People v. Bowen

Annotate this Case
People v. Bowen, No. 83687 (8/6/98)

Docket No. 83687--Agenda 8--March 1998.
BOWEN, Appellant.
Opinion filed August 6, 1998.
CHIEF JUSTICE FREEMAN delivered the opinion of the court:
Defendant, Andrew P. Bowen, was charged with aggravated criminal
sexual assault (720 ILCS 5/12--14(b)(1) (West 1994)) following an alleged act of
oral penetration upon D.M.P., then age three. Prior to trial, the State moved to
allow into evidence a videotaped statement given by D.M.P. relating the events
of the alleged assault. 725 ILCS 5/115--10 (West 1994). A hearing was held
pursuant to section 115--10 of the Code of Criminal Procedure of 1963, after
which the court determined that the time, content and circumstances of the
videotape provided sufficient safeguards of reliability. 725 ILCS 5/115--10(b)(1)
(West 1994). The court admitted the videotape, and, after a bench trial, found
defendant guilty of aggravated sexual assault and sentenced him to nine years'
imprisonment. Defendant appealed, contending that (1) the admission of the
videotape was a violation of section 115--10 of the Illinois Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/115--10 (West 1994)) or, alternatively, of
his rights under the confrontation clause, and (2) the State failed to prove him
guilty beyond a reasonable doubt. The appellate court disagreed and affirmed the
conviction. 289 Ill. App. 3d 378. We granted defendant's petition for leave to
appeal (166 Ill. 2d R. 315(a)) and now affirm the appellate court.

The incident giving rise to defendant's conviction occurred in late spring
or summer of 1992 while defendant was baby-sitting for D.M.P. and her brother
Donnie, then age four. D.M.P., age 7 at the time of trial, was found qualified to
testify and was the State's first witness. D.M.P testified that defendant used to
baby-sit for her at her Aunt Vonnie's house. She was unable to recall what he
looked like, or her own age when the incident occurred, but believed she was in
kindergarten at the time. D.M.P. testified that on one occasion, while she and
defendant were in the living room of Vonnie's house, defendant pulled down his
pants and underpants and told her to "suck his private part" and instructed her not
to tell her mother. D.M.P. testified that when this occurred, there were no other
adults in the house, but that Donnie and Vonnie's son Derrick were in another part
of the house. D.M.P. additionally testified that defendant "put his private part in
[D.M.P.'s] private part." D.M.P. indicated that she remembered a woman named
Terri Allen and recalled talking to her about what happened; however, she could
not recall a police officer named Rob Copley. On cross-examination, D.M.P.
acknowledged that she said "no" when Terri Allen had asked her whether someone
had put something in her "butt." D.M.P. denied ever discussing the occurrence
with her brother, but testified that she had spoken with her mother, Officer
Copley, Terri Allen, and "Cathy" about it.
D.M.P.'s mother, Mary, testified that defendant, whom the children
referred to as "Bow" or "Andy Bow," had baby-sat for D.M.P. and Donnie on
three occasions during May or June of 1992, while she attended classes. Two of
these occasions were at the home of Mary's friend Yvonne Tucker, or "Vonnie."
Mary testified that she had planned to get defendant to baby-sit a fourth time;
however, she changed her mind when they had gone to pick defendant up, and
D.M.P., upon seeing defendant approaching them, began crying and then "got
hysterical." Mary indicated that D.M.P. calmed down later that night when she
learned defendant was not going to baby-sit. After this incident, Mary ceased
using defendant as a baby-sitter.
Mary testified that about one month after D.M.P. had cried upon seeing
defendant, Mary, D.M.P. and Donnie were at a friend's house watching cartoons
when D.M.P. suddenly revealed that "Andy Bow made her kiss his pee pee." Mary
indicated that after that, D.M.P. became upset and said nothing further. Mary
testified that she failed to report this incident to anyone, because the attack had
occurred over a month before, and she was unsure anyone could do anything
about it. Mary indicated that since that time, D.M.P. had mentioned the incident
on occasion, but always repeated the same sentence she said initially and never
added any further information.
In January of 1995, D.M.P. and Donnie were placed in foster care for
circumstances unrelated to this case. On March 29, 1995, family-support worker
Laura Richmiller was driving the children for visitation with Mary when the
children began arguing. Richmiller testified that Donnie said "so, [D.M.P.], you
licked [defendant's] lizard," to which D.M.P. responded "so, he made me do it."
The following day, Richmiller reported the statement to her supervisors. Police
officer Robert Copley testified that on March 31, 1995, he had two separate
discussions with D.M.P. concerning incidents between her and defendant: the first
discussion took place at D.M.P.'s foster home, and the second was conducted at
the police station. The second interview was videotaped, and was taken by Copley
in the presence of Terri Allen, an investigator with the Department of Children
and Family Services (DCFS). D.M.P. was six years old at the time of the
interviews. According to Copley, D.M.P.'s statement of events in the first
interview was substantially the same as the description she gave on the videotape;
the only difference was that in the first interview D.M.P. had indicated that "pee"
had come out of defendant's "area," whereas on the tape, she denied this fact.
Copley testified that in the first interview D.M.P. initially denied that anyone ever
touched her private areas, and responded "I don't know" to some questions;
however, after 5 to 10 minutes, she was able to "warm up" to them and then
discussed the occurrence. Finally, Copley testified that D.M.P. was unable to
identify defendant as the perpetrator in a photographic lineup shown to her.
During Copley's testimony, the videotape was admitted into evidence and
played for the court. At its conclusion, Copley confirmed that it accurately
reflected the entire statement taken from the child at the police station. On the
videotape, D.M.P. accurately distinguished between a "good touch" and a "bad
touch" and identified relevant parts of the male and female anatomy using dolls.
She also used the dolls to illustrate the various physical positions of her and
defendant during the alleged abuse. D.M.P. stated that "Andy Bow" had given her
a bad touch more than once, at Vonnie's house and at another house. She could
not recall precisely when it occurred, but stated that it was a long time ago.
D.M.P. stated that "Bow" had put his "area" in her mouth, in her "behind," and
in her "area." D.M.P. also insisted that "nothing came out" of Bow's "area" at that
time. When asked how many times this occurred, D.M.P. responded 19 times. She
indicated that her brother referred to a male "area" as a "lizard."
On April 11, 1995, Copley brought defendant to the police station and
apprised him of D.M.P.'s allegation of sexual assault. Copley testified that
defendant initially denied ever touching D.M.P. other than to play games with her
or change her diapers. Then, when confronted with D.M.P.'s precise statements,
defendant responded that he could not recall whether such events had occurred or
not. On April 22, 1995, defendant returned to the station and gave a tape-recorded
statement in which he acknowledged sexual contact between him and D.M.P. In
the tape defendant acknowledged baby-sitting for D.M.P. on three occasions,
including at Vonnie's house. Defendant stated that during one of these times, he
was stepping out of the shower when D.M.P. grabbed his penis and put it in her
mouth for a second. He stated that his penis was erect but that he did not
ejaculate. Defendant indicated that on another occasion, D.M.P. sat on his lap and
"made a sled" by sliding up and down on his thighs and rubbing her "butt" against
his penis. According to defendant, this occurred for about one or two minutes,
before he removed D.M.P. from his lap. Defendant acknowledged it was possible
that these events occurred in May 1992.
The defense presented the testimony of Vonnie Tucker and Theresa
Sprinkle, a coworker of Tucker in May 1992, attempting to show that defendant
did not baby-sit for D.M.P. at the times claimed by the prosecution. According to
Tucker, after she married in March of 1992, defendant no longer baby-sat for her
children or Mary's children in her home.
On appeal, the court first found there was sufficient evidence to support
defendant's conviction. The court then determined that the videotape of D.M.P.'s
statement was properly admitted under section 115--10 of the Code. The court
found "no reasoned distinction between a videotape of a child's statements and a
third person testifying verbatim to those same statements," the latter being
expressly allowed under section 115--10. Bowen, 289 Ill. App. 3d at 388.

As a preliminary matter we must rule upon a motion brought by the State
and taken with this case. In his reply brief, defendant asks us to consider a statute
from another state which he maintains is an "excellent example" of legislation that
allows for the introduction of videotaped statements of children in sexual abuse
cases. The State has moved to strike this statutory reference on the basis that it
asserted additional matter not raised by the arguments in the State's brief. 155 Ill.
2d R. 341(g). We deny the State's motion, but point out that defendant's reference
to another state's statute lacks relevance to this case. Our task here is not to
rewrite section 115--10 or to determine the best means to accomplish the purpose
intended by our legislature in enacting that section. We merely ascertain whether
the videotaping procedure was contemplated under our statute, and whether section
115--10 accomplished its purpose in a manner consistent with the confrontation
clause. See California v. Green, 399 U.S. 149, 155, 26 L. Ed. 2d 489, 495, 90 S. Ct. 1930, 1933 (1970). The reference to a foreign statute has no significant
bearing on this determination.
We first consider defendant's contention that the videotape was erroneously
admitted under section 115--10. The State contends that defendant has waived his
arguments on this issue because he failed to raise specific objections at trial and
in his post-trial motion. See People v. Miller, 173 Ill. 2d 167, 191 (1996).
Regardless of the waiver, however, we choose to address the merits of defendant's

A. Statutory Construction
First, defendant argues that the plain language of section 115--10 does not
allow for the introduction of a videotaped version of the child's statement. Section
115--10 states:
"(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:
(1) testimony by such child *** of an out of court statement
made by such child *** that he or she complained of such act to
another; and
(2) testimony of an out of court statement made by such
child *** 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 *** act perpetrated upon
or against a child ***.
(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 1994).
Defendant argues that this section neither contemplates nor permits the
introduction of corroborative statements in videotaped form because it does not
expressly provide for such evidence. As support for this proposition, defendant
contrasts section 115--10 with Code section 115--10.1 (725 ILCS 5/115--10.1
(West 1994)) and former section 106A--2 (Ill. Rev. Stat. 1987, ch. 38, par. 106A--
2, repealed by Pub. Act 87--345, eff. January 1, 1992)), in which the legislature
included specific language allowing evidence of videotaped statements. Accord
People v. Mitchell, 225 Ill. App. 3d 708, 717 (1992); but see People v. Peck, 285
Ill. App. 3d 14, 20 (1996) (declining to follow Mitchell with regard to
admissibility of child's audiotaped statements.)
In applying rules of statutory construction, we strive to give effect to the
legislature's purpose in enacting the law. In order to facilitate this process, we
endeavor to determine the objective the legislature intended to accomplish and the
evils it sought to remedy. People v. Scharlau, 141 Ill. 2d 180, 192 (1990).
Initially, we find the comparison of section 115--10 with sections 115--10.1 and
106A--2 to be unavailing, because each of these sections pertains to different
subject matter. Former section 106A--2, a "child shield" law found
unconstitutional by this court in People v. Bastien, 129 Ill. 2d 64 (1989), shares
some common purposes with 115--10; nonetheless, while section 115--10
generally provides for admission of corroborative statements of child victims, the
very purpose of former section 106A--2 was to establish a videotaping procedure
for the child's statement or testimony in order to spare the child the trauma of
relating the story in open court. See Bastien, 129 Ill. 2d at 70. Unlike section 115-
-10, the explicit allowance for videotaping was an inherent part of section 106A--
The language of section 115--10 admits, in relevant part, "testimony of an
out of court statement" made by the child presented through a witness who
directly heard the child making the statement. 725 ILCS 5/115--10(a)(2) (West
1994). As long as the statement's reliability is established, and the child is under
the age of 13, the statute permits the witness to testify to the details of the
statement. 725 ILCS 5/115--10(a)(2) (West 1994). Of course, he may then be
cross-examined concerning the circumstances surrounding the statement. We find
that the mere omission from section 115--10 of an express provision for
videotaping does not reflect an intention to completely bar videotaped evidence.
We agree with the appellate court that, with regard to the impact on the
defendant's rights, there is little difference between introducing the statement on
videotape or allowing it to be recounted in detail through the testimony of a third
party. Indeed, although this court has declined to read into section 115--10 a per
se requirement that all statements be prerecorded (People v. Wittenmyer, 151 Ill. 2d 175, 187-88 (1992)), the United States Supreme Court has recognized that
videotaping such statements may well enhance their reliability (Idaho v. Wright,
497 U.S. 805, 818-19, 111 L. Ed. 2d 638, 654, 110 S. Ct. 3139, 3148 (1990)).
Unlike typical hearsay, videotaping enables the trier of fact to observe firsthand
the nature and suggestiveness of the questions posed to the child; the substance
and subtleties of the child's responses; and the child's demeanor in giving those
responses. See also Peck, 285 Ill. App. 3d at 22. As with any other ex parte
statement, the videotape will be subject to the strictures of the confrontation
clause. To the extent that Mitchell holds to the contrary, it is overruled.

B. Constitutionality of Section 115--10
Next, defendant argues that the court erred in admitting the videotaped
statement when D.M.P. had already testified at trial. He maintains that the
evidence was repetitive and untrustworthy. Although defendant does not directly
challenge the constitutionality of section 115--10, his primary support for this
argument is this court's holding in Bastien, 129 Ill. 2d 64.
In Bastien, this court addressed the constitutionality of former section
106A--2 under the confrontation clause of the sixth amendment to the United
States Constitution (U.S. Const., amend. VI), and the Illinois Constitution (Ill.
Const. 1970, art. I, sec. 8). Section 106A--2 authorized the court, upon motion of
the State, to order the recording of the child's "statement or testimony" on film
or videotape. The statute mandated that the defendant, counsel for both parties,
and the court be present at the taping, but barred the defendant from cross-
examining the child at that time. The recording then could be introduced at trial
on the condition that, in relevant part, the child was "available" to testify at trial,
and the defendant or his attorney was afforded the opportunity to cross-examine
the child at trial. Ill. Rev. Stat. 1987, ch. 38, par. 106A--2.
The Bastien court found that section 106A--2 unnecessarily and
impermissibly infringed upon a defendant's confrontation rights by precluding
contemporaneous cross-examination of the alleged child victim. In reaching this
conclusion, the Bastien court first noted that there had been no individualized
determination that the child would be traumatized by testifying to the sexual abuse
at trial, or that the videotape procedure was otherwise necessary to protect the
child's well-being. See Coy v. Iowa, 487 U.S. 1012, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988). The court then distinguished the case of California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970), which upheld a statute
providing a hearsay exception for prior statements inconsistent with the declarant's
trial testimony, even though the statements were not subject to cross-examination
when originally made. The Green Court analyzed the historical purpose of the
confrontation clause and found, in relevant part, "good reason to conclude that the
[clause] is not violated by admitting a declarant's out-of-court statements, as long
as the declarant is testifying as a witness and subject to full and effective cross-
examination." Green, 399 U.S. at 158, 26 L. Ed. 2d at 497, 90 S. Ct. at 1935. This
court held Green inapposite, finding that it applied strictly to prior statements that
were inconsistent with the declarant's trial testimony. Bastien, 129 Ill. 2d at 76-77.
Finally, likening a videotaped statement under section 106A--2 to "former
testimony" intended to replace live testimony at trial, this court held that, since
section 106A--2 required that the child be made available for testimony and cross-
examination in any case, there was simply no reason to rely upon the " `weaker
version,' " namely, the out-of-court videotaped statement. Bastien, 129 Ill. 2d at
78, quoting United States v. Inadi, 475 U.S. 387, 394, 89 L. Ed. 2d 390, 398, 106 S. Ct. 1121, 1126 (1986).
We find that Bastien is not dispositive of this case, because of fundamental
differences in both the provisions and purposes of section 115--10 and former
section 106A--2.
As stated above, a main function of former section 106A--2 was to permit
a child victim to testify by a recording and thereby shield him from having to
relate the details of his story in the physical presence of the defendant and in the
formality of a courtroom. Section 115--10, on the other hand, was enacted to
provide for reliable, corroborating evidence of a child's "outcry" statement. People
v. Holloway, 177 Ill. 2d 1, 9 (1997). Importantly, unless a finding of unavailability
is made, statements admitted under section 115--10 can never serve as substitutes
for trial testimony, because section 115--10 makes the introduction of the
statements expressly contingent upon the child's production for direct and cross-
examination at trial. In addition, the mandate that the child actually testify at trial,
rather than merely being made "available" for testimony as under section 106A--2,
has been held to be of constitutional significance: the former requirement spares
the defense from a "Catch 22" of either having to call the child itself and risk
inflaming the jury against it, or forgo completely its right to cross-examine the
child. See Lowery v. Collins, 988 F.2d 1364, 1369-70 (5th Cir. 1993) (holding that
child must actually testify in order to comply with Green); Story v. Collins, 920 F.2d 1247 (5th Cir. 1991). Finally, in further distinction to former section 106A--
2, the hearsay statement is inadmissible under section 115--10 unless the court
first determines that it was made under conditions assuring its trustworthiness.
As we recently observed in Holloway, 177 Ill. 2d at 9, the hearsay
exception of section 115--10 was a needed response to the difficulty of convicting
persons accused of sexually assaulting children. It is well known that child
witnesses, especially the very young, often lack the cognitive or language skills
to effectively communicate instances of abuse at trial (Holloway, 177 Ill. 2d at 9),
or may be impeded psychologically in their efforts to do so (Holloway, 177 Ill. 2d at 13-20 (Freeman, C.J., dissenting)). Section 115--10 alleviated such concerns
by allowing for detailed corroborative evidence of the child's complaint about the
incident to another individual.
The probative value of corroborating complaints in these cases, especially
in videotaped form, has been widely recognized. Children may be subject to
memory loss in the often prolonged period between the abuse and trial, and
videotaping the child's account of abuse at the earliest opportunity preserves the
account while it is still fresh in the child's memory; in addition, it allows for the
examination of the conditions prevalent at the time of the child's initial complaint.
See J. Montoya, Something Not So Funny Happened on the Way to Conviction:
The Pretrial Interrogation of Child Witnesses, 35 Ariz. L. Rev. 927, 940-41
(1993). A recording close in time to the first outcry, prior to any charges being
filed, where feasible, also makes the statement less likely to be the product of
suggestion or even manipulation by overzealous prosecutors, parents or
caseworkers. Cf. 35 Ariz. L. Rev. at 940-41; see also State v. Robinson, 153 Ariz.
191, 204, 735 P.2d 801, 814 (1987). In general, the child's initial complaint of
sexual abuse has been characterized as " `often striking in its clarity and ring of
truth.' " Robinson, 153 Ariz. at 202, 735 P.2d at 812, quoting Berliner & Barbieri,
The Testimony of the Child Victim of Sexual Assault, 40 J. Social Issues 125, 133
(1984); accord People v. Rocha, 191 Ill. App. 3d 529, 542 (1989). The supreme
courts of Arizona and Florida have even gone so far as to equate the reliability of
statements of a child victim with those under the co-conspirator's exception,
concluding that the child's statements are "valuable and trustworthy in part
because they exude the naivete and curiosity of a small child, and were made in
circumstances very different from interrogation or a criminal trial." Robinson, 153
Ariz. at 204, 735 P.2d at 814; accord Perez v. State, 536 So. 2d 206, 209 n.5 (Fla.
1988) (observing that, as such, they " `are usually irreplaceable as substantive
evidence,' " quoting Inadi, 475 U.S. at 396, 89 L. Ed. 2d at 399, 106 S. Ct. at
1126). We do not wholeheartedly endorse the perspective of the Arizona and
Florida supreme courts as expressed above; nonetheless, we do believe that, in
contrast to the uncertain evidentiary value of statements admitted under former
section 106A--2, an outcry statement taken under the right circumstances can
constitute a highly valuable and trustworthy form of evidence.
Since our decision in Bastien, the United States Supreme Court has had
occasion to reiterate the requirements of the confrontation clause in the context of
three cases involving the hearsay statements of child sexual abuse victims. See
White v. Illinois, 502 U.S. 346, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992);
Maryland v. Craig, 497 U.S. 836, 111 L. Ed. 2d 666, 110 S. Ct. 3157 (1990);
Wright, 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139. The Court has long
recognized that the clause guarantees neither an absolute right to face-to-face
confrontation (Craig, 497 U.S. at 847, 111 L. Ed. 2d at 679-80, 110 S. Ct. at
3164), nor an absolute right to contemporaneous cross-examination (Green, 399 U.S. at 161-62, 26 L. Ed. 2d at 499, 90 S. Ct. at 1937; see also Dutton v. Evans,
400 U.S. 74, 80, 27 L. Ed. 2d 213, 222, 91 S. Ct. 210, 215 (1970)). Moreover, in
cases involving firmly rooted hearsay exceptions, the out-of-court statement is
considered so inherently trustworthy and probative that it is admissible under the
confrontation clause regardless of whether the declarant will be available to testify.
White, 502 U.S. 346, 116 L. Ed. 2d 848, 112 S. Ct. 736. Finally, the clause
contemplates the opportunity for effective, but not perfect, cross-examination.
Dutton, 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct. 210. Notwithstanding the literal
meaning of the confrontation clause, the Court's mission in construing it is to
effect a balance between competing interests: advancing a practical concern for
the accuracy and integrity of the truth-seeking process, against every jurisdiction's
strong interest in effective law enforcement. Ohio v. Roberts, 448 U.S. 56, 64, 65 L. Ed. 2d 597, 606-07, 100 S. Ct. 2531, 2538 (1980). Recognizing this, the Court
restated its "general approach" to determining whether hearsay statements meet the
requirements of the confrontation clause, as follows: the Court observed that the
clause operates in two separate ways to limit the range of admissible hearsay.
First, in conformance with the preference for face-to-face accusation, it establishes
a "rule of necessity." In the usual case, including cases where prior cross-
examination has occurred, " `the prosecution must either produce, or demonstrate
the unavailability of, the declarant whose statement it wishes to use against the
defendant.' " Wright, 497 U.S. at 814, 111 L. Ed. 2d at 651-52, 110 S. Ct. at
3146, quoting Roberts, 448 U.S. at 65, 65 L. Ed. 2d at 607, 100 S. Ct. at 2538.
Second, when a witness is proven to be unavailable, his statement may be
admitted only if it bears sufficient "indicia of reliability." Reliability may be
inferred without further proof where the statement falls within a firmly rooted
hearsay exception. In other cases, however, the evidence must be excluded, " `at
least absent a showing of particularized guarantees of trustworthiness.' " Wright,
497 U.S. at 814-15, 111 L. Ed. 2d at 651-52, 110 S. Ct. at 3146, quoting Roberts,
448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539.
Many recent cases hold that the concerns of the confrontation clause are
satisfied as long as the hearsay declarant, the alleged child victim, actually appears
in court and testifies in person, and the trial furnishes an opportunity for effective
cross-examination. See, e.g., United States v. N.B., 59 F.3d 771, 775 (8th Cir.
1995), citing Dolny v. Erickson, 32 F.3d 381, 385 (8th Cir. 1994); Story v. Collins,
920 F.2d 1247, 1255 (5th Cir. 1991); Jones v. Dugger, 888 F.2d 1340, 1342-43
(11th Cir. 1989) (statement by videotape); Perez, 536 So. 2d at 209. Such a
conclusion would appear to find support in the analysis in Green, 399 U.S. at 161,
26 L. Ed. 2d at 499, 90 S. Ct. at 1936, where the Court pointed out that "none of
our decisions interpreting the Confrontation Clause requires excluding the out-of-
court statements of a witness who is available and testifying at trial." Testimony
at trial enhances the reliability of the statement by allowing for direct
confrontation. Cf. Craig, 497 U.S. at 846-47, 111 L. Ed. 2d at 679, 110 S. Ct. at
3164. Moreover, several courts have upheld the admission of out-of-court
statements by a child witness even though the child testified to substantially the
same events at trial. See, e.g., Jones, 888 F.2d 1340 (following Green); N.B., 59 F.3d 771; see also United States v. Shaw, 824 F.2d 601, 609-10 (8th Cir. 1987).
Other courts, on the other hand, decline to find such hearsay statements
sufficiently reliable to preserve the right to confrontation, even though the child
is available to testify at trial. See State v. Pilkey, 776 S.W.2d 943 (Tenn. 1989).
Section 115--10 allows the child's statement only if the State either
produces the child for testimony or shows the child to be unavailable. Regardless
of whether this, standing alone, would satisfy the requirements of Wright, the
statute then goes further to require that the court make a threshold determination
that the "time, content, and circumstances of the statement provide sufficient
safeguards of reliability." 725 ILCS 5/115--10(b)(1), (b)(2) (West 1994). After
close consideration of the recent precedent of the United States Supreme Court,
courts of other jurisdictions, and our appellate court, we are persuaded that the
admission of the videotape, in this particular case, achieved the correct balance
between the defendant's constitutional rights and the State's aim of proving its
case. We emphasize that the admissibility of hearsay statements under section 115-
-10 is largely contingent upon the trial court's careful evaluation of the
circumstances surrounding those statements. Such consideration occurred in this
Defendant also argues that D.M.P.'s videotaped statement was largely
cumulative of her trial testimony. Although, as could be expected, some
duplication did exist, there were also significant distinctions. In the videotape,
D.M.P. provided greater detail concerning the offense, identifying her and
defendant's actions using male and female dolls. There were also inconsistencies
in D.M.P.'s two accounts, including her assertion in the tape that defendant had
put his "area" in her "behind," which was not repeated at trial. We believe that
defendant had ample opportunity to explore these and other inconsistencies
effectively on cross-examination.

C. The Videotape's Reliability
Defendant suggests that the videotape was unreliable because it included
some allusive questioning. He does not identify any particular inquiries he believes
were subjective or manipulative, and we, having reviewed the tape, fail to discern
any such questions. We review the admission of evidence under section 115--10
under an abuse of discretion standard. People v. Zwart, 151 Ill. 2d 37, 44 (1992).
In determining the reliability of the child's hearsay statement, relevant factors
include, but are not limited to, (1) the spontaneity and consistent repetition of the
statement; (2) the mental state of the child in giving the statement; (3) the use of
terminology not expected in a child of comparable age; and (4) the lack of a
motive to fabricate. People v. West, 158 Ill. 2d 155, 164 (1994); see also People
v. Barger, 251 Ill. App. 3d 448, 462 (1993).
Our central concern in this case was that the sexual assault of D.M.P.
occurred around May of 1992, and her videotaped statement was not obtained
until March 31, 1995, nearly three years thereafter. However, this was outweighed
by the remaining circumstances of the statement. D.M.P.'s first outcry occurred
spontaneously about one month after the alleged abuse, when, while watching
cartoons, she suddenly revealed that "Andy Bow made her kiss his pee pee." The
child then became upset and would provide no further details. Mary also testified
that prior to this time, but after the abuse, D.M.P. had begun crying and became
"hysterical" upon seeing defendant. Mary admitted never reporting these incidents
to anyone because she was not sure anything could be done. It was not until
March 29, 1995, that caseworker Richmiller overheard Donnie teasing D.M.P. that
D.M.P. had "licked [defendant's] lizard." Richmiller reported this dialogue to
supervisors the following day, and on March 31, 1995, the videotape was taken
by Officer Copley. The interview appearing on the videotape was only the second
comprehensive interview between authorities and the child, and was sufficiently
objective to be trustworthy. D.M.P.'s statement to her mother was generally
consistent with the comment overheard by Richmiller, and was in the language
expected of a young child. There was neither an allegation nor evidence of any
motive to fabricate on the part of either D.M.P.'s family, Officer Copley or the
other caseworkers, nor was there any evidence of suggestive questioning by
Copley or Terri Allen. Thus, notwithstanding the delay in reporting, the evidence
was properly admitted.
The dissent by Justice McMorrow in this case points to a prior dissent in
People v. Kerwin, 159 Ill. 2d 436, 454-55 (1994) (McMorrow, J., dissenting), in
support of the proposition that section 115--10 does not permit videotaped
statements. However, Kerwin involved an earlier enactment of section 115--10
under which only the fact of the child's outcry was admissible, but not the details
of the statement. See Kerwin, 159 Ill. 2d at 453 (McMorrow, J., dissenting), citing
People v. Holveck, 141 Ill. 2d 84, 103-04 (1990). Since Kerwin, section 115--10
has been amended to expressly allow introduction of the details of the child's
statement. Thus, the rationale of the dissent in Kerwin on the admissibility of
videotaped evidence is inapposite. In further contrast to Kerwin, this case did not
involve the admission of "two lengthy videotapes" depicting interviews which
were the product of leading questions (Kerwin, 159 Ill. 2d at 453, 455
(McMorrow, J., dissenting)). Rather, the videotape here revealed no evidence of
leading or suggestive questioning. Further, D.M.P.'s videotaped statement varied
somewhat from her trial testimony, and could not be considered merely
cumulative, as in Kerwin.
Defendant also argues that the evidence failed to prove him guilty of oral
penetration upon D.M.P. beyond a reasonable doubt. In particular, defendant
asserts that D.M.P. was only three years old when the alleged abuse occurred, that
D.M.P. and Mary could not pinpoint the month of the offense, and that there were
missing details and inconsistencies in D.M.P.'s statement and testimony
concerning the abuse. However, we find that these inconsistencies, which were
brought out in defendant's cross-examination, were relatively minor and bore only
upon the weight to be afforded the child's testimony. See Wittenmyer, 151 Ill. 2d 175. We disagree with the assertion that Mary failed to establish the approximate
date of the occurrence, and find that there was ample evidence, including from the
testimony of defendant himself, demonstrating that the abuse occurred in May of
1992. Defendant has failed to show that the evidence was so improbable or
unsatisfactory that it warranted reversal of his conviction. See People v. Eyler, 133 Ill. 2d 173, 191 (1989). Thus, his claim fails.

Based upon the above analysis, we affirm the judgment of the appellate


I dissent. I agree with Justice McMorrow that the language of section 115--
10 does not permit the introduction of videotaped statements as corroborative
complaints. Having reached that conclusion, I do not believe it is necessary to
address the constitutionality of the admission of such statements.

JUSTICE NICKELS joins in this dissent.

JUSTICE McMORROW, also dissenting:
I respectfully dissent. I believe that the rules of statutory construction
compel a finding that videotaped statements are not permitted under section 115--
10 (725 ILCS 5/115--10 (West 1994)). I also believe that the consequences of the
majority's mistaken interpretation of section 115--10 are a clear violation of
defendant's sixth amendment rights and the improper admission of cumulative

I. Statutory Construction
Nowhere in the text of section 115--10 does the legislature permit the
admission of "outcry statements" by videotape or any other electronic recording.
Thus, by concluding that section 115--10 allows the introduction of the minor
child's video statement, the majority breaches an elemental rule of statutory
construction, namely, to give effect to the statute's plain and ordinary meaning.
People v. Woodard, 175 Ill. 2d 435, 443 (1997). Applying section 115--10 as
written, moreover, is completely consistent with the majority's desire to promote
the legislative intent animating the statute, since any inquiry into legislative intent
must begin with the language of the statute. In re S.G., 175 Ill. 2d 471, 480
(1997); People v. Haynes, 174 Ill. 2d 204, 222 (1996).
The majority states that comparisons of section 115--10 to section 115--
10.1 (725 ILCS 5/115--10.1 (West 1994)) and former section 106A--2 of the
criminal procedure code (Ill. Rev. Stat. 1987, ch. 38, par. 106A--2 (repealed by
Public Act 87--345, eff. January 1, 1992)) add nothing to our construction of
section 115--10 because section 106A--2 and section 115--10.1 "pertain to
different subject matter." I disagree. I find concurrent examination of these
sections useful because they address overlapping subject matter. These
comparisons, moreover, indicate that the legislature did not intend to permit
introduction of videotaped statements pursuant to section 115--10.
Section 106A--2 allowed a trial court to order the videotaping of the
statements or testimony of child victims of specified sexual offenses. Ill. Rev. Stat.
1987, ch. 38, pars. 106A--1, 106A--2 (repealed by Public Act 87--345, eff.
January 1, 1992). As this court stated in People v. Bastien, 129 Ill. 2d 64, 70
(1989), the purposes underlying section 106A--2 were to protect child witnesses
from the potential trauma of testifying in open court and to compensate for the
fear, confusion and forgetfulness that frequently impede a child's ability to testify
in open court. Bastien, 129 Ill. 2d at 70. Decisions construing section 115--10
agree that the difficulties inherent in having children testify also prompted the
legislature to enact section 115--10. See People v. Holloway, 177 Ill. 2d 1, 9
(1997) ("Problems in proof may result when the lesser developed cognitive and
language skills that children have hinder them in adequately communicating the
details of an assault"); People v. Peck, 285 Ill. App. 3d 14, 20 (1996). In light of
the common aims underpinning section 115--10 and section 106A--2, I cannot
interpret section 115--10's silence on the question of videotaped testimony as mere
oversight. See In re Application for Judgment & Sale of Delinquent Properties for
the Tax Year 1989, 167 Ill. 2d 161, 168-69 (1995) ("Statutes should be construed
in conjunction with other statutes addressing the same subject"). The legislature
is presumed to know the contents of existing enactments (State of Illinois v.
Mikusch, 138 Ill. 2d 242, 248 (1990)), and I can only conclude that the legislature
purposefully excluded videotaped statements from the hearsay exception created
in section 115--10.
Section 115--10.1, in turn, regulates the introduction of prior inconsistent
statements in a criminal trial, including statements recorded on videotape (725
ILCS 5/115--10.1 (West 1994)). Like section 115--10, section 115--10.1 purports
to create an exception to the rule against hearsay. Again, I submit that the General
Assembly knew full well the difference between expressly sanctioning videotaped
testimony, as it did in section 115--10.1, and failing to mention videotaping of
statements at all, as occurred in section 115--10. As our appellate court stated in
People v. Mitchell, 225 Ill. App. 3d 708, 717 (1992), "It would have been a
simple matter for the legislature to indicate that videotaped statements were
admissible under section 115--10. The legislature did not do so. We must,
therefore, conclude that section 115--10 *** does not contemplate or allow the
admission of such evidence."

II. Constitutionality of Section 115--10
My objection to the majority's overly expansive reading of section 115--10
is not merely academic. More important than the affront to rules of statutory
construction rendered by the majority opinion is the fact the opinion condones a
breach of defendant's sixth amendment rights. Indeed, we previously found the
introduction of similar videotaped evidence an impermissible breach of the
confrontation clause. See Bastien, 129 Ill. 2d 64.
In Bastien, we determined the constitutionality of section 106A--2 (Ill. Rev.
Stat. 1987, ch. 38, par. 106A--2 (repealed by Public Act 87--345, eff. January 1,
1992)). That statute allowed a trial court to order the videotaping of the statement
or testimony of a child victim of a sexual assault. Bastien, 129 Ill. 2d at 68-69.
Section 106A--2 permitted counsel for both parties to be present as the child
testified, but only the state's counsel could question the victim, and counsel could
not use leading questions. Bastien, 129 Ill. 2d at 69. The defendant could also
attend the recording session and the court could rule on evidentiary objections.
Bastien, 129 Ill. 2d at 69; Ill. Rev. Stat. 1987, ch. 38, par. 106A--2(a). Further,
section 106A--2 allowed introduction of the videotape into evidence provided,
inter alia, the child was available to testify at trial, subject to cross-examination
by the defendant or the defendant's attorney. Bastien, 129 Ill. 2d at 69.
This court found section 106A--2 unconstitutional. Bastien, 129 Ill. 2d at
77. The court ruled that section 106A--2 deprived defendant of the right to
confrontation by effectively prohibiting contemporaneous cross-examination of the
child witness. Bastien, 129 Ill. 2d at 77. The Bastien court recognized that several
months could elapse between the videotaping and the trial. Bastien, 129 Ill. 2d at
77. "During that time, the child undoubtedly will have contact with the prosecutor
and the relatives who, consciously or unconsciously, may influence the child"
(Bastien, 129 Ill. 2d at 77), with the result that any false testimony captured on
tape will " `harden and become unyielding to the blows of truth.' " (Bastien, 129 Ill. 2d at 76-77, quoting California v. Green, 399 U.S. 149, 159, 26 L. Ed. 2d 489,
497-98, 90 S. Ct. 1930, 1935-36 (1970)). Additionally, the court found no
justification for reliance on videotaped testimony of a child if the statute also
mandated that the child be available for trial and cross-examination at trial.
Bastien, 129 Ill. 2d at 78. From an evidentiary standpoint, the testimony captured
on videotape was far inferior to live testimony at trial. Bastien, 129 Ill. 2d at 78.
Section 115--10 allows a trial court to admit, as an exception to the bar
against hearsay, out-of-court statements of a child "describing any complaint of
[a physical or sexual act perpetrated on the child] or matter or detail pertaining to
any act which is an element of an offense which is the subject of [the
prosecution]" (725 ILCS 5/115--10(a)(2) (West 1994)). The scope of this hearsay
exception is so broad as to be indistinguishable from the typical narrative of
events usually elicited by direct examination at trial. Indeed, that is precisely the
nature of the testimony admitted by videotape in this case. D.M.P. described her
understanding of permissible and impermissible touching, and identified human
anatomy on dolls. She used the dolls to describe acts of abuse allegedly performed
on her, and described other details surrounding her contacts with defendant. She
stated that these incidents occurred 19 times.
Notably, too, section 115--10 does not require that any out-of-court
statement by the child be subject to cross-examination, so that, as in Bastien, the
videotaped testimony of D.M.P was not tested by simultaneous cross-examination.
Under the authority of Bastien, moreover, the fact that D.M.P. was at trial and
cross-examined in the courtroom does not remove the taint of constitutional
violations. Bastien, 129 Ill. 2d at 78-79. Section 106A--2 required that the witness
be available for cross-examination at trial, but this court found subsequent cross-
examination an inadequate substitute for contemporaneous cross-examination.
Bastien, 129 Ill. 2d at 78-79. The court noted:
" `Cross-examination often depends for its effectiveness on the ability of
counsel to punch holes in a witness' testimony at just the right time, in just
the right way. *** [C]ross-examination of a witness who is uncounseled
between direct and cross-examination is more likely to lead to the
discovery of truth than is cross-examination of a witness who is given time
to pause and consult with his attorney.' " Bastien, 129 Ill. 2d at 79,
quoting Perry v. Leeke, 488 U.S. 272, 282, 102 L. Ed. 2d 624, 635, 109 S. Ct. 594, 601 (1989).
The majority contends that comparisons to Bastien are inapposite since
section 106A--2 allowed admission of videotape in lieu of a child's testimony,
while section 115--10 merely sanctions the admission of certain statements as an
exception to the general rule barring hearsay at trial. For the purposes of the
present appeal, this is a distinction without a difference. The Bastien court
candidly identified the video testimony in that case as pure hearsay. Bastien, 129 Ill. 2d at 74.
The majority also compares section 115--10 to the holding of Idaho v.
Wright, 497 U.S. 805, 814-15, 111 L. Ed. 2d 638, 651-52, 110 S. Ct. 3139, 3146
(1990), which states that admission of hearsay does not necessarily violate the
confrontation clause, provided the proponent complies with the "unavailability
rule" and provided the hearsay falls within one of the "well-rooted" hearsay
exceptions or is tested for reliability under the totality of the circumstances
surrounding the statement. The majority further observes that section 115--10
satisfies the unavailability rule, as well as the totality of the circumstances test put
forth in Wright. Accordingly, the majority suggests, hearsay, by videotape or
otherwise, may be admitted pursuant to section 115--10 without violating the
confrontation clause.
While the "totality of the circumstances" test undoubtedly expands the
scope of testimony admissible without breach of the confrontation clause, I believe
that blind adherence to that rule can create anomalies like the one that confronts
us today. The hearsay "exception" articulated in section 115--10 is so broad as to
render the general rule barring hearsay meaningless. The exception, in other
words, swallows the rule. Under section 115--10, a child witness' previously
recorded testimony concerning a sexual assault, not subject to contemporaneous
cross-examination, can be admitted against a criminal defendant. In Bastien, this
court found virtually identical facts constitutionally infirm. I believe that merely
relabeling the video testimony as a "hearsay exception" not only exalts form over
function, but also ignores the real consequences of this court's actions. While I do
not advocate overruling Bastien, it is only by doing so that we can avoid an
inconsistency between the holding in Bastien and the result urged by the majority
in the present appeal. I think the better course is to reaffirm Bastien and reverse
the appellate and circuit courts here.
Lastly, the majority's opinion neglects to cure a dilemma I recognized in
People v. Kerwin, 159 Ill. 2d 436, 453-55 (1994) (McMorrow, J., dissenting), and
which has repeated itself here. In Kerwin, this court affirmed the defendant's
conviction on three counts of aggravated sexual assault of a child. I concluded in
dissent that defendant received ineffective assistance of counsel, in part due to
counsel's failure to object to admission of the victim's videotaped statements
pursuant to section 115--10. I urged in Kerwin, as here, that section 115--10 does
not, by its terms, allow introduction of videotaped hearsay statements. Kerwin, 159 Ill. 2d at 454 (McMorrow, J., dissenting), citing People v. Mitchell, 225 Ill. App.
3d 708, 716-19 (1992). Further, my reference to Kerwin is not invalidated by
subsequent amendments to section 115--10, as the majority suggests. Although the
statute has been amended several times since its enactment in 1983, at no time has
section 115--10 permitted the admission of videotaped hearsay statements.
Additionally, I noted in Kerwin that the State "enjoyed the advantage of
having [the victim] `testify' twice; once in the courtroom, under oath and subject
to contemporaneous cross-examination, and then again in the form of the lengthy,
open-ended format of the [videotaped interviews]." Kerwin, 159 Ill. 2d at 455
(McMorrow, J., dissenting). The unsworn statements recorded on video were the
product of sometimes leading questions and were not tested by contemporaneous
cross-examination or by objections. Kerwin, 159 Ill. 2d at 455 (McMorrow, J.,
dissenting). The videotape in Kerwin "injected a layer of cumulative and repetitive
details *** not elicited in accordance with courtroom procedure." Kerwin, 159 Ill. 2d at 455 (McMorrow, J., dissenting).
In the case before us, the testimony introduced by video was in substantial
and material part cumulative of D.M.P.'s testimony on the witness stand. Elicited
without any of the procedural safeguards normally attending testimony in an
adversarial proceeding, the admission of recorded statements served only to add,
unfairly, heft to the State's case and to violate defendant's constitutional rights.