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03/31/94 PEOPLE STATE ILLINOIS v. TODD J. WARE

March 31, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
TODD J. WARE, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Adams County. No. 92CF328. Honorable Mark A. Schuering, Judge Presiding.

As Corrected May 9, 1994

Honorable Frederick S. Green, J., Honorable Carl A. Lund, J., Honorable Robert J. Steigmann, J., Concurring.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

This case turns upon the operation of the exception of the hearsay rule created by section 115-10 of the Code of Criminal Procedure of 1963 (Procedural Code), which states, in most pertinent part, as follows:

"(a) 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 of an out[-]of[-]court statement made by such child that he or she complained of such act to another; and

(2) testimony of an out[-]of[-]court statement made by such child 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 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

(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." 725 ILCS 5/115-10 (West 1992).

On September 8, 1992, an information was filed in the circuit court of Adams County charging defendant Todd J. Ware with aggravated criminal sexual assault and aggravated criminal sexual abuse in violation of sections 12-14(b)(1) and 12-16(c)(1)(i) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-14(b)(1), 12-16(c)(1)(i) (West 1992)). The alleged victim of ...


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