Appeal from the Circuit Court of Marshall County. Nos. 92 CF 38, 46. Honorable ROBERT A. BARNES, Judge, Presiding.
Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Tobias Barry, Justice
The opinion of the court was delivered by: Barry
JUSTICE BARRY delivered the opinion of the court.
The State brings this interlocutory appeal from orders of the Circuit Court of Marshall County granting a motion in limine in favor of defendant Scott E. Panier, the effect of which precludes admission of the victim's hearsay statements, and denying the State's motion for reconsideration. For reasons that follow, we affirm.
According to the record before us, defendant was charged with aggravated criminal sexual assault (720 ILCS 5/12-14(b)(1)) and aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(2)) of L.H., the minor female victim. At the time of the alleged offense -- on or about July 29, 1992 -- L.H. was four years old, and defendant, whose birthday is July 3, was sixteen or seventeen years old. Defendant moved for a determination of witness competency. The court heard the motion on October 5, 1992 and found L.H. not competent to testify. Defendant then moved in limine to preclude admission of the child's hearsay statements to Henry Chief of Police Glen Killen and DCFS investigator Patrick Dittmar pursuant to section 115-10 of the Code of Civil Procedure of 1963 (725 ILCS 5/115-10 (West 1992)).
At the hearing on defendant's motion, Dittmar testified that he and Killen had interviewed L.H. on August 11, 1992, after having received a report of sexual molestation filed by Gail Handley, L.H.'s mother, on August 10. Dittmar stated that before broaching the subject of sexual molestation, he attempted to ascertain if L.H. knew the difference between the truth and a lie. He said that L.H. "had difficulty with that." Dittmar explained that, for example, when he held up his pen and asked L.H. if he said that it was a baseball bat, would it be the truth or a lie, she said it was a truth. He then asked her if she knew the difference between a good touch and a bad touch. L.H. said a good touch was like a pat on the arm and a bad touch was like a hit. He then showed her an anatomically correct doll and asked her to identify body parts. L.H. correctly named the facialparts and called the breasts "boobs," the vagina a "pee pee" and the anus a "butt." Dittmar told L.H. that these latter parts collectively were called "privates." He then asked L.H. if anyone had touched her. She responded that "Scott" did. Upon further questioning, L.H. explained that Scott was a big person who lived with "Sharon," L.H.'s day care babysitter and Scott's mother. She said that Scott had been in his bedroom, he had touched her "boobs," her "pee pee" and her "butt" with his finger, and that he had pulled down his pants and "peed" on the bed. Upon further questioning, L.H. said that Scott had also touched her with a stick, that he had touched her a lot -- about five times -- and that it had happened a long time ago and that he had also touched her baby sister, Hope, with the stick, "peed" on their heads and made her, L.H., touch his "pee pee" and lick it. According to Dittmar, L.H. then wanted to draw, so he asked her if she could draw a picture of Scott's "pee pee." Dittmar testified that the illustration was a remarkably accurate depiction of a penis. On cross-examination, Dittmar stated that L.H. also told him that Scott's sister, Carrie, had licked her "pee pee" and "butt." Finally, Dittmar testified that he was aware that a medical examination report revealed no evidence of bruising or sexual molestation.
Gail Handley also testified at the hearing. She said that she had observed something like a "fuzzy" black hair on L.H.'s vagina on the morning of August 10. Handley asked L.H. about it, and L.H. responded, "Chelsea messes with me." Handley explained that Chelsea was a 1 1/2-year old baby that L.H. knew only from day care at Sharon's home. Because L.H. had earlier complained that she did not want to sit on Scott's lap, Handley asked L.H. whether Scott had "messed" with her. L.H. said yes, he had "touched" her "down below." L.H. made no mention of a stick or of any abuse by Carrie. When Handley reported the conversation to the police, she also explained that L.H. had complained of molestation two years earlier at day care by an eleven-year old boy. This incident was investigated by DCFS and determined to be unfounded and was not discussed with L.H. in connection with the current charges. Handley further testified that after Dittmar's interview with L.H., he discussed with Handley L.H.'s allegations involving Carrie and the stick. Handley subsequently, on August 12, 1992, asked L.H. about Carrie and the stick, whereupon L.H. denied that Carrie had poked her with a stick. According to Handley, L.H. said she was "kind of confused" and, "Maybe I just tell stories." A couple of months later, Handley attempted to talk to L.H. about the incident and L.H. said that she didn't want to talk about it and maybe it didn't happen. Handley also testified that L.H. would have had no occasion to observe a penis in her home. On cross-examination, Handley testified that when L.H. had attended the prior day care there had been between 13 and 16 boys and girls in that home and that there was only one bathroom in the house.
At the Conclusion of the State's evidence, the court granted defendant's motion in limine to preclude admission of the victim's hearsay statements. The State filed a certificate of impairment and perfected its interlocutory appeal. The issue before us is whether the trial court abused its discretion by refusing to admit L.H.'s hearsay statements pursuant to the statutory exception for acts on children under age 13 (725 ILCS 5/115-10 (West 1992)).
Pursuant to section 115-10 of the Code of Criminal Procedure of 1963, "the following evidence shall be admitted as an exception to the hearsay rule:
2) testimony of an out of court statement made by [the child victim] describing any complaint of [a sexual 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 perpetrated upon a child.
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