Appeal from Circuit Court of Vermilion County No. 10JD238 Honorable Craig H. DeArmond, Judge Presiding.
Justices Appleton and Holder White concurred in the judgment and opinion.
STEIGMANN, PRESIDING JUSTICE
¶ 1 In November 2010, the State charged respondent, Brandon P. (born December 5, 1995), by petition for adjudication of wardship with aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(2)(i) (West 2010) ("the accused was under 17 years of age and *** commits an act of sexual conduct with a victim who was under 9 years of age when the act was committed")). The State alleged that respondent committed "an act of sexual conduct" against M.J. (born July 30, 2007).
¶ 2 Following an August 2011 adjudicatory hearing, the trial court found respondent guilty of aggravated criminal sexual abuse. Shortly thereafter, the court sentenced respondent to the Illinois Department of Juvenile Justice for an indeterminate period not to exceed (1) the period for which an adult could be committed for the same act or (2) the date of respondent's twenty-first birthday (705 ILCS 405/5-750 (West 2010)), whichever came sooner.
¶ 3 Respondent appeals, arguing that (1) the trial court erred by (a) admitting M.J.'s hearsay statements to police under section 115-10 of the Illinois Code of Criminal Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/115-10 (West 2010)) because they were "unreliable" and (b) finding that statements M.J. made to police were not "testimonial, " resulting in a violation of his right to confront M.J.; (2) he was provided ineffective assistance of counsel, given that counsel failed to object to the admissibility of certain scientific evidence; and (3) he was deprived of a fair trial because the State's evidence consisted of "unconstitutional hearsay testimony and inconclusive yet prejudicial scientific evidence." We disagree and affirm.
¶ 4 I. BACKGROUND
¶ 5 A. The State's Charge and Pretrial Motions
¶ 6 In November 2010, the State charged respondent by petition for adjudication of wardship with aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(2)(i) (West 2010) ("the accused was under 17 years of age and *** commits an act of sexual conduct with a victim who was under 9 years of age when the act was committed")). The State alleged that 14-year-old respondent committed an act of sexual conduct against his 3-year-old cousin, M.J.
¶ 7 In December 2010, the State filed a notice of intent to present evidence under section 115-10 of the Criminal Procedure Code (725 ILCS 5/115-10 (West 2010)). Specifically, the State sought to offer statements that M.J. initially made to her mother and later to the police that respondent "put his finger in her vagina which made her feel bad and *** spit on her vagina and put his penis on her at Uncle Mike's."
¶ 8 In January 2011, the State filed a motion, seeking a hearing on consumption of samples of deoxyribonucleic acid (DNA) evidence taken from a sexual assault kit performed on M.J. That kit contained vaginal, anal, and underwear swabs. As part of its motion, the State also requested a buccal swab from respondent. The trial court later granted that motion.
¶ 9 B. The Hearing on the State's Motion To Present Statements Under Section 115-10 of the Criminal Procedure Code
¶ 10 In May 2011—while the trial court was waiting for the DNA results from the State's laboratory—the court conducted a hearing to determine whether to admit the section 115-10 statements the State sought to present. M.J.'s mother, Theresa J., and also Officer Troy Hogren, who investigated M.J.'s allegations against respondent, testified regarding the statements M.J. made to each of them, respectively.
¶ 11 Theresa testified that she had five children: Stephanie (19 years old); Kayla (19 years old); Lucas (7 years old); Alana (5 years old); and M.J. (3 years old). Theresa also noted that respondent was her nephew.
¶ 12 Theresa explained that on October 23, 2010, she picked respondent up from the police station, and respondent spent the night at her house with her and the children. (Respondent was at the police station for an unrelated matter.) Respondent had been having problems with his parents. (Respondent's father, Mike, was a truck driver and away from home at the time.)
¶ 13 The next morning, Theresa left the house for approximately two hours. When Theresa returned, she was in the dining room with Kayla, Stephanie, and Kayla's boyfriend, Jeff. The rest of the children were upstairs. Theresa heard a scream, and Jeff went upstairs to "check on the kids." Lucas, Alana, M.J., and respondent were all in Lucas's room with the door shut.
¶ 14 Shortly thereafter, Theresa left to pick up Mike from the "truck yard." All the children remained at the house. Theresa and Mike arrived back at the house, and not much later, Mike and respondent left to return home. The prosecutor inquired into what happened at that point, as follows:
"[PROSECUTOR]: And what happened after [respondent] left?
[THERESA]: Uhm, I can't remember approximately how long it was after [respondent] left, but [M.J.] had come downstairs; and she was *** holding herself.
[PROSECUTOR]: What do you mean by holding herself?
[THERESA]: She had her hand on her *** pee-pee as she would say, and she had—I thought she had to go to the bathroom. And I asked her if she had to go, and she said yes but it hurt. And I told her to go ahead and—I believe I told her to go ahead and go. Then I asked her why it hurt, and she said because [respondent] had put spit in her pee-pee.
[PROSECUTOR]: And after she said *** that, did you ask any further questions?
[THERESA]: I, uhm, I asked her to—I took her to my brother's house."
¶ 15 When Theresa and M.J. arrived at Mike's house, Theresa asked M.J. to tell respondent's parents what she told her, as follows: "Can you tell Uncle Mikey and Aunt Aundrea what you told me?" M.J. thereafter told respondent's parents that respondent "put spit on her pee-pee." Theresa then called the police, who instructed Theresa to take M.J. to the hospital immediately. The police later met Theresa at the hospital.
¶ 16 On cross-examination, defense counsel sought to clarify what, precisely, M.J. said to Theresa:
"[DEFENSE]: So when you were questioning or talking to [M.J.], *** she stated to you that her pee-pee hurt; is that correct?
[DEFENSE]: And then what exactly did you say after that?
[THERESA]: Her pee-pee hurt, that's why she couldn't go pee. I asked her why, and she said that [respondent] had spit on her pee-pee.
[DEFENSE]: And she *** used the actual word spit?
[THERESA]: She went like—said, 'He did this and put it on my pee-pee.'
THE COURT: The record should reflect that the witness inserted her right index finger into her mouth indicating that motion by the child.
* * *
[DEFENSE]: When she said that [respondent] put the saliva with that motion, did she give any indication of what he did with it?
[THERESA]: She said that—she just touched her pee-pee and said it hurt and that's what he had done.
[DEFENSE]: She didn't give any indication if it was below the clothes or under the clothes?
[THERESA]: I *** can't remember if it was at that time or if it was when we were at the hospital."
¶ 17 Hogren testified that he began investigating M.J.'s case "a couple of days after the report was generated by [the] patrol officer." Hogren interviewed M.J. at a "Public Safety Building" while Theresa was present. On direct examination, the prosecutor asked Hogren how he initiated the discussion about the allegations, given M.J.'s tender age:
"[PROSECUTOR]: And how did you initiate your conversation with [M.J.]?
[HOGREN]: She sat—she was very shy. She obviously didn't know me. I introduced myself to her, explained to her that I was a police officer and I work with kids and I was here—she wasn't in any trouble and I was here to talk to her about something that may have happened to her. And she sat on my lap and I asked her, you know, what her name was. She was able to tell me her full name, her middle name and her last name. And I asked her how old she was. She said she was three. I asked her who she lived with. She said that she lived with her mommy and her sisters. And I asked her if she had any brothers and she said she had a brother named Lucas and I believe he was six and another sister named Alana that was five or six, around there. Said she didn't go to school, you know, she didn't attend any schools. She wasn't able to tell me what town she lived in or—or what street she lived on, but she appeared—other than being very shy she appeared to function normally I thought for her age.
[PROSECUTOR]: And she understood the questions that you were asking?
* * *
[PROSECUTOR]: And how did you bring up with her the pending investigation at that point?
[HOGREN]: Well, I explained to her that I wanted to talk to her about what she had told her mother a couple days ago and that I was here to talk to her about something that may have happened to her that she didn't like, and she told me that she was at home there in Lucas's bedroom and it was her and Lucas and Alana and [respondent] and they were playing police and cops, some sort of a police and cops game, and she couldn't tell me what [respondent's] last name was[, ] she just told me that [respondent] was Uncle Mike's son. *** And [M.J.] explained that they were playing this game and that [respondent] stuck his finger in her pee pee.
[PROSECUTOR]: She said that he stuck his finger in her pee pee?
[PROSECUTOR]: Did ** *you ask her what her pee pee was or—
[HOGREN]: Well, when she said that she pointed, she made a motion with her finger in between her legs.
[PROSECUTOR]: And pointed in between her legs?
[HOGREN]: Yes, in the front.
[PROSECUTOR]: And after she made that statement did you inquire more of her from that [(sic)]?
[HOGREN]: I asked her if she *** had her clothes on or off. She said her clothes were on. I asked her if she had told anybody what had happened to her and she said she told Aundrea and Uncle Mike *** what happened to her. She said she told them that [respondent] spit in her pee pee and that [respondent] put his wiener on her at Uncle Mike's house.
[PROSECUTOR]: And she said that happened at Uncle Mike's house?
[HOGREN]: Well, she said that [respondent] put his wiener on her at Uncle Mike's house.
[PROSECUTOR]: And did you inquire more of those statements?
[HOGREN]: I asked her if *** that was on top of her clothes or on her skin and she said her clothes were on."
Hogren added that his entire conversation with M.J. lasted between 20 and 25 minutes.
¶ 18 Following the presentation of evidence and argument at the section 115-10 hearing, the trial court found that the State could introduce at trial the statements M.J. made to Theresa and later to Hogren, outlining its rationale as follows:
"Well, we need to take into consideration, first of all, this is a three[-]year[-]old child at the time. Secondly, disclosure was not even intended as a disclosure which gives it even greater reliability. The child comes downstairs holding herself. The mother asked if she needs to go to the bathroom. She's not asking anything about any suspicious behavior, simply do you need to go to the bathroom. The child says yes but it hurts. The mother simply asked why does it hurt and the child then discloses. There's nothing leading about it. There's nothing suggestive about it. The child simply indicates the reason why her private hurts which is an indication that [respondent] has done something with her vagina. There's no time to fabricate. The age of the child is relevant. There's no motive. There's no indication of any issues between the child, the child's mother and the minor or those members of the family.
Taking into consideration all of those factors, the time, content, and circumstances do provide sufficient reliability to the statements as to allow them to be admissible under [section] 115-10.
Then we go to *** Hogren. Contrary to arguments of counsel[, ] there were no leading questions. The questions were very open-ended. The questions *** did not have to do with the investigator suggesting the perpetrator to the child. That wasn't the testimony at all. Yes, [respondent's] name came up earlier in the conversation but it had nothing to do with identifying him as the perpetrator of what happened. She is the one who identified who the person was. The officer's questions were nonspecific, very open-ended.
Taking into consideration the age of the child, she answered the questions as best she could. Adding greater reliability is the fact that in her statements to the officer she even acknowledged the second statements made to the aunt and uncle and she wasn't even being asked about that. She was being asked about whatever she had told her mother which would also add to its reliability.
So taking into consideration all of those factors, I find that there is a sufficient basis for reliability of the statements to allow them to be admitted."
Notwithstanding the court's findings as to M.J.'s statements to Theresa and Hogren, the court found that the State should not be permitted to use M.J.'s statements to respondent's parents at respondent's house at trial because the State did not specifically seek to use those statements.
¶ 19 C. Respondent's August 2011 Bench Trial
¶ 20 At respondent's August 2011 bench trial, the State presented evidence in support of its allegation that respondent committed aggravated criminal sexual abuse against M.J. through testimony, physical evidence, and M.J.'s 115-10 statements. The State called Theresa to testify first.
¶ 21 Theresa testified consistently with her testimony from the May 2011 section 115-10 hearing. Namely, among other things, Theresa recalled that shortly after Mike took respondent home, M.J. came downstairs complaining that her "pee-pee" hurt and that respondent had spit on her "pee-pee."
¶ 22 The trial court recessed and thereafter reconvened in the jury room with the prosecutor, Theresa, respondent, Mike, as well as defense counsel, for M.J.'s testimony. M.J. testified as follows:
"THE COURT: *** Can you tell me how old ...