Fifth Division
January 28, 2005

No. 1-01-2776

JUSTICE NEVILLE delivered the opinion of the court:

The minor defendant, E.H., was charged in a petition for adjudication of wardship with two counts each of aggravated criminal sexual abuse and aggravated criminal sexual assault against K.R. and B.R. After a bench trial, E.H. was found delinquent and made a ward of the court. She was also sentenced to 5 years of probation and was required to register as a sex offender for 10 years. E.H. has filed an appeal from the charges against her asserting that her conviction should be reversed because she was not allowed to cross-examine one of her accusers, which was in violation of her constitutional rights under the confrontation clause⁽¹⁾.

BACKGROUND

E.H. was charged in a petition for adjudication of wardship with two counts of aggravated criminal sexual abuse and aggravated criminal sexual assault against K.R. and B.R. The charges against E.H. were brought as a result of complaints made by the two children regarding alleged occurrences between June and August of 1999 while E.H. was babysitting them at E.H.'s grandmother's home. However, these acts were not reported until one year later, in November of 2000. At the time of the alleged occurrence, E.H. was 13 years old, and her accusers, K.R. and B.R., were five and two years old, respectively. K.R. and B.R. made complaints to their grandmother that E.H. made them lick her vaginal area, buttocks and breasts on four separate occasions. Based upon these charges, E.H. was tried, convicted of the charges against her and adjudicated a ward of the state.

Testimony at the Section 115-10 Hearing

Prior to trial, the State requested a hearing pursuant to section 115-10 of the Illinois Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2000))⁽²⁾

, in order to determine whether the statements made by K.R. and B.R. to their grandmother were admissible. Pursuant to section 115-10, which is an exception to the hearsay rule, the statements of a child under the age of 13 are admissible if they "provide sufficient safeguards of reliability," the witness either testifies at trial or is "unavailable as a witness," and the statements made can be corroborated by other evidence. 725 ILCS 5/115-10 (West 1998).

At the hearing, K.R. and B.R.'s grandmother, Mary Ann R., testified that K.R., B.R. and their mother, Shareen R., had lived with her since October 1999. She stated that on November 14, 2000, she went to check on K.R. and B. R., who were playing in her bedroom, when she heard the girls talking and asked them what they were talking about. K.R. replied that they were talking about E.H. and that she made them suck her "puckets" and lick her "front behind" and " back behind" while E.H. was babysitting them. K.R. also told Mary Ann that E.H. made them take their clothes off and lie on top of her. Mary Ann testified that B.R. also told her that E.H. made them suck her "puckets" and lick her "front behind" and "back behind." Mary Ann stated that the girls refer to breasts as "puckets" and to their vaginal area and buttocks as "front behind" and "back behind," respectively.

Mary Ann testified that the following day, on November 15, 2000, while she was in her bedroom, the girls came in to talk to her again and repeated the details they had described the day before. She stated that neither of the girls was hesitant while relating the incident to her and that she did not prompt the girls with questions. Mary Ann testified that K.R. told her the incident occurred during "the summer of 1999." When Mary Ann asked the children why they had waited so long to tell her about the incident, K.R. told her it was because E.H. had threatened them. When Mary Ann asked her why she had not told her mother about the incident, K.R. stated it was because E.H. had "smacked her in the face" and told her she would smack her again if she told her mother. At the conclusion of the grandmother's testimony at the section 115-10 hearing, the court found the statements of K.R. and B.R. to be "reliable" pursuant to section 115-10 and granted the Sate's motion to use the statements at trial.

Trial Testimony

At trial, Shareen, Mary Ann, K.R., Jesse Terrazas, an investigator with the Chicago police department, Bernice Wilkins, a caseworker with the Department of Children and Family Services (DCFS), and Willie H., E.H.'s grandmother, rendered testimony. B.R. did not testify.

Shareen testified that she had known E.H. since E.H. was five years old. She stated that during the summer of 1999, E.H. babysat K.R. and B.R. four times: twice in June, once in July, and once in September. Shareen did not use E.H. as a babysitter again after September of 1999. During the time E.H. was babysitting the girls, the girls did not make any complaints about E.H. Shareen stated she did not learn about the abuse until her mother told her what the girls said. After her mother told her what the girls said about E.H., Shareen phoned the police. Shareen and her daughters were interviewed at their home by an investigator.

K.R., seven years old at the time of trial, also testified. When asked whether E.H. ever did anything bad to her, K.R. responded, "she made me suck her puckets." K.R. pointed to her chest to show the court what she meant by "puckets." K.R. stated that E.H. has two "puckets" and that another word for "puckets" is "breasts". K.R. also testified that E.H. made her "suck her booty." When asked where her "booty" was, K.R. pointed to her vaginal area and stated that another word for that area was "front butt." K.R. further testified that E.H. also made her suck her "back butt." When asked to show the court where her "back butt" was, K.R. stood up and pointed to her tailbone. When asked if E.H. made her do this more than once, K.R. responded "yes," but she could not remember how many times. K.R. testified that she also saw E.H. do things to her sister, B.R. K.R. stated that E.H. made B.R. suck her "puckets," "back butt," and "front butt" also. K.R. stated that during this time all three girls were unclothed. K.R. testified that she removed her clothes because E.H. told her to and that E.H. "smacked" her. K.R. answered affirmatively when asked whether she was scared of E.H.

Mary Ann, the girls' grandmother, also testified at trial. Mary Ann retold the circumstances as she told them at the section 115-10 hearing, recounting where the girls were and what they were doing when they first spoke to her about E.H.

Mr. Terrazas, the investigator, testified that he spoke with K.R. and B.R. at their grandmother's house on November 20, 2000. During this discussion, K.R. told him that the incident occurred between June and September of 1999. K.R. told Investigator Terrazas that E.H. made her take her clothes off and that K.R. used the words "front booty" and "back booty" to describe E.H.'s vaginal area and buttocks. When Investigator Terrazas asked K.R. why it had taken her so long to tell anyone about the incident, K.R. responded that it was because E.H. said she would "whip us again." Investigator Terrazas also spoke with B.R., who also used the words "front booty" and "back booty" to describe the vaginal area and buttocks.

Bernice Wilkins, the caseworker with DCFS, testified that she visited Mary Ann's home on January 16, 2001, to check on K.R. and B.R. Ms. Wilkins spoke to Mary Ann about the statements made to her by K.R. and B.R. Mary Ann told Ms. Wilkins that the children did not come and tell her about E.H.; rather, she overheard them talking about it and then questioned them regarding the occurrence.

Ms. H., E.H.'s grandmother, testified that she was home while E.H. babysat K.R. and B.R. and that she watched them the entire time. Ms. H. stated that the only time they were out of her sight was when they were in front of the house. She also stated that the girls were not upset to be around E.H. She also testified that about a week prior to E.H.'s arrest, on November 20, 2000, Shareen came over with K.R. and B.R. and asked if she could move into Ms. H.'s home. When Ms. H. told Shareen that she could not move in, Shareen became angry.

At the close of trial, the judge made a finding of delinquency and E.H. became a ward of the court for the aggravated criminal sexual abuse and the aggravated criminal sexual assault of K.R. and B.R. The judge sentenced E.H. to 5 years of probation and required her to register as a sex offender for 10 years. E.H. now appeals from the finding of delinquency and sentence.

E.H. raises three issues on appeal: (1) whether she could be found delinquent of aggravated criminal sexual abuse and aggravated criminal sexual assault in violation of the one-act, one-crime doctrine where two aggravated criminal sexual abuse adjudications were based on the same physical act for which she was adjudicated delinquent; (2) whether the trial court abused its discretion in admitting B.R.'s statements at trial under the hearsay exception in section 115-10; and (3) whether the Sex Offender Registration Act (730 ILCS 150/1et seq. (West 1998)), is unconstitutional. The issue we will address on appeal is whether B.R.'s out-of-court statements to her grandmother were admissible as evidence at trial. Pursuant to the confrontation clause of the Constitution and the United States Supreme Court's recent holding in Crawford v. Washington, 541 U.S. ___, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), we hold that testimonial statements of witnesses absent from trial should be admitted only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine the witness. Therefore, we reverse and remand this case to the trial court.

Procedural Background

On November 25, 2002, E.H. filed an appellate brief in which she argued that the trial court erred in admitting B.R.'s statements to her grandmother at trial. She argued that the State did not meet its burden of showing that the statements were sufficiently reliable pursuant to section 115-10. 725 ILCS 5/115-10 (West 1998).

On March 8, 2004, the United States Supreme Court held in Crawford v. Washington, 541 U.S. ___, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), that based upon the confrontation clause, testimonial statements of witnesses absent from trial should be admitted only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine the witness. The Court further renounced the "unpredictable" and "amorphous" test enunciated in Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539 (1980), that hearsay evidence is admissible if it demonstrates adequate indicia of reliability.

Pursuant to the Crawford decision, the defendant filed a motion to cite the case as additional authority in support of her appeal, which was granted on April 9, 2004. Relying on Crawford in her motion, E.H. argued that her constitutional right to cross-examine B.R. was violated and that her conviction must be reversed.

On May 7, 2004, without addressing Crawford, this court entered an order affirming the trial court's decision.In re E.H., No. 1-01-2776 (May 7, 2004) (unpublished order under Supreme Court Rule 23). In that order, although we reasoned that under section 115-10, the time, content and circumstances of B.R.'s statements did not provide sufficient "safeguards of reliability" (see 725 ILCS 5/115-10 (West1998)), we held that B.R.'s statements fell under the rubric of harmless error, utilizing the abuse of discretion standard of review.

On May 28, 2004, the defendant filed a petition for rehearing, in which she reiterated the holding in Crawford and stated that we failed to apply Crawford in our analysis and ruling. Once again, in her petition, she pointed out the Court's ruling in Crawford that "where testimonial statements are at issue, the only indicum of reliability sufficient to satisfy constitutional demands is confrontation." See Crawford, 541 U.S. at ___, 158 L. Ed. 2d at ___, 124 S. Ct. at 1355. The defendant further argued that her petition should be granted because the Crawford decision renders section 115-10 unconstitutional as the reliability requirements were rejected. Finally, she argued that we applied the incorrect standard of review in determining whether B.R.'s statements to her grandmother were harmless error.

On October 16, 2004, the State filed an answer to the defendant's petition for rehearing. The State argued that the "Respondent's position is based on a fundamentally flawed interpretation of the confrontation clause and the strictures set forth in Crawford" and that the "confrontation clause has no application to the instant case, because the admission of Brianna's outcry did not implicate the confrontation clause." Considering the dicta in Crawford concerning what may constitute "testimonial" versus "non-testimonial" evidence, the State asserts that "when the 'witness' is giving 'testimony' out-of-court *** the hearsay declarant himself must be aware of the fact that he is 'bearing witness' against the accused for his hearsay statement to even be considered 'testimonial' under Crawford." (Emphasis added.) In addition to understanding that he/she is "bearing witness against" the accused, the State argues that the declarant must also understand that he/she is "offering a solemn declaration or affirmation *** for the purpose of establishing or proving some fact." (Emphasis added.) The State concludes that "an objectively reasonable declarant must be aware *** that he is providing evidence that will later be used against the accused in a criminal trial."

Based upon the defendant's petition, which we have granted, the May 7, 2004, order has been vacated. We now address the defendant's appeal in light of the confrontation clause and the Crawford decision. Pursuant to the confrontation clause, we hold that the defendant had a constitutional right to confront her accuser and that because she did not have an opportunity to do so in this case, her constitutional rights were violated. U.S. Const, amend. VI.

ANALYSIS

The confrontation clause provides: "In all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him." U.S. Const., amend. VI. Utilizing the sixth amendment as a premise for its ruling and acknowledging the original intent of the Framers of the Constitution, the Crawford Court reasoned that the testimonial statements of a witness who did not appear at trial would not be admissible unless he was unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at __, 158 L. Ed. 2d at 192-94, 124 S. Ct. at 1364-66. In its opinion, the Court specifically renounced its rationale enunciated in Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539 (1980), which predicated the admissibility of hearsay evidence on whether it "demonstrated adequate indicia of reliability." Crawford, 541 U.S. at __, 158 L. Ed. 2d at 196-97, 124 S. Ct. at 1367-69. The Court reasoned that: "The framework [of the general reliability exception] is so unpredictable that it fails to provide meaningful protection from even core confrontation violations. Reliability is an amorphous, if not entirely subjective, concept." Crawford, 541 U.S. at __, 158 L. Ed. 2d at 200, 124 S. Ct. at 1371.

More importantly, the Court opined: "The unpardonable vice of the Roberts test *** is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the confrontation clause plainly meant to exclude." Crawford, 541 U.S. at __, 158 L. Ed. 2d at 200, 124 S. Ct. at 1371. The quagmire we are left in, however, is that the Crawford Court does not pinpoint a specific definition of the amorphous concept of what "testimonial statements" might include. The Court does provide instruction that, at a minimum, this testimony encompasses prior testimony at a preliminary hearing, before a grand jury or at a former trial. Crawford v. Washington, 541 U.S. ___, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). The Court also includes statements taken by the police during interrogations under the umbrella of testimonial statements. Crawford, 541 U.S. at __,__ 158 L. Ed. 2d at 193-94, 203,124 S. Ct. at 1364, 1374. In dicta, the Crawford court also articulated various formulations of what the core class of "testimonial statements" might include, i.e., "'ex parte in-court testimony' "(quoting Brief for Petitioner at 23), " 'extrajudicial statements' " (quoting White v. Illinois, 502 U.S. 346, 365; 116 L. Ed. 2d 848, 865;112 S. Ct. 736, 747 (1992)); and "'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial'" (quoting Brief for National Association of Criminal Defense Lawyers as Amici Curiae at 3). Crawford, 541 U.S. at __, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364. Remaining silent on its acquiescence to any of these formulations, however, the Court states that "we leave for another day any effort to spell out a comprehensive definition of 'testimonial.' " (Emphasis added.) Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Therefore, as Justice Rehnquist's concurring opinion in the judgment points out, and we are in agreement, what constitutes "testimonial statements" versus nontestimonial statements remains somewhat esoteric. Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 203-08, 124 S. Ct. at 1374-78 (Rehnquist, C.J., concurring, joined by O'Connor, J.).

Although some uncertainty remains regarding the exact definition of "testimonial statements," we are certain that, in this case, B.R.'s statement to her grandmother falls within the purview of the ruling of Crawford and is governed by the protections of the confrontation clause. It is true that certain types of hearsay statements, i.e., "an offhand, overheard remark," may not qualify as statements at which the confrontation clause was directed, but it does apply against "those who bear testimony." Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364. Here, the declarant, B.R., bore accusatory testimony against E.H. which was offered to prove the truth of the matter asserted, specifically, that E.H. sexually assaulted her.

The treatise, Wigmore on Evidence, section 479, also lends support to our position. Section 479 states that "any assertion, whether made in court or not, may be testimonial evidence. *** Any assertion, taken as the basis of an inference to the existence of the matter asserted, is testimony, whether made in court or not." (Emphasis added and in original.) J. Wigmore, Evidence