Appeal from the Circuit Court of Cook County. Honorable Michael Czaja, Judge Presiding.
Released for Publication November 3, 1995. Petition for Leave to Appeal Allowed January 31, 1996.
The Honorable Justice Theis delivered the opinion of the court: O'brien, S., J., concurs. Hoffman, P.j., dissents.
The opinion of the court was delivered by: Theis
JUSTICE THEIS delivered the opinion of the court:
The defendant appeals from a judgment entered against him for criminal sexual assault of his daughter, C.H., following a bench trial. On appeal, we address the issue of whether section 115-10(a)(2) of the Code of Criminal Procedure permits the admission of hearsay statements made by a declarant over 13 years of age, concerning abuse that occurred when he or she was under 13. (Ill. Rev. Stat. 1991, ch. 38, par. 115-10(a)(2).) In accordance with the courts' decisions in People v. Bridgewater (1994), 259 Ill. App. 3d 344, 631 N.E.2d 779, 197 Ill. Dec. 557, and People v. E.Z. (1994), 262 Ill. App. 3d 29, 633 N.E.2d 1022, 199 Ill. Dec. 226, we hold that the trial court erred in admitting the testimony of C.H.'s cousin, Erin Dalzell, because C.H. already had turned 13 when she told Dalzell that the defendant assaulted her nearly three years earlier. Because we also find that the evidence in this case was closely balanced, we reverse and remand for a new trial. See 134 Ill. 2d R. 615(a); People v. E.Z., 262 Ill. App. 3d 29, 633 N.E.2d 1022, 199 Ill. Dec. 226.
The defendant, Jerome Holloway, was charged by indictment with two counts of aggravated criminal sexual assault committed against C.H. Prior to trial, the defendant objected to the admission ofhearsay statements made by C.H. to her cousin, Erin Dalzell. The court heard the State's offer of proof concerning the statements, as well as counsels' arguments, but it did not hear any testimony. The court ruled that hearsay statements made by C.H. to Dalzell when C.H. was nearly 14 years old were admissible under section 115-10.
At trial, C.H. testified that the defendant came from California for a visit in November of 1987. She was 11 years old at the time. C.H. testified that she came home from school around 3 or 3:30 p.m. on a Thursday, which was the day that the defendant arrived. She stated that she and the defendant were alone in the apartment at the time, and that this was the first time that she had seen him in a year.
C.H. testified that she was sitting next to the defendant on the couch. She stated that he began touching her thighs and buttocks in a way that made her uncomfortable, so she moved to the floor. At that point the defendant slapped her and made crude comments about her mother. According to C.H., the defendant said that she was a bad girl and was going to have to pay for what she did. C.H. testified that the defendant then struck her, tied her hands above her head and stuck an object in her mouth so that she could not speak. C.H. testified that he then assaulted her vaginally and orally. C.H. repeatedly testified that she did not recall what object the defendant used as a gag. However, at one point during her testimony she referred to the object as a "rag." Finally, C.H. testified that the defendant watched her shower following the assault, and that he made her wash her entire body.
C.H. testified that on the Friday evening following the assault she attended a sleep-over party at the home of her cousin, Erin Dalzell. C.H. testified that at the party, she told her cousin Lynn that she had experienced "light bleeding" in school that day. She stated that the bleeding continued until Saturday. On cross-examination, C.H. did not recall whether she had told anyone that she bled for about a week following the attack.
In August of 1990, C.H. and her cousins, Erin and Lindsey Dalzell, had a sleep-over at C.H.'s new house. The gathering took place approximately one month before C.H.'s 14th birthday. C.H. testified that she was upset and had been having nightmares about the assault for about two weeks. When her cousin, Erin Dalzell, asked her what was wrong, C.H. initially said "nothing." C.H. stated that "then it came out, the abuse." C.H. testified that her cousins urged her to inform her mother and stepfather. C.H. then went into her parents' room, woke up her stepfather and told him that she had been sexually abused three years earlier.
Next, Erin Dalzell, C.H.'s cousin, testified on behalf of the State. Dalzell was 15 years old at the time of trial. She stated that C.H. was "dazing off" and very quiet on the night of the sleep-over in August of 1990. Erin testified that when she asked C.H. what was wrong, she avoided the issue. C.H. eventually stated that she was having nightmares about her father, and that her father had touched her. Erin testified that she told C.H. to alert her mother.
Dr. Sharon Ahart, a board eligible, but not board certified pediatrician, was the State's third and final witness. Dr. Ahart stated that in August of 1990 she examined C.H. She testified that there were only remnants of C.H.'s estrogenized tissue and that the musculature of the vagina had been stretched. According to Dr. Ahart, these factors were significant because they meant that something had penetrated C.H.'s vaginal opening.
Over the defendant's objection, Dr. Ahart testified that C.H. told her that her father had penetrated her digitally when she was four. Dr. Ahart also testified that C.H. told her that the defendant penetrated her on another occasion, both vaginally and orally. Dr. Ahart believed that C.H.'s vaginal trauma had been caused by sexual penetration. She based her findings on C.H.'s medical history, her own physical examinations and C.H.'s statements to her that she had been abused by her father. Further, Dr. Ahart stated that penetration may cause spotting, but not extensive bleeding.
Dr. Ahart indicated that she could not identify the object which had penetrated C.H. based solely on her physical examination. On cross-examination, Dr. Ahart admitted that the term "penetration" was not in her medical report on C.H. She also stated that the penetration observed in C.H. could not have been caused by a tampon one centimeter in width. Finally, Dr. Ahart agreed that prior to trial she had refused to answer some of defense counsel's questions concerning her medical report. The State then rested and the court denied the defendant's motion for a directed verdict.
Next, Officer Lee Mayer testified on behalf of the defendant. Mayer said that he interviewed C.H. on August 17, 1990. The majority of Mayer's testimony on direct examination served to impeach C.H. by omission. Mayer testified that C.H. did not say that the defendant had touched her legs or buttocks, used profanities in reference to her mother, watched her shower or that he made her wash her entire body. Mayer further testified that C.H. told him that she experienced a lot of bleeding for about a week following the assault. On cross-examination, over the defendant's objection, the court also admitted testimony concerning C.H.'s prior consistent statements to Mayer regarding the assault.
The defendant, Jerome Holloway, testified on his own behalf. He stated that he and the complainant's mother, Shirley Dalzell, were divorced in 1983 after seven years of marriage. In 1985, the defendant moved back to California where he had grown up.
In November of 1987, the defendant came to Illinois for a visit. He stated that the purpose of the journey was to pursue a reconciliation with his former wife and to see his children. The defendant testified that in November of 1987, he arrived in Chicago around 7 or 7:30 on a Thursday evening. The defendant testified that Shirley and his three children met him at the airport. The defendant maintained that he was never alone with C.H. at any point during his visit. He testified that he did not return to Illinois until December of 1990 in connection with the charges filed against him. The defendant denied that he ever Sexually abused C.H. Moreover, the defendant maintained that he was not in Chicago at the time that C.H. claimed that the abuse occurred.
At trial, the defendant made a motion to amend his answer to discovery to call Dr. Ramona Slupik as a defense expert to impeach Dr. Ahart's testimony that a tampon could not have caused the trauma that she observed on C.H. The defendant argued that he had been Surprised by Dr. Ahart's testimony because she testified to issues not contained in her medical report. Specifically, nothing in Dr. Ahart's report indicated that she observed "penetration" upon examining C.H. However, the court denied the request on the grounds that the defendant had violated discovery rules.
The court subsequently found the defendant guilty of aggravated criminal Sexual assault. At the sentencing hearing, the court vacated its original finding and entered a finding of criminal sexual assault. The court sentenced the defendant to six years in prison.
On appeal, the defendant argues that under section 115-10 the corroborative hearsay testimony of Erin Dalzell concerning statements made by C.H. was improperly admitted because C.H. was over 13 years old at the time the statements were made. The State responds that the defendant has waived any argument on this point because he never objected to Dalzell's testimony on the grounds of C.H.'s age at trial or in his post-trial motion.
For the reasons which follow, we find that it was error for the trial court to admit Dalzell's testimony concerning C.H.'s statements. Because we also find that the evidence in this case is closely balanced, we consider the merits of the defendant's argument under the plain-error doctrine. 134 Ill. 2d R. 615(a); People v. Mitchell (1993), 155 Ill. 2d 344, 614 N.E.2d 1213, ...