Appeal from the Circuit Court of Lake County. No. 06-CF-1371 Honorable George Bridges, Judge, Presiding.
The opinion of the court was delivered by: Justice Zenoff
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Burke and Hudson concurred in the judgment and opinion.
¶ 1 On February 8, 2007, a jury found defendant, Daniel Garcia-Cordova, guilty of three counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)). On defendant's motion for judgment notwithstanding the verdict, the trial court entered judgments of acquittal on two of the three counts for which the jury had returned guilty verdicts. Defendant was sentenced to 24 years' imprisonment on the remaining count. Defendant filed a motion to reconsider the sentence, which the trial court denied. Defendant then appealed. We initially dismissed this appeal for lack of jurisdiction on February 27, 2009, having found that defendant's notice of appeal was premature. People v. Garcia-Cordova, No. 2-07-0550 (2009) (unpublished order under Supreme Court Rule 23). The Illinois Supreme Court issued a supervisory order on April 7, 2009, which vacated our February 27, 2009, order and directed us to treat defendant's notice of appeal as validly filed. On June 26, 2009, this court filed an opinion, People v. Garcia-Cordova, 392 Ill. App. 3d 468 (2009) (Garcia-Cordova I), in which we affirmed the judgment of the trial court. On March 30, 2011, in a supervisory order denying defendant's petition for leave to appeal, the Illinois Supreme Court directed us to vacate and reconsider our judgment in light of People v. Kitch, 239 Ill. 2d 452 (2011), to determine if a different result is warranted. In accordance with the supervisory order, we hereby vacate our prior judgment. Upon reconsideration, we affirm the judgment of the trial court.
¶ 3 On April 26, 2006, defendant was indicted on two counts of predatory criminal sexual assault of a child. Count I alleged that between April 5, 2005, and April 5, 2006, defendant, being over the age of 17, committed an act of sexual penetration with the victim, C.R., who was under the age of 13, in that defendant placed his penis in the mouth of C.R. Count II alleged that between April 5, 2005, and April 5, 2006, defendant, being over the age of 17, committed an act of sexual penetration with C.R., who was under the age of 13, in that defendant placed his finger in the vagina of C.R.
¶ 4 Following a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2006)), the trial court determined that statements C.R. had made to witness Jennifer Bare*fn1 were not testimonial statements pursuant to Crawford v. Washington, 541 U.S. 36 (2004), and were otherwise admissible under section 115-10. The trial court also determined that statements C.R. made to Christina Kruschwitz, an investigator with the Department of Children and Family Services (DCFS), were testimonial and, thus, pursuant to Crawford, would be admissible at trial only if C.R. were to testify at trial.
¶ 5 On July 12, 2006, defendant was indicted on six additional counts of predatory criminal sexual assault of a child. Count III alleged that between April 5, 2005, and April 5, 2006, defendant, being over the age of 17, committed an act of sexual penetration with C.R., who was under the age of 13, in that defendant placed his penis in the vagina of C.R. Counts IV through VIII contained the same allegations as count II. In response to a request for a bill of particulars, the State specified that counts IV, V, VI, and VII, were all separate and independent acts of penetration. Count VIII was nol-prossed on September 27, 2006.
¶ 6 Defendant's trial began on February 7, 2007. Jennifer Bare testified first. Bare testified that she was a student at the Scholl University Clinic in North Chicago, Illinois. While working in the clinic one day, a patient came in with her two daughters, one of whom was C.R. While the patient was getting an X-ray, Bare sat in the clinic hallway with the two little girls. Bare testified that while sitting in the hallway, C.R. asked her if she could keep a secret. Bare responded in the affirmative, after which C.R. told Bare that her father "makes [her] put his thing in [her] mouth."
¶ 7 C.R.'s mother, Michelle, testified that she had two daughters: C.R. and Danielle. C.R. was seven at the time of trial. Defendant, Michelle's ex-boyfriend, was the biological father of Danielle but not of C.R. Michelle testified that she had known defendant for six years and that she had lived with him for one year.
¶ 8 C.R. testified next. She testified to some general preliminary matters, such as her age, family members, and schooling. When asked if she lived with someone else before she lived with only her mother and Danielle, C.R. answered no. When asked if she knew somebody she called father or Daniel, she shook her head. The record does not specifically indicate whether she shook her head back and forth or nodded up and down. She did, however, identify defendant in court as the person she referred to as Danny or her stepdad. The State then asked if C.R. recalled going to a medical clinic with her mother and telling someone there a secret. C.R. testified that she did not remember doing that.
¶ 9 C.R. did testify that she recalled meeting with someone named Christina and that a person named Alan was also present when she met with Christina. C.R. testified that she recalled speaking with Christina and drawing pictures during their meeting. She did not recall why she spoke with Christina or what the room looked like when she spoke to Christina. C.R. identified People's Exhibit 7 as a drawing she made. When asked what the picture was about, C.R. responded, "It was a long time ago." C.R. identified herself and defendant's hand in the drawing. She gave no response when asked what defendant's hand was doing in the drawing. When asked whether she printed the words on the drawing, C.R. shook her head but gave no audible response, and the record does not specifically indicate whether C.R. shook her head back and forth or nodded up and down. When shown People's Exhibit 9, which consisted of a single sheet of paper with two separate drawings on it, C.R. identified a drawing of her, Danielle's, and defendant's faces with "blankies" below their faces. She did not recall what the blankets were on. She also identified on Exhibit 9 a drawing of herself and defendant sitting on a couch. She testified that she did not know what defendant was doing on the couch. She testified that she did not recall drawing People's Exhibit 6. C.R. testified that she did not know why she drew pictures of herself and defendant.
¶ 10 When shown People's Exhibits 1 and 2, which were charts of a female child's anatomy from the front and back, C.R. testified that she did not remember ever seeing them. C.R. testified that she recalled seeing People's Exhibit 3, a chart of a male child's anatomy from the front, but did not recall when she saw it or whether she drew anything on it. She also testified that she recalled seeing People's Exhibit 4, a chart of a male child's anatomy from the back, but did not recall when or where she saw it.
¶ 11 C.R. testified that she recalled when defendant lived with her, her mother, and her sister, but testified that she did not recall anything happening in her bedroom or on the couch. C.R. also testified that she did not know what part of the body the bottom part of a bathing suit covered and that she did not know whether there were certain parts of her body that should not be touched.
¶ 12 Defense counsel did not cross-examine C.R.
¶ 13 Sergeant Alan Lother of the Zion police department testified that as a result of receiving an incident report from DCFS in March 2006, he contacted C.R.'s mother. On April 4, 2006, he and Kruschwitz met with C.R. at the Lake County Advocacy Center. During that meeting, Lother's role was simply to take notes.
¶ 14 Lother testified that he also interviewed defendant on April 4, 2006, at the Zion police department following the meeting with C.R. Assisting Lother in interviewing defendant was Lieutenant Kirk Henderson; Lother, however, was the primary interviewer.
¶ 15 Lother testified that after reading defendant his Miranda rights, he informed defendant of the specific allegations that C.R. had made against him. Defendant denied having abused C.R.
According to Lother, he and defendant discussed defendant's life and his relationship with C.R. and her mother. Lother testified that during that conversation defendant stated that he had been a victim of sexual abuse when he was a child. Lother testified that he then told defendant that "a lot of times people who are victims of things later on create similar situations to that; that they will treat others the same way they were treated because that is how they understand that expression." At one point, Lother suggested that defendant loved C.R. and that defendant was taught to express love through his alleged actions. According to Lother, defendant's demeanor changed from nervous to more relaxed.
¶ 16 After Lother continued to talk about defendant's abuse as a child, defendant told Lother that whatever C.R. said was true. Lother explained that defendant needed to be more specific about what happened. According to Lother, defendant then stated that about three weeks prior, he had gone into C.R.'s room, pulled down his pants, and rubbed his penis on C.R.'s lips. Lother also testified that defendant stated that he placed his penis in C.R.'s mouth, did not have an erection, and did not ejaculate. Defendant also told Lother that when he rubbed his penis on C.R.'s mouth, C.R. rolled away. Defendant informed Lother that he felt guilty about what he had done.
¶ 17 Lother testified that defendant also said that while sitting on the couch with C.R., he had reached down her pants and touched her vagina not more than five times. Lother further testified that defendant also stated that on several other occasions he had reached into C.R.'s underwear and done "similar acts" while C.R. was in his bed. Defendant did not say how many times he had done this while C.R. was in his bed. Lother testified that he spoke to defendant in a very calm manner and in a subdued tone of voice.
¶ 18 Lother testified that after defendant had related these occurrences orally, he agreed to provide a written statement. Lother provided defendant with a pen and paper, and Lother and Henderson left the room while defendant wrote the statement. After approximately 10 minutes, Lother and Henderson returned to the room and found that defendant had completed the written statement. Both defendant and Lother signed the written statement. Lother identified People's Exhibit 11 as defendant's written statement. It read:
"I Daniel G had been sexualy [sic] abbused [sic] when I was a child and I never talk [sic] to eny [sic] one about it when it happend [sic]. Now I made a mistake off [sic] tuching [sic] my [d]augther [sic] [C.R.] on her pryvete [sic] part and putting my peenes [sic] around her lips. I need help. I'm so sorry for what I have done; never in my heart I [sic] want to hurt my family. But I did."
¶ 19 On cross-examination, Lother testified that during the interview, Henderson yelled at defendant three times. On redirect examination, Lother testified that as defendant was providing details of specific occurrences, he would begin to "withdraw from his confession," "back away," and make denials. According to Lother, "Henderson leaned forward and said you did do this, and you already said that. Mr. Garcia began to lower his head and withdraw from the conversation. Sergeant Henderson at the time challenged him very directly and said you did that. You said you did it. Say it with me, I stuck my penis in her mouth. And he said that t[w]o or three times." Lother testified that after Henderson made those statements to defendant, defendant said that he put his penis in C.R.'s mouth. Lother further testified, however, that this was not the first time defendant had admitted putting his penis in C.R.'s mouth. Rather, Henderson's statements were meant to bring defendant back to the admission he had already made.
¶ 20 Henderson testified that he assisted Lother in interviewing defendant, but that Lother was the primary interviewer. Henderson testified that during the interview of defendant, he did raise his voice to defendant. According to Henderson, he raised his voice with defendant because defendant had made admissions of placing his penis in C.R.'s mouth and touching her vagina under her clothes, but would then begin to recant those statements. Henderson testified that he raised his voice with defendant to "remind him of what he had just told [the officers] and that [Henderson] wasn't going to accept and pretend that what he just told [the officers] had never taken place." Defendant would then return to his admissions. Henderson testified that he would describe the voice he used not as yelling or screaming, but as a "loud, commanding voice." Henderson did not, he testified, tell defendant anything that defendant had not previously said.
¶ 21 On cross-examination, Henderson testified that he was forceful with his voice and that he told defendant to say in unison with Henderson that defendant had stuck his penis in C.R.'s mouth. Henderson did not recall the number of times he told defendant to say that, but he did not believe it was more than twice. On redirect examination, Henderson testified that before he told defendant to say that he had stuck his penis in C.R.'s mouth, defendant had already admitted that he had stuck his penis in C.R.'s mouth. Henderson also testified that he did not raise his voice and tell defendant to say that he put his hand or finger in C.R.'s vagina.
¶ 22 Christina Kruschwitz testified next. Prior to her testimony, however, defendant requested that the trial court bar her from testifying about statements C.R. had made to her. Defendant argued that the testimony of what C.R. told Kruschwitz was inadmissible under both section 115-10 and Crawford because defendant was unable to cross-examine C.R. about those statements. According to defendant, C.R. was unavailable for cross-examination on the statements because while C.R. testified that she remembered meeting with Kruschwitz, she also testified that she did not remember why she met with Kruschwitz. Defendant also asked that the trial court strike Bare's testimony on the same basis. The trial court denied defendant's request, finding that C.R. was, in fact, available for cross-examination. The trial court also found, with respect to the admissibility of Kruschwitz's and Bare's testimony under section 115-10, that defendant's statement to police provided sufficient corroboration for C.R.'s statements to Kruschwitz and Bare, so as to render them admissible under section 115-10.
¶ 23 Kruschwitz testified that she was a child protection investigator with DCFS and that on April 4, 2006, she interviewed C.R. at the Lake County Children's Advocacy Center. Also present during the interview was Lother, who took notes. Kruschwitz testified that, at the beginning of the interview, she asked C.R. about the difference between the truth and a lie. When asked how C.R. responded, Kruschwitz testified, "[C.R.] gave me her definition of both the truth and a lie, which appeared to show that she understood the difference." Defense counsel objected, and the trial court sustained the objection. Kruschwitz then testified that she did not recall the definitions that C.R. gave for the truth and a lie and that the only other thing that C.R. stated about the truth and a lie was that it was better to tell the truth.
¶ 24 During the interview, Kruschwitz showed C.R. charts of the anatomy of both a male and a female child. Kruschwitz identified People's Exhibits 1, 2, 3, and 4 as the anatomical charts that she showed C.R. during the meeting. Kruschwitz testified that C.R. told her that on a female, it was not okay to touch the breasts, vagina, and belly. C.R. also told her that on a male, it was not okay to touch his "private."
¶ 25 Kruschwitz testified that she asked C.R. to tell her about the secret C.R. had shared with the nurse (presumably Bare). According to Kruschwitz, C.R. stated that her father put his penis in her mouth. C.R. said that on a Saturday night a few weeks prior to the meeting with Kruschwitz, her father came into her bedroom, touched her lips with his penis, and then placed his penis in her mouth. C.R. then rolled off the bed onto the floor. He then tried to put his penis back into her mouth a second time before walking out of the room. C.R. told Kruschwitz that his penis was soft, nothing was on it, and nothing came out of it. Kruschwitz testified that she then asked C.R. to identify on the anatomical charts what part of her father's body was placed in her mouth and what part of her body was touched by his penis. Kruschwitz testified that C.R. circled the penis on the male chart and the mouth on the female chart.
¶ 26 Kruschwitz also testified that C.R. told her that one time while C.R. and her father were sitting on the couch, he put his hand under her underwear and put his fingers in her vagina. C.R. also told Kruschwitz that on multiple occasions (C.R. did not provide a specific number), while lying in her father's bedroom with him and her sister, he would reach over her sister, put his hand underneath her pajamas and underwear, and touch both the outside and the inside of her vagina. C.R. said that she would try to roll away from him, but that he would then try to get closer to her. Kruschwitz testified that when she asked C.R. to use the anatomical charts to demonstrate what body part her father used to touch her and where he touched her, C.R. circled the hand on the male chart and the vagina on the female chart.
¶ 27 Kruschwitz testified that during the interview, C.R. made multiple drawings. Kruschwitz identified People's Exhibit 6 as a drawing that C.R. made during the meeting. Kruschwitz testified that Exhibit 6 was a drawing of C.R. lying in her bed with her father standing next to her. According to Kruschwitz, C.R. stated that it was a picture of when her father tried to put his penis in her mouth. C.R. wrote the word "Dad" above the standing figure, circled what was supposed to be her father's penis (located in the picture just below the figure's waist), and stated that this was the part that went into her ...