from the Circuit Court of Ogle County. No. 14-CF-26 Honorable
John C. Redington, Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion. Justice Burke concurred in the judgment and opinion.
Justice McLaren specially concurred, with opinion.
1 Defendant, Josiaha R. Wills, appeals from his convictions
of four counts of predatory criminal sexual assault of a
child (720 ILCS 5/11-1.40(a)(1) (West 2012)). He contends
that the court's hearsay-rule exclusion of a
witness's testimony concerning an argument between
defendant and the alleged victim, his daughter A.W., was
first-prong plain error. We affirm.
2 I. BACKGROUND
3 Defendant was charged by information with the four counts
of predatory criminal sexual assault of a child of which he
was ultimately convicted. As amended, count I charged that
defendant "committed an act of sexual penetration with
A.W., who was under 13 years of age, in that [defendant] put
his penis in the mouth of A.W." The amended count II
charged that defendant "put his penis in the anus of
A.W., " the amended count III charged that defendant
"put his mouth on the vagina of A.W., " and the
amended count IV charged that defendant "put his finger
in the vagina of A.W." The State alleged that each of
these offenses had occurred between May 1, 2013, and January
4 Defendant had a jury trial. The State had six witnesses:
(1) A.W., who was nine years old when the trial took place,
(2) Merry Demko, M.D., who conducted a physical examination
of A.W., (3) Gregory Welenc, a school-bus driver who had
driven A.W. and her siblings to school, (4) Kelly Albrecht,
A.W.'s school counselor, (5) Kevin Wills (Kevin),
defendant's father, and (6) Traci Mueller, a forensic
interviewer at Shining Star Children's Advocacy Center
(Shining Star). The defense called 10 witnesses, of whom 7
had not previously appeared. Those seven were (1) Arma
Johnson, an investigator for the Department of Children and
Family Services (DCFS), (2) Rita Taconna, a sign-language
interpreter, who testified as an expert in American Sign
Language (ASL), (3) Airia Burgett, a one-time neighbor of
defendant and his children, (4) Melodee Hoffman, who had been
defendant's girlfriend, (5) Jason White, the Mount Morris
chief of police and defendant's acquaintance, (6)
Christine Wills (Christine), defendant's sister and
neighbor at the apartment that defendant shared with Kevin,
and (7) defendant himself.
5 At the trial, A.W. was the State's first witness. She
testified that her birthday was May 5; she was not sure what
year she was born, but she was nine years old and in fourth
grade. She had two brothers, B.W., age 10, and M.W., age 6.
She was then living with a foster parent in Sycamore with
whom she had gone to live part of the way through her
third-grade year. Before then, she had lived with her
paternal grandfather, her brothers, and defendant in a
one-bedroom apartment. The children slept in the bedroom,
with defendant sleeping in a sleeping bag on the floor.
However, A.W. also said that defendant and her grandfather
both slept in beds they had in the living room.
6 A.W. had difficulty communicating with defendant because he
was deaf and used sign language, which she had never learned
well. B.W. was a much more fluent signer, so he often
interpreted for her.
7 During the first part of her third-grade year, A.W. had
regular appointments to leave class to see "Mrs.
A."-which was how she referred to Albrecht. January 31,
2014, had been unusual because Albrecht took her out of class
twice. The second time she went to see Albrecht, she wrote a
"paper" about "what [her] dad did, "
which was admitted in evidence. It said:
"he makes me suck his weniey [sic]
he liks my huehee [('hoo hoo')]"
told Albrecht that "wiener[s]" and
"hoo-hoo[s]" were the parts that boys and girls use
8 A.W. testified about the abuse itself. She said that
defendant would come into the living room, pull his shorts
down, sit on the bed, and make her kneel to "suck his
wee-wee." One time that this happened, she felt so
disgusted that she threw up. Sometimes something yellow and
white came out of his "wiener" when it was in her
mouth. He also made her do the same thing in the bedroom, but
lying front-to-front on the floor so that he could also
"lick[ her] hoo-hoo." He sometimes "would pull
his wiener back and forth through [her] bottom." This
was "disgusting and very hurtful" and, when he did
it, she would kick defendant or elbow him. He also had
sometimes taken his hand and "rub[ed] it on [her]
hoo-hoo." This had happened when her brothers were
sleeping in the bedroom with her. She had been "[s]even
through eight" when these things happened, was in third
grade, and was living in the apartment with defendant and her
9 A.W. testified that defendant said that he would kill her
if she told anyone what happened. She demonstrated the
gestures that defendant used to make this threat, which
seemed to have been ordinary miming gestures-he pointed at
himself, drew his finger across his throat, and then pointed
10 On cross-examination, A.W. said that all of the contact
with defendant that she had described took place at night
when the lights were off. Defendant had also made her watch
"sex" videos-she spelled this out, S-E-X-on his
11 Defense counsel asked A.W. if she knew someone named Joe
Jackson; she responded that Jackson had been married to her
mother. She agreed that Jackson had sexually abused her. It
happened once only; Jackson took her into the bathroom and
made her "suck his wienie." She thought that the
abuse by Jackson occurred after the abuse by defendant. It
happened when she was staying with her mother in the house
that her mother shared with Jackson.
12 Demko testified after A.W. She explained that she was a
family physician at KSB Hospital and a volunteer physician at
Shining Star. She had conducted a complete physical
examination of A.W., finding nothing abnormal. However,
children who have been sexually abused typically show no
physical evidence of the abuse. Demko testified that such
normal findings were typical even in cases with pregnant
victims, in which the evidence of abuse is conclusive.
13 Welenc, the bus driver, was the third witness. He said
that he drove A.W. and her brothers to school for part of
A.W.'s third-grade year. On January 31, 2014, A.W. and
her brothers were being particularly loud and disruptive on
the bus, so he had them stay aboard when he arrived at the
school, to ask them why they were misbehaving. A.W. told him,
" 'It's because our life sucks. We live with our
dad.' " Welenc noticed that A.W. seemed to be about
to cry as she answered, so he suggested to the three that
they could sit near him on the return trip to talk and joke
around. He let the three off and drove the bus back to the
garage, but the interaction "really bothered
[him]." He decided that he needed to tell A.W.'s
school counselor what he had heard, so he immediately drove
his car back to the school, sought out A.W.'s counselor,
and reported the conversation.
14 Albrecht's testimony picked up where Welenc's left
off. She had come to know A.W. after A.W.'s third-grade
teacher gave A.W. a referral for counseling services.
Albrecht had seen A.W. once a week and 13 or 14 times before
January 31, 2014. She had not planned to meet with A.W. on
January 31 until Welenc spoke with her, but, based on what he
said, she pulled A.W. from class. In the counseling office,
Albrecht told A.W. what Welenc had said and asked her what
was going on. A.W. answered that her father " 'never
let[ them] do anything fun, and he yell[ed] at [them] and he
[did] mean things to [them].' " When Albrecht asked
what the mean things were, the first thing that A.W. said
was, " 'If he knew I told you, he'd slap
me.' " But Albrecht persuaded A.W. that it would be
safe to talk. A.W. then told her, " 'At night when
my brothers are asleep, he comes in and does bad things to
me.' " Albrecht stopped the conversation then and
went to her "principals." Together, they decided
that they needed more information about the "bad
things" before anyone called DCFS.
15 Albrecht and the director of counseling, Shannon Cremens,
met again with A.W. later that day. Albrecht asked A.W. to
explain more specifically what "bad things" her
father had done, and A.W. asked if she could write them down.
Albrecht said that she could, and that was when she wrote
that "he" licked her "hoo hoo" and made
her suck his "wieniey." Albrecht could not make
sense of a word that appeared in A.W.'s handwriting as
"huehee, " so she asked A.W. what it was. A.W.
whispered to her, " 'It's the word for
girls' private parts.' " Albrecht left A.W. with
Cremens and went to call DCFS.
16 On cross-examination, Albrecht conceded an inaccuracy in
the testimony she had just given; she and her
"principals" had not merely decided that they
needed more specifics from A.W. Instead, her initial call to
the DCFS hotline was rejected because the information was
insufficiently specific. Only then did they decide to
interview A.W. further. Albrecht also agreed that during
their earlier meetings A.W. had not disclosed anything that
17 Defendant's father Kevin testified for the State but
only to say that defendant's birth date was April 8,
1981, and that the apartment that he had shared with
defendant was in Ogle County.
18 Mueller testified after Kevin, describing the set-up for
her January 31, 2014, interview of A.W. at Shining Star. The
interview room had a microphone and ceiling camera to record
interviews and to allow viewing from another room.
19 The State played the recording of A.W.'s interview for
the jury. A.W.'s disclosures in the interview were
essentially consistent with her testimony. As in her
conversation with Albrecht, A.W. preferred writing things to
saying them when she found them hard to discuss. She wrote on
a large pad or flip chart that Mueller used as an
20 A.W. said that the last incident of abuse had occurred
just after the family moved back in with her grandfather.
Nothing had happened while they were living with Hoffman, but
things had happened the previous time that they had lived
with her grandfather. All the incidents had taken place in
the bedroom except that, when her grandfather was in the
hospital, defendant had once taken her into the living room.
She could not say how many times he had made her "suck
his wiener, " but he had put his "wiener" in
her "butt" 10 times. He had also put his mouth on
21 Mueller asked if anyone else had ever done things to her
that were like what her father had done. A.W. said that Joe
Jackson had, and she described a single incident in terms
similar to those in her testimony. Mueller asked her if she
had ever told anyone else about that, and she said that she
had not; she had told her mother that Jackson had pulled her
hair, but that was all. She was emphatic that Jackson was not
with her mother anymore.
22 During the first part of the interview, A.W. had described
her interactions with defendant in such a way that Mueller
had not realized that defendant was deaf. Mueller did not
learn that he was until she left to check whether she needed
to ask any more questions. When she returned, she said that
she had spoken with "Jason White, " who had told
her that A.W.'s father was deaf. She asked A.W. how she
communicated with defendant, and A.W. said, "sign
language." A.W. said that defendant never communicated
through spoken words, but that she could sign a little. She
demonstrated a few signs for words and as many letter signs
as she could remember for Mueller.
23 Mueller asked A.W. how she got along with her grandfather.
A.W. answered that he kept them healthy and fed them when her
father was over at his friend's place smoking and doing
drugs. Mueller asked her who defendant's friend was, and
she said, "Jason White."
24 Defense counsel cross-examined Mueller after the recording
had finished, asking her whether someone named "Jason
White" had driven A.W. to Shining Star. Mueller agreed
that Jason White, the chief of police of Mount Morris, had
brought A.W. to the interview. The State rested after the
cross-examination of Mueller.
25 The defense opened its case by recalling A.W.; the
questioning focused on instances in which A.W. had said that
Jackson was her only abuser. A.W. denied having told Albrecht
that everyone had made a big mistake in thinking that her
father had done things that Jackson had actually done. She
remembered meeting Arma Johnson, the person who had driven
her to see Demko, but denied having spoken to Johnson about
Jackson. However, when the question was rephrased, she said
that she might have told Johnson that Jackson was her actual
abuser, but she was not certain about what she had said. She
remembered talking to Mueller about Jackson, she was not sure
if she had talked to her one-time neighbor Airia Burgett
about Jackson, and she was certain that she had not talked to
Hoffman about Jackson.
26 On cross-examination, A.W. agreed that, between the time
she talked to Mueller and the time she went to see Demko, she
had talked to her "Aunt Christine." Christine had
told her that she was wrong about defendant; Jackson was the
person who had abused her.
27 Defendant next called Albrecht, who agreed that she had
talked with A.W. while she kept A.W. company when A.W. was
waiting to go to see Demko. During their conversation, A.W.
told Albrecht that everyone had misunderstood her; Jackson
was the one who had abused her, not defendant.
28 Johnson, whom the defense called next, was a DCFS
investigator. In early February 2014-possibly on February
3-she picked up A.W. to take her to see the doctor. No real
conversation occurred during the ride, but A.W. told her that
there had been a mistake:
"[A.W.] *** told me when I picked her up, she
said that you guys have it wrong, everything that I said, you
thought it was about my dad, but it was actually about Joe
Jackson, and that was the extent of the conversation."
29 Johnson had first met A.W. on January 24, 2014, while she
was investigating a claim that defendant had medically
neglected and inadequately supervised A.W.'s brothers. As
part of that investigation, Johnson met with M.W. at
Kevin's apartment. A.W., B.W., and Kevin were present.
A.W. joined in the discussion while Johnson was interviewing
M.W.; Johnson had the impression that A.W. thought that she
was speaking in M.W.'s defense. Johnson thought that ...