People v. Scott

NO. 4-95-0504
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Morgan County
ZACHARY SCOTT, ) No. 94CF59
Defendant-Appellant. )
) Honorable
) J. David Bone,
) Judge Presiding.
_________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

After a jury trial conducted in the circuit court of
Morgan County, defendant Zachary Scott was found guilty of
aggravated criminal sexual abuse of W.S. (720 ILCS 5/12-16(c)(1)(i)
(West 1992)). W.S. was five years old at the time of the incident.
Defendant was sentenced to 15 years' imprisonment, with credit for
77 days previously served, and three years' mandatory supervised
release.
The issues are whether (1) the trial court committed
plain error by failing to hold a hearing outside the presence of
the jury to determine the reliability of W.S.'s out-of-court
statements and failing to give the jury an instruction on determin-
ing the weight and credibility to be given these statements; (2) it
was error to allow W.S. to testify by closed circuit television;
and (3) defendant should have been given credit against his
sentence for seven additional days previously served. The State
concedes defendant was entitled to a total sentencing credit of 84
days. In light of the State's concession, the cause will be
remanded for a correction to the sentencing order to provide
defendant with a sentencing credit of 84 days. In all other
respects, the judgment is affirmed.
Defendant argues the testimony of Deanna Sanders, Anna
Bangert, and Dr. Anthony Galloway concerning statements made to
each by W.S. should not have been admitted into evidence without a
hearing to determine the reliability of those statements and
without an appropriate jury instruction. 725 ILCS 5/115-10(b),(c)
(West 1994). Although defendant did not raise the issue in his
post-trial motion, he now claims it is plain error. Under the
plain error rule (134 Ill. 2d R. 615(a)), an error which was not
properly preserved for review may, nevertheless, be considered if
the error affects a substantial right of defendant such that he was
denied a fair trial or the evidence is closely balanced. See
People v. Herrett, 137 Ill. 2d 195, 209-10, 561 N.E.2d 1, 7-8
(1990).
Where section 115-10 of the Code of Criminal Procedure of
1963 (Code) is the sole basis for the admission of the testimony,
the failure to conduct such a hearing and to give an appropriate
instruction can be plain error. See People v. Mitchell, 155 Ill. 2d 344, 350-56, 614 N.E.2d 1213, 1215-18 (1993). However, that
section of the Code is not the only basis upon which such state-
ments may be admitted into evidence. See People v. Nevitt, 135 Ill. 2d 423, 443-46, 553 N.E.2d 368, 375-76 (1990); People v.
White, 198 Ill. App. 3d 641, 648-56, 555 N.E.2d 1241, 1246-51
(1990), aff'd White v. Illinois, 502 U.S. 346, 116 L. Ed. 2d 848,
112 S. Ct. 736 (1992). The trial court admitted the testimony of
the three witnesses concerning W.S.'s statements as spontaneous
declarations exceptions under the hearsay rule.
Deanna Sanders, defendant's girlfriend, testified to a
conversation with W.S. which occurred immediately after the
incident. Bangert is a registered nurse employed in the emergency
room to which W.S. was taken. W.S. spoke to her in response to an
inquiry as to why she was there. Galloway was W.S.'s examining
physician. When defendant did make an untimely objection to this
testimony at trial, the trial judge explained that these statements
were being admitted under the spontaneous declaration exception to
the hearsay rules, not section 115-10 of the Code.
On appeal, defendant does not argue that the trial court
erred in finding the statements of W.S. to the witnesses were
spontaneous declarations and admissible under common law exceptions
to the rule against the admission of hearsay. As a result, it is
unnecessary to consider whether the failure to follow procedure
discussed in section 115-10 of the Code was plain error and
requires reversal. Defendant has not demonstrated any error
occurred at trial. He does not challenge the sufficiency of the
other evidence, in particular W.S.'s testimony and the testimony of
her mother that she observed defendant in the act of molesting her
daughter. The evidence is not closely balanced, and the plain
error doctrine will not be invoked in this case.
Furthermore, it was not an abuse of discretion for the
trial judge to allow W.S. to testify by means of closed circuit
television. W.S. was six years old at the time of testifying.
This procedure is permissible if the trial judge determines that
the child will suffer severe emotional distress (1) such that she
cannot reasonably communicate, or (2) that is likely to cause the
child to suffer severe adverse effects. 725 ILCS 5/106B-5(a)(2)
(West 1994). Defendant asserts that the evidence was not suffi-
cient to support such a finding by the trial court.
W.S.'s mother testified W.S. had been going to counsel-
ing. The child got very upset when asked about it. When she first
met with the State's Attorney, she cried and was unable to respond
to questions. At the second meeting, she drew pictures, but still
could not communicate verbally. W.S.'s mother felt the child could
not testify in the courtroom in front of the jurors because she was
very shy and embarrassed. Admittedly, W.S.'s mother had no
training or expertise in child psychology.
Defendant, in violation of Supreme Court Rule 341(e)(7)
(155 Ill. 2d R. 341(e)(7)), cites no legal authority supporting the
argument that this evidence is insufficient. Defendant does not
suggest what would be sufficient evidence. In this case, the
evidence was sufficient to find W.S. would suffer serious emotional
distress such that she could not reasonably communicate. It is not
necessary for a child psychologist to testify to make this
determination.
In People v. Weninger, 243 Ill. App. 3d 719, 726, 611 N.E.2d 77, 83 (1993), the court applied the predecessor statute,
which, in the parts relevant to this case and Weninger, was
virtually the same as the current statute. In Weninger, a mental
health nurse did testify. However, in that case, the basis for
allowing testimony by closed circuit television was that testimony
in the courtroom was likely to cause the child to suffer severe
adverse effects. That was a different basis than was used in this
case. Here, the trial court found that testifying in the courtroom
would result in the child suffering severe emotional stress such
that she could not reasonably communicate. No abuse of discretion
has been demonstrated with regard to the trial court's allowing
W.S. to testify by closed circuit television.
The cause is remanded for the limited purpose of amending
the sentencing order to reflect seven additional days' credit. In
all other respects, the judgment of the circuit court of Morgan
County is affirmed.
Affirmed in part, and reversed in part; cause remanded
with directions.
GREEN and STEIGMANN, JJ., concur.