People v. Armstrong

No. 2--97--0560
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Carroll County.
)
Plaintiff-Appellee, ) No. 96--CF--25
)
v. )
)
GARY L. ARMSTRONG, ) Honorable
) Richard E. DeMoss,
Defendant-Appellant. ) Judge, Presiding.
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PRESIDING JUSTICE GEIGER delivered the opinion of the court:
Following a bench trial, the defendant, Gary L. Armstrong, was
convicted of aggravated criminal sexual assault (count I) (720 ILCS
5/12--14(b)(i) (West 1994)), aggravated criminal sexual abuse
(count II) (720 ILCS 5/12--16(c)(1) (West 1994)), and predatory
criminal sexual assault of a child (count III) (720 ILCS 5/12--
14.1(a)(1) (West Supp. 1995)). The trial court denied the
defendant's motion for a new trial and sentenced the defendant to
a term of 15 years' imprisonment for count I and concurrent terms
of 7 years for count II and 15 years for count III.
The defendant timely appeals, arguing that, since the State
failed to produce corroborating evidence of the defendant's
criminal conduct at the pretrial reliability hearing on the
admissibility of certain hearsay statements (see 725 ILCS 5/115--
10 (West 1996)), the trial court erred in finding that the
statements were admissible as statutory exceptions to the hearsay
rule. We disagree. We affirm the judgment.
We recite only a few salient facts sufficient to an
understanding of our disposition of this appeal. The complainant,
T.B., was born in October 1988 and is the natural daughter of the
defendant's wife Sonya. T.B. made certain statements to third
parties regarding the defendant's sexual conduct with her.
Following a pretrial reliability hearing, the trial court found the
statements sufficiently reliable to be admissible as exceptions to
the hearsay rule and to allow them to be used at the trial as
evidence of the defendant's guilt.
At the reliability hearing, the State presented the testimony
of Viola (T.B.'s grandmother), who testified regarding T.B.'s
reaction to a naked man they had inadvertently seen on television.
T.B. related that she had seen a naked man before and that she had
taken a shower with the defendant. The defendant had her hold his
penis, and he also kissed her down below in the vaginal area.
Sonya, the defendant's wife and the mother of T.B., testified that
she saw T.B. masturbating in the living room. Sonya testified
regarding T.B.'s accounts to her about four incidents involving the
defendant's sexual behavior with T.B. Mark Thatcher of the
Illinois State Police and Jim Faivre of the Department of Children
and Family Services testified regarding T.B.'s statements to them
about the defendant's sexual acts with her.
At the trial, when T.B. began to testify, she became
emotionally upset when questioned about the defendant's sexual
contacts with her, and the trial court declared her an unavailable
witness. The other witnesses testified concerning T.B.'s
statements to them.
Additionally, Thatcher testified about an interview he had
with the defendant in the presence of Special Agent Paula Vercillo
at the Mount Morris police department. The defendant consented to
a taped interview in which he described taking a bath with T.B. in
August 1995. He admitted that he asked her to wash him in his
private area and that, when she washed his penis up and down,
he got an erection. He related another incident in which he took
a shower with T.B. and she washed him everywhere, including his
private area, and he got an erection. He also washed her
private area. The defendant denied that he penetrated her
vagina with his fingers, but admitted that he separated the lips
of her vagina. He told her not to tell her mother about the
incident. The defendant also related another incident in which he
put his hand inside T.B.'s underwear, touched her in the private
area between her legs, and got an erection. He realized that what
he was doing was wrong. In yet another incident, while wrestling
on the floor with T.B., the defendant removed T.B.'s pants and
underwear, he put his mouth between her legs, licked between the
folds of her vagina, and began to get an erection. The
defendant's recorded statement was admitted into evidence at
trial.
It appears that the defendant did not make specific objections
to the admission of the out-of-court statements at the trial, and,
in his posttrial motion, he only objected generally to the
admission of the hearsay statements. The main thrust of his
objection regarding the statements was that the child was deemed
unavailable to testify. However, on appeal, the defendant now
argues that the State was required to produce corroborating
evidence of the offenses at the reliability hearing rather than at
the trial. This issue is technically waived because the defendant
failed to preserve it by raising it specifically in his posttrial
motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988).
Even if the issue is not waived, the defendant's argument is
without merit. Under the child hearsay exception found in section
115--10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/115--10 (West 1996)), a child is deemed unavailable to testify
for purposes of this statutory hearsay exception when the child is
found emotionally unable to testify. People v. Rocha, 191 Ill.
App. 3d 529, 537 (1989). Thus, the court properly found that T.B.
was unavailable to testify.
Furthermore, we conclude that the State was only required to
provide corroborating evidence at the trial, rather than at the
reliability hearing. Section 115--10 of the Code provides, as an
exception to the hearsay rule, that a child's statements to others
concerning sex crimes perpetrated against her are admissible so
long as the time, content, and circumstances of the statements
provide sufficient safeguards of reliability and the child
testifies at the proceedings, or the child is unavailable and
there is corroborating evidence of the act that is the subject of
the statement. People v. Courtney, 288 Ill. App. 3d 1025, 1035
(1997); 725 ILCS 5/115--10 (West 1996). A reviewing court will
not disturb the trial court's finding of reliability unless the
trial court abuses its discretion. Courtney, 288 Ill. App. 3d at
1035. The statute requires the trial court to conduct a
reliability hearing outside the presence of the jury, and the
child must either testify at the proceeding or be unavailable as
a witness. 725 ILCS 5/115--10(b) (West 1996); People v. Back, 239
Ill. App. 3d 44, 53 (1992). However, the testimony of the child,
or the corroborating evidence where the child is unavailable, is
required not at the reliability hearing, but at the trial
proceeding. People v. Embry, 249 Ill. App. 3d 750, 761 (1993);
Back, 239 Ill. App. 3d at 53. It would make little sense to
require both the child's testimony and the corroborating evidence
to make use of this exception to the hearsay rule at the trial.
The corroborating testimony only becomes important at the trial--
when the child witness becomes unavailable.
Here, the child's out-of-court statements were found reliable
by the trial court, and the defendant has not specifically
enumerated why they were unreliable. We therefore need not
analyze the statements in terms of the usual reliability factors
in order to determine whether the trial court abused its
discretion. The defendant argues only that the State was required
to produce corroborating evidence at the reliability hearing. We
disagree. The State presented corroborating evidence at the
trial--where it was needed--in the form of the defendant's own
incriminating confession to the officers. Furthermore, the
defendant testified and was cross-examined at the trial. We
conclude that there was sufficient corroborating evidence to
satisfy the statutory requirement. See Embry, 249 Ill. App. 3d at
761 (corroborative evidence existed in the form of the defendant's
own inculpatory statements).
Accordingly, the judgment of the circuit court of Carroll
County is affirmed.
Affirmed.
McLAREN and DOYLE, JJ., concur.