{ "id": 3291537, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BARTHOLD ZWART, Appellee", "name_abbreviation": "People v. Zwart", "decision_date": "1992-09-24", "docket_number": "No. 71449", "first_page": "37", "last_page": "57", "citations": [ { "type": "official", "cite": "151 Ill. 2d 37" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "190 Ill. App. 3d 1031", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2519964 ], "pin_cites": [ { "page": "1034" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/1031-01" ] }, { "cite": "48 Ill. 2d 91", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905296 ], "year": 1989, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0091-01" ] }, { "cite": "142 Ill. 2d 548", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236817 ], "year": 1971, "pin_cites": [ { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0548-01" ] }, { "cite": "146 Ill. App. 3d 477", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3571930 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/146/0477-01" ] }, { "cite": "135 Ill. 2d 423", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256255 ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0423-01" ] }, { "cite": "112 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5537916 ], "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0187-01" ] }, { "cite": "28 Ill. 2d 464", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5362185 ], "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0464-01" ] }, { "cite": "117 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545304 ], "weight": 2, "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/117/0317-01" ] }, { "cite": "22 Ill. 2d 175", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2788568 ], "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0175-01" ] }, { "cite": "122 Ill. 2d 221", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549839 ], "year": 1961, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0221-01" ] }, { "cite": "161 Ill. App. 3d 401", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3468153 ], "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0401-01" ] }, { "cite": "192 Ill. App. 3d 444", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2505942 ], "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0444-01" ] }, { "cite": "129 Ill. 2d 458", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567120 ], "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0458-01" ] }, { "cite": "135 Ill. 2d 78", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256644 ], "year": 1989, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0078-01" ] }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/497/0805-01" ] }, { "cite": "208 Ill. App. 3d 407", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2549109 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0407-01" ] }, { "cite": "225 Ill. App. 3d 636", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5247031 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/225/0636-01" ] }, { "cite": "171 Ill. App. 3d 334", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3616390 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/171/0334-01" ] }, { "cite": "161 Ill. App. 3d 401", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3468153 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/161/0401-01" ] }, { "cite": "208 Ill. App. 3d 407", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2549109 ], "pin_cites": [ { "page": "412" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/208/0407-01" ] }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "weight": 6, "pin_cites": [ { "page": "818" }, { "page": "654" }, { "page": "3148" }, { "page": "819" }, { "page": "655" }, { "page": "3148-49" } ], "opinion_index": 2, "case_paths": [ "/us/497/0805-01" ] } ], "analysis": { "cardinality": 1165, "char_count": 36567, "ocr_confidence": 0.776, "pagerank": { "raw": 4.956188151272296e-07, "percentile": 0.9350512327166565 }, "sha256": "1fe04d8b764caadd6fefc0dc61dc12e7018225e3a5c5f1a6fc385952379e806a", "simhash": "1:aeb3fb2e79ee8df6", "word_count": 5870 }, "last_updated": "2023-07-14T18:57:31.068393+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BARTHOLD ZWART, Appellee." ], "opinions": [ { "text": "JUSTICE BILANDIC\ndelivered the opinion of the court:\nThe defendant, Barthold Zwart, was charged by information with four counts of aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 14.) The defendant\u2019s victim, K.B. (hereafter victim), was three years old at the time of the alleged offense. Following a bench trial in the circuit court of Cook County, the trial court found the defendant guilty and entered judgment on two counts of the information. The defendant was sentenced to two seven-year prison terms, to be served concurrently in the Illinois Department of Corrections. The appellate court reversed the defendant\u2019s convictions and remanded the cause for a new trial. The appellate court concluded that the trial court erroneously admitted certain hearsay statements into evidence at the defendant\u2019s trial. (208 Ill. App. 3d 407.) This court allowed the State\u2019s petition for leave to appeal (134 Ill. 2d R. 315).\nThe issue for our review is whether the trial court properly admitted certain out-of-court statements which the victim had made concerning the alleged sexual abuse. The State argues that the trial court properly admitted the statements pursuant to section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10). Alternatively, the State argues that the statements were admissible pursuant to the common law \u201cspontaneous declaration\u201d exception to the hearsay rule. The defendant responds that the statements were not admissible under either the statutory or the common law exception to the hearsay rule. The defendant also claims that the admission of the statements violated his rights under the confrontation clause of the sixth amendment to the United States Constitution (U.S. Const., amend. VI) and article I, section 8, of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a78). We agree with the appellate court that the statements were not admissible under section 115 \u2014 10 of the Code or under the \u201cspontaneous declaration\u201d exception to the hearsay rule.\nFACTS\nThe testimony introduced at the defendant\u2019s trial established the following facts. The defendant, a 60-year-old man, knew the victim\u2019s mother, Maria. Maria had three children: a nine-year-old son (Ryan), the three-year-old victim, and a two-year-old daughter (Nicole). Maria is divorced from the children\u2019s natural father. In March or April of 1988, the defendant began baby-sitting for Maria\u2019s children. The defendant baby-sat the children approximately eight times in June 1988. On several of these occasions, the defendant was alone with the two girls.\nOn June 24, 1988, the defendant and Maria argued and the defendant left in an angry mood. After the defendant left, the victim, while lying on the floor, opened her legs and asked Maria to kiss her genitalia. Maria was surprised by the victim\u2019s behavior. On June 25, 1988, the defendant baby-sat for the victim and her younger sister while Maria went to work. The victim\u2019s older brother, Ryan, was away at camp that day. When Maria returned home from work, she and her daughters spent the remainder of the afternoon with the defendant at a house the defendant was remodeling.\nLater that evening, Maria noticed that Nicole was pulling at her diaper and complaining of pain. She also noticed a bloody discharge in Nicole\u2019s diaper. She took her daughters to a doctor that evening and again the next day. On the basis of his examination of Nicole on June 26, the doctor notified the Department of Children and Family Services (DCFS) of a possible case of sexual abuse.\nOn June 27, the victim was interviewed by Officer Michael McNamara of the Park Forest police department and Jo Ann Deckman of DCFS. On June 28, Maria took both girls to Mount Sinai Hospital, which had a special program for evaluating cases of sexual abuse involving children. Maria and the girls stayed at the hospital for five days.\nOn June 30, Dr. Marisa Aguila performed an examination of the victim. Dr. Aguila diagnosed the child with hymenal trauma consistent with child abuse. During a subsequent child development interview with a counselor at Mount Sinai Hospital, the victim denied that she had been physically or sexually abused. Later, however, the victim made several statements indicating that she had been sexually abused and implicating the defendant as the perpetrator of that abuse. The State sought to introduce these statements into evidence at the defendant\u2019s trial.\nThe trial court conducted a pretrial hearing to determine the victim\u2019s competency to testify. The court determined that the victim, who was four years old at the time of trial, was not competent to testify. The court next conducted a hearing pursuant to section 115 \u2014 10 of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10) to determine if the victim\u2019s statements could be admitted at trial as an exception to the hearsay rule. Following the hearing, the trial court ruled that the victim\u2019s mother, Maria, could testify at trial concerning statements which the victim made to her on July 1 and July 14, 1988. The trial court also determined that Cheryl Wolff, a therapist, could testify concerning certain statements that the victim made to her on July 14, 1988. These statements were admitted over the defendant\u2019s objection at trial.\nMaria testified that she was getting the victim ready for bed on the evening of July 1, while they were staying at Mount Sinai Hospital. When Maria pulled the victim\u2019s underpants, the victim stated, \u201cDon\u2019t do that.\u201d When Maria asked why, the victim answered, \u201cBecause Bart does that.\u201d Maria asked where Bart did that, and the victim responded, \u201cPull my pants.\u201d Maria then asked what else Bart did and the victim replied, \u201cHe put his lollipop in my cola.\u201d Maria testified that the victim then repeated that Bart put his lollipop in her cola and that he also put his tongue on her mouth and his tongue on her cola. Maria explained that \u201ccola\u201d was a Spanish term for \u201cvagina,\u201d and that \u201clollipop\u201d meant \u201cpenis.\u201d Later that evening the victim told Maria that Bart had put his tongue in her \u201cprivates\u201d and hurt her. The vietim also stated that Bart \u201cput the lollipop in her mouth.\u201d\nMaria also testified regarding statements the victim made to her on July 14. On that date, Maria took the victim to see Cheryl Wolff, a therapist. Prior to the visit with Wolff, Maria took the victim to the bathroom. While in the bathroom, the victim told her that Bart once \u201cput her head in a toilet and flushed it.\u201d The victim could not breathe. The defendant told the victim not to tell her mother. The victim also informed Maria that when the \"defendant had put his \u201clollipop\u201d in her \u201ccola,\u201d he said, \u201cPm coming. I\u2019m coming.\u201d Finally, she told her mother that the defendant made her \u201call wet\u201d and \u201cgo potty.\u201d\nCheryl Wolff also testified regarding statements which the victim made to her on July 14. Wolff testified that, when she took the victim to the bathroom, the victim said, \u201cHe put my head in the toilet.\u201d Wolff asked who did that, and the victim responded, \u201cDaddy.\u201d Wolff asked the victim, \u201cDid Daddy put your head in the toilet?\u201d The victim responded, \u201cDaddy didn\u2019t do it, Bart did.\u201d The victim\u2019s older brother, Ryan, testified that he heard the defendant ask the girls to call him Daddy. Ryan also testified that he heard the girls refer to the defendant as Daddy on at least one occasion.\nThe defendant testified on his own behalf at trial. The defendant admitted that he baby-sat for the two girls on June 25, but stated that both girls \u201cwere fine.\u201d The defendant testified that he never sexually assaulted any of Maria\u2019s children. He also denied putting the victim\u2019s head in the toilet.\nAs stated, the court found the defendant guilty of aggravated criminal sexual abuse. The trial court estimated that the sexual abuse had occurred \u201capproximately four weeks prior to June 24.\u201d\nI\nThe question for our consideration is whether the trial court properly admitted into evidence the victim\u2019s July 1 and July 14 statements to her mother concerning the sexual assault. The State first argues that the trial court properly admitted the statements pursuant to section 115 \u2014 10 of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10). The relevant parts of that section state:\n\u201c(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13 ***, the following evidence shall be admitted as an exception to the hearsay rule:\n***\n(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.\n(b) Such testimony shall only be admitted if:\n(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\n(2) The child either:\n(A) Testifies at the proceeding; or\n(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.\u201d (Emphasis added.) (Ill. Rev. Stat. 1987, ch.\n38, par. 115-10.)\nIn this case, the State, as the proponent of the evidence, bore the burden of proving that the \u201ctime, content, and circumstances\u201d of the victim\u2019s statements provided \u201csufficient safeguards of reliability.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10; see Idaho v. Wright (1990), 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139.) After carefully reviewing the record, we hold that the State did not adequately establish that the victim\u2019s hearsay statements were reliable within the meaning of section 115 \u2014 10.\nWe recognize, of course, that questions regarding the admissibility of evidence lie within the discretion of the circuit court. A reviewing court may overturn a trial court\u2019s determination only when the record clearly demonstrates that the court abused its discretion. (People v. Franklin (1990), 135 Ill. 2d 78, 96; People v. Boclair (1989), 129 Ill. 2d 458, 476.) The record here persuasively shows that the trial court abused its discretion in admitting the victim\u2019s hearsay statements pursuant to section 115 \u2014 10.\nAs stated, hearsay statements are admissible under section 115 \u2014 10 only if \u201cthe time, content, and circumstances of the statement provide sufficient safeguards of reliability.\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 115\u2014 10(b)(1).) Here, the content of the victim\u2019s statements tends to support their reliability. For example, the statements reflect a knowledge of sexual activity which is unexpected and unusual for a three-year-old child. In addition, the victim\u2019s statements to her mother and Wolff were consistent with each other and were made spontaneously, rather than in response to leading questions.\nThe timing and the circumstances surrounding the victim\u2019s allegations, however, fail to provide sufficient safeguards of their reliability. The circumstances surrounding the victim\u2019s statements are particularly troubling. Prior to making statements implicating the defendant, the victim was interviewed by at least three persons respecting the alleged sexual abuse (i. e., a Park Forest police officer, a DCFS worker and a counselor at Mount Sinai Hospital). The State failed to introduce any evidence regarding the substance of these interviews. Without such evidence, it was impossible for the trial court to determine whether the victim was questioned in a suggestive manner or was encouraged to accuse the defendant of sexual abuse. It was also impossible for the trial court to determine whether the victim\u2019s precocious knowledge of sexual activity was due to sexual abuse, as the State claims, or was the result of suggestive interview techniques.\nEvidence as to what transpired during these interviews was particularly important here for two reasons. First, the victim\u2019s age made her particularly susceptible to suggestion from outsiders. Second, the defendant was unable to question the victim about the interviews at trial because the trial court found the victim incompetent to testify. A trial court should not presume from a silent record that suggestive interview techniques were not used. Careful consideration of the circumstances surrounding the victim\u2019s statements is particularly important in cases such as this, where the defendant does not have the opportunity to cross-examine the victim. The State, as the proponent of the challenged statements, bore the burden of establishing that the statements were reliable and not the result of adult prompting or manipulation. Here, the State failed to demonstrate that the circumstances surrounding the victim\u2019s statements support the reliability of those statements, as required by section 115-10.\nSection 115 \u2014 10 also specifies that the timing of the victim\u2019s statements must adequately safeguard the reliability of the statements. In this case, the trial court estimated that the sexual abuse occurred approximately four weeks prior to June 24. The victim\u2019s first statement to her mother was not made until July 1, approximately five weeks after the abuse occurred. In addition, the victim initially denied that she was sexually abused when a counselor at Mount Sinai Hospital questioned her. We recognize that victims of sexual abuse are often threatened not to tell anyone about the abuse, and that such threats may explain a child\u2019s delay in reporting abuse. (See, e.g., People v. Rushing (1989), 192 Ill. App. 3d 444, 448.) In addition, our courts have recognized that child victims of sexual abuse are often reluctant to discuss the abuse with anyone other than their mothers. (See People v. Hatfield (1987), 161 Ill. App. 3d 401, 411.) Thus, as a general rule, delay in reporting abuse or initial denials of abuse will not automatically render a victim\u2019s statements inadmissible under section 115 \u2014 10.\nHere, too, the timing of the victim\u2019s statements, standing alone, does not make the statements unreliable. The victim\u2019s delay and initial denial become significant, however, when considered in light of the questionable circumstances surrounding her statements. We are particularly troubled by the fact that the victim made her statements only after substantial adult intervention. As noted above, the victim was interviewed by at least three persons before she even admitted that she was abused or implicated the defendant. Viewed together, the time and circumstances of the victim\u2019s statements do not \u201cprovide sufficient safeguards of reliability\u201d as required by section 115 \u2014 10. Accordingly, we must conclude that the trial court abused its discretion in admitting the statements pursuant to that statutory provision.\nII\nThe State alternatively contends that the victim\u2019s statements were properly admitted under the common law \u201cspontaneous declaration\u201d exception to the hearsay rule. For a statement to qualify as a spontaneous declaration, three requirements must be met: \u201c \u2018(1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence.\u2019 \u201d (People v. Gacho (1988), 122 Ill. 2d 221, 241, quoting People v. Poland (1961), 22 Ill. 2d 175, 181.) Here, the second requirement is not met and, therefore, the victim\u2019s statements are not admissible as spontaneous declarations.\nWe recognize that \u201c[t]he time factor is an elusive element and will vary with the facts of the case.\u201d (People v. Shum (1987), 117 Ill. 2d 317, 343.) In this case, however, the time lapse between the startling event and the victim\u2019s statements destroyed the spontaneity of her statements. As stated, the trial court determined that the sexual abuse occurred approximately four weeks prior to June 24. The victim\u2019s first statements regarding the abuse were made on July 1. A statement made approximatefy five weeks after the startling event cannot be said to be \u201cmade immediately after some exciting occasion\u201d or \u201cduring the brief period when consideration of self-interest could not have been fully brought to bear.\u201d People v. Damen (1963), 28 Ill. 2d 464, 471.\nThe State argues that the time lapse may have been much shorter than five weeks. The State points out that the defendant was charged with committing acts of sexual abuse from March 15, 1988, until July 15, 1988, and that the State was not required to prove an exact date on which any one instance of abuse occurred. The State claims that the trial judge was only estimating when he determined that the abuse occurred approximately four weeks prior to June 24. It argues that the abuse may have occurred as late as June 25, when the defendant last baby-sat for the victim.\nThe trial court is entitled to weigh the evidence presented and to make findings of fact. This court will not disturb a trial court\u2019s finding unless that finding is contrary to the manifest weight of the evidence. (Sexton v. Smith (1986), 112 Ill. 2d 187, 194.) Here, the trial court\u2019s finding as to the approximate date on which the abuse occurred was not contrary to the manifest weight of the evidence.\nMoreover, even if we were to accept the State\u2019s argument that the abuse occurred as late as June 25, the victim\u2019s statements would still not qualify as spontaneous declarations. A five-day interval between the startling event and the victim\u2019s statements would generally destroy the spontaneity of those statements. Indeed, the cases which the State cites have all involved a significantly shorter time interval between the startling event and the spontaneous utterances. (See, e.g., People v. Nevitt (1990), 135 Ill. 2d 423 (several hours); People v. Shum (1987), 117 Ill. 2d 317 (minutes); People v. Bitler (1986), 146 Ill. App. 3d 477 (within 24 hours).) More importantly, in this particular case, we are not simply confronted with a lengthy interval between the startling event and the statements. Here, the victim was interviewed at least three times before she made her first statement regarding the abuse. Our court has recognized that persistent questioning will destroy the spontaneity of a statement. (People v. Lawler (1991), 142 Ill. 2d 548, 560; People v. Taylor (1971), 48 Ill. 2d 91, 97.) Under the facts of this case, we hold that her statements cannot be said to fall within the spontaneous declaration exception to the hearsay rule. See In re L.S. (1989), 190 Ill. App. 3d 1031, 1034 (\u201cBecause of the *** intervening questions and events, we are unable to ascertain what prompted the victims\u2019 statements *** or to eliminate the probability of fabrication\u201d).\nFor the reasons expressed above, the judgment of the appellate court, reversing the defendant\u2019s conviction and remanding the cause for a new trial, is affirmed.\nJudgment affirmed.", "type": "majority", "author": "JUSTICE BILANDIC" }, { "text": "JUSTICE HEIPLE,\ndissenting:\nI respectfully dissent from the majority opinion on two grounds. First, the majority decision does not correctly apply the standard of review in reaching its holding. Second, the majority opinion errs in its analysis of the requirements of section 115 \u2014 10 of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10).\nThis case involves the alleged sexual abuse of a three-year-old girl. The defendant, a 60-year-old man, baby-sat the victim, her nine-year-old brother, and her two-year-old sister. The victim was diagnosed with hymenal trauma consistent with sexual abuse. Prior to trial, the circuit court held a hearing and found the victim not competent to testify. Thereafter, the trial court conducted a hearing pursuant to section 115 \u2014 10 to determine if certain out-of-court statements which the victim had made concerning the alleged sexual abuse could be admitted at trial as an exception to the hearsay rule. Following the hearing, the trial court found that based on its interpretation of section 115 \u2014 10, the victim\u2019s mother could testify at trial concerning statements which the victim had made to her on July 1 and July 14, 1988. The trial court further found that Cheryl Wolff, a therapist, could testify concerning certain statements that the victim made to her on July 14, 1988. The trial court also excluded certain evidence and out-of-court statements that it found did not meet the requirements of section 115 \u2014 10.\nThe mother testified that on July 1, 1988, when she pulled the victim\u2019s underpants in getting her ready for bed, the victim said, \u201cDon\u2019t do that.\u201d When asked why, the victim responded, \u201cBecause Bart [the defendant] does that.\u201d The mother then asked the victim what else the defendant did and the victim answered, \u201cHe put his lollipop in my cola.\u201d According to the mother, the victim also said that \u201cBart *** put his tongue on her mouth\u2014 he put his tongue in her cola.\u201d The mother testified that \u201ccola\u201d is a Spanish term for vagina and \u201clollipop\u201d meant penis. A few minutes later the victim reiterated that Bart had put his tongue on her \u201cprivates\u201d and hurt her and added that Bart \u201cput the lollipop in her mouth.\u201d The mother also stated that on July 14, 1988, the victim told her that the defendant had put her head in a toilet and flushed it. Wolff testified that the victim additionally told her that the defendant had put the victim\u2019s head in the toilet. The victim further told her mother that when the defendant had put his \u201clollipop\u201d in her \u201ccola\u201d he said, \u201cI\u2019m coming, I\u2019m coming.\u201d The victim also told her mother that the defendant had made her \u201call wet\u201d and \u201cmade her go potty.\u201d\nIn finding the defendant guilty of two counts of aggravated criminal sexual assault, the trial court stated that the \u201clynchpin of the evidence\u201d against the defendant was the statements the victim made to her mother and Wolff which were admissible pursuant to section 115 \u2014 10. Moreover, the trial court specifically stated that, while it did not believe all of the mother\u2019s testimony, it did believe the truth of the July 1 and July 14, 1988, out-of-court statements that the victim made to the mother.\nIn reversing the defendant\u2019s conviction, the appellate court stated: \u201cWe find that the statements are inadmissible because the facts in the case at bar indicate that there were insufficient safeguards of reliability with respect to the timing of the allegations and with respect to circumstances under which the allegations were made.\u201d (Emphasis added.) (208 Ill. App. 3d at 412.) In affirming the appellate court decision, the majority opinion states, \u201cAfter carefully reviewing the record, we hold that the State did not adequately establish that the victim\u2019s hearsay statements were reliable within the meaning of section 115 \u2014 10.\u201d (Emphasis added.) (151 Ill. 2d at 43-44.) Both the appellate court and the majority opinion misapplied the standard of review in examining the trial court ruling.\nThe sole issue presented by this appeal is whether the trial court clearly abused its discretion in admitting the out-of-court statements. The majority opinion, while paying lip service to the correct standard of review, goes on to merely substitute its judgment for that of the trial court. Likewise, the appellate court below in reaching its holding made a de novo factual determination. Rather than playing the role of trier of fact, this reviewing court is limited to addressing the following question: Was the trial court\u2019s determination that the out-of-court statements were sufficiently reliable as to time, content, and circumstances clearly contrary to the manifest weight of the evidence? The answer to this question is no.\nHere, a rational trier of fact could have concluded that a five-week delay in the three-year-old victim\u2019s reporting sexual abuse is understandable given her fear of the defendant, who allegedly pushed her head into a toilet and told her not to tell her mother. Further, Illinois courts have consistently recognized that delay in reporting incidents of child sexual abuse is common, and any evidence of delay affects the weight rather than the admissibility of the evidence. (See In re M.M. (1988), 171 Ill. App. 3d 334 (where the court held that the approximately six-month delay affected only the weight, not the admissibility, of the victim\u2019s statements under section 115 \u2014 10); People v. Anderson (1992), 225 Ill. App. 3d 636 (where the child had denied any sexual abuse when interviewed over 20 times over the course of a year by a mental health director).) Accordingly, the trial court, within its discretion, could have concluded that the victim\u2019s statements were sufficiently reliable as to timing.\nNext, even the majority opinion finds that the content of the victim\u2019s statements tends to support their reliability. The victim gave consistent accounts of the sexual abuse to her mother on two occasions and the victim\u2019s statements revealed a knowledge of sexual terminology unexpected for a three-year-old child. Additionally, the fact that the victim used Spanish terms in describing the sexual activity indicates that she was not merely repeating what an interviewer may have told her.\nFinally, a rational trier of fact could have concluded that the circumstances surrounding the victim\u2019s statements provided sufficient safeguards of reliability. The victim\u2019s statements were spontaneous and were not in response to leading questions. The victim first admitted the sexual abuse to her mother, approximately five weeks after the sexual abuse occurred. Illinois courts have found that child victims of sexual abuse tend to repress the incident and will not likely discuss it with anyone but the mother. People v. Hatfield (1987), 161 Ill. App. 3d 401.\nThe majority opinion, in analyzing the circumstances surrounding the victim\u2019s statements, places great emphasis on the fact that the victim was interviewed by at least three persons before admitting that she was sexually abused and that the State failed to affirmatively demonstrate that the victim\u2019s statements were not the result of adult manipulation. The majority concludes that this \u201csubstantial adult intervention\u201d forces the court to hold that the trial court abused its discretion in admitting the victim\u2019s out-of-court statements. The majority misconstrues the plain language of section 115 \u2014 10. The statute simply requires the trial court to examine the totality of the circumstances surrounding a victim\u2019s statements to determine if they are reliable. Contrary to the majority holding, there is nothing in the statute which requires the State to affirmatively set forth the details of what transpired each time the victim was interviewed by an adult.\nIn summary, I find that the trial court\u2019s determination was not clearly contrary to the manifest weight of the evidence. Therefore, I dissent.", "type": "dissent", "author": "JUSTICE HEIPLE," }, { "text": "JUSTICE FREEMAN,\nalso dissenting:\nBecause I believe the evidence shows that the trial court properly found that the child\u2019s unsolicited, out-of-court statements to her mother, Maria, and therapist Cheryl Wolff contained sufficient safeguards of reliability, I respectfully dissent.\nIn order for a child\u2019s out-of-court statement concerning an act of sexual abuse to be admitted at trial, section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10) requires, inter alia, that the trial court first find that the time, content and circumstances of the statement \u201cprovide sufficient safeguards of reliability.\u201d\nThe majority finds that the content of the child\u2019s statements supports their reliability. As the majority points out, the child\u2019s statements to her mother and Wolff were consistent with each other, were made spontaneously rather than in response to leading questions, and reflected a knowledge of sexual activity which is unexpected and unusual for a three-year-old child. The majority, however, finds that the time and circumstances of the child\u2019s out-of-court statements fail to provide sufficient safeguards of their reliability. Thus, the majority holds that the State failed to satisfy the section 115 \u2014 10 requirements.\nConcerning the circumstances element, the majority notes that, before making the statements, the child was interviewed by a police officer, a Department of Children and Family Services (DCFS) worker, and a hospital counselor at Mt. Sinai Hospital, which had a special program for evaluating cases of child sexual abuse. The majority states, \u201cA trial court should not presume from a silent record that suggestive interview techniques were not used.\u201d (151 Ill. 2d at 45.) According to the majority, the State has failed to establish that the child\u2019s statements were not the result of adult prompting or manipulation, and the majority characterizes the circumstances surrounding the child\u2019s statements as \u201cquestionable.\u201d 151 Ill. 2d at 46.\nThe \u201cquestionable\u201d circumstances to which the majority refers appear to be no more than that which is mandated by law. Pursuant to the Abused and Neglected Child Reporting Act (Act) (Ill. Rev. Stat. 1989, ch. 23, par. 2051 et seq.), the DCFS has the sole responsibility to receive and investigate reports of child abuse, except where investigations by other agencies may be required with respect to reports alleging, inter alia, sexual abuse. The DCFS may also delegate the performance of the investigation to a law enforcement agency as well as to designated private social service agencies. Ill. Rev. Stat. 1989, ch. 23, par. 2057.3.\nI am troubled by the majority\u2019s seeming distrust of those professionals who are mandated by law to investigate allegations of child abuse. Child abuse investigations involving young children are particularly problematic. The investigation process is no doubt hampered by the young victim\u2019s limited language and cognitive skills. That notwithstanding, the investigating agents are charged with the responsibility, and expected, to obtain competent and sufficient evidence for the successful prosecution of an alleged child abuser. At the same time, the investigators must ascertain the nature and extent of the injury to the child in order to provide appropriate social and medical services. In light of this clear and weighty mandate, and in the absence of any supporting evidence, I can neither condone nor join in the majority\u2019s unwarranted characterization of the investigation process conducted by these professionals.\nMoreover, section 115 \u2014 10 requires only a finding that the time, circumstances and content of the statement provide sufficient safeguards of reliability. The statute does not require the State to present and to discount every factor which might have influenced the child victim\u2019s statements. Undoubtedly, given the age and early developmental stage of this child, in order for the investigators to elicit the necessary information, they most likely engaged in an interactive, prompting interview approach. However, even if leading questions were used, if appropriate, that fact does not necessarily render their responses untrustworthy. Idaho v. Wright (1990), 497 U.S. 805, 818, 111 L. Ed. 2d 638, 654, 110 S. Ct. 3139, 3148, citing J. Myers; Child Witness Law & Practice \u00a74.6, at 129-34 (1987).\nI also disagree with the majority\u2019s statements that the trial court was unable to determine whether the child was questioned in a suggestive manner and encouraged to accuse the defendant of sexual abuse, or that the child\u2019s knowledge of sexual activity was due to sexual abuse or was the result of suggestive interview techniques.\nOther than the fact that the legally mandated child abuse investigation occurred and that a hospital counselor also interviewed the child, the majority fails to point to any evidence to support even a presumption that suggestive interview techniques were used. Unless we are to believe that the investigating agents had some interest in seeing this defendant prosecuted, I believe it to be a safe assumption that the person most likely to encourage the child to accuse this defendant was the child\u2019s mother. The mother was available and testified during pretrial proceedings and at trial. Any improper influence on her part could have been determined from her testimony.\nFurther, I believe that the unique terminology used by the child to describe the events, as well as the extensiveness of her statements, could properly guide the trial court in its determination on the issue of suggestiveness. Unless, of course, we are to conclude that this unique terminology was used by the DCFS worker, the police officer or the hospital counselor, during their various encounters with the child, in some attempt to elicit a statement from the child. Absent some contrary evidence, the fair presumption is that the investigation was not inappropriately suggestive.\nI recognize that the position which the majority here takes is not a matter of judicial indifference to the protection of children, but is rather an effort to maintain fairness and objectivity in the administration of justice. However, in its attempt at fairness and objectivity, the majority unfairly casts a shadow of suspicion and distrust on the child protective services process and effectively sets up barriers to. thorough child abuse investigations.\nThe majority also finds that the timing of the victim\u2019s statements, when viewed with the circumstances surrounding the statements, fails to provide sufficient safeguards of reliability as required by section 115 \u2014 10. The majority acknowledges that the child\u2019s delay in reporting the abuse did not render the statements unreliable. The majority even recognizes that a failure to report the abuse may be the result of feelings of fear and reluctance. The sole factor which the majority finds fatal to satisfaction of the time element is that the child made her statements \u201conly after substantial adult intervention.\u201d 151 Ill. 2d at 46.\nI believe it to be without dispute that there is great disparity in the level of mental and intellectual functioning of a three-year-old child as compared to that of an adult, or even to that of an older child. I further believe that it does not require particularized training in the area of childhood development to recognize that a child of three is limited in her perceptions by her life experiences. Thus, I question the ability of a child of such young age, despite precociousness, to even comprehend the nature of sexual abuse, much less the accompanying sense of victimization which usually prompts, in an older person, an immediate, unsolicited report of the incident.\nThe event which triggers a three-year-old to relate an incident which constitutes sexual abuse differs quite decidedly from that of an older person who is readily able to perceive the impropriety of such conduct and report the offense without prompting. I applaud the majority\u2019s recognition of the impact which fear and reluctance may have on a child\u2019s motivation to report allegations of sexual abuse. However, to attribute fear and reluctance to a three-year-old\u2019s delay in relating the abuse erroneously presumes that the child, in the first place, even perceives that she has been victimized. In this instance, the mere fact that there was \u201csubstantial adult intervention\u201d would not defeat the reliability of the child\u2019s statement.\nIn discussing the rationale which underlies the theory of the hearsay rule, the United States Supreme Court in Idaho v. Wright (1990), 497 U.S. 805, 819, 111 L. Ed. 2d 638, 655, 110 S. Ct. 3139, 3148-49, stated that the safeguards of reliability must be shown from the totality of the circumstances surrounding the making of the statement which deem the person making the statement particularly worthy of belief. The most significant circumstance in consideration of this three-year-old child\u2019s statement is her young age.\nBecause I believe that the trial court properly exercised its discretion in finding, from the totality of circumstances surrounding the child-victim\u2019s statements, that the child was particularly worthy of belief, I would affirm the trial court\u2019s admission of the statement.", "type": "dissent", "author": "JUSTICE FREEMAN," } ], "attorneys": [ "Roland W. Burris, Attorney General, of Springfield, and Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Renee Goldfarb and William P. Pistorius, Assistant State\u2019s Attorneys, of counsel), for the People.", "Theodore A. Gottfried, State Appellate Defender, of the Office of the State Appellate Defender, of Springfield (Stephen M. Komie, of Chicago, of counsel), for appellee." ], "corrections": "", "head_matter": "(No. 71449.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BARTHOLD ZWART, Appellee.\nOpinion filed September 24, 1992.\nHEIPLE and FREEMAN, JJ., dissenting.\nRoland W. Burris, Attorney General, of Springfield, and Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Renee Goldfarb and William P. Pistorius, Assistant State\u2019s Attorneys, of counsel), for the People.\nTheodore A. Gottfried, State Appellate Defender, of the Office of the State Appellate Defender, of Springfield (Stephen M. Komie, of Chicago, of counsel), for appellee." }, "file_name": "0037-01", "first_page_order": 49, "last_page_order": 69 }