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September 29, 1995


Appeal from the Circuit Court of Cook County. Honorable James M. Schreier, Judge Presiding.

Released for Publication November 3, 1995.

The Honorable Justice Theis delivered the opinion of the court: Hoffman, P.j., and Cahill, J., concur.

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

Following a jury trial, the defendant, Sanatone Moss, wasconvicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12-14(b)(1)) and sentenced to an extended prison term of 60 years. (See Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-3.2(b)(1).) The defendant now appeals challenging (1) the constitutionality of section 115-10 of the Code of Criminal Procedure (Ill. Rev. Stat. 1991, ch. 38, par. 115-10), under the confrontation clause of the Illinois Constitution (Ill. Const. 1970, art. I, ยง 8), (2) the reliability of statements made by an unavailable declarant which were admitted under section 115-10, (3) whether such testimony was cumulative, (4) the court's refusal to instruct the jury on the offense of aggravated criminal sexual abuse, and (5) whether the trial court properly sentenced him to an extended prison term of 60 years. We hold that section 115-10 does not violate the Illinois Constitution, that the trial court did not abuse its discretion in finding that certain hearsay testimony had the sufficient indicia of reliability, and that such testimony was not cumulative. We also conclude that the trial court did not err in refusing the defendant's instruction on aggravated criminal sexual abuse. Finally, the court did not err in sentencing the defendant to an extended term of 60 years in prison. Therefore, we affirm.

Sanatone Moss was charged by indictment with having committed aggravated criminal sexual assault against Diandra Jones. Prior to trial, the court held a hearing pursuant to section 115-10(b)(1) of the Code of Criminal Procedure to determine the admissibility of certain out-of-court statements made by Diandra. The parties stipulated that Diandra was unavailable for trial because she died in November of 1991. The court ruled that the testimony of Matthew Joseph Warner, Diandra's brother, was admissible under section 115-10, as well as traditional hearsay exceptions. The court found Officer Steven Martin's testimony admissible on the same grounds.

With respect to Dr. Kinga Jokay, the emergency room doctor who examined Diandra immediately following the assault, the court ruled that her testimony was admissible under section 115-10, as well as the physician-patient exception. (See Ill. Rev. Stat. 1991, ch. 38, par. 115-13.) Finally, the court ruled that Diandra's statements to Sergeant Edward Griffin were admissible under section 115-10.

At trial, Matthew testified that on December 2, 1990, he lived with his sister Diandra Jones, his younger brother Troy, and his mother Emma Renee Jones. He stated that Diandra was 10 years old, Troy was eight months old, and he was 12 years old at the time. He testified that the defendant, his mother's ex-boyfriend, arrived at the apartment on December 2, at noon.

Around 4 p.m. that afternoon, Emma left the apartment to visit a neighbor, leaving the defendant alone with the children. Matthewstated that while he was watching television in the living room, the defendant twice sent him out of the room to change his clothes. Diandra was also in the living room. Matthew testified that he heard Diandra repeatedly ask the defendant to leave. Matthew could also hear the defendant talking, but he did not hear what was being said.

At approximately 4:45 p.m., Matthew heard the defendant tell Diandra that he would leave if she would go into the back bedroom to retrieve his jacket and a cigarette lighter. Matthew testified that Diandra went into the back bedroom, but then returned to the living room. The defendant sent Diandra to the back bedroom for a second time. Thereafter, the defendant announced that he was going to retrieve the items himself, and left the living room. Meanwhile, Matthew continued to watch television in the living room. He did not hear any screams from the bedroom.

After about 20 minutes had passed, Matthew left the apartment to look for Diandra because he thought that she might have left. When he came back into the apartment, he saw Diandra running from the bedroom, crying and yelling "leave me alone." As Diandra attempted to run out of the front door of the apartment, the defendant held the door closed, and the two struggled while Matthew stood nearby.

According to Matthew, Diandra began calling out for her mother. Emma then forced her way into the apartment. Diandra twice declared, "He tried to have sex with me." Matthew described Diandra as hysterical and very scared. He further testified that when his mother went to call the police, Diandra went into the bathroom and called out for her mother. She later told Matthew that she had discovered a white substance on her body. After the police arrived, Diandra and her mother went to the hospital. Finally, Matthew testified that Diandra and his mother are dead.

Next, Officer Steven Martin testified that on December 2, 1990, he and his partner arrived at the victim's apartment around 5:45 p.m. He stated that Diandra appeared to be emotionally distressed when he arrived.

Martin testified that he asked Diandra to explain what had happened in the apartment. Martin's testimony concerning Diandra's statements was essentially similar to the account given by Matthew. Diandra also told Martin that the defendant threatened to kill her if she said anything to anyone. Martin further testified that Diandra told him that the defendant "made intercourse." He testified that she told him that when her mother confronted the defendant, he denied any misconduct. Emma and the defendant then argued and the defendant left. Martin testified that he then took Diandra and Emma to Wyler's Children's Hospital.

Dr. Kinga Jokay, an expert in emergency medicine in pediatrics, also testified on behalf of the prosecution. Dr. Jokay stated that she was a resident working in the emergency room of Wyler's Children's Hospital on December 2, 1990. Dr. Jokay testified that Diandra told her that she had been coaxed into a bedroom by her mother's ex-boyfriend. Diandra also told Dr. Jokay that the defendant "tried to have sex" with her and that she thought that he was intoxicated. Dr. Jokay testified that Diandra informed her that there was contact between their genitals and that the defendant ejaculated on her.

Dr. Jokay found Diandra's hymen to be intact and that there was no trauma to the vagina. She also testified that the absence of bruises does not mean that a sexual assault did not occur. Dr. Jokay observed a dried white secretion on Diandra's abdomen, inner thighs and external genitalia, which she believed to be sperm. Dr. Jokay then took cultures from Diandra's body and sent them to a lab. Later that evening, a lab technician called her at the emergency room and told her that Diandra's urine contained sperm. Thereafter, Dr. Jokay learned that Diandra's vaginal swab which was sent to the hospital lab tested positive for ...

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