In re E.H., a Minor (The People of the State of Illinois, Plaintiff-Appellee, v. E.H., Defendant-Appellant), 355 Ill. App. 3d 564

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. 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 baby-sitting 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)), 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 baby-sitting them. K.R. also told Mary Ann that E.H. made them take their clothes off and he 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. baby-sat 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 baby-sitter again after September of 1999. During the time E.H. was baby-sitting 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. baby-sat 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 150/1 et 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. 36, 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. 36, 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 (West 1998)), 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 indicium of reliability sufficient to satisfy constitutional demands is confrontation.” See Crawford, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354. 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 [B.R.’s] outcry did not implicate the confrontation clause.” Considering the dicta in Crawford concerning what may constitute “testimonial” versus “nontestimonial” 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, 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 51-53, 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 56-59, 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 63, 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 63, 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. 36, 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 52-53, 68, 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 52, 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 68, 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 68-76, 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 51, 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 § 479, at 640 (1979). B.R.’s statement to her grandmother was an assertion used as the basis of the inference to establish the fact that she was sexually assaulted by E.H.

More importantly, however, B.R.’s statement went beyond simply being the “basis of the inference” that she was sexually assaulted, but was the impetus for filing the petition against E.H. and it was offered at E.H.’s trial to prove the truth of the matter asserted. In this case, B.R. never actually made a statement to a “governmental official” as contemplated in Crawford. However, we believe that this fact alone does not remove this case from the scrutiny of the confrontation clause and whether it has been violated.

In a footnote, the Crawford Court reiterates that “when the declarant appears for cross-examination at trial, the confrontation clause places no constraints at all on the use of his prior testimonial statements,” and that “[t]he Clause does not bar admission of [the] statement so long as the declarant is present at trial to defend or explain it.” (Emphasis added.) Crawford, 541 U.S. at 60 n.9, 158 L. Ed. 2d at 197 n.9, 124 S. Ct. at 1369 n.9. In this case, the declarant, B.R., did not appear for cross-examination at trial and was not present at trial to defend or explain her accusations against the defendant.

B.R. made an out-of-court statement to her grandmother, which was offered to prove the matter asserted, and the grandmother testified to that out-of-court statement in court. The admission of the accuser’s out-of-court testimony hy permitting another witness, the grandmother, to testify for the accuser is exactly what the Framers of the Constitution were endeavoring to prohibit with the sixth amendment. See U.S. Const., amend VI. Therefore, E.H. had a constitutional right to confront her accuser. In fact, the recent ruling in In re T.T., 351 Ill.

App. 3d 976 (2004), which applied Crawford, lends support to our ruling in its analysis of the admissibility of portions of an examining physician’s testimony at trial. In In re T.T., the court allowed some “nontestimonial” statements made to the examining physician by the victim, but disallowed other “testimonial statements” as violative of the confrontation clause.

The court reasoned that the victim’s statements regarding the nature of the alleged attack, the physical exam, and complaints of pain or injury “were not accusatory against respondent at the time made and, thus, do not trigger enhanced protection under the confrontation clause.” In re T.T., 351 Ill. App. 3d at 993. However, the In re T.T. court did not allow the victim’s “accusatory statements [to the examining physician] identifying respondent as the perpetrator [because those statements] implicatefd] the core concerns protected by the confrontation clause.” (Emphasis added.) In re T.T., 351 Ill. App. 3d at 993.

When the content of the victim’s statement concerned fault or identity, then such testimonial statements were only admissible if the declarant testified at trial and was subject to cross-examination. In re T.T., 351 Ill. App. 3d at 993. The In re T.T. court specifically addressed the issue of whether testimonial evidence presented to a nongovernmental official can still violate the confrontation clause. The court made the distinction between the physician, who was referred to the victim hy DCFS (a governmental agency), and governmental officers such as the police or DCFS investigators. In re T.T., 351 Ill.

App. 3d at 993-94. “In contrast to government officers like the police or DCFS investigators, medical personnel who treat and diagnose sexual assault victims do not take on a similar investigatory or prosecutorial function.” In re T.T., 351 Ill. App. 3d at 993. The In re T.T. court focused on the nature of the testimony in determining whether it is violative of an accused’s right to confrontation, as opposed to the official or unofficial nature of the person whom the State wants to testify to the declarant’s out-of-court statement.

In the case at bar, the out-of-court statements of B.R., which accused E.H. of making her suck her “puckets” and “lick her front behind” and “back behind,” were statements concerning the fault and identity of E.H. and these “accusatory statements” invoke the protections of the confrontation clause. We believe it is the nature of the testimony rather than the official or unofficial nature of the person testifying that determines the applicability of Crawford and the confrontation clause.

Therefore, we find that because E.H. did not have an opportunity to cross-examine B.R., her accuser, regarding B.R.’s statements implicating her in a crime, E.H.’s constitutional rights were violated and she is entitled to a new adjudicatory hearing. Although we have considered the State’s arguments, based upon the foregoing analysis, we cannot agree that B.H.’s out-of-court statements do not trigger the protections of the confrontation clause.

The confrontation clause guarantees an accused the right to confront his/ her accuser regardless of the accuser’s or declarant’s consciousness of “hearing witness” or “offering a solemn declaration or affirmation *** for the purpose of establishing or proving some fact.” See U.S. Const., amend. VI. In fact, it is our opinion that the declarant’s state of mind is hardly a consideration when determining whether there has been a confrontation clause violation. If that were the case, the right of the accused to confrontation would be contingent upon the state of mind of the declarant.

The State’s argument is incompatible with the holding in Crawford and the confrontation clause. In addition, as the defendant correctly points out in her petition, an incorrect standard of review was applied to the “harmless error” test because we did not previously address the issues on appeal in light of the constitutional implications. Under Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S.

Ct. 824 (1967), a constitutional error is harmless error if it is harmless beyond a reasonable doubt. “ ‘The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” Chapman, 386 U.S. at 23, 17 L. Ed. 2d at 710, 87 S. Ct. at 827, quoting Fahey v. Connecticut, 375 U.S. 85, 86-87, 11 L. Ed. 2d 171, 173, 84 S. Ct. 229, 230 (1963). See also People v. Knippenberg, 66 Ill. 2d 276, 287 (1977). The Chapman Court recognized that “harmless-error rules can work very unfair and mischievous results” unless they are narrowly circumscribed.

Chapman, 386 U.S. at 22, 17 L. Ed. 2d at 710, 87 S. Ct. at 827. However, the Court emphasized that “[a]n error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot *** be conceived of as harmless.” Chapman, 386 U.S. at 23-24, 17 L. Ed. 2d at 710, 87 S. Ct. at 828. We find that the error in this case was not harmless beyond a reasonable doubt. First, there is a reasonable possibility that allowing B.R.’s grandmother to testify to the out-of-court statements made by B.R. might have contributed to E.H.’s conviction. See Chapman, 386 U.S. at 23, 17 L.

Ed. 2d at 710, 87 S. Ct. at 827, quoting Fahy v. Connecticut, 375 U.S. at 86-87, 11 L. Ed. 2d at 173, 84 S. Ct. at 230 (when determining whether there was harmless error, the question is not whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of, but whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction). Second, the other evidence in this case was not so overwhelming that it would support E.H.’s conviction. See People v. Wilkerson, 87 Ill. 2d 151, 157 (1981), citing Milton v.

Wainwright, 407 U.S. 371, 33 L. Ed. 2d 1, 92 S. Ct. 2174 (1972). Although K.R.’s testimony at trial was similar to B.R.’s statements to her grandmother, we cannot ignore the testimonial evidence presented in the defendant’s case in chief. At trial, E.H.’s grandmother testified that whenever the two children came to her home, she would always keep an eye on them and the only time they would be out of her sight would be when they were outside in front of her house.

We find that the admission of B.R.’s out-of-court statements violated the confrontation clause in the United States Constitution and contributed to the defendant’s convictions. Thus, we conclude that the confrontation clause errors in this case were not harmless beyond a reasonable doubt. CONSTITUTIONALITY OF

SECTION 115 — 10 Finally, we address the constitutionality of

section 115 — 10 under Crawford and the confrontation clause. Once again, the confrontation clause in the sixth amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him ***.” U.S. Const., amend. VI. We find that Crawford renders

section 115 — 10 unconstitutional. Whether a statute is constitutional is a question of law reviewed de novo. People v. McClanahan, 191 Ill. 2d 127, 132 (2000). The language of

section 115 — 10 essentially allows into evidence the out-of-court statements of a child under the age of 13, made to another person, if the court finds that the statements provide “sufficient safeguards of reliability” after considering the time, content and circumstances within which the statements were made. 725 ILCS 5/115 — 10(b)(1) (West 2000). Also, if the child does not testify at the proceeding, it must be shown that the child is truly unavailable and there must be some other corroborative evidence of the act. 725 ILCS 5/115 — 10(b)(2)(A), (b)(2)(B) (West 2000). In other words,

section 115 — 10 seeks to admit a declarant’s out-of-court statement into evidence, without the declarant being present in court, as long as there is some other evidence that corroborates the out-of-court statement and the statement is deemed reliable. Crawford clearly rejects this hearsay exception. Crawford rejects the admissibility of testimonial hearsay as violative of the confrontation clause even if the witness is unavailable, unless there was a prior opportunity for cross-examination. Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.

In fact, Crawford leaves no ambiguity regarding its resistance to relying on “reliability” as a barometer for the admissibility of an out-of-court statement where the declarant is unavailable. The Court specifically stated: “[W]e do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence much less to amorphous notions of ‘reliability.’ *** Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence ***.

It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370. “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the constitution actually prescribes: confrontation.” Crawford, 541 U.S. at 68-69, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The applicability of Crawford to

section 115 — 10 could be no clearer. Therefore, we find

section 115 — 10 unconstitutional. Based upon the foregoing, E.H.’s finding of delinquency is reversed and this case is remanded to the trial court for an adjudicatory hearing consistent with this opinion. In so doing, we find that the evidence was sufficient to support the defendant’s convictions, so that double jeopardy considerations do not prevent retrial. People v. Oliviera, 164 Ill. 2d 382, 393, 647 N.E.2d 926 (1995). Reversed and remanded with directions.

REID, EJ., concurs. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” U.S. Const., amend. VI.

Section 115 — 10 provides in relevant part: “§ 115 — 10. Certain hearsay exceptions. (

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 the victim of an out of court statement made by the victim that he or she complained of such act to another; and (2) testimony of an out of court statement made by the victim describing *** an element of an offense which is the subject of a prosecution for a sexual or physical act against that victim. (

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 or institutionalized severely or profoundly mentally retarded person 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 2000).