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June 24, 1994


Appeal from the Circuit Court of Wayne County. No. 92-CF-4. Honorable John I. Lundmark, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Rarick, Welch, Chapman

The opinion of the court was delivered by: Rarick

JUSTICE RARICK delivered the opinion of the court:

Defendant, Charles Hubbard, was found guilty after a jury trial of four counts of aggravated criminal sexual abuse. Defendant was placed on four years' probation and sentenced to 24 months' periodic imprisonment. Defendant subsequently filed a posttrial motion to vacate the convictions and sentences on counts II, III, and IV, which the circuit court of Wayne County granted. Because the court believed the sentence imposed on all counts was warranted for the verdict and finding of guilt on count I alone, defendant's sentence remained unchanged. Defendant appeals the judgment of conviction on count I. The State cross-appeals the order vacating the guilty verdicts on counts II, III, and IV.

According to the evidence presented at trial, defendant allegedly fondled the two daughters of one of defendant's former friends. Until December 1991, the two girls, ages 12 and 15, regularly visited defendant's children and home and occasionally helped defendant and his wife in their cleaning business. Near Thanksgiving of 1991, however, the younger daughter accompanied defendant and his daughter Amanda to a cleaning job. The victim claimed defendant touched her "boobs" and "pee-pee" while she was trying to clean a bathroom. He stopped when his daughter called out for him. The victim testified she did not say or do anything because she was too scared. After the incident, the victim stayed with Amanda the rest of the time they were at the cleaning site. The victim testified at trial that defendant only touched her the one time. Other witnesses, based upon speaking with the victim, testified defendant attempted to fondle the victim at least one other time that same afternoon while at the job site. Later that day, the victim told her parents what had happened after being asked what was wrong. As the victim was relatingher story, the older daughter informed her parents the same thing had happened to her on at least three different occasions.

Defendant denied touching either girl and suggested the accusations were made as a result of a disagreement between the parents and defendant. In October 1991, defendant hired the victims' father to put a new roof on his house. The work on the roof was inferior and caused water damage inside the house. The estimated cost for repairing the roof and damage to the house was $3,460. On November 7, 1991, defendant informed the victims' father that he was going to hold him personally responsible for the repairs. The jury apparently chose not to believe the accusations were made "to get back at" defendant.

On appeal, defendant raises several issues with respect to the trial court's admitting into evidence hearsay statements of the younger victim. Defendant initially contends the trial court erred in permitting the prosecuting attorney to refer to the victim's hearsay statements in his opening argument when the trial court had not yet determined whether the statements provided sufficient safeguards of reliability to be admitted at trial. At the time opening statements were to be made, no hearing outside the presence of the jury had been held to determine the admissibility of any hearsay statements, as required by section 115-10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 115-10 (now 725 ILCS 5/115-10 (West 1992))). Accordingly, defendant requested an order in limine prohibiting reference to the hearsay statements in opening argument. The court granted defendant's motion to the extent the statements themselves could not be read, but the court permitted the State to refer to evidence which it believed in good faith was admissible. Defendant believes the court's ruling in effect delegated the responsibility of determining admissibility to the State. While we do not condone this approach to handling section 115-10 hearsay statements, we find no reversible error in this instance.

We initially note that the objected-to evidence was determined to be admissible after the appropriate section 115-10 hearings. Because the evidence was admissible, defendant was not prejudiced by any references to such evidence. Moreover, the prosecutor only referred to evidence which he believed in good faith to be admissible. There was no deliberate misconduct or apparent disregard of admissibility on the part of the prosecutor. (See People v. Melock (1992), 149 Ill. 2d 423, 457, 599 N.E.2d 941, 956, 174 Ill. Dec. 857; People v. Singleton (1991), 217 Ill. App. 3d 675, 695, 577 N.E.2d 838, 851, 160 Ill. Dec. 513.) Finally, the jury was instructed that opening statements were not evidence and should not be considered as evidence. Any possible error thereforewas corrected. (See People v. White (1980), 86 Ill. App. 3d 19, 30, 407 N.E.2d 572, 581, 41 Ill. Dec. 74.) While we find no reversible error here, we must point out we find it preferable for section 115-10 hearings, where possible, to be held prior to trial. To do otherwise only encourages problems, as evidenced by this appeal.

Defendant next contends the trial court erred in finding the State's notices of intent to use at trial hearsay statements of the younger victim were sufficient to satisfy the notice requirements of section 115-10. We disagree.

The State filed two notices of intent to use hearsay statements. The two notices were filed separate from the materials provided in discovery and directed defendant to specific portions of the discovery where the hearsay statements could be found. The first notice listed the witnesses to whom the statements were made. The second notice listed another two witnesses and set forth a short statement as to what the victim told these witnesses. Defendant contends that the first notice was insufficient in that it did not give the particulars of the hearsay statements intended to be used. As for the second notice, defendant contends that because the court ruled the notice was insufficient as to one of the two witnesses, the notice as to the second witness should also have been insufficient.

Looking to the second notice first, we believe that defendant has misconstrued the record. The reason the testimony of one of the witnesses was not allowed was because the court did not find it reliable or trustworthy. The trial court specifically noted that the witness encouraged or coached the victim to discuss the incident. The fact that the same notice applied to the testimony of two witnesses, however, does not mean that the other witness's testimony should also be excluded automatically simply because the first witness's testimony was found inadmissible. Accordingly, we find no abuse of discretion.

As for the first notice, we find no prejudice to defendant. The fact that the gist of the hearsay statements was not included in the notice is not critical in this instance. The State's discovery consisted of only 15 pages. As such, defendant was not required to search through voluminous documents to find the specific statements which the State intended to use. We also note the notice was more specific than the State's general discovery response. (Cf. People v. Carter (1993), 244 Ill. App. 3d 792, 801, 614 N.E.2d 452, 458, 185 Ill. Dec. 318.) The purpose of section 115-10 notice is to protect a defendant against surprise, unfairness, and inadequate preparation. (See People v. Denning (1991), 219 Ill. App. 3d 428, 433, 579 N.E.2d 943, 946, 162 Ill. Dec. 129.) When there has been no prejudice, the admission of such evidence is not reversible error even if the Statearguably committed a discovery violation. ( Denning, 219 Ill. App. 3d at 433, 579 N.E.2d at 946.) As defendant was not prejudiced here, we find no reversible error.

Defendant contends, however, that the court erred in admitting into evidence any of the younger victim's hearsay statements. Defendant first points to the testimony of the victims' father, claiming that not everything he testified to was disclosed even in discovery. First, there is no requirement that the State disclose a verbatim transcript of a witness's testimony. Second, portions of the complained-of testimony were elicited on cross-examination. The State is not responsible for questions asked by defendant's attorney or for the answers given. See People v. Withers ...

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