The Honorable Justice Miller delivered the opinion of the court. Chief Justice Freeman, dissenting.
The opinion of the court was delivered by: Miller
The Honorable Justice MILLER delivered the opinion of the court:
Following a bench trial in the circuit court of Cook County, defendant, Jerome Holloway, was convicted of criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12-13) and sentenced to a prison term of six years. The appellate court reversed and remanded for a new trial. 275 Ill. App. 3d 736, 656 N.E.2d 200, 212 Ill. Dec. 47. We granted leave to appeal (155 Ill. 2d R. 315) and now affirm the judgment of the appellate court.
Defendant was charged by indictment with having committed two counts of aggravated criminal sexual assault against his daughter, C.H., when she was 11 years old. Prior to trial, defendant objected to the admission of hearsay statements made by C.H. to her cousin, Erin Dalzell, when C.H. was 13 years old. The court ruled the hearsay statements admissible under section 115-10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 115-10).
The evidence presented consisted of the testimony of C.H., Erin, and Dr. Sharon Ahart. Based on this evidence, the trial court found defendant guilty of two counts of aggravated criminal sexual assault and sentenced defendant to two concurrent six-year terms. The court subsequently vacated its original judgments and entered a finding of guilty of two counts of criminal sexual assault. Defendant was again sentenced to two concurrent six-year terms.
The appellate court reversed the convictions and remanded the cause for a new trial. 275 Ill. App. 3d 736, 656 N.E.2d 200, 212 Ill. Dec. 47. The appellate court found that Erin's testimony concerning what she had been told by C.H. should not have been admitted under section 115-10(a)(2) of the Code of Criminal Procedure because C.H. was over the age of 12 when she told Erin of the alleged assault. 275 Ill. App. 3d at 737. Section 115-10 states in relevant part:
"(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13 *** 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." Ill. Rev. Stat. 1991, ch. 38, pars. 115-10(a)(1), (a)(2).
The appellate court found the statute to be ambiguous. 275 Ill. App. 3d at 742-43. The court noted that the legislature enacted section 115-10 to lend credibility and assistance to the testimony of child victims by creating a hearsay exception. 275 Ill. App. 3d at 744. The court believed that section 115-10 allows out-of-court statements of a sexual assault only when the child was under the age of 13 at the time of the outcry. 275 Ill. App. 3d at 744-45. Thus, the appellate court held that Erin's testimony should have been excluded from the trial. 275 Ill. App. 3d at 745. The court reversed defendant's convictions and remanded the cause to the trial court for a new trial. 275 Ill. App. 3d at 745. We allowed the State's petition for leave to appeal. 155 Ill. 2d R. 315(a).
Defendant traveled to Rosemont, Illinois, in November 1987 to visit his former wife and their three children. At trial, defendant's oldest daughter, C.H., testified that she came home from school on a Thursday around 3 or 3:30 in the afternoon and observed defendant sitting on a couch watching television. C.H. had not seen defendant in over a year. Although C.H.'s younger twin sisters were in the apartment complex, C.H. testified that they were not in the unit at that time.
C.H. testified that she sat on the couch next to defendant. According to C.H., defendant began to touch her thighs and buttocks in an uncomfortable manner. C.H. moved to the floor. Defendant then made derogatory comments about her mother and called C.H. "a bad girl," telling her that she would pay for what she had done. C.H. stated that defendant then slapped her twice.
C.H. testified that defendant tied her hands above her head and stuck an object into her mouth. Defendant next pulled down his pants. C.H. observed that defendant had a birthmark on his buttocks. C.H. stated that defendant subsequently assaulted her both vaginally and orally. When the telephone in the apartment began to ring, defendant stopped and untied C.H. Defendant allegedly threatened that he would hurt her even more and would kill her sisters and mother if she ever told anyone what had happened. C.H. indicated that the phone rang for anywhere between 2 and 10 minutes. Defendant told her to answer the phone. C.H. could not recall who was on the telephone. C.H. stated that defendant then watched her shower, making sure that she washed her entire body. She claimed that she did not see her father during the rest of his visit.
In August 1990, C.H., then almost 14 years old, hosted a sleep-over party with her cousins Erin and Lindsey at her house. C.H. testified that she was not very involved with her cousins at the sleep-over. Upon prodding by Erin, C.H. told her cousins about defendant's alleged attack nearly three years earlier. The cousins convinced C.H. to tell her mother and stepfather. C.H. stated that she then went to her parents' room, woke up her stepfather and told him about the incident. C.H. claimed that, because of impaired hearing, her mother did not wake up at that time.
Fifteen-year-old Erin testified that in August 1990, she stayed overnight at C.H.'s house. She stated that C.H. appeared to be "dazing off" and was very quiet. Erin stated that C.H. avoided the issue when asked what was wrong. Erin testified that C.H. eventually said that she was having nightmares about her father, and that her father had touched her. Erin stated that she then told C.H. to tell her mother. On cross-examination, Erin testified that she was very close to C.H. between 1987 and 1990, and that C.H. had never before told Erin of the incident nor, to her knowledge, had C.H. awakened screaming during this time.
Dr. Sharon Ahart, a board eligible pediatrician, testified that on August 16, 1990, C.H. told her that defendant penetrated her both vaginally and orally. According to Dr. Ahart, C.H. denied that anyone else touched her in her vaginal area. Dr. Ahart stated that although she did not use the term "penetration" in her medical report, she had found evidence of trauma to C.H.'s vagina that had been caused by sexual penetration. This finding was based on C.H.'s medical history, Dr. Ahart's own physical examinations, and C.H.'s statements to her that she had been abused. Dr. Ahart could not determine the object which had penetrated C.H. solely from her physical examination.
Defendant presented the testimony of Lieutenant Lee Mayer of the Rosemont police department. Mayer stated that he interviewed C.H. on August 17, 1990, after she had complained to her parents. Mayer testified that C.H. did not tell him that defendant touched her legs or buttocks, called her mother derogatory names, or watched her shower and told her to wash her entire body. Mayer testified on cross-examination ...