The opinion of the court was delivered by: Justice Steigmann delivered the opinion of the court:
Appeal from Circuit Court of McLean County No. 95CF963
Honorable Ronald C. Dozier,
In May 1997, a jury convicted defendant, John Allan Simpkins, of three counts of aggravated criminal sexual assault, finding that he committed acts of sexual penetration with his daughter, K.S., when she was under 13 years of age (720 ILCS 5/12-14(b)(1) (West 1992)). In June judge Presiding. 1997, the trial court entered a judgment of guilty as to two counts, but granted defendant's motion for judgment of acquittal notwithstanding the verdict as to the remaining count (count III). The court then sentenced defendant to eight years in prison on count I and seven years in prison on count II, with those sentences to be served consecutively.
Defendant appeals, arguing that the trial court erroneously (1) admitted certain hearsay testimony in violation of section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 1992)); (2) admitted certain hearsay testimony in violation of section 115-13 of the Code (725 ILCS 5/115-13) (West 1992); (3) permitted the jury to take into the jury room during deliberations an Illinois Department of Children and Family Services (DCFS) report which had not been admitted into evidence; (4) admitted certain opinion testimony; and (5) sentenced defendant to consecutive sentences. Defendant also argues that the State failed to prove him guilty beyond a reasonable doubt. We reverse and remand for a new trial.
In November 1995, the State charged defendant by indictment with three counts of aggravated criminal sexual assault. Counts I and II alleged that sometime between October 1, 1993, and November 30, 1993, defendant committed acts of sexual penetration with K.S. (five years old at the time of the offenses and eight years old at trial) using his finger (count I) and a bottle (count II). Count III alleged that sometime between June 1, 1994, and July 30, 1994, defendant committed an act of sexual penetration with K.S. using his finger. 720 ILCS 5/12-14(b)(1) (West 1992).
A. The Section 115-10 Hearing
In April 1996, the State filed a notice of intent--under section 115-10 of the Code--to offer at defendant's trial statements K.S. made to Mel Devall, a DCFS child protective services investigator. Later during that same month, the State filed another such notice of intent to offer statements K.S. made to her mother, Annette Simpkins.
In April 1997, the trial court conducted a section 115-10 hearing, and the following testimony was presented. Devall testified that on September 16, 1994, he interviewed K.S. (then six years old) at her grade school pursuant to allegations of physical abuse of K.S. and her siblings by defendant and allegations of sexual abuse of an older sibling (D.D.) by defendant, which had been reported to DCFS. During that interview, Devall initially established that K.S. knew the difference between the truth and a lie, a good touch and a bad touch, and inside and outside. Devall then asked K.S. if she remembered him. (Devall had interviewed K.S. about one month earlier pursuant to a report of sexual abuse of D.D. by a grandfather.) K.S. responded that she remembered that he had previously talked with her "about grandpa touching [D.D.]." Devall then testified that K.S. indicated that defendant had touched her, as follows:
"A. [Devall:] Then I asked her, has anyone ever touched you in a bad way? She said yes, daddy had, that daddy had spanked her real hard and left bruises on her.
Q. [Prosecutor:] What did you ask her then?
A. Has anyone else ever touched you in a bad way?
Q. And what, if anything, did she ever say?
Q. What was the [next] question?
A. How did daddy touch you in a bad way?
Q. And what, if anything, did she say?
A. She stated that daddy had taken her upstairs and put her on [a sibling's] bed, had pulled her pants and underwear down, had inserted his finger inside of her private, that daddy also had put a bottle inside of her private. She stood up at that point and said daddy told me to lay on the bed like this, and she stood up and spread her legs apart. She said that blood had come out of that, and that it hurt."
Devall also stated that K.S. told him that the sexual abuse had happened on more than one occasion, the first time was when she bled and the last time was on the Fourth of July.
On cross-examination, Devall acknowledged that he did not specifically recall what he had asked K.S. during his previous interview of her (which took place about one month before the September 16, 1994, interview). He stated, however, that typically he would ask whether the child had been told anything about the alleged abuser. Devall also stated that he did not ask K.S. when the first incident happened or which Fourth of July she was referring to. He also stated that Annette told him that K.S. had recanted the allegations against defendant.
Annette (K.S.' mother) testified that on one occasion after Devall's September 16, 1994, interview of K.S., K.S. came to her and asked why defendant "would do something like that." K.S. said nothing else, and Annette did not question her about the statement. On another occasion when Annette and K.S. were in a pharmacy, K.S. brought a bottle of Betadine to Annette and said "this is what daddy used." Annette told her to put the bottle back and did not question K.S. about the statement. Annette also testified about K.S.' recantation, as follows:
"[I]t was a few months ago, [K.S.] -- well, the girls went with their [paternal] grandparents for that Saturday, and a few days -- it was like two or three days later -- [K.S.] says how come we can't see dad, and I'm just like, we can't talk about that. She said, well, I know why, and I lied about what daddy did, and I said, why would you lie about something like that, and she said because [K.S.] was mad at him. And I said why were you mad at him, and she was, like because he used to hit us all of the time."
The trial court determined that the statements K.S. made to Devall and Annette were admissible pursuant to section 115-10 of the Code.
At defendant's trial, K.S. testified that defendant had spanked her with a belt but had not done anything else that hurt her. She stated that she had told Devall "bad things" and what she told him was a "big lie." She further stated that she did not know why she lied to Devall. K.S. remembered seeing Dr. Lance Cordoni, a pediatrician at the ...