "privates." Beverly explained that she taught her children to call the male and female genitals the "privates."
At trial the complainant and a younger sister, age 11, were found competent to testify. They gave a detailed account of what occurred while defendant was in their house. At the instruction conference the State moved to amend the information by dismissing the charge of aggravated criminal sexual assault. The motion was granted. The jury found defendant guilty of two counts of aggravated criminal sexual abuse.
Defendant raises two arguments on appeal: (1) the trial court erred in admitting Beverly's hearsay testimony as to what the complainant told her; and (2) section 12-12 et seq. of the Criminal Code of 1961 (Ill. Rev. Stat. 1984 Supp., ch. 38, par. 12-12 et seq.) violates due process and should be declared void.
• 1 The trial court admitted the testimony of Mrs. Taylor as to what her daughter had told her during the ride to the hospital. The court ruled the testimony was admissible under the "spontaneous declaration" exception to the hearsay rule. On appeal defendant argues the trial court erred in so ruling. The State basically agrees but argues there is no error as the testimony was properly admissible under the corroborative-complaint provision of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 115-10). The trial court had earlier rejected this ground.
The conversation between complainant and her mother occurred at least one hour after the incident occurred. Complainant gave some description of what occurred to Vicky Smith as she fled to Smith for help. In the short span of time thereafter, Vicky Smith picked up Linda Smith at the latter's house; both of them confronted defendant at the Taylor home; Beverly Taylor was summoned from school; and on the way to the hospital, complainant gave a description of what happened to her mother. No one paid close attention to time, and the best estimate finds the conversation between mother and daughter taking place about an hour after the incident. It would have been better to argue the statements made to Vicky Smith were admissible under the spontaneous-declaration exception. Vicky Smith did not testify at trial, however. Complainant's statements to her mother arguably took place too long after the incident to be considered spontaneous. (See People v. Jackson (1956), 9 Ill.2d 484, 138 N.E.2d 528.) In addition, complainant had discussed, at least in part, the incident with Vicky Smith, thereby destroying the spontaneity of any statement to her mother. See People v. Robinson (1978), 73 Ill.2d 192, 383 N.E.2d 164.
• 2 Although we have concluded that the testimony of Beverly concerning the statement to her by the complainant was not admissible under the spontaneous-declaration exception to the hearsay rule, we are also of the opinion that the trial court properly rejected the testimony under section 115-10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 115-10), which provides:
"In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12-13 through 12-16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child that he or she complained of such act to another; and
(2) testimony by the person to whom the child complained that such complaint was made in order to corroborate the child's testimony."
The plain meaning of the statute is that the test is two-pronged: first, there must be testimony of the complainant to the witness and, second, the testimony of the witness to whom the complaint was made must be corroborative in nature. In the absence of the statute either one would constitute inadmissible hearsay. Further, the testimony of the complainant is a necessary predicate for the testimony of the witness. We note that the statute does not mandate any particular sequence or time frame for the statements only that both must be in the record.
In the instant case the trial court ruled, and our examination of the record confirms, that the complainant did not unequivocally testify concerning any statement to her mother. Rather, the conversations with the mother related to the admonitions to the complainant to tell the ...