THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES E. LEARN, Defendant-Appellant, 371 Ill. App. 3d 701

JUSTICE McLAREN delivered the opinion of the court: Defendant, James E. Learn, was convicted after a bench trial of one count of aggravated criminal sexual abuse (720 ILCS 5/12— 16(c)(l)(i) (West 2002)) and was sentenced to a term of probation and periodic imprisonment. Defendant’s motion for a new trial and/or to reconsider the finding of guilt was denied, and this appeal followed. We reverse and remand for a new trial. In February 2004, defendant was indicted on one count of aggravated criminal sexual abuse. The alleged victim in this case was defendant’s four-year-old niece, K.O.

The State moved to admit at trial K.O.’s out-of-court statements made to her father, C.O., and two police officers, pursuant to

section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115 — 10 (West 2000)). Defendant filed a motion to prevent the State from introducing any of these out-of-court statements at trial, arguing that

section 115 — 10 of the Code was unconstitutional. The trial court, Judge Christopher Starck presiding, held hearings to determine the admissibility of the statements made to C.O. and to Detective Ginger Stokes and Officer Ray Montemayor of the Highland Park police department. C.O. testified that, as he changed the diaper of his infant son, C.O., Jr., on December 26, 2003, K.O. touched C.O., Jr.’s penis. When C.O. told her not to do that again, K.O. said, “ ‘Why not?

Jimmy does it.’ ” C.O. asked what she meant, and K.O. told him that “sometimes he [Jimmy] would touch her hand *** and put it on his parts, Jimmy’s parts.” K.O. used the word “cocita,” meaning “little thing,” when talking about Jimmy’s private parts.

When C.O. asked how Jimmy did that, K.O. told him: “ ‘[0]ne time, he took my hand, and he has pants, with a hole in his pants. *** He takes my hand and he puts it inside the hole that he has in his pants by one of the legs.’ She says, ‘And my hand goes inside, and he makes me touch his part.’ ” C.O. asked K.O. when it happened, but he testified that “she doesn’t have the aspect of time, like what’s a week, what’s a day, a time limit.” She told him that it happened “ ‘the other day,’ ” but he did not know what day she was talking about.

K.O. told him of two occasions, but he could only clearly recount one occurrence. K.O. told him: “ ‘I was in the basement from [sic] the house. And he puts me on top of the bed. And we cover ourselves with a blanket or something. He touches my hand. And he puts it underneath his pants.’ ” She then touched “his part,” describing it as “something soft.” According to C.O., she repeated that story “two, three, four times that night.” K.O., and the rest of the family, called defendant “Jimmy.” When C.O. asked why she did not say anything before, she responded that she was scared.

Defendant lived in the same house as K.O.’s grandmother, who babysat K.O. almost every day while C.O. and his wife worked. Until December 26, 2003, K.O. never mentioned anything about defendant making her touch his private parts. The trial court ruled: “[S]hould the child testify, the time, content, and circumstances of this testimony is sufficient — would be sufficiently reliable to allow this testimony to go to the jury pursuant to

Section 115 — 10, again, conditional upon the fact that the child does in fact testify in the case.” At a separate hearing, Detective Stokes testified that she interviewed K.O. at the police department on December 27, 2003. The interview was conducted in English, but Officer Montemayor was present in case a Spanish translator was needed. The interview was both videotaped and audiotaped. Stokes testified that she had been misinformed that KO.’s grandfather, not her uncle, was the perpetrator.

She asked K.O. if her grandfather had ever touched her inappropriately or if anybody had grabbed her hand and made her touch him in his private area, and K.O. said no. K.O. told Stokes that her cousin Kevin had shown her his “pee-pee”; when asked if anyone else had shown her his pee-pee, K.O. replied no, only Kevin. Stokes showed K.O. anatomical diagrams of both male and female forms and asked K.O. if she could identify different parts of the body. When Stokes drew a line to the penis, K.O. did not say anything. Stokes and Montemayor interviewed K.O. again on December 30, 2003.

KO.’s mother was also present in the room, seated behind K.O. This interview was conducted in Spanish, with Montemayor translating, as K.O. told them she was more comfortable speaking Spanish. No recording, either video or audio, was made of this interview. According to Stokes, K.O. stated that, “on several occasions[,] her Uncle Jimmy had taken her hand and placed it on his thingy.” Once, Jimmy placed a blanket over her and placed her hand on his “thingy.” K.O. related that Jimmy would wear long pants with a hole in front and that he would place her hand inside his pants.

When Stokes asked how often this happened, K.O. said that “it was every time that she went over to her Uncle Jimmy’s but not to baby-sit” and that it would happen “on his bed in the basement.” Stokes also specifically testified that K.O. referred to Jimmy’s penis as “thingy.” Stokes again showed K.O. an anatomical diagram of a male and asked her to show where her hand had been placed and what it was called; K.O. pointed to the penis and said “that’s the thingy.” When asked why the first interview with K.O. had been videotaped, Stokes replied, “It was at the police department and our goal is not to have a five year old testify in a trial like this.” The second interview was held at the Child Advocacy Center, which did not have video equipment.

Montemayor testified that he did not translate anything during the interview on December 26. He saw no indications that K.O. had any problem understanding or communicating in English. During the December 30 interview, he translated Stokes’ English questions and K.O.’s Spanish responses.

K.O. said that on one occasion, Jimmy grabbed her hand and made her touch his “thingy”; according to Montemayor, K.O. used the word “tosito,” the Spanish word for “thingy.” The trial court ruled: “[I]f the victim does testify the court believes that the time, content and circumstances of this testimony are sufficient, show sufficient areas of reliability and if she is subject to cross examination herself the court would allow the statements to go in ***.” Judge John Phillips then presided over the case. Before trial, the court held a hearing to determine KO.’s competency as a witness.

KO.’s examination was conducted with the aid of an interpreter. K.O. was able to testify about her age, the names of her parents and brother, and where she lived and went to school. She understood the difference between the truth and a lie and that she had to tell the truth in court. K.O. did not know when her birthday was or when Santa Claus brought presents. During the court’s questioning, the following took place: “THE COURT: *** But you will tell us what’s true today? You will tell us the truth? THE WITNESS: I don’t know. THE COURT: Okay.

If I ask you to tell me what’s true, will you tell the truth and not a lie? THE WITNESS: I don’t know. THE COURT: Okay. Tell me if you don’t understand me. THE INTERPRETER: Okay. THE COURT: Have you had a problem with any words I have said to you? THE WITNESS: No. ;¡í t${ * THE COURT: Would you do this for me: Would you raise your hand for me[?] THE WITNESS: (Raising left hand.) THE COURT: The other hand. And would you repeat this, would you say, I promise I will tell the truth. THE INTERPRETER: I promise to tell the truth.” The court then found K.O. to be competent to testify, and the trial began.

K.O. testified through a Spanish/English interpreter. K.O. said that she went to her grandmother’s house after school, but she did not go there anymore. Her grandmother and Aunt Minnie lived there. When asked if she knew if Minnie was married, she answered “No.” She also answered “No” when asked if anyone else lived in the house and if she had any uncles. She did not remember the incident when she helped her father change her brother’s diaper. She was feeling “[a] little embarrassed” about testifying. At the State’s request, the court then took a short break.

After resuming, K.O. testified that, in her grandmother’s house, her grandmother slept upstairs, the kitchen was downstairs, and there was a basement. She did not know who slept in the basement. The State tried to calm K.O. and reminded her that she made a promise to the judge. K.O. then testified that she had seen her Aunt Alberteeta in the basement and that Alberteeta was married to Jimmy, whom she then pointed out as defendant. She stated that Jimmy was not her uncle but that he was married to Aunt Alberteeta. She liked Alberteeta but did not like Jimmy, although she could not say why.she did not like him.

She went to the police station but did not answer any questions. K.O. said that she had talked to the assistant State’s Attorney the day before. She stated that she was nervous and that she wanted her mother near her. The court took another recess when K.O. put her head down and began to cry. When the trial resumed, the State asked K.O. if she was feeling better, then stated that it had no more questions.

The court then ruled that the State had produced K.O. to testify, although it noted: “[W]hen the young lady just took the stand again[,] she was still — I wouldn’t say that it was sobbing, but she was — every time somebody asked her a limited question, she began to cry again and it was not a light crying by a child.” The court stated that it was aware of no law that required the State to “go through the event” with the witness and ruled as follows: “THE COURT: Well, she is not unavailable because she is here. So the key is did she testify at the proceedings. She did testify at the proceedings.

I found her to be competent. And if you wish to cross examine, then you can certainly cross examine and I’m not going to sustain any objections with respect to scope concerning the event because [the State] did in fact talk about places and people in this case, so [it] has opened the door to any of that anyway. So I am not going to overrule Judge Starck with respect to his findings because I didn’t hear those particular statements. But I would find that the prong of having the child testify at the proceedings has been fulfilled. So if you wish to cross examine, you certainly can do that.

So bring the child in here.” Other than establishing the fact that K.O. had a “Tio Jimmy,” defense counsel asked a total of five questions about defendant. K.O. responded “I don’t know” when asked if Jimmy was mean to her, if she thought that Jimmy did not like her, and if Jimmy told her to go upstairs when she went into the basement of her grandmother’s house, where Jimmy lived. K.O. answered “No” when asked if she had ever told her parents a lie about Jimmy or if she had ever told her dad anything about him.

The State then presented the testimony of C.O., Stokes, and Montemayor, who all testified similarly to the statements they had previously made to the court. Defendant first contends that the trial court erred in admitting K.O.’s out-of-court statements as substantive evidence at trial. We agree.

Section 115 — 10 of the Code, which allows for certain hearsay exceptions, provides in part: “(

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

an act to another; and (2) testimony of an out of court statement made by the victim describing any complaint of such

an 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 or physical act against the 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 *** 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 2002). Defendant argues that his right to confront witnesses against him, guaranteed by both the United States and the Illinois Constitutions, was violated by the trial court’s admission pursuant to

section 115 — 10 of K.O.’s out-of-court statements. See U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8. According to defendant, the court admitted testimonial hearsay without either: (1) the declarant testifying at trial and being subject to cross-examination; or (2) the declarant being unavailable to testify and defendant having a prior opportunity to cross-examine. However, cases should be decided on nonconstitutional grounds whenever possible, and constitutional issues should be decided only as a last resort. In re E.H., 224 Ill. 2d 172, 178 (2006). Therefore, we will first consider whether the trial court’s admission of KO.’s out-of-court statements was proper under

section 115 — 10. A trial court’s rulings on evidentiary matters will not be reversed absent a clear abuse of discretion; however, evidentiary rulings involving questions of statutory

interpretation or other questions of law are reviewed de novo. In re T.T., 351 Ill. App. 3d 976, 984 (2004). Defendant first argues that K.O. did not testify at trial as required by

section 115 — 10(b)(2)(A). The State did call K.O. as a witness. However, our review of K.O.’s “testimony” leads us to conclude that she did not testify pursuant to

section 115 — 10. It took 10 pages of testimony before K.O. even admitted that a person named Jimmy existed; the only information about him given during the testimony was that Jimmy was the husband of KO.’s Aunt Alberteeta and that K.O. did not like Jimmy, although she did not know why. After a few more pages of testimony, during which K.O. was asked about going to the police station and whether she had been asked some questions, K.O. put down her head and began to cry. After a short recess, the State asked whether K.O. felt better.

After K.O. responded that she did not know, the State informed the court that it had no more questions. We conclude that the trial court erred in ruling that K.O. was available and did testify, for purposes of

section 115 — 10. A child witness is considered unavailable if the child is unwilling or unable to testify because of fear, unable to communicate in the courtroom setting, or declared incompetent because she is incapable of expressing herself so as to be understood concerning the matter. In re T.T., 351 Ill. App. 3d 976, 984 (2004). With an available witness, the defendant is able to cross-examine the witness and test the reliability of her statements. In re Rolandis G., 352 Ill. App. 3d 776, 783 (2004).

Regarding the defendant’s ability to cross-examine a witness, it makes no difference whether the witness becomes “unavailable” before or after she takes the witness stand. Rolandis G., 352 Ill. App. 3d at 783-84. In Rolandis G., the seven-year-old alleged victim of a sexual assault, VJ., was called to testify at trial. After he answered general questions about his living arrangements, school, and friends, he answered that he knew the respondent. However, he did not respond when asked how he knew him or whether he had played with the respondent that summer, and he refused to answer any more questions.

The State presented the testimony of VJ.’s mother, a police officer, and a detective regarding out-of-court statements that VJ. had made, then called VJ. back to the stand. VJ. again refused to testify, and the State rested. Rolandis G., 352 Ill. App. 3d at 778-79. This court concluded that VJ. was an unavailable witness, even though he had been sworn in as a witness and had given some background testimony. Rolandis G., 352 Ill. App. 3d at 783-84. The State, citing to the Fourth District Appellate Court decision in People v. Sharp, 355 Ill.

App. 3d 786 (2005), argues “that the key question is whether the declarant was present for cross-examination and answered defense counsel’s questions.” In Sharp, the victim testified “at some length” about “what she did and with whom she did it” on the day that she was sexually assaulted. Sharp, 355 Ill. App. 3d at 795. However, she stopped her narrative after describing how the defendant pulled her into a room and pushed her to the floor; multiple attempts to get the victim to describe what happened next were met with “ ‘No response by witness.’ ” Sharp, 355 Ill. App. 3d at 795.

The victim later testified, still on direct examination, about what happened after the defendant released her from the room. The victim then answered all questions put to her on cross-examination, but defense counsel did not ask any questions about what the defendant did with her in the room. Sharp, 355 Ill. App. 3d at 795. The court concluded that, even in light of the victim’s “apparent unwillingness or inability to testify on direct examination about what defendant did to her in the room,” the victim “ ‘appeared’ for cross-examination at trial.” Sharp, 355 Ill. App. 3d at 795.

We cannot conclude that a witness’s mere presence in court to answer general questions without testifying about the alleged offense is sufficient to qualify as an appearance pursuant to

section 115 — 10. In Crawford v. Washington, the United States Supreme Court describes a declarant’s appearance, for purposes of a confrontation clause analysis, as a situation where “the declarant is present in court to defend or explain” his out-of-court statement. (Emphasis added.) Crawford, 541 U.S. 36, 60 n.9, 158 L. Ed. 2d 177, 198 n.9, 124 S. Ct. 1354, 1369 n.9 (2004).

In the case before us, the court told defense counsel that it would not “sustain any objections with respect to scope concerning the event because [the State] did in fact talk about places and people in this case.” However, K.O. did not testify at all about the charge in this case. In order to get a declarant to “defend or explain” testimony not given on direct examination, a defendant is placed in the untenable position of both trying to elicit testimony about the alleged event and attempting to challenge and refute the very testimony he was forced to elicit.

Mere presence and general testimony are insufficient for the appearance of a witness pursuant to

section 115— 10(b)(2)(A). We, therefore, conclude that K.O. did not testify. If a child does not testify at trial,

section 115 — 10(b)(2)(

B) still allows the introduction of the child’s out-of-court statement if “there is corroborative evidence of the act which is the subject of the statement.” 725 ILCS 5/115 — 10(b)(2)(B) (West 2002). However, it is clear that there was no corroborative evidence of any act alleged in K.O.’s statements, as the only evidence presented in this case was the various recitations of K.O.’s out-of-court statements. The special concurrence finds corroboration of K.O.’s statements in her act of touching her infant brother’s penis.

The fact that K.O. reached out on her own and touched her brother’s penis adds little if any weight or credibility to her statement that defendant “would touch her hand *** and put it on his parts.” See 371 Ill. App. 3d at 712. The special concurrence’s finding of additional corroboration in K.O.’s testimony that she did not like her uncle is unsupported by any authority or by common sense.

There is no correlation between a witness disliking a defendant and the defendant’s commission of the crime; the fact that a witness has a bias or prejudice against a defendant is usually seen as a reason to question the witness’s credibility, not to enhance it. “A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.

The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore, Evidence §940, p. 775 (Chadbourn rev. 1970).” Davis v. Alaska, 415 U.S. 308, 316, 39 L. Ed. 2d 347, 354, 94 S. Ct. 1105, 1110 (1974). Because K.O. did not testify and there was no corroborative evidence presented, the trial court erred in admitting testimony regarding K.O.’s out-of-court statements, and defendant must be given a new trial.

As we have decided this issue on statutory grounds, we need not address defendant’s constitutional arguments. We also need not address the special concurrence’s lengthy analysis of the admissibility of K.O.’s statements pursuant to Crawford, as that issue is not presently justiciable. Defendant next contends that the trial court erred in allowing Stokes to testify regarding K.O.’s statements made at the second interview, because Stokes’ testimony was actually double hearsay. According to defendant, Stokes did not speak Spanish, the language in which the second interview with K.O. was conducted.

As a result, Stokes did not testify as to what K.O. said; she testified as to what the translator, Montemayor, told her K.O. said. The State argues that this issue is waived because defendant did not raise it in his motion for a new trial. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, in the interests of judicial economy, we will address this issue, as it will probably arise during a retrial. “Section 115 — 10(a)(2) ‘clearly mandates that the testifying witness hear the child’s remark personally.’ [Citation].” People v. Petitt, 245 Ill. App. 3d 132, 142 (1993).

Stokes no more heard KO.’s remarks personally than K.O. heard Stokes’ questions personally Only Monte-mayor could testify as to what K.O. said. Contrary to the State’s assertion, this conclusion does not “preclude the application of

section 115 — 10 when the victim cannot speak English.” The State must merely present the testimony of the person who actually heard the child’s remarks — the translator. If, on remand, the State again seeks to introduce K.O.’s out-of-court statements, it would be “plain error” for the trial court to allow Stokes to testify as to the “hearsay on hearsay” of what K.O. said in the December 30 interview. See Petitt, 245 Ill. App. 3d at 142.

Defendant next contends that the trial court erred in finding that K.O. was a competent witness and that the time, content, and circumstances of K.O.’s statements provided sufficient safeguards of reliability (see 725 ILCS 5/115 — 10(b)(1) (West 2002)). Because of our disposition of defendant’s other contentions, and the fact that new pretrial hearings would need to be held before trial on remand, we need not address these issues at this time. Defendant next contends that the evidence was insufficient to support his conviction.

A conviction will not be overturned on appeal unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. Petitt, 245 Ill. App. 3d at 135-36. Further, a conviction will not be overturned if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Petitt, 245 Ill. App. 3d at 136. We will consider all the evidence admitted at the trial, even evidence that was erroneously admitted. T.T., 351 Ill. App. 3d at 995.

Reviewing all the evidence in the light most favorable to the prosecution, we conclude that the evidence was sufficient to prove defendant’s guilt. While the evidence was not overwhelming, especially regarding exactly when the offense allegedly occurred, the testimony of C.O. and Stokes was consistent as to the identification of defendant as the perpetrator and also as to at least two details, that defendant allegedly placed K.O.’s hand on his penis through the hole in his pants and that he placed her on his bed in the basement and put a cover over her.

We cannot say that no rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Therefore, while we reverse the trial court’s judgment in this case, we also remand the cause for a new trial. For these reasons, the judgment of the circuit court of Lake County is reversed, and the cause is remanded for a new trial. Reversed and remanded. HUTCHINSON, J., concurs.