Appeal from the Circuit Court of Winnebago County. No. 02-JD-249. Honorable Steven M. Nash, Judge, Presiding.
The opinion of the court was delivered by: Justice Grometer
Respondent, Rolandis G., was adjudicated a delinquent juvenile after the trial court found that he committed aggravated criminal sexual assault (720 ILCS 5/12--14(b)(i) (West 2002)). Respondent appeals, contending that the trial court erred by admitting, pursuant to section 115--10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115--10 (West 2002)), out-of-court statements the seven-year-old victim made to his mother, a police detective, and a child abuse investigator. Respondent contends that (1) the court erred in finding that the victim was "available to testify" where he answered a few preliminary questions but refused to talk about the alleged offense; (2) the State failed to introduce evidence to corroborate the out-of-court statements; and (3) under Crawford v. Washington, 541 U.S. ___, 158 L.Ed. 2d 177, 124 S.Ct. 1354 (2004), section 115--10 violates the confrontation clause of the United States Constitution (U.S. const., amend. VI) to the extent that it permits introduction of a "testimonial" out-of-court statement where the accused did not have an opportunity to cross-examine the declarant. We agree with respondent's third argument and hold that the victim's statements to the officer and the child abuse investigator were inadmissible under Crawford. However, we hold that the victim's statements to his mother were not testimonial and that the State introduced sufficient corroborating evidence to make them admissible even though the victim was unavailable to testify. Accordingly, we reverse the delinquency adjudication and remand the cause for a new hearing.
Before the adjudicatory hearing, the State moved to admit, pursuant to section 115--10, three out-of-court statements by the victim. The trial court stated that it would not hold a separate hearing to decide if the statements were reliable, but would consider that issue during the trial.
The State's first witness was the alleged victim, V.J. V.J. testified that he was seven years old, lived with his mother and two siblings in Rockford, attended school, and sometimes played outside with his neighborhood friends. He indicated that he knew respondent, but did not respond when asked how he knew respondent or whether he played with him during the summer of 2002. He refused to answer any more questions.
V.J.'s mother, Jacqueline M., testified that respondent used to live in her neighborhood and often visited her home. Respondent was with V.J. on June 25, 2002, the date of the alleged assault. On that day, V.J. left home at about 11 a.m. to play with friends. He returned about an hour later with respondent. Respondent left after V.J. told him he was going to stay home. Jacqueline thought it was unusual for V.J. to stay in the house on a summer day.
After respondent left, V.J. went to the bathroom, where he was "spitting in the sink" and rinsing his mouth with water. Jacqueline thought this was unusual, so she asked V.J. whether he was thirsty. He responded that he was not, but that his throat was hot. V.J. then left the bathroom, walked around the house for awhile, then returned to the bathroom and again tried to rinse out his mouth. Jacqueline continued questioning V.J. about his unusual behavior, but he said only that his mouth was "hot." In response to further questioning, he said that he was not going back outside. Finally, about a minute later, V.J. said that respondent made him "suck his dick" in the woods near their home. V.J. said that respondent threatened him with a stick but never hit him with it. Jacqueline called the police.
Officer Robert Cure testified that he responded to Jacqueline's call and spoke to V.J. According to Cure, V.J. told him that respondent made him perform fellatio near some bushes outside his home. He said that respondent carried a stick, that V.J. "choked on [respondent's] dick," that some type of yellow fluid came out, and that he immediately went home to wash his mouth out.
One week after the incident, Jackie Weber from the Carrie Lynn Center, a child advocacy center, interviewed V.J. Detective Paul Swanberg watched the interview through a two-way mirror. Swanberg testified that V.J. told Weber that respondent had threatened him with a stick into performing fellatio while they were in the woods and that a "little pee" entered V.J.'s mouth. According to Swanberg, V.J. told Weber that respondent made him perform fellatio twice, that respondent made V.J. "suck his nuts," and that respondent touched V.J.'s penis and buttocks. V.J. also told Weber that he had previously engaged in similar conduct with a friend named Junior.
After a short recess, V.J. again refused to testify about the incident. The State rested its case. The parties then argued whether V.J.'s out-of-court statements to Jacqueline, Cure, and Weber were admissible. Respondent argued that section 115--10 requires that, for statements to be admissible, either the declarant must be unavailable to testify or the State must introduce corroborating evidence. Respondent contended that V.J. was unavailable because he did not testify about the alleged abuse. The State argued that V.J. was available because he took the witness stand and gave some testimony. The court agreed with the State and, after considering other factors affecting their reliability, ruled that all of V.J.'s out-of-court statements were admissible. Respondent testified and denied sexually assaulting V.J.
The court found that respondent had committed aggravated criminal sexual assault, declared him a delinquent minor, and sentenced him to five years' probation. Respondent timely appeals.
Respondent contends that the trial court erred in finding the victim was available to testify where he gave some basic background information but did not talk about the alleged sexual assault. He further argues that, because the victim was unavailable, the State had to introduce evidence corroborating the out-of-court statements, but did not do so. In a supplemental brief, respondent argues that under Crawford, "testimonial" out-of-court statements by an unavailable declarant may not be admitted in a criminal trial unless the declarant was subject to cross-examination when he gave the statements. Respondent argues that section 115--10 is unconstitutional to the extent that it allows such statements to be admitted. Because this argument is potentially dispositive, we discuss it first.
Section 115--10 provides that in a prosecution for a physical or sexual act committed against a child less than 13 years old, testimony about an out-of-court statement made by the victim concerning the offense is admissible if:
"(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide ...