Appeal from the Circuit Court of Lake County. No. 03--CF--3405 Honorable George Bridges, Judge, Presiding.
The opinion of the court was delivered by: Justice Gilleran Johnson
Modified Upon Denial of Rehearing March 24, 2006
On October 15, 2003, the defendant, Glenn Johnson, was charged by indictment with two counts of predatory criminal sexual assault of a child (720 ILCS 5/12--14.1 (West 2002)) and three counts of aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(i) (West 2002)). On September 10, 2004, following a bench trial, the defendant was found guilty of two counts of aggravated criminal sexual abuse, and not guilty of the other charges. On November 24, 2004, the trial court sentenced the defendant to four years' imprisonment. The defendant appeals from this order. On appeal, the defendant argues that (1) he was not proven guilty beyond a reasonable doubt; (2) he was denied the opportunity to confront his accuser to show bias, interest, and motive to testify falsely; and (3) the hearsay testimony admitted pursuant to section 115--10 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115--10 (West 2002)) is inadmissible because the statute is unconstitutional; (4) section 115--10(b)(3) of the Code (725 ILCS 5/115--10(b)(3) (West 2002)) renders the hearsay testimony inadmissible; and (5) the hearsay testimony cannot possibly be considered reliable within the meaning of section 115--10 of the Code (725 ILCS 5/115--10 (West 2002)). We affirm.
According to count I of the indictment, the defendant committed predatory criminal sexual assault of a child when he performed an act of sexual penetration by knowingly placing his mouth on the sex organ of the victim, J.C., who was under 13 years of age when the act was committed. Count II of the indictment stated that the defendant committed predatory criminal sexual assault as in count I, but added that, as a respite worker through the Jewish Children's Bureau, the defendant held a position of trust with the victim. Count III of the indictment stated that the defendant committed the offense of aggravated criminal sexual abuse when he performed an act of sexual conduct by touching the sex organ of the victim, who was under the age of 13, for the purpose of sexual gratification. Count IV of the indictment alleged that the defendant committed the offense of aggravated criminal sexual abuse as in count III, but added that, as a respite worker through the Jewish Children's Bureau, the defendant held a position of trust with the victim. Count V of the indictment stated that the defendant committed the offense of aggravated criminal sexual abuse when the defendant, who held a position of trust with the victim as a respite worker through the Jewish Children's Bureau, performed an act of sexual conduct by licking the sex organ of the victim, who was under the age of 13, for the purpose of sexual gratification.
The victim was born on February 6, 1990. At the time the charged offenses allegedly occurred, the period between November 2002 and February 2003, the victim was 12 years old. The victim suffers from mental disabilities. He has mental, vision, speech, and language impairments. He has attended a school for the developmentally disabled since he was six years old. Based on his special needs, the victim's mother sought respite care from the Jewish Children's Bureau (JCB). A respite worker for the JCB is somebody who works with children with special needs. The victim's respite care began in January 2001.
In September 2002, the defendant sought employment with the JCB and was hired as a part-time respite worker on October 14, 2002. The defendant was assigned to the victim. A respite worker is to pick the child up at his residence and take the child to do recreational activities, such as going to the library, going to the movies, or playing sports. The defendant provided care to the victim on Wednesdays on eight occasions: November 18 and December 11, 2002; January 8, 15, and 22, 2003; and February 5, 12, and 26, 2003. In March 2003, the defendant resigned from the JCB.
Over the defendant's objection, out-of-court statements made by the victim were admitted at the defendant's bench trial pursuant to section 115--10 of the Code (725 ILCS 5/115--10 (West 2002)). At the section 115--10 hearing, Tony Jones testified via stipulation that he is a licensed mental health therapist and that testing conducted in 1999 revealed that the victim has a verbal IQ of 54, a performance IQ of 52, and a full scale IQ of 49. Jones indicated that the victim meets the statutory definition of moderately mentally retarded.
Andrew Mullin testified that he was assigned as a respite worker for the victim in April 2003. On September 3, 2003, while Mullin was providing respite care to the victim, the victim told Mullin that he wished his old respite worker, the defendant, was still his respite worker. Mullin asked why and the victim said that he and the defendant did fun things together. Mullin questioned the victim about the fun things. Eventually, the victim told Mullin that the defendant "licked his asshole" and that the defendant had "bubbles in his ass." Mullin asked the victim how many times this occurred and the victim held up three fingers. Mullin testified that the victim never mentioned the defendant's hands going down the victim's pants. Mullin asked the victim where the incidents took place. The victim responded that at least one of the incidents happened in the defendant's car. The victim told Mullin that the defendant told him not to tell anyone.
On the way back to the victim's house, the victim asked Mullin if he was going to tell the victim's mother. Mullin said he had to tell the victim's mother. The victim got angry and told Mullin that the incidents never happened. Later, the victim told Mullin that the incidents had occurred and that the only reason he said that they had not occurred was that he did not want to get the defendant in trouble.
When they arrived at the victim's residence, Mullin spoke to the victim's mother. The victim told his mother, while pointing at his genital area, that the defendant licked him. Mullin explained that the victim had told him that the defendant "licked his asshole." The victim's mother asked the victim to show her what his asshole is, and the victim pointed to his penis. The victim's mother asked the victim if he meant his penis, and the victim said yes. The victim also said that the defendant was pulling on the defendant's penis and that stuff came out. A week later, on September 10, 2003, while Mullin was driving with the victim, the victim, unsolicited, pointed down a road and said that he and the defendant had been involved in inappropriate behavior on that road. On cross-examination, Mullin acknowledged that the victim never used the word "penis" prior to the victim's mother asking the victim if by "ass" the victim meant "penis."
Investigator John Anderson of the Lincolnshire police department testified that he began his investigation after being contacted by the Department of Children and Family Services (DCFS). On September 8, 2003, he met the victim and the victim's mother at the Lake County Children's Advocacy Center. Investigator Anderson asked the victim if he knew the difference between the truth and a lie. The victim responded affirmatively. Investigator Anderson asked the victim if it was true that four people were in the room and one lady was in the room. The victim responded that the first statement was a lie because there were only three people in the room. However, the second was true because there was only one lady in the room.
Thereafter, Investigator Anderson asked the victim basic questions. The victim said that the defendant was his respite worker and that the defendant would take him to the movies, to restaurants, and to the library. The defendant had taken him to see a Harry Potter movie and had also taken him to a Chili's restaurant and an Applebee's restaurant. The victim also said that the defendant sometimes tickled him on the stomach. Investigator Anderson asked what the victim meant by that. The victim said the defendant "touched me on my ass." Investigator Anderson asked the victim if he meant his penis. The victim affirmed that he meant his penis.
Investigator Anderson further testified that the victim was shown diagrams of the front and back of a naked boy and a naked adult male. The victim was able to identify the penis and the buttocks on the boy and the man. Upon further questioning the victim said that the defendant had touched the victim's penis with his fingers inside of the victim's underwear. The victim said that the defendant would unzip the victim's pants to put his hands inside of the victim's underwear. The victim said this was done in the defendant's vehicle.
The victim also told Investigator Anderson that in addition to tickling and touching his penis, the defendant had also licked his penis. Investigator Anderson asked where this had occurred. The victim said that they had driven to the parking lot of an office complex, and that the defendant had licked him there. The victim also said that on another occasion, when they were driving to the victim's Uncle John's house in Riverwoods, they pulled off a few blocks from Uncle John's house to get some air, and the defendant had licked his penis there as well.
Investigator Anderson then asked the victim if the defendant had ever shown the victim the defendant's penis. The victim said that the defendant had shown him his penis in the defendant's car. The victim said the defendant was shaking his own penis up and down and stuff came out. The victim said he thought that something had come out of his penis also. The victim said the defendant showed his penis to the victim on two occasions and had licked the victim's penis three times. The victim was not specific with dates.
Thereafter, Investigator Anderson arranged to meet with the victim on September 15, 2003. The victim had indicated that perhaps he could remember where some of the incidents had taken place by driving around the area with Investigator Anderson. Investigator Anderson, the victim, and the victim's mother went on the drive. The victim directed them over several streets on the way to his Uncle John's house. The victim pointed to the place where the defendant and he had stopped for air, and where the defendant had abused him. Investigator Anderson asked the victim to direct them to the office complex. The victim was able to direct them there as well.
On cross-examination, Investigator Anderson testified that the victim had said that the defendant had licked his penis on the way to his Uncle John's house. However, the victim did not say specifically what happened in the office complex parking lot. Investigator Anderson also acknowledged that his September 15 report did not indicate that the defendant licked the victim's penis on the way to the victim's Uncle John's house. Rather, the report indicated that the victim said the defendant had pulled on the defendant's penis and showed the victim his penis.
Thereafter, the defendant requested that the hearing be continued so that he could call a Lake Forest police officer to testify concerning a February 2004 investigation into allegations that the victim sexually molested other children in the summer of 2003. The defendant argued that due to the allegations against the victim, the victim decided to point the finger at the defendant. The defendant also argued that testimony concerning the investigation was relevant to show a motive to fabricate and to show the victim's knowledge about sex and things of that nature.
The trial court determined that the defendant had not tied the investigation to any of the relevant factors that the court is to consider in determining whether there are sufficient safeguards of reliability on any of the victim's hearsay statements. Such factors include the victim's use of terminology unexpected of a child of a similar age or the lack of motive to fabricate. Additionally, in the present case, while the victim's outcry was in September 2003, a report concerning the victim's alleged sexual molestation of other children was not made until February 2004. Furthermore, the trial court stated:
"You have not indicated that you wish to call anyone to point out
the--you do not wish to call any of the victims of his alleged
sexual assault to try and explain to the Court the timing, the fact
that maybe he knew that this was coming down the pike and that's
why he decided to lie or fabricate this story. Calling the officer
to tell this Court that he was involved in an investigation, which
is what you have asked this Court to do, does not seem to establish
to this Court that there would be motive to fabricate."
As such, the trial court denied the defendant's request to continue the hearing to have the Lake Forest police officer testify about the investigation involving the victim's alleged sexual molestation of other children.
Following the section 115--10 hearing, the trial court determined that the time, content, and circumstances of the victim's out-of-court statements provided sufficient safeguards of reliability with respect to those statements. As such, the trial court ruled that the victim's out-of-court statements, given by Mullin and Investigator Anderson, were admissible at trial. In so ruling, the trial court relied on the ...