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The People of the State of Illinois v. Hernando Cardona

March 2, 2012

THE PEOPLE OF THE STATE OF ILLINOIS PLAINTIFF-APPELLEE,
v.
HERNANDO CARDONA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court , of Du Page County. No. 07-CF-2036 Honorable Fred L. Foreman, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Jorgensen

PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Bowman and Hutchinson concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Hernando Cardona, appeals the trial court's certification of his sex offender status. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 A. Underlying Facts

¶ 4 On May 18, 2007, the victim, A.K., then in fifth grade and age 11, was walking home from school. A friend and classmate, D.H., called out to A.K. to wait. D.H. told A.K. that "a man" was following her and she did not want to walk alone. A.K. walked with D.H. to the corner, and D.H. turned off to go home. A.K. was then alone.

¶ 5 Soon after, A.K. felt the man grab her wrist from behind. The man spoke some words to A.K., the content of which are in dispute, but he allegedly stated that he wanted to have sex with her. After some struggle, A.K. kicked the man in the shin and broke free.

¶ 6 A.K. ran home and told her father what happened. Her father called the police. The man was later determined to be defendant, age 51 and a diagnosed schizophrenic. Defendant was apprehended as a result of D.H.'s positive identification and A.K.'s corroborating information.

¶ 7 A grand jury indicted defendant on two counts: (1) indecent solicitation of a child (in that defendant, a person of 17 years of age and upwards, with the intent that the offense of predatory criminal sexual assault of a child be committed, knowingly solicited A.K., a child under the age of 17 years, to perform an act of sexual penetration (720 ILCS 5/11-6(a) (West 2008))); and (2) unlawful restraint (in that defendant knowingly and without authority detained A.K., grabbing A.K. and holding her against her will (720 ILCS 5/10-3(a) (West 2008))).

¶ 8 B. Section 115-10 Hearing

¶ 9 The State moved to permit testimony, pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2008)), of out-of-court statements made by A.K. to her father and to Officer Michael Taylor, describing the acts that comprised the elements of the charged offenses. The trial court conducted a hearing to determine whether the time, content, and circumstances of the statements provided sufficient safeguards of reliability to be admitted as substantive evidence at the upcoming trial.

¶ 10 A.K.'s father testified that, on the afternoon in question, he was standing outside in his front yard when A.K. ran up to him, crying and out of breath. A.K. was hyperventilating and would not calm down. Finally, A.K. was able to tell her father that a man grabbed her on the way home from school and said he wanted to have sex with her.

¶ 11 Taylor testified that he was a juvenile officer for the City of Waukegan with 14 years of experience. He also completed a 40-hour class involving interview techniques for child victims and witnesses. Part of his duties included teaching a Drug Abuse Resistence Education (DARE) class to fifth-grade students at A.K.'s school. Taylor knew A.K. because she had attended his DARE class once per week over the course of the school year. Taylor interviewed A.K. in the principal's office at the school.

¶ 12 Taylor asked A.K. if she knew why he was conducting the interview. A.K. responded that it was because of the man who followed her home from school. A.K. indicated the route that she had taken home, noting that she walked part of the way with D.H. She knew that defendant had been following D.H. After D.H. turned a corner, defendant (who had temporarily left the girls' sight) grabbed A.K. by the wrist and, in an Hispanic accent, asked A.K. if she wanted to have sex with him. A.K. told defendant, "No." Defendant then made a statement to the effect of: "You know you want to." A.K. tried to pull away. Defendant hit A.K. on the arm with his free hand. A.K. kicked defendant in the shin, broke free, and ran away. Defendant continued to follow her. He was not running, but he was walking fast. A.K. made it home, where she saw her father in the front yard.

¶ 13 Taylor stated that A.K. looked embarrassed when relating that defendant had asked for sex; she looked down and did not look Taylor in the face. However, A.K. did not seem particularly comfortable at any point in the interview, not just those portions pertaining to defendant's request for sex. Taylor stated that the information relayed by A.K., even after a half-hour of questioning, contained zero inconsistencies.

¶ 14 Although A.K. was able to relate certain features concerning defendant's identity (i.e., clothing, accent, general appearance), she was not able to identify him in a photo lineup. She declined to point to any of the photos. She told Taylor that, during the attack, she had been too afraid to look defendant in the face (it was D.H. who had identified defendant).

ΒΆ 15 The trial court deemed A.K.'s out-of-court statements sufficiently reliable to be admitted at the upcoming trial. Of particular note to the court was the spontaneous and consistent nature of the statements. The court also pointed to A.K.'s refusal to identify defendant in a photo lineup, essentially stating ...


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