Appeal from Circuit Court of Champaign County, No. 97CF343. Honorable Thomas J. Difanis, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Knecht
PRESIDING JUSTICE KNECHT delivered the opinion of the court:
On July 17, 1997, a Champaign County jury convicted defendant, Richard E. Stewart, of two counts of predatory sexual assault of a child under the age of 13 (720 ILCS 5/12-14.1(a)(1) (West 1996)). In August 1997, the court sentenced defendant to two concurrent 18-year prison terms, granted him 169 days' credit, and applied the truth-in-sentencing provision, ordering him to serve 85% of his prison term (see 730 ILCS 5/3-6-3(a)(2)(ii) (West 1996)). Defendant appeals, arguing (1) his attorney provided ineffective assistance, (2) the admission of hearsay evidence violated his confrontation and due process rights, and (3) his judgment of sentence should reflect day-for-day credit. We reverse and remand.
In March 1997, defendant was charged with two counts of predatory criminal sexual assault of a child under the age of 13. 720 ILCS 5/12- 14.1(a)(1) (West 1996). For approximately 1½ years prior to his arrest, defendant lived with his sister, Christina, and her four children in Urbana, Illinois. The State alleged defendant abused Christina's 11- year-old daughter, T.N., during this time.
In July 1997, prior to defendant's trial, the court conducted a hearing to consider hearsay testimony pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 1996)). At this hearing, T.N. testified during the time defendant lived with her mother he would hug her, kiss her on the neck and cheek, fondle and squeeze her breasts, place his finger in her vagina and move it around, and place his mouth on her vagina. T.N. stated the abuse frequently occurred while family members were in the house. T.N. revealed the abuse to her mother in March 1997. T.N. also told an investigator from the police department and Dr. Kathleen Buetow about the abuse.
Christina testified defendant began living with her and her children in October 1995. In March 1997, she overheard an argument between T.N. and her brother, D.N. Christina took T.N. aside to discuss sexual matters with her. At this time, T.N. told Christina defendant had sexually molested her. Christina stopped questioning T.N. and contacted the police. On cross-examination, Christina stated she contacted her brother and sister, who came to the house and spoke with T.N. for a few minutes before the police were contacted. Christina also stated she did not hear the substance of T.N.'s argument with T.N.'s brother.
Police investigator Dan Morgan interviewed T.N. after Christina reported the abuse. Investigator Morgan explained to T.N. why he was called to the house and asked her open-ended questions about the abuse. T.N. told Morgan the last incident occurred two weeks earlier while defendant was helping with her homework. At this time, defendant picked T.N. up and sat her on his lap while he kissed her neck and cheek. He also fondled her breasts, reached his hand in her pants, inserted his finger in her vagina, and attempted to place her hands inside the front of his pants. T.N. told Morgan similar incidents occurred two or three times per week.
T.N. explained to Morgan one episode in the laundry room when defendant picked her up, placed her on the washing machine, pulled her pants down, and "licked her vagina." This incident occurred while T.N. was home from school because of illness. On cross-examination, Morgan stated T.N. indicated her mother was home during the laundry room inci- dent and defendant stopped because her brother came home from school. Morgan also stated some of T.N.'s time periods and dates were vague.
Based on this testimony, the court concluded the time, content, and circumstances surrounding T.N.'s hearsay statements made them reliable. Accordingly, Christina and Investigator Morgan would be permitted to testify at the trial.
At the July 1997 trial, T.N. testified to a more detailed account of defendant's actions. In addition to the facts set forth above, she stated she spent the night at defendant's apartment before he moved in with her mother. On this night, T.N. slept in defendant's bed and he slept on the couch. During the night, defendant got into bed with T.N., reached under her pajamas, and inserted his finger into her vagina and moved it around. When T.N. became startled, defendant stated he thought she was someone else.
T.N. also provided greater detail regarding the laundry room incident. She stated she was taking defendant's mail to him in the laundry room when he abused her and he stopped because he heard T.N.'s brother come home from school. T.N. did not tell her mother about the abuse because defendant told her he would go back to prison if she told anyone.
T.N. revealed the abuse after Christina overheard her arguing with D.N. about her involvement with a boy named "Mikey." Christina asked T.N. if she was sexually active. T.N. denied any sexual activity five or six times until Christina stated she would take T.N. to the doctor to determine if she was sexually active. T.N. then asked her brother to leave the room and told Christina about defendant's abuse.
Christina testified T.N. had a good relationship with defendant when he first moved into her home. However, T.N. became belligerent with defendant, stating she hated him and wished he would move out, and their relationship deteriorated throughout January and February 1997.
Investigator Morgan's testimony was similar to his testimony during the section 115-10 hearing.
Dr. Kathleen Buetow testified on behalf of the State. At the time, Dr. Buetow was a pediatrician with Carle Clinic and a member of the child protection team, a group of professionals organized to evaluate abused or neglected children. Dr. Buetow examined T.N. and found no physical injuries. She stated her findings were consistent with the type of sexual abuse alleged. Dr. Buetow's description of defendant's abuse as related to her by T.N. was consistent with T.N.'s testimony.
Defendant denied sexually abusing T.N. He stated he had a good relationship with T.N. Character witnesses testified defendant was a good uncle and had a good relationship with T.N. The court also informed the jury about defendant's prior felony conviction; however, the court instructed the jury this conviction only affected defendant's credibility. The jury found defendant guilty on both counts.
In August 1997, the court denied defendant's posttrial motion for a new trial, which alleged (1) the State failed to reveal Christina threatened T.N. with a trip to the doctor before she disclosed the abuse; (2) the court erred in allowing evidence of his prior conviction; (3) the State's use of hearsay violated his right to confront the wit- nesses; and (4) the State failed to prove ...