Opinion · Appellate Court of Illinois
People v. Boling
2014 IL App (4th) 120634
- Type
- Opinion
- Court
- Appellate Court of Illinois
- Jurisdiction
- Illinois
- Date
- 2014-05-15
- Topic
- litigation
Illinois Official Reports Appellate Court People v. Boling, 2014 IL App (4th) 120634 Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Caption BRANDON M. BOLING, Defendant-Appellant. District & No.
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Illinois Official Reports
Appellate Court
People v. Boling, 2014 IL App (4th) 120634
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption BRANDON M. BOLING, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-12-0634
Filed March 12, 2014
Held Defendant’s convictions for two counts of predatory criminal sexual
(Note: This syllabus assault of a child were reversed and the cause was remanded for a new
constitutes no part of the trial where the evidence was closely balanced and defendant
opinion of the court but established plain error based on the cumulative effect of errors that
has been prepared by the threatened to tip the scales of justice against him, including the
Reporter of Decisions improper admission of a nurse’s testimony that was not relevant to her
for the convenience of examination of the victim as required by section 115-13 of the Code of
the reader.) Criminal Procedure, the improper admission of testimony suggesting
that defendant had been accused of prior similar sexual misconduct,
the trial court’s failure to conduct a hearing on the admissibility of
prejudicial out-of-court statements with respect to the steps of the
investigation, the failure to instruct the jury on the limited purpose of
certain evidence, and the improper attempts to bolster the victim’s
credibility.
Decision Under Appeal from the Circuit Court of Coles County, No. 11-CF-323; the
Review Hon. James R. Glenn, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Michael J. Pelletier, Karen Munoz, and Allen H. Andrews (argued),
Appeal all of State Appellate Defender’s Office, of Springfield, for appellant.
Brian Bower, State’s Attorney, of Charleston (Patrick Delfino, David
J. Robinson, and Kathy Shepard (argued), all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Presiding Justice Appleton and Justice Holder White concurred in the
judgment and opinion.
OPINION
¶1 In February 2012, a jury convicted defendant, Brandon M. Boling, of two counts of
predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010)). In April
2012, the trial court sentenced defendant to two consecutive terms of 31 years in prison.
¶2 Defendant appeals, arguing that (1) hearsay statements of the victim, K.A., were
improperly admitted under section 115-10 of the Code of Criminal Procedure of 1963 (the
Code) (725 ILCS 5/115-10 (West 2012)) because those statements described (a) events that
were not elements of the charged offenses and (b) criminal offenses against someone else; (2)
the State improperly elicited hearsay statements that revealed previous allegations of sexual
abuse against defendant; (3) sexual assault nurse examiner Noelle Cope was not qualified to
offer her opinion that the victim’s complaints were credible; and (4) the prosecutor improperly
commented upon the victim’s credibility in closing argument. We reverse defendant’s
convictions and remand for a new trial.
¶3 I. BACKGROUND
¶4 A. The State’s Charges
¶5 In July 2011, the State charged defendant with three counts of predatory criminal sexual
assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010)) and one count of aggravated
criminal sexual abuse (720 ILCS 5/12-16(d) (West 2010)). (The State dismissed the count of
aggravated criminal sexual abuse prior to trial.)
¶6 The State’s charges of predatory criminal sexual assault of a child alleged that between
August 2010 and May 2011, defendant (born November 25, 1974) committed various acts of
sexual penetration upon his girlfriend’s daughter, K.A. (born October 8, 2002), including
placing (1) his penis in her sex organ, (2) his penis in her anus, and (3) his mouth on her sex
organ.
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¶7 B. The State’s Motion in Limine Pursuant to Section 115-10
¶8 In January 2012, the State filed a “motion in limine to admit statements” pursuant to
section 115-10 of the Code. Specifically, the State sought to admit statements K.A. made in
July 2011 to (1) her mother, Jamie Burwell; (2) Burwell’s sister, Ryan Reardon; and (3)
Lieutenant Detective Jonathan Seiler. Over the course of two days in January and February
2012, the trial court held a hearing pursuant to section 115-10(b)(1) of the Code (725 ILCS
5/115-10(b)(1) (West 2012)) to determine the admissibility of K.A.’s hearsay statements.
¶9 1. K.A.’s Statements to Burwell
¶ 10 Burwell testified that prior to July 9, 2011, she was in a dating relationship with defendant.
Defendant did not live with Burwell permanently, but he would regularly travel from his
Missouri residence to Mattoon, Illinois, where he would spend weekends with Burwell and
K.A. at Burwell’s apartment.
¶ 11 On July 9, 2011, based on “some information” that Burwell received from Reardon, she
had a conversation with K.A. about “good touches versus bad touches.” Present for this
conversation were Burwell, K.A., Reardon, and Reardon’s daughter, A.W. (born July 2002).
Burwell told K.A. to tell her if anybody ever touched her in her “bad spot” (her vagina). When
asked by the State if K.A. made any statements during this conversation, Burwell testified as
follows:
“[K.A.] told me that [defendant] was kissing her neck one day and that he left a red
mark. She asked me what it was. I told her I didn’t know, and she said that he made her
put a cold spoon on it so the mark would be gone before I came home from work.”
When asked if she recalled any other statements K.A. made, Burwell said, “No. My mind went
crazy at that time.”
¶ 12 Burwell testified further that on July 17, 2011, she and K.A. were alone in her bedroom.
K.A. asked Burwell what the “bottle of stuff” was in her dresser drawer. Burwell looked in her
drawer and identified a bottle of personal lubricant. K.A. told her that defendant “put it on her
and put it on himself.”
¶ 13 2. K.A.’s Statements to Reardon
¶ 14 Reardon testified that on the evening of July 8, 2011, she was playing dominoes at her
apartment with Burwell, defendant, and defendant’s cousin, Fernandez, who was in town to
help defendant work on a car. (Fernandez’s last name does not appear in the record.) When
Burwell and defendant left to get a deck of playing cards, Fernandez asked Reardon if he could
spend the night because he needed to talk to her about “some things.” Reardon agreed and had
a conversation with Fernandez during the early morning hours of July 9. Reardon did not
testify at the hearing as to the nature or details of that conversation.
¶ 15 At approximately 7 or 8 a.m. on July 9, 2011, after staying up all night, Reardon and
Fernandez went to Burwell’s apartment. After defendant and Fernandez left the apartment,
Reardon told Burwell what she heard from Fernandez. Reardon and Burwell spoke alone in
Burwell’s bedroom for approximately 30 to 45 minutes, during which time “there was a lot of
crying and stuff because there was so much that [Reardon] had heard.” Reardon talked with
Burwell about having a conversation with K.A. and A.W. about good touches and bad touches.
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When K.A. and A.W. knocked on the bedroom door, Reardon let them into the room so she
could talk with them.
¶ 16 Reardon explained to K.A. and A.W. that good touches are things like hugs and kisses from
mom or grandma, and bad touches are touches to the private areas that should only be done by
a doctor. Burwell was in the room at the beginning of this conversation, but she left at some
point. The entire conversation lasted approximately 5 to 10 minutes. Reardon told K.A. not to
be scared to tell her if someone gave her a bad touch because she would make sure it never
happened again. K.A. then asked Reardon whether anything would happen to the family dog or
her guinea pigs if she told. Reardon assured her that nothing would. Reardon testified that
“[K.A.] took a great big deep breath, and like her shoulders relaxed, and she just came forth
and started telling all kinds of stuff.”
¶ 17 K.A. told Reardon that defendant would take her into Burwell’s bedroom and put her on
Burwell’s bed. K.A. demonstrated for Reardon how she would try to pull her underpants up
when defendant would pull them down. K.A. told Reardon that defendant “put his privates on
her privates, and on her bottom” and “put his mouth on her privates.” K.A. pointed to her
vagina when she referred to her privates. Reardon asked K.A. if defendant’s privates went
inside of her privates, to which K.A. responded that defendant’s privates were “on top” of her
privates. K.A. also said defendant kissed her neck, leaving a red mark, and used a cold spoon
from the freezer to make the redness go away before Burwell got home. K.A. stated that
defendant “told her that he could love her like he loves her mom, and he was showing her how
you love each other.” Following this conversation, Reardon and Burwell contacted the police.
¶ 18 3. K.A.’s Recorded Statements to Seiler
¶ 19 Seiler testified that he received specialty training at Finding Words, which specializes in
the interviewing of child sex victims. On July 9, 2011, Seiler conducted an audio and
video-recorded interview of K.A. The recording of that interview was played in its entirety at
the hearing.
¶ 20 During the interview, Seiler showed K.A. anatomically correct drawings of a nude girl and
a nude boy and asked her to identify various parts of the male and female body. K.A. identified
the female genitals as the “woo-woo,” the female breasts as “boobies,” the buttocks as the
“butt,” and the male genitals as “privates.” K.A. told Seiler that defendant touched her (1) on
the outside and inside of her woo-woo and butt with his fingers; (2) on the inside of her
woo-woo and butt with his privates; and (3) on her boobies, lips, and butt with his mouth. She
explained that when this would happen, defendant kept trying to pull her pants down and she
kept trying to pull them up. K.A. further stated that sometimes defendant’s pants were on, and
sometimes they were pulled down. When defendant touched her woo-woo or butt with his
privates, his privates would be “shaking up and down.”
¶ 21 K.A. told Seiler that defendant touched her on her woo-woo or butt with his fingers or
privates three or four times when she was eight years old (her age at the time of the interview).
Each time, he did so in Burwell’s bedroom with the door locked when Burwell was not home.
K.A. told Seiler that “usually” Kim Stone–Burwell’s “best friend”–was present at the
apartment when defendant touched her. However, K.A. asserted that Stone did not know what
was happening in the bedroom because defendant would always lock the bedroom door and
tell Stone “something different.” After these incidents, defendant would tell K.A. not to tell her
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mom or else he would not let her see Jasper, the dog that he took care of, and he would take
away her guinea pigs. K.A. told Seiler that she believed defendant, adding that she did not want
to tell on him because then he would leave, her mom would get mad, and he would tell her
mom something different.
¶ 22 When Seiler asked K.A. if she had ever seen defendant “do this to someone else,” K.A.
said “no,” but then described an incident in which she, defendant, and A.W. were playing
hide-and-seek at Burwell’s apartment when no one else was home. While K.A. was hiding,
defendant found A.W. and took her into Burwell’s bedroom. K.A. could hear A.W. “hollering”
for her and yelling “[K.A.], help! Help! Help!” K.A. initially did not come out of her hiding
spot because she was scared that “it might happen to [her,] too.” K.A. eventually went to the
bedroom and found it locked. She was able to unlock the door with her finger, but she could not
open it because defendant had something blocking the door. K.A. told Seiler that she did not
know what happened in the bedroom, and A.W. did not tell her, but K.A. stated, “I figured it
was what was happening to me.”
¶ 23 4. The Court’s Section 115-10 Ruling
¶ 24 At the conclusion of the hearing, the trial court ruled that all of K.A.’s aforementioned
statements were admissible under section 115-10 of the Code.
¶ 25 C. The State’s Motions in Limine as to Evidence of Other Crimes
¶ 26 The State filed two separate motions in limine to admit evidence of defendant’s other
crimes, specifically his criminal sexual conduct with (1) A.W. and (2) his two daughters,
K.S.B. and K.R.B. The State argued in both motions that such other crimes evidence was
admissible under (1) the common-law doctrine allowing evidence of other crimes to show a
common design, scheme, or plan, and (2) section 115-7.3(b) of the Code, which allows
evidence of other, similar crimes to show propensity in cases involving predatory criminal
sexual abuse and other enumerated sexual offenses. See People v. Donoho, 204 Ill. 2d 159, 176
,788 N.E.2d 707, 718
(2003) (“[T]he legislature enacted section 115-7.3 to enable courts
to admit evidence of other crimes to show defendant’s propensity to commit sex offenses if the
requirements of section 115-7.3 are met.”).
¶ 27 1. Defendant’s Crimes Against A.W.
¶ 28 In support of its motion in limine as to defendant’s crimes against A.W., the State presented
a recording of Seiler’s interview of A.W., which he conducted immediately after his interview
of K.A. In the interview, A.W. detailed two instances of sexual abuse by defendant, including
an instance in Burwell’s bedroom during which K.A. attempted to get inside but could not
because defendant had blocked the door. The court granted the State’s motion in limine, ruling
that “the testimony of A.W. can come in as other crimes evidence, and also pursuant to section
115-7.3 [of the Code].”
¶ 29 2. Defendant’s Crimes Against K.S.B. and K.R.B.
¶ 30 In support of its motion in limine as to defendant’s crimes against K.S.B. and K.R.B., the
State presented recordings of separate January 2012 interviews of those girls conducted by
Vicki Joseph of the Amy Center in Mount Vernon, Illinois. Both girls described incidents of
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criminal sexual abuse, including penetration, committed by defendant upon them 11 to 12
years earlier, when they were between the ages of 2 and 5. The trial court ruled that the
evidence of defendant’s crimes against K.S.B. and K.R.B. was admissible under neither the
common-law doctrine to show a common scheme, plan, or design, nor under section
115-7.3(b) of the Code. Accordingly, the court denied the State’s motion in limine as to the
evidence of defendant’s crimes against K.S.B. and K.R.B.
¶ 31 D. Trial
¶ 32 The parties presented the following pertinent evidence at defendant’s February 2012 jury
trial. (As we will discuss further in our analysis section, because defendant asserts plain error,
his claims require us to determine whether the evidence at trial was closely balanced.
Accordingly, we set forth the evidence in detail.)
¶ 33 1. The State’s Evidence
¶ 34 a. K.A.’s Testimony
¶ 35 In response to leading questions, K.A. testified that defendant touched her on her chest, her
“front bad spot,” and her “back bad spot,” which she identified as her “bottom.” K.A.,
however, testified that she did not know, or could not remember, (1) what he used to touch her
in those places; (2) how often he touched her; (3) how old she was when he touched her; (4)
whether he touched her on the inside or outside; (5) whether he put anything on her when he
touched her; or (6) whether he said anything to her when he touched her.
¶ 36 K.A. recounted that on one occasion, defendant made her put a spoon in the freezer and
then on her neck to make a red spot go away. However, she could not remember how the red
spot got on her neck. When asked if her clothes were on when defendant would touch her bad
spots, K.A. testified, “He would try to pull them down, but I would put them back on.” When
asked if she ever saw any of defendant’s body parts when he touched her, K.A. said, “No.”
However, she said, “I don’t know” when asked if “any of his body parts that you wouldn’t
ordinarily be able to see” touched her. K.A. confirmed that she had her ninth birthday on
October 8, 2011, but she could not remember whether defendant touched her before or after
that date.
¶ 37 b. Burwell’s Testimony
¶ 38 Burwell testified that she began dating defendant in June 2009 and she was happy in the
relationship. Defendant appeared to get along well with K.A., and Burwell did not notice
anything that caused her concern. After losing his job, defendant offered to begin babysitting
K.A. while Burwell was at work.
¶ 39 Burwell testified about her July 9 conversation with Reardon, as follows:
“[THE STATE]: Did you have a conversation with [Reardon] on July 9th of last
year?
A. Yes, I did.
Q. And was the nature of that conversation–without getting into the specifics of
what [Reardon] may have said, what was the nature of that conversation?
A. Um, it was about some stuff that [defendant] had been accused of.
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Q. Okay. Did [Reardon] want to have a conversation with your daughter?
A. Yes.
***
Q. Now, what was the nature of the conversation that [Reardon] wanted to have
with [K.A.]?
A. Good touch/bad touch.
***
Q. Now, what do you mean by good touch/bad touch?
A. Well, you know, is anybody–well, I mean like the good touch/bad touch, has
anybody, you know, ever touched you in a spot that they shouldn’t have, or the manner
that they shouldn’t have.”
¶ 40 Burwell testified that she did not want to have the conversation with K.A. about good
touches and bad touches because she thought K.A. would have told her if something was going
on. Burwell was not present for the entire conversation between Reardon and K.A. because she
was getting dressed and her “mind was just all over the place.” When asked what she heard
K.A. say during the conversation, Burwell testified as follows:
“She had stated to me that [defendant] was kissing on her neck, called her what he
called me, and that he had left a red mark on her neck, and that he made her put a cold
spoon on it so the marks would be gone before I came home from work.”
Burwell testified that defendant called her “Baby,” but she never heard defendant call K.A. that
name. After K.A. made the aforementioned statements, Burwell left the room and did not hear
anything else K.A. said.
¶ 41 Burwell also testified, consistent with her testimony at the section 115-10 hearing, about
K.A.’s statements regarding the bottle of personal lubricant in her dresser drawer. The trial
court admitted that bottle of lubricant into evidence.
¶ 42 Finally, Burwell testified that Stone, her former friend and neighbor, would occasionally
babysit K.A. at Burwell’s apartment. Burwell was no longer friends with Stone because she
learned that (1) Stone was present at her apartment “when some of the stuff was going on with
[K.A.]” and (2) defendant had an affair with Stone while he was dating Burwell. Burwell
testified that she learned of that information after K.A. revealed her claims of sexual abuse
against defendant.
¶ 43 c. Reardon’s Testimony
¶ 44 Reardon testified about her conversation with Fernandez, as follows:
“[THE STATE]: *** Without going into the details of the conversation, did you
have a conversation with Fernandez?
A. Yes, I did.
Q. Who was or who is Fernandez?
A. He is a cousin of [defendant]. And he was in town to help fix his friend Amy’s
daughter’s car.
Q. Okay. And did Fernandez request to have a private conversation with you?
A. Yes.
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Q. Okay. And by private, was that conversation intended to be outside the presence
of [defendant]?
A. Yes. My sister–[defendant] had left to go get a deck of cards. And when they left
for that short period of time, [Fernandez] said, ‘Ryan,’ he goes, ‘I need to talk to you
about some things about [defendant].’
He said, ‘When we get done playing cards, can I stay here and talk to you
afterwards, and stay here till daylight?’
Q. Okay. Before you go any further. Did you in fact have a conversation with
Fernandez?
A. Yes.
Q. Regarding [defendant]?
A. Yes.
Q. Okay. Based upon the conversation that you had with Mr.–with Fernandez about
[defendant], did you then in turn have a conversation with your sister, [Burwell]?
A. Yes.
Q. Okay. And based upon your conversation with Fernandez, and based upon your
conversation with your sister, did you then have a conversation with [K.A.]?
A. Yes, I did.
Q. Okay. Can you tell us the circumstances of that, please?
A. I called her to the bedroom along with my daughter [(A.W.)] and did a double,
you know, talk about the good touch and the bad touch.”
¶ 45 Reardon then testified about her conversation with K.A. regarding good touches and bad
touches, which was largely consistent with her testimony at the section 115-10 hearing.
Specifically, Reardon testified that K.A. told her (1) defendant tried to pull her pants down on
Burwell’s bed and she tried to pull them back up; (2) defendant put a red spot on her neck and
made her put a cold spoon over it before Burwell got home from work; (3) defendant told her
that “this is how people love each other”; (4) defendant put his privates on her privates; (5)
defendant put his mouth on her privates; (6) defendant touched her bottom; and (7) defendant
kissed her neck and breasts, leaving red spots that Reardon interpreted to be hickeys.
¶ 46 At trial, Reardon testified for the first time that during her conversation with K.A. about
good touches and bad touches, K.A. told her that defendant took lotion from Burwell’s drawer
and put it on him and her. After K.A. pointed to the drawer, Reardon looked inside and found a
bottle of K-Y Jelly.
¶ 47 Later in Reardon’s testimony, the State asked more questions relating to her conversation
with Fernandez:
“Q. Ms. Reardon, going back to the conversation, the good touch/bad touch
conversation you had with [K.A.] Was that based upon the information that you
received from Fernandez?
A. Yes.
Q. Okay. And did you have any reason to believe–reason to feel that you needed to
have a conversation with [K.A.] prior to your conversation with Fernandez regarding
good touches and bad touches?
A. Um, no.
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Q. Okay. Ms. Reardon, prior to July 9th–prior to July 9th of 2011–and maybe I
should clarify. Was your conversation with [K.A.] on July 9th?
A. Yes.
Q. So, your conversation with Fernandez was on the evening of July 8?
A. Actually, it was probably at two–three o’clock in the morning on July 9th.
Q. Okay. So, just hours before your conversation with–
A. Yes.”
¶ 48 Finally, on redirect examination, the State again asked Reardon questions about her
conversation with Fernandez, as follows:
“Q. With respect to Fernandez, why did he request to stay at your place that night?
A. When they had left to get cards, he approached me. And it was kind of, ‘Ryan, I
really need to talk to you about some things about [defendant], and it is concerning the
girls.’
And he said, ‘And I’ve been wanting to talk to your sister.’
[DEFENSE COUNSEL]: Judge–
[THE COURT]: Sustained.”
¶ 49 d. Cope’s Testimony
¶ 50 Cope, who was a sexual assault nurse examiner (SANE), began her testimony by
describing her credentials in the field of sexual assault investigations, including (1) her
bachelor’s and master’s degrees, (2) her clinical certifications, (3) her memberships in several
professional organizations, (4) her adjunct faculty status at several universities, (5) her
multiple professional awards, and (6) her past experience testifying as an expert on sexual
assault in civil and criminal cases throughout Illinois. Cope testified that she was not a forensic
interviewer. Instead, her SANE training taught her how to interview children for medical
purposes. The trial court allowed Cope to testify as an expert.
¶ 51 Cope met with K.A. on July 19, 2011, for the purpose of a medical interview followed by a
physical examination. Cope knew ahead of time that K.A.’s allegations involved touching of
the genitals with the hand, and possibly with the penis. She did not know the alleged
perpetrator’s identity.
¶ 52 Cope testified that when she asked K.A. if anyone had ever touched her bad spot or her
bottom in a way that made her uncomfortable, K.A. told her that defendant did. The following
exchange then occurred on direct examination:
“[THE STATE]: [D]id you ask her what exactly it was that he did that made her
uncomfortable?
[COPE]: Yes, I did. I asked her, you know, can you tell me more about what
happened that made you feel uncomfortable?
And she told me that one day she was at home, and he was babysitting, and she was
there with her cousin, [A.W.], as well. And that they are watching TV. And that he took
her cousin into the bedroom and shut the door and locked it. She went to the door. She
tried to get into the bedroom, but it was locked. A while later, they came out of the
bedroom, and then–
Q. Let me interrupt you. I apologize.
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A. That’s okay.
Q. Was she able to state how long they were in the bedroom together?
A. I asked her how long, and she said she did not know.
Q. Okay. Did you then ask her what happened after they exited the bedroom?
A. I did. And then, she told me that, after they exited the bedroom, that he took her
into the bedroom.”
¶ 53 K.A. told Cope that when defendant took her into the bedroom, defendant (1) touched her
bad spot with his bad spot (his penis); (2) touched her bottom with his bad spot; (3) touched her
bad spot with his mouth; (4) touched her bad spot with his fingers and hand; (5) had her touch
his bad spot with her hand; and (6) asked her to touch his bad spot with her mouth, but she
refused. When Cope asked K.A. if defendant rubbed his bad spot on top of her bad spot, or
whether he put his bad spot into her bad spot, “[K.A.] felt that she knew definitely it was on top
of her bad spot, but she said she was not sure that it went inside of her bad spot.” K.A. told
Cope that defendant “rubbed his bad spot on the outside of her bottom.” Cope testified that
after defendant left the bedroom with K.A., he brought A.W. back into the bedroom.
¶ 54 K.A. told Cope that these types of incidents between her and defendant “happened lots of
times,” although she was unable to say exactly how many. The incidents would usually occur
in Burwell’s bedroom when defendant was babysitting K.A. K.A. also told Cope that on one
occasion, defendant put lotion on her stomach and rubbed his bad spot on her belly.
¶ 55 When Cope asked K.A. whether defendant told her not to tell anyone about his conduct,
K.A. said that defendant threatened to take away or kill her guinea pigs, and prevent her from
seeing the dog, Jasper, if she told. The following exchange then occurred on direct
examination:
“[THE STATE]: Did you have an opportunity then to ask her whether or not she
was angry or frightened by any of this?
[COPE]: I did. I asked her how she was feeling not that it–well, actually, I asked her
why she finally did decide to tell. If she was afraid that she wasn’t going to get to see
her guinea pig or her dog, then, you know, why did you tell?
And she said she had told her mom because she heard that maybe it had happened
to some other kids. So, she felt safe in telling.”
¶ 56 During her physical examination of K.A., Cope did not find any indications of sexual abuse
or sexually transmitted disease.
¶ 57 On the State’s redirect examination, Cope gave the following testimony:
“[THE STATE]: When you conduct these examinations, do you have any hope or
expectation as to what’s going to come out of that examination?
[COPE]: Um, the expectation that I–my–I feel like the big part of my job is
reassuring these kids when they come in that their bodies [are] okay.
I know that the likelihood of me finding a positive physical finding is probably
going to be minimal. But the kids have, you know–but like in [K.A.’s] case, she gave
me a really good–what I felt was a credible history.”
¶ 58 e. Seiler’s Testimony
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¶ 59 In his trial testimony, Seiler recounted his interview with K.A., including K.A.’s
description of defendant’s abuse of her and the incident in which defendant took A.W. into
Burwell’s bedroom during a game of hide-and-seek. The full recording of Seiler’s interview of
K.A. was then admitted into evidence and played for the jury.
¶ 60 Seiler also testified that on July 12, 2011, he and defendant met in Mount Vernon, Illinois,
for the purpose of a voluntary interview. During that interview, defendant admitted that “it was
a pretty common occurrence” for him to babysit K.A. when Burwell was at work. Defendant
also admitted that he would babysit A.W. on occasion. However, defendant denied any
inappropriate contact with K.A. or A.W.
¶ 61 Seiler testified that in January 2012, he went to Burwell’s apartment to secure the bottle of
personal lubricant as evidence. While there, Seiler video-recorded himself using his fingernail
to unlock Burwell’s bedroom door, just as K.A. told him she had done when defendant was in
the bedroom with A.W. That video was played for the jury.
¶ 62 2. Defendant’s Evidence
¶ 63 Defendant testified that he had a typical relationship with K.A. and she was glad to see him
every time he would visit. He denied ever inappropriately touching K.A. or telling her that he
would keep her from seeing the dog or her guinea pigs. Defendant admitted being alone with
K.A. in Burwell’s apartment at times. However, he denied ever being alone with K.A. between
the time frame alleged in the charging information (August 2010 through May 2011).
¶ 64 Defendant testified that in December 2010, he had a conversation with K.A. about good
touches and bad touches. He decided to do this because his sons’ mother sent him a text
message about a child kidnapping, which led him to ask his two sons–four and six years old at
the time–whether they knew not to get into a stranger’s car. After speaking with his sons,
defendant convinced Burwell to have a similar conversation with K.A. Defendant and Burwell
asked K.A. whether she would get into a car with someone if they had a dog, to which K.A.
replied, “Yeah, I will get in the car.” Burwell and defendant then explained to K.A. the
difference between good touches and bad touches, and told her never to get into a stranger’s
car. Defendant then told K.A. to alert her mother if anyone gave her a bad touch.
¶ 65 Defendant also testified that the first time he babysat K.A., he noticed a red mark on the
back of her neck. K.A. was hesitant to let defendant look at or touch the mark. Defendant
called Burwell at work to inform her that K.A. had the mark on her neck. While defendant
waited for Burwell to arrive home, he had K.A. place a piece of ice on a spoon and then place
the spoon over the red mark. Defendant testified that he wanted to see if the cold spoon would
cause the mark to dissipate, which would tell him whether it was a simple bruise or something
else. Instead of dissipating, the mark became agitated from the cold spoon. When Burwell
arrived home, she gave K.A. Benadryl, which caused the mark to go away.
¶ 66 Defendant admitted having an affair with Stone. On July 9, 2011, Burwell called and told
him that she was aware of the affair.
¶ 67 Defendant testified that during his July 12 interview with Seiler in Mount Vernon, Seiler
repeatedly urged defendant to admit his guilt without first disclosing to defendant the crime he
was suspected of committing. Eventually, Seiler accused defendant of sexually abusing K.A.
and continued asking him to admit his guilt. Defendant denied doing anything wrong and
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offered to submit deoxyribonucleic acid (DNA) and take a polygraph test. Ultimately,
defendant told Seiler that if he was not going to be arrested, he would leave, which he did.
¶ 68 3. The State’s Rebuttal Evidence
¶ 69 Seiler testified that during his interview with defendant, he disclosed the nature of his
investigation within the first 10 minutes, before he asked defendant to admit his guilt.
¶ 70 Sergeant David Vanderport testified that he accompanied Seiler to the interview of
defendant in Mount Vernon. Vanderport corroborated Seiler’s testimony that defendant was
informed of the nature of the investigation before Seiler asked him to admit his guilt.
¶ 71 Burwell testified that she suffered a work-related injury in September 2010, which caused
her to miss a week of work. She then took off work on December 22, 2010, and had surgery in
January 2011, which caused her to miss work until February 8. Although she was not working
from December 22, 2010, to February 8, 2011, she left the house to run errands and she
attended physical therapy three times per week. During some of those times, defendant was
alone in the apartment with K.A. The State offered into evidence, and the trial court admitted,
medical paperwork to show the times that Burwell was not working due to her injury and
surgery. Burwell also denied defendant’s claim that she and defendant had a conversation with
K.A. about good touches and bad touches.
¶ 72 4. The Jury’s Verdict and the Trial Court’s Sentence
¶ 73 The jury found defendant guilty of two counts of predatory criminal sexual assault in that
he (1) placed his penis on K.A.’s sex organ and (2) placed his penis on K.A.’s anus. The jury
found defendant not guilty of predatory criminal sexual assault for placing his mouth on K.A.’s
sex organ. The trial court later sentenced defendant as stated.
¶ 74 This appeal followed.
¶ 75 II. ANALYSIS
¶ 76 Defendant argues that (1) K.A.’s hearsay statements were improperly admitted under
section 115-10 of the Code because those statements described (a) events that were not
elements of the charged offenses and (b) criminal offenses against someone else; (2) the State
improperly elicited hearsay statements that revealed previous allegations of sexual abuse
against defendant; (3) Cope was not qualified to offer her opinion that K.A.’s complaints were
credible; and (4) the prosecutor improperly commented upon K.A.’s credibility in closing
argument.
¶ 77 Initially, we note that defendant has forfeited each of the aforementioned claims of error by
failing to object at trial or raise the issues in a posttrial motion. See People v. Kitch, 239 Ill. 2d 452, 460
,942 N.E.2d 1235, 1240
(2011). However, defendant argues that this court should
consider his claims under the plain error doctrine, which permits a court of review to consider
a forfeited error under the following circumstances:
“(1) the evidence is close, regardless of the seriousness of the error, or (2) the error is
serious, regardless of the closeness of the evidence. In the first instance, the defendant
must prove ‘prejudicial error.’ That is, the defendant must show both that there was
plain error and that the evidence was so closely balanced that the error alone severely
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threatened to tip the scales of justice against him.” People v. Herron, 215 Ill. 2d 167, 187
,830 N.E.2d 467, 479
(2005).
Defendant confines his claims to the first prong of the plain error analysis, contending that the
evidence at trial was closely balanced and the existence of the asserted errors threatened to tip
the scales of justice against him. Under the plain error analysis, defendant bears the burden of
persuasion. Id. at 187
,830 N.E.2d at 480
.
¶ 78 Because the usual first step in plain error analysis is to determine whether any error
occurred (People v. Thompson, 238 Ill. 2d 598, 613
,939 N.E.2d 403, 413
(2010)), we address
defendant’s contentions of error in turn. After determining whether error occurred, we turn to
whether the cumulative errors threatened to tip the scales of justice against defendant, thereby
requiring reversal of defendant’s convictions.
¶ 79 A. K.A.’s Hearsay Statements
¶ 80 1. K.A.’s Statements Admitted Under Section 115-10 of the Code
¶ 81 Defendant argues that the following hearsay statements of K.A., admitted pursuant to
section 115-10 of the Code, were inadmissible: (1) K.A.’s statements regarding defendant
kissing her breasts and neck, and placing a cold spoon over the resulting red mark on her neck;
(2) K.A.’s statements regarding defendant’s threats against the dog and guinea pigs; and (3)
K.A.’s statements regarding defendant’s apparent abuse of A.W. during the game of
hide-and-seek. Although defendant does not challenge the reliability of these statements, he
argues that they were inadmissible under section 115-10 of the Code because they “described
events that were not elements of the charged offenses and *** described criminal offenses
against someone else.” We disagree.
¶ 82 Section 115-10 of the Code provides, in pertinent part, as follows:
“(a) In a prosecution for a physical or sexual act perpetrated upon or against a child
under the age of 13, *** the following evidence shall be admitted as an exception to the
hearsay rule:
***
(2) testimony of an out of court statement made by the victim describing any
complaint of such act or matter or detail pertaining to any act which is an element of
an offense which is the subject of a prosecution for a sexual or physical act against
that victim.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that
the time, content, and circumstances of the statement provide sufficient safeguards
of reliability; and
(2) The child *** either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is corroborative evidence of the act
which is the subject of the statement[.]” 725 ILCS 5/115-10 (West 2012).
¶ 83 The General Assembly enacted section 115-10 of the Code to allow admission of “detailed
corroborative evidence of the child’s complaint about the incident to another individual” out of
a concern that “child witnesses, especially the very young, often lack the cognitive or language
skills to effectively communicate instances of abuse at trial [citation], or may be impeded
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psychologically in their efforts to do so.” People v. Bowen, 183 Ill. 2d 103, 115
,699 N.E.2d 577, 584
(1998). While defendant is correct that the trial court admitted K.A.’s hearsay
statements describing (1) events that were not elements of the charged offenses and (2)
apparent criminal offenses against someone else, section 115-10 of the Code is, by its plain
language, not limited to hearsay statements that directly describe the elements of the charged
offense. People v. Schmitt, 204 Ill. App. 3d 820, 829
,562 N.E.2d 377, 384
(1990). ¶ 84 In People v. Monroe,366 Ill. App. 3d 1080, 1089-90
,852 N.E.2d 888, 899
(2006), the trial
court allowed the State to introduce, under section 115-10 of the Code, the hearsay statements
of two child victims that the defendant made them tickle each other on their inner thighs while
they were naked. The defendant argued that the evidence was improperly admitted under
section 115-10 of the Code because he was not charged in relation to the tickling. Id. at 1090
,
852 N.E.2d at 899
.
¶ 85 The Monroe court undertook a two-part analysis. First, it determined whether the evidence
of other crimes (the tickling) was admissible at all, regardless of the hearsay nature of the
evidence:
“The record reveals that when the children first complained to [the father and
stepmother] about the defendant’s abuse, they also described the tickling incidents.
Furthermore, when the children reported the abuse to Nurse Kohler, they
contemporaneously referred to the tickling incidents as well. Such testimony indicates
that the defendant’s requiring the children to tickle each other went hand-in-hand with
his abuse of them. As such, the evidence of improper tickling was properly admitted to
reflect the defendant’s design, scheme, or plan of abusing the children.” Id.
¶ 86 Next, after concluding that the other crimes evidence reflected the defendant’s design,
scheme, or plan of abusing the children, the court turned to whether the use of the hearsay
statements for that purpose fell within the hearsay exception of section 115-10 of the Code:
“[T]he trial court conducted a proper section 115-10 hearing outside the presence of the
jury in order to determine that the time, content, and circumstances of the statements at
issue provided sufficient safeguards of reliability. The trial court determined that the
statements at issue were in fact reliable. [The children’s father and stepmother] testified
that when the children indicated to them that the defendant was abusing them, the
children also indicated that the defendant required them to tickle each other while
naked. [The father’s and stepmother’s] testimony as to the tickling went to the details
of how the defendant was abusing the children. Such testimony was therefore not
improper pursuant to section 115-10 [of the Code].” Id. at 1091
,852 N.E.2d at 900
.
¶ 87 Consistent with the court’s decision in Monroe, we hold that under section 115-10(a)(2) of
the Code, a “matter or detail pertaining to any act which is an element of an offense” (725
ILCS 5/115-10(a)(2) (West 2012)) may include facts about the victim’s relationship with the
defendant if relevant to explain the context within which the alleged charged acts occurred.
Our analysis is anchored to the purpose of section 115-10 of the Code, which is to address the
difficulties of eliciting trial testimony from a child victim in a prosecution for sex crimes.
Bowen, 183 Ill. 2d at 115
,699 N.E.2d at 584
. Just as a child might be psychologically
impeded–through embarrassment, fear, or other emotions–to testify at trial regarding the
defendant’s acts constituting the elements of the charged offense, so too might the child be
reluctant to testify about the details of his or her relationship with defendant that, although not
elements of the charged offense, are important and relevant to provide the jury with a
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sufficiently complete understanding of the facts and circumstances surrounding the alleged
criminal acts.
¶ 88 Using an example from this case, K.A.’s statement to Seiler that defendant’s privates
would be “shaking up and down”–a statement that defendant does not argue was inadmissible
under section 115-10 of the Code–was not only relevant, but extremely probative of the
elements of the charged offenses. The jury could infer from that evidence that defendant
masturbated in front of K.A., which not only revealed the sexual nature of his relationship with
her, but also corroborated her other claims. Because an eight-year-old girl would likely never
describe a grown man’s penis shaking up and down unless she actually witnessed it, that
statement gave credibility to K.A.’s statements regarding the elements of the charged offenses.
In this sense, the statements described a matter or detail pertaining to the acts that were
elements of the offense. Not surprisingly, K.A. was reluctant to testify at trial not only about
the elements of the charged offenses, but also about nearly all of the embarrassing aspects of
her relationship with defendant, including the fact that she saw his privates shaking up and
down.
¶ 89 Similarly, under section 115-10 of the Code, K.A.’s statements regarding defendant
kissing her neck and breasts described details and matters pertaining to defendant’s charged
acts because they put those acts into the context of an inappropriate relationship between an
adult man and an eight-year-old girl. Other evidence in that same category, but which
defendant does not claim was inadmissible, included K.A.’s statements that defendant (1)
would lock the door when he touched her in Burwell’s bedroom; (2) called her “baby”; (3) said
he was showing her how people love each other; (4) told her to keep the conduct a secret; and
(5) put personal lubricant on her body and his own.
¶ 90 Such ancillary facts, which would be relevant and admissible through K.A.’s direct
testimony, may be just as difficult to elicit at trial as the facts directly establishing the elements
of the charged offense. If the only hearsay statements admissible under section 115-10 of the
Code had been K.A.’s statements that defendant touched her “woo-woo” and “bottom” with
his mouth and “privates” (statements directly establishing the acts that were elements of the
charged offenses), the jury would be left with no context from which to assess the veracity of
those claims. However, K.A.’s aforementioned statements about defendant’s other
inappropriate–albeit uncharged–behavior, of which only she and defendant had personal
knowledge, corroborated her claims and aided the jury in determining whether defendant
committed the acts constituting elements of the charged offenses. People v. Park, 245 Ill. App. 3d 994, 1002
,615 N.E.2d 753, 758
(1993) (“[W]hen sex crimes are involved, prior acts
between the same parties are generally admissible to show the relationship and familiarity
between the parties and to corroborate the complaining witness’ testimony as to the act relied
upon for conviction.”).
¶ 91 K.A.’s statements regarding the cold spoon incident and defendant’s threats against the
dog and guinea pigs were also admissible under section 115-10 of the Code because they
revealed not only the inappropriate nature of defendant’s relationship with K.A., but also the
fact that defendant took measures to conceal that relationship from others. See People v.
Rushing, 192 Ill. App. 3d 444, 452
,548 N.E.2d 788, 793
(1989) (“Due to the contemporaneous
nature of the threat with the acts and the challenges made to [the child victim’s] credibility, the
threat has become integrally intertwined with the offense.”). As was the case in Rushing,
securing the victim’s silence and preventing detection is an integral component of any ongoing
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sexually abusive relationship between an adult and a child. Whatever the means, the
perpetrator’s methods of keeping the abuse secret is often integrally intertwined with the
offense for purposes of section 115-10 of the Code. This is especially true in a case such as this,
where the child victim’s claims were (1) first made months after the alleged abuse, (2) denied
outright by the defendant, and (3) uncorroborated by physical evidence. Under section 115-10
of the Code, K.A.’s statements regarding the cold spoon incident and defendant’s threats to the
dog and guinea pigs were admissible to show the nature of defendant’s relationship with K.A.
and his efforts to conceal the acts for which he was charged.
¶ 92 We also conclude that K.A.’s hearsay statements regarding defendant’s apparent abuse of
A.W. were admissible under section 115-10 of the Code. In the case of People v. Embry, 249 Ill. App. 3d 750, 763
,619 N.E.2d 246, 255
(1993), the trial court admitted, pursuant to section
115-10 of the Code, the statements of one child victim, H.P., regarding the defendant’s abuse
of her younger sister, A.P. H.P.’s statements at issue described her observations of the
defendant’s sexual conduct with A.P. occurring during a sleepover at which defendant abused
both girls. This court in Embry held that H.P.’s statements about the defendant’s abuse of A.P.
“were properly admissible as components of the contemporaneous and ongoing series of
events constituting a matter or detail pertaining to the offense perpetrated against herself.”
(Emphasis in original.) Id.
(citing Rushing,192 Ill. App. 3d at 452
,548 N.E.2d at 793
). ¶ 93 In People v. Peck,285 Ill. App. 3d 14, 17
,674 N.E.2d 440, 442
(1996), this court, citing
Embry, held that whether a child declarant’s statements about the defendant’s acts upon
another child are admissible under section 115-10 of the Code depends upon the particular
circumstances of a given case. The following are some relevant considerations:
“(1) the relationship of the declarant to the child upon whom the witnessed sexual act is
perpetrated; (2) the proximity of such act–in time and place–to the act allegedly
performed upon the declarant; (3) the similarity of the two acts; and (4) the existence of
a common perpetrator. These considerations may be significant in explaining the
declarant’s willingness to submit to similar sexual acts, as well as her reluctance to
resist, cry out, or complain to others.” Id. at 17
,674 N.E.2d at 422-43
.
¶ 94 Our conclusion that K.A.’s statements regarding defendant’s apparent abuse of A.W. were
admissible under section 115-10 of the Code is largely influenced by the context within which
the statements were made. During her interview with Seiler (the recording of which was
presented in full to the jury), K.A. gave a detailed description of defendant’s sexual conduct
with her, which she said always occurred in Burwell’s bedroom, with the door locked, while
defendant was babysitting her. After K.A. gave that description, Seiler asked, “Have you ever
seen [defendant] do this to anybody else?” K.A. said, “No,” but then she immediately
described her observations during the incident involving A.W. Specifically, K.A. said that
while defendant was babysitting her and A.W.–her cousin of the same age–he brought A.W.
into Burwell’s bedroom during a game of hide-and-seek and locked the door behind him. K.A.
heard A.W. yelling her name and pleading for help. K.A. attempted to open the bedroom door,
but it was blocked by something.
¶ 95 K.A.’s statements about the incident involving A.W. described an incident involving the
same perpetrator, the same bedroom, the same period of time, and a victim with whom K.A.
was close in age and relation. Under the considerations cited in Peck, K.A.’s statements
regarding defendant’s apparent abuse of A.W. were admissible under section 115-10 of the
Code.
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¶ 96 Further, aside from K.A.’s mere observations of the incident involving A.W., it was the
conclusions K.A. drew from those observations that made her overall description of the
incident most revealing of her own experiences with defendant. K.A. told Seiler that she did
not know what defendant did to A.W. inside the bedroom, but “figured it was what was
happening to [her].” Even though she heard A.W. pleading for help, she “was scared to come
out” of her hiding spot because “it might happen to [her] too.” The fact that K.A. concluded
that defendant was committing similar sexual acts with A.W., based only upon what she saw
and heard from outside the bedroom, was revealing of her own experiences with defendant.
This glimpse into K.A.’s mental state during the incident involving A.W. corroborated K.A.’s
claims and provided the jury with an understanding of the psychological aspects of defendant’s
abusive relationship with her. In this sense, K.A.’s statements described a matter or detail
pertaining to the charged offenses.
¶ 97 As a final note regarding the incident involving A.W., we point out that although K.A.’s
statements to Cope suggested that defendant’s abuse of A.W. occurred immediately
contemporaneous to his abuse of K.A., we do not factor Cope’s testimony into our section
115-10 analysis. The State failed to include Cope’s testimony in its motion in limine to admit
statements pursuant to section 115-10 of the Code, nor was her aforementioned testimony
presented at the hearing or considered by the trial court in making its section 115-10 ruling.
Section 115-10 of the Code requires that (1) the “defendant be provided with the specific
hearsay testimony of the child victim which will be presented at trial” and (2) the court hold a
hearing to determine the reliability of a particular hearsay statement based upon evidence
showing “a particularized guarantee of trustworthiness.” People v. Carter, 244 Ill. App. 3d 792, 800-01
,614 N.E.2d 452, 457-58
(1993). Because neither of those requirements was met
as to K.A.’s statements to Cope, we disregard Cope’s testimony for purposes of our section
115-10 analysis.
¶ 98 2. K.A.’s Statements Admitted Under Section 115-13 of the Code
¶ 99 Defendant also argues that portions of Cope’s testimony regarding K.A.’s statements were
inadmissible under section 115-13 of the Code, which provides as follows:
“In a prosecution for violation of Section *** 12-14.1 *** of the Criminal Code of
1961 or the Criminal Code of 2012, statements made by the victim to medical
personnel for purposes of medical diagnosis or treatment[,] including descriptions of
the cause of symptom, pain or sensations, or the inception or general character of the
cause or external source thereof[,] insofar as reasonably pertinent to diagnosis or
treatment shall be admitted as an exception to the hearsay rule.” 725 ILCS 5/115-13
(West 2012).
¶ 100 Specifically, defendant challenges Cope’s testimony relating to (1) K.A.’s identification of
defendant as her abuser, (2) K.A.’s statements regarding defendant’s threats against the dog
and guinea pigs, (3) K.A.’s description of the incident involving A.W., and (4) K.A.’s
statement that she decided to tell Burwell about the abuse “because she heard that maybe it had
happened to some other kids.” The State argues that K.A.’s statements to Cope were
admissible under section 115-13 of the Code.
¶ 101 This court has held that “in examining a child suspected to be a victim of sexual abuse,
details of the sexual acts including how, when, and where the act occurred and who was
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involved are pertinent information allowed under [section 115-13 of the Code].” People v.
March, 250 Ill. App. 3d 1062, 1076
,620 N.E.2d 424, 435
(1993) (citing People v. Roy,201 Ill. App. 3d 166, 178
,558 N.E.2d 1208, 1216
(1990)). In this case, K.A.’s statements to Cope
identifying defendant as her abuser were admissible under section 115-13 of the Code because
they explained who was involved in the sexual acts at issue. March, 250 Ill. App. 3d at 1076
,
620 N.E.2d at 435
. ¶ 102 In Rushing,192 Ill. App. 3d at 453
,548 N.E.2d at 793-94
, this court held that the victim’s
statements to a doctor regarding the defendant’s threat to kill her family if she revealed the
abuse were “relevant to [the victim’s] state of mind and emotional condition” and admissible
under section 115-13 of the Code. We conclude here as well that K.A.’s statement regarding
defendant’s threats to the dog and guinea pigs were relevant to her state of mind and emotional
condition. Id.
Cope testified that she asked K.A. if she was angry or frightened by defendant’s
threats, and K.A. responded that she was afraid. Accordingly, those statements were
admissible under section 115-13 of the Code.
¶ 103 However, K.A.’s statement to Cope regarding defendant’s apparent abuse of A.W. and her
statement that she told Burwell of the abuse “because she heard that maybe it had happened to
some other kids” were not reasonably pertinent to diagnosis or treatment and were therefore
inadmissible under section 115-13 of the Code. The State offers no argument explaining how
either of those statements could have been relevant to Cope’s examination of K.A., nor did
Cope’s testimony give any indication that she used the information gleaned from those
statements in her diagnosis or treatment of K.A. Those statements were admitted in error.
¶ 104 B. Hearsay Statements That Revealed Previous Allegations Against Defendant
¶ 105 Defendant next argues that the State improperly elicited hearsay statements that revealed
previous allegations of sexual abuse against him. Specifically, defendant contends that
Reardon’s testimony about her conversation with Fernandez, and Burwell’s testimony about
her conversation with Reardon, improperly revealed that defendant had been accused of past
sexual improprieties. The State responds that the statements at issue were not offered for their
truth–that is, to prove that defendant had been accused of past sexual improprieties–but instead
to explain why Reardon and Burwell had the conversation about good touches and bad touches
with K.A.
¶ 106 In support of their respective positions, both the State and defendant cite cases in which
out-of-court statements were offered to explain the steps of a police investigation. We find
some of the principles involved in those cases applicable to the issues presented here. Although
Reardon and Burwell were clearly not police officers, they did conduct something akin to an
investigation into defendant’s suspected abuse of K.A. based upon information received from
Fernandez.
¶ 107 A police officer may testify as to the steps taken in an investigation of a crime “where such
testimony is necessary and important to fully explain the State’s case to the trier of fact.”
People v. Simms, 143 Ill. 2d 154, 174
,572 N.E.2d 947, 954-55
(1991). “[O]ut-of-court
statements that explain a course of conduct should be admitted only to the extent necessary to
provide that explanation and should not be admitted if they reveal unnecessary and prejudicial
information.” People v. O’Toole, 226 Ill. App. 3d 974, 988
,590 N.E.2d 950, 959-60
(1992).
Testimony about the steps of an investigation may not include the substance of a conversation
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with a nontestifying witness. People v. Gacho, 122 Ill. 2d 221, 248
,522 N.E.2d 1146, 1159
(1988); People v. Jones,153 Ill. 2d 155, 160
,606 N.E.2d 1145, 1147
(1992); People v.
Johnson, 202 Ill. App. 3d 417, 421-22
,559 N.E.2d 1041, 1044
(1990). ¶ 108 In People v. Cameron,189 Ill. App. 3d 998, 1004
,546 N.E.2d 259, 263
(1989), this court
discussed the theory upon which out-of-court statements are admitted to explain a course of
police conduct and the danger of misuse of such statements, as follows:
“ ‘In criminal cases, an arresting or investigating officer should not be put in the
false position of seeming just to have happened upon the scene; he should be allowed
some explanation of his presence and conduct. His testimony that he acted “upon
information received,” or words to that effect, should be sufficient. Nevertheless, cases
abound in which the officer is allowed to relate historical aspects of the case, replete
with hearsay statements in the form of complaints and reports, on the ground that he
was entitled to give the information upon which he acted. The need for the evidence is
slight, the likelihood of misuse great.’ ” Id.
(quoting Edward W. Cleary, McCormick
on Evidence § 249 (3d ed. 1984)).
See also People v. Rice, 321 Ill. App. 3d 475, 482
,747 N.E.2d 1035, 1041
(2001) (“The reality
is that it will almost always be possible to describe testimony revealing the content of
conversations with the police as evidence offered to shed light on the investigation of the crime
rather than on the crime itself. If reviewing courts allowed the mere invocation of the words
‘police procedure’ to preclude further analysis, this limited exception would effectively
swallow the hearsay rule with regard to police officers. The compelling protections that gave
rise to the hearsay rules must not be so easily discarded.”); Michael H. Graham, Graham’s
Handbook of Illinois Evidence § 801.5 (10th ed. 2010) (“This limited admissibility of
investigatory background *** is still nevertheless unfortunately overly broad. Investigatory
steps taken by a police officer are rarely more than marginally relevant at best, while the risk of
jury misuse of the information at great expense to the accused is substantial.”).
¶ 109 On the facts of this case, we conclude that Reardon’s and Burwell’s testimony went well
beyond that which was necessary to explain their decision to speak with K.A. about good
touches and bad touches. Both women testified, either directly or indirectly, about the
substance of their conversations. Reardon testified that Fernandez requested to have a
conversation with her about “some things about defendant” that “concern[ed] the girls.” He
requested this conversation to take place in private, specifically outside defendant’s presence.
After that conversation, Reardon spoke with Burwell, and then with K.A. about good touches
and bad touches. Reardon testified that her conversation with K.A. about good touches and bad
touches was based upon her conversation with Fernandez, and prior to her conversation with
Fernandez she had no reason to have such a conversation with K.A. As if the jury would not
have inferred it on its own, the State specifically asked Burwell about “the nature” of her
conversation with Reardon, to which Burwell said, “it was about some stuff that [defendant]
had been accused of.”
¶ 110 At the very least, the out-of-court statements of Fernandez to Reardon and Reardon to
Burwell suggested that defendant had been accused of sexual improprieties in the past. At
worst, given Fernandez’s specific reference to “the girls” (meaning eight-year-olds K.A. and
A.W.), the jury could infer that defendant had engaged in sexual acts with girls of a similar age
in the past. We deem the State’s line of questioning to have been a transparent attempt to reveal
for the jury the substance of Fernandez’s accusatory statements to Reardon.
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¶ 111 Although the State maintains that Fernandez’s statements–whether express or
implied–were offered to explain Reardon’s and Burwell’s conduct, and not to prove the truth
of the matter asserted, the trial transcript belies this claim. To “fully explain” its case to the
trier of fact (Simms, 143 Ill. 2d at 174
,572 N.E.2d at 955
), the State could have properly
elicited Reardon’s testimony that, based upon a conversation with a third party, she decided to
have a conversation with K.A. about good touches and bad touches. However, in addition to
eliciting Reardon’s testimony that her conversation with K.A. was based upon a conversation
that she had with someone else, the State elicited testimony from Reardon and Burwell that
revealed (1) the identity of the third party as defendant’s cousin, (2) the topic of the
conversation as defendant and “the girls,” and (3) the nature of the conversation as “some stuff
that [defendant] had been accused of.” Notably, although the State had moved on to other
topics of inquiry after Reardon explained that she chose to speak with K.A. based upon her
conversation with Fernandez, the State twice redirected its examination of Reardon back to her
conversation with Fernandez, eliciting testimony that further hinted at the substance of
Fernandez’s statements.
¶ 112 Moreover, unlike the typical situation in which a crime is discovered and an investigation
follows, Fernandez made his statements to Reardon before either of them knew of defendant’s
crimes against K.A. and A.W. This is significant because whatever information Fernandez told
Reardon must have involved something about defendant’s past unrelated to K.A. and A.W.
Given Reardon’s conclusion that she needed to talk with K.A. about good touches and bad
touches based on what Fernandez told her, the jury could infer that defendant had been accused
of similar sexual acts in the past. In this sense, Reardon’s testimony about her conversation
with Fernandez essentially constituted propensity evidence.
¶ 113 In People v. Lewis, 165 Ill. 2d 305, 345-46
,651 N.E.2d 72, 91-92
(1995), the supreme
court stated the following regarding evidence of past acts offered to explain an investigation:
“[E]vidence which suggests or implies that the defendant has engaged in prior criminal
activity should not be admitted unless somehow relevant. The fact that such evidence
comes to the jury by way of inference does not alter its potentially prejudicial character.
***
***
*** [E]vidence of other crimes is not admissible merely to show how the
investigation unfolded unless such evidence is also relevant to specifically connect the
defendant with the crimes for which he is being tried. [Citations.] The limitation
applies to prevent the risk of prejudice to a defendant even in the face of the State’s
legitimate need to present evidence of the steps in its investigation.” (Emphasis in
original.)
We cannot accept the State’s assertion that it elicited the testimony at issue out of a legitimate
need to explain its case to the jury. To the extent that it was necessary to explain why Reardon
and Burwell decided to speak with K.A. about good touches and bad touches, such an
explanation could have been given in a truthful and nonprejudicial manner by simply having
Reardon testify that she decided to have the conversation based upon information that she
received from a third party. Neither she nor Burwell needed to explain what the information
was or from whom it came.
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¶ 114 In Cameron, we suggested procedures the trial court should follow when confronted with
the State’s request to elicit evidence explaining the steps of a police investigation:
“When an objection was first raised to [the officer’s] testifying about what he was told
by the confidential informant, the court should have conducted a hearing out of the
presence of the jury to determine both the scope of these third-party out-of-court
statements and the need for the jury to hear them. Had such a hearing been conducted in
this case, the court could have directed that the improper portions of [the officer’s]
testimony be deleted, thereby permitting the State to provide its legitimate explanations
for police conduct, while protecting the defendant against prejudicial hearsay
statements.” (Emphases in original.) Cameron, 189 Ill. App. 3d at 1005
,546 N.E.2d at 264
.
Several courts have approvingly cited our suggestion that the trial court conduct a brief
“Cameron hearing” when confronted with the State’s intention to elicit evidence explaining
the steps of a police investigation. See People v. Shorty, 408 Ill. App. 3d 504, 511
,946 N.E.2d 474, 481
(2011); People v. Hunley,313 Ill. App. 3d 16, 35
,728 N.E.2d 1183, 1201
(2000);
People v. Warlick, 302 Ill. App. 3d 595, 599
,707 N.E.2d 214, 218
(1998). Although the case
before us did not involve police officer testimony, a hearing would have been no less
appropriate to ensure that the State’s need to explain its case to the jury would not trump
defendant’s right to be tried by competent evidence.
¶ 115 Defendant’s failure to raise a formal objection to the testimony at issue did not prevent the
trial court from sua sponte conducting a Cameron hearing in this case. At the section 115-10
hearing, which took place nearly two weeks before trial, Reardon testified that she decided to
have a conversation with K.A. about good touches and bad touches based upon her
conversation with Fernandez. Reardon specifically mentioned that Fernandez told her about
defendant’s “past.” Such testimony should have raised red flags for the court. Even though
defendant failed to raise this issue, the court should have sua sponte exercised its discretion to
determine the appropriate extent to which the State may use such potentially prejudicial
evidence in its case in chief.
¶ 116 We note that 25 years after Cameron, the State continues to commit error by introducing
unduly prejudicial out-of-court statements for the purported purpose of explaining the steps of
an investigation. In his special concurrence in People v. Singletary, 273 Ill. App. 3d 1076, 1089
,652 N.E.2d 1333, 1341-42
(1995), Justice Egan wrote the following:
“Alas, our words, the words of Cameron, Johnson, and especially Gacho and
Jones, have fallen on deaf prosecution ears. I confess to a feeling of personal frustration
when today we must reverse an otherwise proper conviction because the State insists
on introducing this improper evidence. What makes my feeling of frustration even
stronger is that the improper evidence was unnecessary. Jurors are not fools. ***
Unfortunately, the problem created by the introduction of this evidence persists; and I
have the nagging suspicion that it persists because some prosecutors are ever confident
that we will write off the error as harmless.”
Justice Egan’s words are as pertinent today as they were when he wrote them 19 years ago.
And, as in Singletary, the improper evidence presented in this case was just as unnecessary.
¶ 117 We note that the State has failed, in case after case, to heed the advice of Cameron and
appropriately limit the State’s use of hearsay evidence to explain the steps of an investigation.
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See, e.g., People v. McCoy, 238 Ill. App. 3d 240, 248-49
,606 N.E.2d 245, 251
(1992) (a police
officer’s testimony that an informant named the defendant as a person who the “police were
looking for” was inadmissible hearsay; the court found the error harmless); People v. Cordero,
244 Ill. App. 3d 390, 392-93
,613 N.E.2d 391, 394
(1993) (in a case involving possession of a
stolen vehicle, a police dispatch stating that the vehicle was stolen was inadmissible hearsay in
the absence of a limiting instruction; the court found the error harmless); People v. Rodriguez,
275 Ill. App. 3d 274, 281, 283
,655 N.E.2d 1022, 1027-28
(1995) (a detective’s testimony that
the defendant’s brother told him he observed the defendant assaulting the murder victim on the
day of the murder was inadmissible to show why the defendant confessed to the detective; the
court found the error harmless); People v. Davis, 285 Ill. App. 3d 1039, 1043
,675 N.E.2d 194, 198
(1996) (a detective’s testimony that an informant gave him the defendant’s name was
inadmissible to show the steps of the police investigation; the court found the error harmless);
Warlick, 302 Ill. App. 3d at 601
,707 N.E.2d at 219
(in a burglary case, the admission of a
“burglary in progress” police radio call was inadmissible hearsay not relevant to show the steps
of the police investigation; the court found the error harmless); People v. Sample, 326 Ill. App. 3d 914, 924
,761 N.E.2d 1199, 1207
(2001) (in a murder trial, police officers’ testimony that
codefendants implicated the defendant in their statements to the police went beyond an
explanation of police procedures and built the inference that the defendant was named by his
criminal cohorts; the court found the error harmless); People v. Rice, 321 Ill. App. 3d 475, 484
,
747 N.E.2d 1035, 1043
(2001) (a police officer’s testimony that he and his partner received
information from unidentified bystanders that the defendant was involved in the shooting was
inadmissible hearsay; the court found no plain error); People v. Mims, 403 Ill. App. 3d 884, 897-98
,934 N.E.2d 666, 678-79
(2010) (a police officer’s testimony about a sexual assault
victim’s statements was inadmissible to show the course of the officer’s conduct; the court
held that defense counsel’s failure to object to such statements did not constitute ineffective
assistance of counsel); Shorty, 408 Ill. App. 3d at 512
,946 N.E.2d at 482
(a police officer’s
testimony that a confidential informant told him the defendant would be purchasing heroin was
inadmissible to show the steps of the police investigation; the court found the error harmless).
¶ 118 The State’s repeated abuse of this limited exception to the hearsay rule–in the face of
repeated condemnation from the appellate court–shows a disrespect for the fundamental
purpose of the hearsay rule, which “is to test the real value of testimony by exposing the source
of the assertion to cross-examination by the party against whom it is offered.” People v.
Carpenter, 28 Ill. 2d 116, 121
,190 N.E.2d 738, 741
(1963). The general prohibition against
hearsay evidence is not some meaningless formality of our jurisprudence. Instead, it is “ ‘that
most characteristic rule of the Anglo-American Law of Evidence–a rule which may be
esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to
the world’s methods of procedure.’ ” Cleary, supra § 244, at 724 (quoting 5 John H. Wigmore,
Evidence § 1364, at 28 (Chadbourn rev. ed. 1974)). The State appears to have become
comfortable allowing the exception to swallow the rule. To prevent that from happening, trial
courts and courts of review should begin more closely scrutinizing (1) the State’s purported
need to offer hearsay statements to explain the steps of an investigation, as well as (2) the
potential prejudice resulting from such evidence. In other words, the time is long overdue for
trial courts to routinely be conducting “Cameron hearings.”
¶ 119 C. Cope’s Opinion That K.A.’s Complaints Were Credible
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¶ 120 Defendant next argues that Cope, who was allowed to testify as an expert, was not qualified
to offer her opinion that K.A.’s complaints were credible. Defendant specifically challenges
Cope’s statement on redirect examination that K.A. gave her a “credible history.” Defendant
further contends that the State aggravated the error by commenting in closing argument as
follows: “You heard Noelle Cope, who does this for a living, stated that it was [a] very credible
statement. Noelle Cope certainly seemed to believe it.” We agree that Cope’s testimony and
the State’s commentary upon it were improper.
¶ 121 Because questions of credibility are to be resolved by the trier of fact (People v.
Kokoraleis, 132 Ill. 2d 235, 264
,547 N.E.2d 202, 216
(1989)), “it is generally improper to ask
one witness to comment directly on the credibility of another witness.” People v. Becker, 239 Ill. 2d 215, 236
,940 N.E.2d 1131, 1143
(2010) (citing this court’s decision in People v.
Henderson, 394 Ill. App. 3d 747, 754
,915 N.E.2d 473, 478
(2009) (“[O]ne witness should not
be allowed to express his opinion as to another witness’s credibility.”)).
¶ 122 The State argues that because Cope’s comment on K.A.’s credibility was not responsive to
the State’s question, her testimony did not violate the rule from Becker that one witness should
not be asked to comment directly on the credibility of another witness. However, the State was
responsible for adequately preparing its witnesses to ensure that Cope did not volunteer
improper and prejudicial testimony. See People v. Rice, 234 Ill. App. 3d 12, 19
,599 N.E.2d 1253, 1259
(1992) (“It is axiomatic that prosecutors have a certain amount of control over their
witnesses; in the instant case, the State neglected to keep [the witness’s] testimony within the
bounds delineated by the court.”).
¶ 123 Additionally, even if the State should not be blamed for Cope’s improper comment on
K.A.’s credibility, it adopted Cope’s error as its own by specifically mentioning her positive
assessment of K.A.’s credibility in closing argument. The prosecutor made the following
statements immediately preceding his comments about Cope’s credibility assessment:
“Quite frankly, ladies and gentlemen, [K.A. is] too naïve to pull off this lie. To
make it up, and give a pretty consistent statement throughout. Her lie apparently was so
good that it fooled her mom, it fooled [Reardon], it fooled the police, it fooled Noelle
Cope.”
The prosecutor’s argument was plainly intended to persuade the jury that it should defer to the
State’s witnesses in determining the credibility of K.A.’s claims, constituting a disregard for
the well-settled principle that weighing the credibility of witnesses is within the exclusive
province of the jury. See, e.g., People v. Collins, 106 Ill. 2d 237, 261-62
,478 N.E.2d 267, 277
(1985).
¶ 124 D. The Prosecutor’s Personal Opinion on K.A.’s Credibility
¶ 125 Defendant’s final contention is that the prosecutor improperly commented upon K.A.’s
credibility during closing argument. Specifically, defendant challenges the following
statements:
“We can believe [K.A.] when she says that [defendant] put his privates on her woo
woo.
We can believe her when she says that [defendant] put his privates on her bottom,
as in Count II.
And we can believe her when she says that he put his mouth on her woo woo.”
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Defendant also challenges the following statements made in the prosecutor’s rebuttal
argument: “So, I do think [K.A.’s] statements are credible. They are believable. They are
honest.” Defendant argues that by using the terms “we” and “I,” the prosecutor improperly
“aligned himself with the jurors” and “informed the jury that he personally believed K.A.” In
response, the State contends that the prosecutor’s statements at issue were not error, but fair
comment on the evidence.
¶ 126 “Prosecutors are afforded wide latitude in closing argument.” People v. Wheeler, 226 Ill. 2d 92, 123
,871 N.E.2d 728, 745
(2007). However, “[i]t is prejudicial error for the prosecutor
to express personal beliefs or opinions, or invoke the integrity of the State’s Attorney’s office,
to vouch for the credibility of a prosecution witness.” People v. Lee, 229 Ill. App. 3d 254, 260
,
593 N.E.2d 800, 804
(1992). If no objection was made, a prosecutor’s statements during
closing argument will constitute plain error only if they were “ ‘so inflammatory that
defendant could not have received a fair trial or so flagrant as to threaten deterioration of the
judicial process.’ ” People v. Phillips, 127 Ill. 2d 499, 524
,538 N.E.2d 500, 509
(1989)
(quoting People v. Albanese, 104 Ill. 2d 504, 518
,473 N.E.2d 1246, 1251
(1984)). “[C]losing
arguments must be viewed in their entirety, and the challenged remarks must be viewed in
context.” Wheeler, 226 Ill. 2d at 122
,871 N.E.2d at 745
. Whether a prosecutor’s statements
during closing argument warrant a new trial is a legal issue reviewed de novo. Id. at 121
,871 N.E.2d at 744
.
¶ 127 We find the prosecutor’s use of the term “we” no more expressive of his personal opinion
than had he used the term “you” when speaking to the jury. However, in terms of whether the
prosecutor invoked his own personal beliefs or opinions, “we can” is a far cry from “I do.” We
agree with defendant that the prosecutor improperly expressed his own opinion on K.A.’s
credibility when he said to the jury, “I do think [K.A.’s] statements are credible.”
¶ 128 E. Plain Error
¶ 129 1. The Evidence Was Closely Balanced
¶ 130 Having identified the errors in this case, we now turn to whether the evidence was “so
closely balanced that the jury’s guilty verdict may have resulted from the error and not the
evidence.” Herron, 215 Ill. 2d at 178
,830 N.E.2d at 475
.
¶ 131 The State’s evidence consisted almost entirely of K.A.’s statements. In his interview with
Seiler and his trial testimony, defendant outright denied K.A.’s accusations. Although the State
presented four additional witnesses–Burwell, Reardon, Seiler, and Cope–to testify about what
defendant did to K.A., those witnesses simply repeated what they heard from K.A. We hesitate
to add weight to K.A.’s claims simply because they were repeated through the testimony of
four other witnesses. Because neither K.A.’s statements nor defendant’s testimony were
“inherently incredible or severely self-contradictory” (People v. Gray, 406 Ill. App. 3d 466, 474
,941 N.E.2d 338, 345
(2010)), the evidence came down to a matter of credibility.
Accordingly, we conclude that the evidence was closely balanced.
¶ 132 2. Errors Threatened To Tip the Scales of Justice
¶ 133 a. Hearsay Revealing Past Accusations Against Defendant
¶ 134 In determining whether the State’s improper evidence suggesting that defendant had been
accused of sexual improprieties against young girls in the past threatened to tip the scales of
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justice against defendant, we are mindful that evidence of other crimes is objectionable “ ‘not
because it has no appreciable probative value, but because it has too much.’ ” People v.
Lehman, 5 Ill. 2d 337, 342
,125 N.E.2d 506, 509
(1955) (quoting 1 John H. Wigmore,
Evidence § 194 (3d ed. 1940)). Because recidivism is particularly well documented concerning
sex offenders (Donoho, 204 Ill. 2d at 174
,788 N.E.2d at 717
), the potential prejudice resulting
from evidence suggesting that defendant committed other crimes of sexual abuse against
young girls in the past is clear. Such evidence would likely be considered by the jury as
persuasive evidence that defendant committed the charged offenses against K.A.
¶ 135 Further, the improper testimony about Reardon’s conversation with Fernandez, and
Burwell’s conversation with Reardon, is especially troubling because the trial court never
issued a limiting instruction. When the court admits an out-of-court statement for the limited
purpose of explaining the steps of an investigation, “the court must specifically instruct the
jury that the statement is introduced for a limited purpose and that the jury is not to accept the
statement for the truth of its contents.” People v. Armstead, 322 Ill. App. 3d 1, 12
,748 N.E.2d 691, 701
(2001); see also Simms,143 Ill. 2d at 174
,572 N.E.2d at 955
. Although the State
purports to have offered the testimony for the limited purpose of explaining the course of
Reardon and Burwell’s conduct, the jury was never instructed to limit its consideration of the
evidence accordingly. We see no reason why the average juror would not consider the
testimony as evidence of defendant’s guilt, particularly when the testimony seemingly
implicated defendant in similar past conduct. See People v. Trotter, 254 Ill. App. 3d 514, 527-28
,626 N.E.2d 1104, 1113
(1993) (“If such testimony is presented, however, the trial
court must instruct the jury that the testimony was introduced for the limited purpose of
explaining what caused the police to act and that they were not to accept the statement as true.
[Citation.] No such instruction was given in this trial. Thus, it cannot be presumed that the
jury’s use of the evidence was limited to non-hearsay purposes.”).
¶ 136 b. Bolstering of K.A.’s Credibility
¶ 137 Cope, a highly experienced, award-winning professional in the field of child sex abuse
investigation, found K.A.’s claims credible. In his closing argument to the jury, the prosecutor
pointed out that he, Cope, Burwell, Reardon, and Seiler all believed K.A.’s accusations against
defendant.
¶ 138 Because this case was truly a matter of credibility–that is, K.A.’s word against defendant’s
word–the improper evidence and argument bolstering K.A.’s credibility was particularly
prejudicial. Although the prosecutor’s improper expression of his personal opinion was of little
significance in the overall context of his closing argument, the impact of Cope’s improper
comment on K.A.’s credibility should not be underestimated. The State endorsed Cope’s
improper comment by arguing in closing that Cope, “who does this for a living,” found K.A.’s
statement “very” credible. (We note that in her testimony, Cope never used the word “very.”)
The State also argues that because Cope’s comment was “fleeting,” it could not have
materially influenced the jury. Again, even if Cope’s improper comment was “fleeting” when
it came out during her testimony, the State deliberately reinforced that comment by directing
the jury’s attention to it in closing argument. The prejudice resulting from Cope’s improper
comment was aggravated by the prosecutor’s decision to emphasize the importance of Cope’s
credibility determination and argue it to the jury as substantive evidence. Given Cope’s
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extensive experience interviewing child victims of sexual abuse, the jury could understandably
be expected to assign great weight to her positive assessment of K.A.’s credibility.
¶ 139 Although defendant does not mention this point in his brief, our review of the record
reveals that the trial court failed to instruct the jury as required by section 115-10(c) of the
Code, which provides as follows:
“If a statement is admitted pursuant to this Section, the court shall instruct the jury that
it is for the jury to determine the weight and credibility to be given the statement and
that, in making the determination, it shall consider the age and maturity of the child,
*** the nature of the statement, the circumstances under which the statement was
made, and any other relevant factor.” 725 ILCS 5/115-10(c) (West 2012).
Because the court admitted K.A.’s statements under section 115-10 of the Code, “sending the
case to the jury without such an instruction was a clear and obvious error.” People v. Sargent,
239 Ill. 2d 166, 190
,940 N.E.2d 1045, 1059
(2010). The State’s improper evidence and
argument bolstering K.A.’s credibility is troubling, given the absence of this instruction, which
the legislature deemed a necessary safeguard when a child’s hearsay statements are admitted
under section 115-10 of the Code. The supreme court has held that failure to give the
instruction required by section 115-10(c) of the Code constitutes plain error if the evidence is
closely balanced. People v. Mitchell, 155 Ill. 2d 344, 354
,614 N.E.2d 1213, 1217
(1993).
However, given defendant’s failure to argue this specific error on appeal, we treat the court’s
failure to properly instruct the jury merely as a factor aggravating the prejudice caused by the
State’s improper evidence and argument relating to K.A.’s credibility.
¶ 140 c. Defendant’s Alternating Abuse of K.A. and A.W.
During the Game of Hide-and-Seek
¶ 141 K.A. told Cope that on one occasion, defendant abused A.W. before and after abusing her,
essentially swapping the girls in and out of the bedroom. In her statements to Burwell,
Reardon, and Seiler, K.A. never mentioned that defendant abused her on the same occasion
that he abused A.W.
¶ 142 For whatever reason, the State elected to present K.A.’s statements to Cope through section
115-13 of the Code exclusively, rather than including those statements in the State’s motion in
limine pursuant to section 115-10 of the Code. Despite the State’s failure to include K.A.’s
statements to Cope in the State’s motion in limine, the State nevertheless elicited Cope’s
testimony about defendant’s apparent abuse of A.W., which it should have known was in no
way pertinent to medical diagnosis or treatment of K.A. Cope testified that defendant brought
K.A. into the bedroom and sexually abused her after being in the bedroom with A.W., then
defendant brought A.W. back into the bedroom after sexually abusing K.A. However, whereas
K.A.’s properly admitted statements recounted only what she saw and heard from outside the
bedroom during the incident involving A.W., Cope’s improper testimony apparently revealed
what was happening inside the bedroom on that evening. Moreover, the image of defendant
alternating his sexual abuse between K.A. and A.W. over the course of an evening added an
additional layer of depravity to his conduct. This evidence–assuming the jury believed it–was
very probative of defendant’s guilt. However, because the State failed to include K.A.’s
statements to Cope in the State’s motion in limine, those statements remained inadmissible
- 26 -
hearsay, meaning that their admission must be added to defendant’s side of the scale under our
plain-error analysis.
¶ 143 III. CONCLUSION
¶ 144 Based upon our thorough review of the trial record, we conclude that defendant has met his
burden of establishing plain error. The cumulative errors in this case, including the erroneous
admission of prejudicial evidence and the State’s improper argument based thereon, threatened
to tip the scales of justice against defendant. For the foregoing reasons, we reverse defendant’s
convictions and remand for a new trial. Because the State presented sufficient evidence to
sustain defendant’s convictions, double jeopardy does not bar a retrial. See People v. Ward,
2011 IL 108690, ¶ 50
,952 N.E.2d 601
.
¶ 145 Reversed and remanded.
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