FIFTH DIVISION
February 10, 2005

JUSTICE O'BRIEN delivered the opinion of the court:

Defendant, R.F., appeals his convictions for criminal sexual assault and predatory criminalsexual assault of a child. Defendant contends that: (1) the admission of certain statements by thevictim violated his sixth amendment right to confrontation; (2) the State failed to prove him guiltybeyond a reasonable doubt; and (3) he was improperly convicted of multiple crimes based uponthe same conduct. We affirm defendant's conviction for predatory criminal sexual assault of achild and, with the State's confession of error, we vacate defendant's conviction for criminalsexual assault and correct the mittimus.

Prior to trial, the State filed a motion under section 115-10 of the Code of CriminalProcedure of 1963 (725 ILCS 5/115-10 (West 2000)) to admit the victim's, A.F.'s, statementsthrough her mother M.J. and Investigator Arnold Weddington. Section 115-10 provides that in aprosecution for a sexual act perpetrated against a child under the age of 13, the testimony of thechild's out-of-court statements describing any complaint of such act or matter or detail pertainingto any act which is an element of the charged offense is admissible as an exception to the hearsayrule. 725 ILCS 5/115-10(a)(West 2000). Such testimony may only be admitted if the court findsin a pretrial hearing that the time, content and circumstances of the statement provide sufficientsafeguards of reliability and the child either testifies at trial or is unavailable as a witness and thereis corroborative evidence of the act which is the subject of the statement. 725 ILCS 5/115-10(b)(West 2000).

During the section 115-10 hearing, M.J. testified that she is married to R.F. and that theyhave a daughter, A.F. At approximately 9:30 p.m. on April 7, 2000, M.J. was giving A.F. a bathin the kitchen sink. A.F. was three years old at the time. After bathing her, M.J. took A.F. out ofthe sink and began to dry her off. As M.J. dried A.F.'s vaginal area, A.F. began "flinching" andmaking noises like there was something wrong with her. M.J. asked her what was wrong, andA.F. shrugged her shoulders. A.F. "flinched" a second time, and M.J. again asked her what waswrong. A.F. again made no reply. M.J. asked A.F. a third time what was wrong, and A.F. statedthat her daddy had pinched her. M.J. asked A.F. where her daddy had pinched her, and A.F.pointed to her vaginal area.

M.J. testified that she was "shocked" at A.F.'s statement and that she then began dressingA.F. A.F. looked up at M.J. and stated, "mommy, daddy pinched me. Could you please telldaddy to stop pinching me. He's not supposed to touch me. He['s] only supposed to touch you." M.J. then finished dressing A.F. and took her upstairs to M.J.'s mother (A.F.'s grandmother), wholived in the same building. M.J. told A.F. to tell her grandmother what she had said in the kitchen. A.F. stated that "daddy touched my coochy" and she pointed to her vaginal area.

M.J. testified that the next day, April 8, then she called the police and took A.F. to thehospital. While alone together in the hospital examination room at approximately 9 p.m., M.J.asked A.F. to tell her again what her dad (defendant) had done to her. A.F. stated that her dadhad kissed her. M.J. asked her where he had kissed her, and A.F. pointed to her vaginal area. M.J. testified that on April 9, Officer Weddington came to her home and talked with A.F. A.F.told Officer Weddington that her daddy had put his tongue on her coochy.

Officer Weddington testified that on April 8 he received an assignment involving a childwho allegedly had been sexually abused. Officer Weddington went to the hospital and spoke withthe doctor and with M.J. Since it was late in the evening, Officer Weddington told M.J. that hewould interview A.F. the next day.

Officer Weddington testified that on April 9, he and his partner, Officer Redd, went toM.J.'s house. Officers Weddington and Redd, M.J., and A.F. went into the living room. OfficerWeddington introduced himself to A.F. and asked her to tell him her name. A.F. appearednervous and apprehensive and she hesitated for a few minutes before stating her name. OfficerWeddington asked her about colors and numbers, whether she knew the difference between thetruth and a story, and whether she could identify parts of her body. A.F. gave appropriateanswers to Officer Weddington's preliminary questions.

Officer Weddington testified that he told A.F. that he was there to help her, and he askedher to tell him what she had told her mommy. A.F. responded that her daddy had licked herprivate part. Officer Weddington asked her to point to her private part, and A.F. then touchedher vaginal area. Officer Weddington asked her when this had happened, and A.F. stated"Saturday."

Following the hearing, the trial court ruled that A.F.'s statements to M.J., hergrandmother, and Officer Weddington would be admissible at trial.

At the bench trial, the parties stipulated to the testimony of M.J. and Office Weddingtonfrom the section 115-10 hearing. In chambers, the State and defense questioned A.F. for thepurposes of determining whether she was available to testify. A.F. responded to some questionsand not to others. The trial court found that A.F. was unavailable to testify due to her fear andanxiety.

Officer Weddington testified at trial that he spoke with defendant at the police station onApril 10. After defendant was advised of his Miranda rights, he denied A.F.'s allegations. OnApril 11, Officer Weddington met with defendant and again advised him of his Miranda rights. Defendant told Officer Weddington that he went out with friends to drink after work one night. After arriving home, A.F. came to him and stated that she was itching. Defendant asked herwhere she was itching, and A.F. pointed to her vagina. Defendant told A.F. to go in the otherroom and he would be with her in a minute. Approximately five minutes later he went into theroom, and A.F. again stated that her vagina was itching. Defendant stated that he kissed A.F.'svagina to make it better, then he licked A.F.'s vagina. Defendant realized what he was doing waswrong, went back into his bedroom, and prayed for forgiveness.

Officer Weddington testified that between 10 and 11 p.m, Assistant State's Attorney(ASA) Daniel Tiernan met with defendant and that defendant repeated his inculpatory statement.

ASA Tiernan testified that he met with defendant at approximately 10 p.m. on April 11. ASA Tiernan gave defendant his Miranda rights, and defendant made a handwritten statement inwhich he admitted that approximately two weeks earlier, he had some beers after work and thenreturned home. A.F. told defendant that her belly hurt, and defendant told her to go back to herroom and lie down. A few minutes later, defendant went into A.F.'s room and rubbed her bellyand told her to go to sleep. Defendant went back to his bedroom. Approximately five minuteslater, A.F. came in and told defendant that she was itching and pointed to her vagina. Defendanttold A.F. to go to her room and lie down. A.F. called to him again, so defendant went into herroom and A.F. told him that she was itching. Defendant told A.F. that he would kiss her vaginato make it feel better. A.F.'s panties were already around her ankles, and defendant began kissingA.F. on her lower belly and eventually started kissing her vagina. While he was kissing hervagina, his tongue "came out" and he licked her vagina. Defendant then got up and went back tohis bedroom.

Defendant testified at trial and denied ever rubbing, kissing, or licking A.F.'s vagina. Defendant testified that he gave a confession at the police station because Officer Weddingtontold him that he could go home if he confessed.

The court convicted defendant of predatory criminal sexual assault of a child and criminalsexual assault and sentenced him to six years' imprisonment. Defendant filed this timely appeal.

First, defendant argues that A.F.'s statements to her mother, grandmother, and OfficerWeddington constituted testimonial evidence and that their admission at trial, in the absence of anopportunity to cross-examine A.F., violated his sixth amendment constitutional right ofconfrontation. In support, defendant cites Crawford v. Washington, 541 U.S. __, 158 L. Ed. 2d177, 124 S. Ct. 1354 (2004). The State responds that defendant waived review of this issue byfailing to raise his sixth amendment argument at trial or in his posttrial motion. Our supremecourt has held that judicial opinions announcing new constitutional rules applicable to criminalcases are retroactive to all cases, such as this one, pending on direct review at the time the newconstitutional rule is declared. People v. Ford, 198 Ill. 2d 68, 72-73 (2001); People v. Thompson,349 Ill. App. 3d 587, 594 (2004); People v. Martinez, 348 Ill. App. 3d 521, 533 (2004). Accordingly, there was no waiver here.

In Crawford, the State of Washington charged Crawford with assault and attemptedmurder after stabbing a man who allegedly had attempted to rape Crawford's wife. At trial, theState introduced a tape-recorded statement Crawford's wife made to police during herinterrogation shortly after the stabbing. Crawford's wife invoked the State's marital privilege anddid not testify at trial. The jury convicted Crawford of assault. Crawford, 541 U.S. at _, 158 L.Ed. 2d at 184-86, 124 S. Ct. at 1356-58.

Upon appeal to the United States Supreme Court, Crawford argued that the State's use ofhis wife's statement violated the sixth amendment's confrontation clause, which provides that

" '[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with thewitnesses against him.' " Crawford, 541 U.S. at __, 158 L. Ed. 2d at 187, 124 S. Ct. at 1359,quoting U.S. Const., amend VI. The Supreme Court noted that under Ohio v. Roberts, 448 U.S.56, 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), an unavailable witness's out-of-court statementsatisfied sixth amendment scrutiny, and was admissible at trial, as long as it had "adequate indiciaof reliability," i.e., it fell within a " 'firmly rooted hearsay exception' " or bore " 'particularizedguarantees of trustworthiness'." Crawford, 541 U.S. at _, 158 L. Ed. 2d at 187, 124 S. Ct. at1359. Crawford urged the Court to reconsider the Ohio v. Roberts test, arguing that it strayedfrom the original meaning of the confrontation clause. Crawford, 541 U.S. at _, 158 L. Ed. 2d at187, 124 S. Ct. at 1359.

The Court began its analysis by tracing the history behind the confrontation clause. TheCourt noted that in the sixteenth and seventeenth centuries, judicial officers routinely conductedpretrial, private examinations of suspects and witnesses, and the examinations were read in courtin lieu of trial testimony, despite protests by the accused for the opportunity to confront hisaccusers. Eventually, English law developed a right of confrontation that limited these abuses,and America's first Congress included the confrontation clause in the proposal that became thesixth amendment. Crawford, 541 U.S. at _, 158 L. Ed. 2d at 187-91, 124 S. Ct. at 1359-63.

The Court concluded from the historical record that "the principal evil at which theConfrontation Clause was directed was the civil-law mode of criminal procedure, and particularlyits use of ex parte examinations as evidence against the accused." Crawford, 541 U.S. at_, 158 L.Ed. 2d at 192, 124 S. Ct. at 1363. The Court noted that the confrontation clause applies to"witnesses" against the accused, with "witnesses" being defined as those who " 'bear testimony'." Crawford, 541 U.S. at _, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364, quoting 1 N. Webster, AnAmerican Dictionary of the English Language (1828). The Court defined "testimony" as a "'solemn declaration or affirmation made for the purpose of establishing or proving some fact'." Crawford, 541 U.S. at_, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364, quoting 1 N. Webster, AnAmerican Dictionary of the English Language (1828).

The Court further concluded from the historical record that "the Framers would not haveallowed admission of testimonial statements of a witness who did not appear at trial unless he wasunavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford, 541 U.S. at _, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365. The Court explained thatOhio v. Roberts, which allowed for the admission of pretrial testimonial statements based upon"indicia of reliability" other than prior cross-examination, clashed with the core meaning of theconfrontation clause. Crawford, 541 U.S. at _, 158 L. Ed. 2d at 198, 124 S. Ct. at 1369. TheCourt noted that "reliability" is an amorphous, if not entirely subjective, concept, that there are"countless" factors bearing on whether a statement is reliable, and that whether a statement isdeemed reliable depends on which factors the judge considers and how much weight he accordsthem. Crawford, 541 U.S. at _, 158 L. Ed. 2d at 200, 124 S. Ct. at 1371. Accordingly, the Courtheld that the "indicia of reliability" framework "is so unpredictable that it fails to providemeaningful protection from even core confrontation violations." Crawford, 541 U.S. at _, 158 L.Ed. 2d at 200, 124 S. Ct. at 1371. The Court further noted that the "unpardonable vice of the[Ohio v. Roberts] test *** is not its unpredictability, but its demonstrated capacity to admit coretestimonial statements that the Confrontation Clause plainly meant to exclude." Crawford, 541U.S. at _, 158 L. Ed. 2d at 200, 124 S. Ct. at 1371. Accordingly, the Court abandoned the Ohiov. Roberts reliability framework in relation to testimonial statements, holding that "[w]heretestimonial evidence is at issue, however, the Sixth Amendment demands what the common lawrequired: unavailability and a prior opportunity for cross-examination." Crawford, 541 U.S. at _,158 L. Ed. 2d at 203, 124 S. Ct. at 1374. If a statement is not testimonial, however, the Ohio v.Roberts framework still applies.

The issue, then, is what constitutes a "testimonial statement." Unfortunately, the Court"[left] for another day any effort to spell out a comprehensive definition of 'testimonial'"(Crawford, 541 U.S. at _, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374), despite Justice Rehnquist'sapt warning in his concurring opinion that the thousands of federal and state prosecutors needanswers "now, not months or years from now," as to what type of statements are covered by thenew rule. Crawford, 541 U.S. at _, 158 L. Ed. 2d at 207, 124 S. Ct. at 1378 (Rehnquist, C.J.,concurring, joined by O'Connor, J.). The Court did quote several formulations of what the coreclass of "testimonial" statements might include, specifically, " 'ex parte in-court testimony or itsfunctional equivalent--that is, material such as affidavits, custodial examinations, prior testimonythat the defendant was unable to cross-examine, or similar pretrial statements that declarantswould reasonably expect to be used prosecutorially' " (Crawford, 541 U.S. at _, 158 L. Ed. 2d at193, 124 S. Ct. at 1364, quoting Brief for Petitioner at 23); " 'extrajudicial statements...containedin formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions'" (Crawford, 541 U.S. at _, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364, quoting White v. Illinois,502 U.S. 346, 365, 116 L. Ed. 2d 848, 865, 112 S. Ct. 736, 747 (1992); and " 'statements thatwere made under circumstances which would lead an objective witness reasonably to believe thatthe statement would be available for use at a later trial' " (Crawford, 541 U.S. at _, 158 L. Ed. 2dat 193, 124 S. Ct. at 1364, quoting Brief for National Association of Criminal Defense Lawyers etal. as Amici Curiae 3). The Court did not explicitly endorse any of these formulations; rather, theCourt held that "[w]hatever else the term covers, it applies at a minimum to prior testimony at apreliminary hearing, before a grand jury, or at a former trial; and to police interrogations. Theseare the modern practices with closest kinship to the abuses at which the Confrontation Clause wasdirected." Crawford, 541 U.S. at_, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.

Importantly, Crawford repeatedly emphasized the significance of governmentalinvolvement in determining whether a hearsay statement is testimonial. Specifically, the Courtnoted that an "accuser who makes a formal statement to government officers bears testimony in asense that a person who makes a casual remark to an acquaintance does not. The constitutionaltext, like the history underlying the common-law right of confrontation, thus reflects an especiallyacute concern with a specific type of out-of-court statement." Crawford, 541 U.S. at _, 158 L.Ed. 2d at 192-93, 124 S. Ct. at 1364. Further, in holding that a statement taken in the course of apolice interrogation is testimonial, the Court noted that "[p]olice interrogations bear a strikingresemblance to examinations by justices of the peace in England" (Crawford, 541 U.S. at _, 158L. Ed. 2d at 193, 124 S. Ct. at 1364) and that the "involvement of government officers in theproduction of testimonial evidence presents the same risk [of violating the confrontation clause],whether the officers are police or justices of the peace." Crawford, 541 U.S. at _, 158 L. Ed. 2dat 194, 124 S. Ct. at 1365. The Court further noted, in response to Justice Rehnquist'squestioning of the propriety of its holding, that "[i]nvolvement of government officers in theproduction of testimony with an eye toward trial presents unique potential for prosecutorialabuse." Crawford, 541 U.S. at n. 7, 158 L. Ed. 2d at 196 n. 7, 124 S. Ct. at 1367 n. 7). Finally,the Court noted that not every inculpating statement runs afoul of the confrontation clause; rather,it is only those inculpating statements "given in a testimonial setting," e.g., as a result of sometype of governmental involvement, that "trigger" the clause's demands. Crawford, 541 U.S. at _,158 L. Ed. 2d at 201, 124 S. Ct. at 1372.

Thus, Crawford applies only to statements made to governmental officials; Crawford doesnot apply to statements made to nongovernmental personnel, such as family members orphysicians. When an out-of-court statement is made to nongovernmental personnel, and, thus, isnontestimonial, the "indicia of reliability" framework of Ohio v. Roberts, and the hearsayexception set forth in section 115-10, continue to apply.

Having laid the framework of the Crawford analysis, we now examine the specific hearsaystatements at issue in the present case. The court admitted hearsay statements A.F. made to hermother and grandmother in which she accused defendant of pinching and kissing her vaginal area. As these statements were made to family members and not to governmental personnel, they werenot "testimonial" under Crawford; accordingly, the "indicia of reliability" framework set forth inOhio v. Roberts, and the hearsay exception set forth in section 115-10, govern whether thesestatements were properly admissible. Defendant does not argue that the trial court erred indetermining, after holding the section 115-10 hearing, that A.F.'s statements to her mother andgrandmother were reliable. Accordingly, we affirm the admission of A.F.'s hearsay statements toher mother and grandmother.

The trial court also admitted A.F.'s statement to Officer Weddington, in which she accuseddefendant of licking her vaginal area. As discussed above, the Crawford Court held thatstatements taken by police officers in the course of an interrogation are considered testimonial. Further, according to Crawford, the term "interrogation" is viewed in a colloquial, rather than anytechnical legal sense. Crawford, 541 U.S. at n. 4, 158 L. Ed. 2d at 194 n. 4, 124 S. Ct. at 1365n. 4. In determining whether a statement made to police officers was testimonial, the inquirycenters on whether the officer involved was acting in an investigative capacity for the purpose ofproducing evidence in anticipation of a criminal prosecution. See People v. West, No. 1-02-2358(December 22, 2004). If the officer was acting in such a capacity when the statement was made,then the statement is considered testimonial in nature.

The evidence at the section 115-10 hearing establishes that on April 8, 2000, OfficerWeddington was assigned to A.F.'s case and went to the hospital and spoke with A.F.'s mother. The next day, he and Officer Redd went to A.F.'s house. Officer Weddington told A.F. that hewas there to help her, asked her a number of preliminary questions, and then asked her to repeatwhat she had told her mother. A.F. responded that defendant had licked her private part and shepointed to her vaginal area. Clearly, Officer Weddington was acting in an investigative capacityfor the purposes of producing evidence in anticipation of a criminal prosecution when hequestioned A.F. Accordingly, A.F.'s statement to Officer Weddington was testimonial underCrawford and should not have been admitted in the absence of cross-examination.

Constitutional error may be harmless beyond a reasonable doubt where overwhelmingother evidence supports the conviction. People v. Wilkerson, 87 Ill. 2d 151, 157 (1981). Here,the properly admitted hearsay statements made by A.F. to her mother and grandmother, in whichshe detailed how defendant pinched and kissed her vaginal area, coupled with defendant's oral andwritten confession that he kissed and licked A.F.'s vagina, were overwhelming other evidencesupporting defendant's conviction. Accordingly, the admission of A.F.'s statement to OfficerWeddington was harmless beyond a reasonable doubt.

Next, defendant argues that the State failed to prove him guilty beyond a reasonabledoubt. The relevant inquiry is whether, after viewing the evidence in the light most favorable tothe State, any rational trier of fact could have found all the elements of the crime were provenbeyond a reasonable doubt. People v. Becker, 315 Ill. App. 3d 980, 1003 (2000).

A person commits predatory criminal sexual assault of a child if he is at least 17 years oldand commits an act of sexual penetration with a victim who was under the age of 13 when the actwas committed. 720 ILCS 5/12-14.1 (West 2000). Sexual penetration is defined as "any contact,however slight, between the sex organ or anus of one person by an object, the sex organ, mouthor anus of another person, or any intrusion, however slight, of any part of the body of one personor of any animal or object into the sex organ or anus of another person, including but not limitedto cunnilingus, fellatio or anal penetration." 720 ILCS 5/12-12(f)(West 2000).

Defendant testified at trial that he was 29 years of age. As discussed above, A.F.'sstatements to her mother and grandmother, coupled with defendant's confession, were sufficientto establish that defendant kissed and licked his three-year-old daughter's vagina. Accordingly,the evidence was sufficient to convict defendant of predatory criminal sexual assault of a child.

Finally, defendant argues, and the State agrees, that he was improperly convicted ofmultiple crimes based upon the same conduct and that the mittimus improperly reflects aconviction for criminal sexual assault. We agree. Accordingly, we vacate the conviction forcriminal sexual assault, and correct the mittimus to reflect only a conviction for predatory criminalsexual assault of a child.

For the foregoing reasons, we affirm defendant's conviction for predatory criminal sexualassault of a child, vacate his conviction for criminal sexual assault and correct the mittimus.

Affirmed in part and vacated in part; mittimus corrected.

GALLAGHER, J., concurs; NEVILLE, J., dissents.

JUSTICE NEVILLE dissents:

The majority cites Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354(2004), as authority for its decision, but the majority misconstrued and failed to follow the holdingof Crawford when it affirmed the defendant's conviction and predicated his conviction on the extra-judicial statements of a three year old minor. The minor's statements were admitted into evidencethrough her mother and a police investigator but the minor was never subjected to cross-examination.Therefore, because the majority failed to follow Crawford, I respectfully dissent from the majority'sdecision.

In this case, the majority affirmed the defendant's conviction for predatory sexual assault ofa child. The majority's decision violates Crawford because the trial court predicated the defendant'sconviction on a three year old minor's extra-judicial statements which the trial court found to be"reliable." Prior to the trial, the State filed a pretrial motion for a hearing pursuant to section 5/115-10 of the Code of Criminal Procedure. The State's motion requested that the trial court examine the"time, content and circumstances" of the three year old minor's statements to her mother and a policeinvestigator to determine if the statements were sufficiently "reliable" to be admitted into evidence.After a hearing where the three year old minor's mother and the investigator testified, the trial courtconsidered the statements (daddy kissed me, pinched me and touched me) attributed to the three yearold minor by her mother and the investigator and found the three year old minor's hearsay statements"reliable." When trying to determine if the three year old minor was available to testify, the trial judgestated "I don't generally feel that a five year old is competent to testify anyway." Then the trial judgestated that he was unable to find the three year old "competent" or "incompetent," just unavailable.At the trial, the parties stipulated to the three year old minor's extra-judicial statements that wereadmitted into evidence through her mother and the police investigator at the 5/115-10 hearing, andthe defendant was convicted and sentenced to the Illinois Department of Corrections.

The record establishes that the trial court admitted the three year old minor's statementspursuant to section 5/115-10 of the Code of Criminal Procedure of 1963. 725 ILCS 5/115-10 (West2000). Section 5/115-10 provides that in a prosecution for a sexual act perpetrated against a childunder the age of 13, the testimony of the child's out-of-court statements describing any complaint ofsuch act or matter or detail pertaining to such act is an element of the charged offense and isadmissible as an exception to the hearsay rule. 725 ILCS 5/115-10 (West 2000). It should be noted,however, that section 5/115-10 provides that such testimony is only admissible (1) if the court findsat a pretrial hearing that the time, content and circumstances of the statement provide sufficient safeguards of reliability, and (2) if the child either testifies at trial or is unavailable as a witness and thereis corroborative evidence of the act which is the subject of the statement. 725 ILCS 5/115-10 (West2000). The three year old minor's extra-judicial statements were admitted in evidence after a hearingwhere the trial court found them reliable and the witness was found to be unavailable.

Section 5/115-10, an Illinois exception to the hearsay rule, flies in the face of Crawford. TheCrawford Court rejected reliability as the test for determining whether hearsay was admissible, andreplaced its prior reliability test with a cross-examination or confrontation test. 541 U.S. at __, 158L. Ed. 2d at 203, 124 S. Ct. at 1374. The Crawford Court specifically stated:

"[W]e do not think the Framers meant to leave the Sixth Amendment'sprotection to the vagaries of the rules of evidence much less to amorphous notions of'reliability.' *** Admitting statements deemed reliable by a judge is fundamentally atodds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensurereliability of evidence ***. It commands, not that evidence be reliable, but thatreliability be assessed in a particular manner: by testing in the crucible of cross-examination." Crawford, 541 U.S. at __, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370.

Crawford makes it clear that "[W]here testimonial statements are at issue, the only indicium ofreliability sufficient to satisfy constitutional demands is the one the constitution actually prescribes:confrontation." Crawford, 541 U.S. at __, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.

In my view, Crawford requires courts to use hearsay rules that predicate the admissibility ofextra-judicial statements on a cross-examination or confrontation test. In re E.H., No. 1--01--2776,slip op. at 9-14 (January 28, 2005). Section 5/115-10 of the Code of Criminal Procedure violatesCrawford by predicating the admissibility of extra-judicial statements on a reliability test. See In reE.H., slip op. at 16-17. Therefore, section 5/115-10 of the Code of Criminal Procedure isunconstitutional because it violates Crawford by employing a reliability test to determine if extra-judicial statements are admissible. See In re E.H., slip op. at 16-17. Consequently, the majority erredby affirming R.F.'s conviction because it was based on a three year old minor's extra-judicial statementswhich were admitted in evidence and found to be reliable pursuant to an unconstitutional statute (725ILCS 5/115-10). See In re E.H., slip op. at 16-17. The majority also holds that Crawford applies tostatements made to governmental officials, but does not apply to statements made to nongovernmentalpersonnel, such as family members or physicians. Slip op. at 13. Therefore, according to the majority,the mother's testimony regarding the minor's extra-judicial statements was not "testimonial" and wasadmissible, but the investigator's testimony regarding the same extra-judicial statements made by theminor was testimonial but was inadmissible. Slip op. at 14-15.

Crawford leaves some uncertainty regarding the exact definition of "testimonial" statements.Crawford makes it clear, however, that certain types of hearsay statements, i.e., "an offhand,overheard remark," may not qualify as statements at which the confrontation clause was directed, butit 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 three year old minor bore accusatory testimony because her extra-judicial statements were offered in court by her mother and the investigator to prove the truth of thematter asserted, specifically, that her father sexually assaulted her.

In my view, when determining whether extra-judicial statements are testimonial and subjectto the confrontation clause, the focus should be on the "nature of the testimony" and whether itimplicates the defendant in a crime and not on "the official or unofficial nature" of the person whomthe State wants to testify to the declarant's extra-judicial statements. See In re E.H., slip op. at 14; Inre T.T., 351 Ill. App 3d 976, 993 (2004). The minor in this case bore testimony whether her extra-judicial statements, which implicated the defendant in a crime, were introduced in evidence throughher mother or the police officer. More importantly, since the minor's extra-judicial statements werenot tested under the crucible of cross-examination, they should have been excluded from evidence andshould not have been used to convict the defendant. Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 193,124 S. Ct. at 1364.

In conclusion, the majority erred when it affirmed the defendant's conviction in this casebecause the minor's extra-judicial statements were used as evidence against the defendant after beingadmitted pursuant to an unconstitutional statute (725 ILCS 5/115-10). The majority also erred in thiscase by finding that the minor's mother's testimony was nontestimonial, in spite of the fact the minorbore testimony when her extra-judicial statements were repeated in court by her mother and were usedto convict her father. The minor's extra-judicial statements were admitted into evidence without beingtested under the crucible of cross-examination. Therefore, it is my considered opinion that Crawfordwas violated in this case, and I respectfully dissent from the majority's decision.