{ "id": 3633123, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RICHARD D. KITCH, Appellant", "name_abbreviation": "People v. Kitch", "decision_date": "2011-01-21", "docket_number": "No. 108769", "first_page": "452", "last_page": "471", "citations": [ { "type": "official", "cite": "239 Ill. 2d 452" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "232 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3619470 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "511" }, { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/232/0504-01" ] }, { "cite": "224 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3607155 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "179-80" }, { "page": "179-80", "parenthetical": "courts must engage in two-step analysis, first statutory and then constitutional, to determine admissibility of hearsay testimony" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/224/0172-01" ] }, { "cite": "358 Ill. App. 3d 313", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5731798 ], "year": 2005, "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/358/0313-01" ] }, { "cite": "361 Ill. App. 3d 995", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4259187 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "1002" }, { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/361/0995-01" ] }, { "cite": "215 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060428 ], "year": 2005, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0194-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "399 U.S. 149", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168934 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "162" }, { "page": "155", "parenthetical": "although \"it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values,\" the overlap need not be complete" } ], "opinion_index": 0, "case_paths": [ "/us/399/0149-01" ] }, { "cite": "223 Ill. 2d 109", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3604994 ], "year": 2006, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0109-01" ] }, { "cite": "202 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442053 ], "year": 2002, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0151-01" ] }, { "cite": "229 Ill. 2d 296", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3615201 ], "year": 2008, "pin_cites": [ { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/229/0296-01" ] }, { "cite": "203 Ill. 2d 352", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799391 ], "year": 2003, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0352-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "61-62" }, { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "169 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909174 ], "year": 1995, "pin_cites": [ { "page": "17-18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0001-01" ] }, { "cite": "396 Ill. App. 3d 891", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4292314 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "898-901" }, { "page": "901-02" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/396/0891-01" ] }, { "cite": "232 Ill. 2d 408", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3619394 ], "year": 2009, "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/232/0408-01" ] }, { "cite": "215 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060336 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "177" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0167-01" ] }, { "cite": "222 Ill. 2d 340", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602394 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "350" }, { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0340-01" ] }, { "cite": "231 Ill. 2d 262", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3617207 ], "year": 2008, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/231/0262-01" ] }, { "cite": "392 Ill. App. 3d 108", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4288212 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/392/0108-01" ] } ], "analysis": { "cardinality": 1137, "char_count": 31100, "ocr_confidence": 0.762, "pagerank": { "raw": 1.1453059531593571e-07, "percentile": 0.5800160549900786 }, "sha256": "2c06e73f1f77e9eec854cfc41c1ea7cff126fa2a0cb2685281f123d38f2a079e", "simhash": "1:beb31d4a1a0c1636", "word_count": 5004 }, "last_updated": "2023-07-14T16:42:29.667104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RICHARD D. KITCH, Appellant." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the judgment of the court, with opinion.\nChief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.\nOPINION\nFollowing a jury trial, defendant Richard Kitch was convicted of nine counts of predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse. The circuit court of Schuyler County sentenced him to nine consecutive natural life prison terms for predatory criminal sexual assault of a child, and a concurrent 14-year extended term for aggravated criminal sexual abuse. The appellate court ordered the natural life prison terms to be served concurrently rather than consecutively, and affirmed in all other respects. 392 Ill. App. 3d 108. For the reasons set forth below, we affirm the judgment of the appellate court.\nI. BACKGROUND\nIn February 2005, the State charged defendant with multiple counts of sexual assault and abuse allegedly perpetrated against his stepdaughter, K.J.K., who was born January 8, 1991, and his stepson, M.J.B., who was born May 5, 1994. Specifically, the State charged defendant with predatory criminal sexual assault of a child (720 ILCS 5/12 \u2014 14.1(a)(1) (West 2004)), alleging that, between March 2000 and March 2003, defendant (a) placed his penis in the mouth of K.J.K. (counts I and II); (b) allowed his penis to have contact with KJ.K\u2019s vaginal area (count III); (c) placed his penis in K.J.K.\u2019s vagina (counts iy V, and VI); and (d) placed his penis in the mouth of M.J.B. (counts IX, X, and XI). The State also charged defendant with aggravated criminal sexual abuse (720 ILCS 5/12 \u2014 16(c)(l)(i) (West 2004)), alleging that in November 2002 he knowingly touched M.J.B.\u2019s penis with his fingers for the purpose of sexual arousal (counts VII and VIII).\nPursuant to section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 \u2014 10 (West 2004)), the State filed a pretrial notice of intent to introduce hearsay statements of K.J.K. and M.J.B. describing the alleged abuse. Defendant objected. At a hearing, Schuyler County Sheriff Don Schieferdecker (Don) and one of his employees, Anna Marie Schieferdecker (Anna Marie), testified to the circumstances of their interviews of the children and introduced the children\u2019s written statements, which Anna Marie and Don had transcribed. The State indicated K.J.K. and M.J.B. would testify at trial. The circuit court found the hearsay statements admissible under the statute, on the condition that the children testified.\nDefendant fled the jurisdiction prior to trial and was subsequently tried in absentia in October 2005. The evidence at trial included testimony from K.J.K. and M.J.B.; their mother, Susan; Anna Marie and Don; an obstetric gynecologist; and two forensic scientists.\nDr. Victoria Nichols-Johnson, an obstetric gynecologist, testified she examined K.J.K. on July 3, 2003. K.J.K. told her that her \u201cmom\u2019s husband\u201d had touched her breasts and vagina. When Dr. Nichols-Johnson visually examined K.J.K.\u2019s genital area, she observed \u201cchanges in the hymenal ring\u201d that suggested possible penetration by an external object. She encountered little resistance when inserting her fingers or a speculum into KJ.K\u2019s vagina, and opined that \u201csomething had been there before.\u201d According to Dr. Nichols-Johnson, it was \u201chighly likely that [K.J.K.] had been abused.\u201d\nSusan testified that she and her children moved in with defendant on December 16, 1999, and she married defendant on February 29, 2000. Thereafter, Susan noticed defendant \u201cstarted to favor\u201d K.J.K. and became less friendly toward M.J.B. Defendant also began disciplining the children. He spanked them with a leather strap and would \u201cscream at them.\u201d\nSusan testified further that defendant often hugged and kissed K.J.K., and would grab her buttocks and breasts. When K.J.K. was 11 years old, defendant tattooed her bare buttock while she was partially clothed and lying on the dining room table. When K.J.K. was 12, Susan observed defendant rubbing lotion on K.J.K.\u2019s breasts. On one occasion, Susan saw defendant coming out of a shower he had been sharing with K.J.K. When Susan confronted him, he said he had been helping K. J.K. wash her hair.\nIn March 2003 Susan moved out of defendant\u2019s residence. As she and the children drove away, she assured K.J.K. and M.J.B. they would not have to live with defendant again. K.J.K. and M.J.B. then told her defendant had sexually abused them. Susan reported the allegations to the sheriff. In June 2003, Susan provided the sheriff with the comforter that K.J.K. had on her bed when they lived with defendant. Susan testified she and defendant never engaged in any sexual activity on the comforter.\nAnna Marie testified she interviewed K. J.K. in March 2003 at the sheriffs department. Anna Marie wrote down the questions she asked K.J.K., followed by K.J.K.\u2019s answers. The statement was admitted into evidence without objection.\nAnna Marie testified regarding K.J.K.\u2019s statement. In March 2000 K.J.K. was home alone with defendant when he came into her room. He asked her if she wanted to have sex and she said no. K.J.K. tried to leave, but defendant blocked the doorway, pushed her down on the floor, and forced his penis into her mouth. Later that day defendant returned to KJ.K\u2019s room and again forced his penis into her mouth. When he was finished, he told her that if she told anyone, he would kill her. Anna Marie asked K.J.K. if this happened again, and she replied: \u201cAnytime my mom was gone, in the shower, or sleeping late.\u201d\nIn the summer of 2001, K.J.K. was home alone with defendant. K.J.K. had blocked the entrance to her bedroom, but defendant forced his way in, pushed her down on the bed, and put his penis between her legs, rubbing his penis on her vaginal area. Defendant repeated this act almost every time K.J.K. was home alone with him until June 2002, when defendant began inserting his penis inside her vagina. After June 2002 defendant had sexual intercourse with K.J.K. about once a week.\nK.J.K. testified consistently with her statement to Anna Marie regarding defendant forcing his penis into her mouth, between her legs, and into her vagina. K.J.K. also explained that a couple of months after defendant began putting his penis between her legs, he started putting his fingers in her vagina, telling her he was doing it so his penis would eventually \u201cfit.\u201d K.J.K. also described an instance when defendant\u2019s ejaculate dripped onto her comforter, and defendant told her to wipe it up with some paper towels. K.J.K. identified the comforter as the one Susan had testified she gave to the sheriff. K.J.K. also testified about defendant rubbing cocoa butter on her breasts, showering with her, and putting a tattoo on her right buttock.\nDon, the Schuyler County sheriff, testified that in March 2003 he interviewed M.J.B. at the sheriffs office. Don wrote out the questions he asked M.J.B., followed by M.J.B.\u2019s answers. The statement was admitted into evidence without objection.\nDon testified regarding M.J.B.\u2019s statement. Sometime after Thanksgiving 2002, defendant came into M.J.B.\u2019s room, grabbed M.J.B.\u2019s penis, and began rubbing it for about 30 seconds. In January 2003, defendant took M.J.B. into the bathroom, put M.J.B.\u2019s hand on defendant\u2019s penis, and told M.J.B. to move his hand up and down. M.J.B. did this for about one minute, and defendant ejaculated. Later that same month, defendant took M.J.B. into the bathroom, put his penis in M.J.B.\u2019s mouth, and told him to suck it. M.J.B. told the sheriff that, subsequently, defendant forced him to perform this same oral act an additional three or four times. Don also testified about an April 2003 written statement by K.J.K. which described how defendant\u2019s ejaculate came to be on her comforter.\nM.J.B. testified, in relevant part, that when he was about eight years old defendant touched M.J.B.\u2019s penis in M.J.B.\u2019s bedroom. Other incidents occurred in the bathroom. On one occasion, defendant forced M.J.B. to touch defendant\u2019s penis, and on three or four occasions defendant put his penis in M.J.B.\u2019s mouth.\nForensic scientists at the Illinois State Police Forensic Science Laboratory testified that the deoxyribonucleic acid (DNA) profile identified in a semen stain on K.J.K.\u2019s comforter matched defendant\u2019s DNA profile.\nThe jury convicted defendant on all 10 counts. Defendant filed a motion for a new trial, which the circuit court denied. In November 2005 the court sentenced defendant in absentia to nine natural life prison terms for predatory criminal sexual assault of a child, each to run consecutively, and a 14-year extended-term sentence for aggravated criminal sexual abuse, to run concurrently.\nThe appellate court affirmed defendant\u2019s convictions but modified his natural life prison sentences from consecutive to concurrent terms. 392 Ill. App. 3d 108. The court also granted the State its statutory assessment of $50 against defendant as costs of the appeal. We allowed defendant\u2019s petition for leave to appeal. Ill. S. Ct. R 315 (eff. Feb. 26, 2010).\nII. ANALYSIS\nA. Direct Testimony of K.J.K. and M.J.B.\nDefendant first argues K.J.K. and M.J.B. did not testify in enough detail to have \u201cappeared\u201d for cross-examination within the meaning of the confrontation clause. Specifically, defendant contends the State failed to ask K.J.K. and M.J.B. \u201cabout each incident in enough detail to establish each and every element of every count,\u201d and defendant was unable to engage in effective cross-examination, in violation of his right to confrontation under the sixth amendment (U.S. Const., amend. VI).\nThe State argues defendant forfeited this argument. \u201cTo preserve an alleged error for review, a defendant must raise a timely objection at trial and raise the error in a written posttrial motion.\u201d People v. Cosby, 231 Ill. 2d 262, 271 (2008). \u201cThe failure to object to alleged error at trial and raise the issue in a posttrial motion ordinarily results in the forfeiture of the issue on appeal.\u201d People v. Allen, 222 Ill. 2d 340, 350 (2006). Here, defendant did neither. He did not object at trial, as he does before this court, that the child witnesses were not available for cross-examination, such that admitting their hearsay testimony violated the confrontation clause. Nor did he contend in his motion for new trial that admission of the hearsay testimony violated his confrontation right; rather, he argued only that the hearsay statements were not sufficiently reliable, an apparent reference to section 115 \u2014 10(b)(1), which requires a judicial determination that \u201cthe time, content, and circumstances of the statement provide sufficient safeguards of reliability\u201d (725 ILCS 5/115\u201410(b)(1) (West 2004)). We therefore agree with the State that defendant has forfeited this issue.\nDefendant however maintains that if we conclude there was forfeiture, we should review the issue under the plain-error doctrine. Rule 615(a), the basis for this doctrine, provides: \u201cAny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.\u201d Ill. S. Ct. R. 615(a). The plain-error doctrine creates \u201ca narrow and limited exception to the general rule of forfeiture, whose purpose is to protect the rights of the defendant and the integrity and reputation of the judicial process.\u201d Allen, 222 Ill. 2d at 353, citing People v. Herron, 215 Ill. 2d 167, 177 (2005). The defendant bears the burden of establishing plain error. Herron, 215 Ill. 2d at 187.\nWe observe, initially, that defendant does not challenge in this court the adequacy of K.J.K.\u2019s testimony with regard to counts I, II, and III. In his brief, defendant challenges the adequacy of the victims\u2019 testimony only with respect to counts iy y and VI (involving acts of vaginal penetration against K.J.K.) and counts VII, IX, X, and XI (involving M.J.B.).\nThe first step in plain-error review is to determine whether an error occurred. In re M.W., 232 Ill. 2d 408, 431 (2009). In making this determination, we consider whether, as defendant argues, the State improperly failed to ask the victims about each incident in enough detail to establish the elements of each count. Counts IV through VI and IX through XI all charged defendant with predatory criminal sexual assault of a child (720 ILCS 5/12\u2014 14.1(a)(1) (West 2004)), and count VII charged him with aggravated criminal sexual abuse (720 ILCS 5/12\u2014 16(c)(l)(i) (West 2004)). To prove predatory criminal sexual assault of a child, the State needed to show that (1) defendant was 17 years of age or older when he (2) committed \u201can act of sexual penetration\u201d with (3) a victim under the age of 13. 720 ILCS 5/12 \u2014 14.1(a)(1) (West 2004). \u201cSexual penetration\u201d is \u201cany contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person.\u201d 720 ILCS 5/12 \u2014 12(f) (West 2004). As defendant acknowledged in the appellate court, when the State files multiple charges, \u201cthe State is not required to prove dates of commission,\u201d but only to provide \u201csome way to differentiate between\u201d the various counts. To prove aggravated criminal sexual abuse (count VII), the State needed to show that (1) defendant was 17 years of age or older when he (2) committed \u201can act of sexual conduct\u201d with (3) a victim under the age of 13. 720 ILCS 5/12 \u2014 16(c)(l)(i) (West 2004). \u201cSexual conduct\u201d is \u201cany intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of *** any part of the body of a child under 13 years of age *** for the purpose of sexual gratification or arousal of the victim or the accused.\u201d 720 ILCS 5/12 \u2014 12(e) (West 2004).\nIt is undisputed that defendant was over the age of 17 and the victims were under the age of 13 when the offenses occurred. The question, then, is whether the State, through the victims\u2019 direct testimony, proved \u201can act of sexual penetration\u201d with regard to counts IV through VI and IX through XI, and \u201can act of sexual conduct\u201d with regard to count VII.\nThe counts pertaining to K.J.K. alleged defendant penetrated her vagina with his penis once in June 2002 (count TV); once between July 1, 2002, and February 28, 2003 (count V); and once on approximately March 1, 2003 (count VI). At trial, K.J.K. testified that, on multiple occasions, defendant \u201cput his penis inside [her] vagina\u201d while they were in her bedroom, adding that sometimes ejaculate ran down her leg onto her comforter and that \u201c[ojccasionally, after he was finished, [she] would go to the bathroom and it stung a little.\u201d While K.J.K.\u2019s testimony was somewhat unclear as to when every incident occurred, it nevertheless established that at least three acts occurred between June 2002 (count IV) and March 2003 (counts V and VI). K.J.K. testified that defendant (1) first forced her to have oral sex \u201c[a] couple months\u201d after defendant married her mother in February 2000; (2) touched her vaginal area with his penis \u201c[a] couple months after he had started doing it oral\u201d; (3) put his fingers in her vagina two or three months later; and (4) began having vaginal intercourse with K.J.K. approximately three months after that. According to this testimony, defendant would have begun having vaginal intercourse with K.J.K. about December 2000 or January 2001. K.J.K. testified defendant repeated this act \u201ca couple times a month\u201d until K.J.K. moved out in March 2003.\nThe counts pertaining to M.J.B. alleged that (1) defendant touched M.J.B.\u2019s penis in about November 2002 (count VII); and (2) on three occasions, twice in approximately January 2003 (counts IX and X) and once in February 2003 (count XI), defendant placed his penis in M.J.B.\u2019s mouth. At trial, M.J.B. testified that defendant \u201c[p]ut his hand on [M.J.B.\u2019s] penis\u201d when M.J.B. was about eight years old, and subsequently defendant placed his penis in M.J.B.\u2019s mouth \u201c[t]hree or four times.\u201d According to this testimony, defendant touched M.J.B.\u2019s penis after May 5, 2002 (count VII), and placed his penis in M.J.B.\u2019s mouth \u201cthree or four times\u201d thereafter (counts IX through XI).\nAccordingly, K.J.K\u2019s and M.J.B.\u2019s direct testimony, standing alone, was sufficient to establish the elements of the relevant counts against defendant. We also conclude, largely for this reason, that K.J.K.\u2019s and M.J.B.\u2019s direct testimony was sufficient to allow for effective cross-examination. Their direct testimony provided enough detail to allow for cross-examination within the meaning of the confrontation clause. Our review of the record shows that both K.J.K. and M.J.B. answered all of the questions put to them by defense counsel on cross-examination. Their answers were forthright. There was no indiction they were being evasive.\nThere is nothing in People v. Learn, 396 Ill. App. 3d 891 (2009), a case on which defendant relies, that compels a different result. In Learn, the defendant was charged with one count of aggravated criminal sexual abuse. The victim was his four-year-old niece. Prior to trial, the circuit court granted the State\u2019s section 115\u201410 motion to admit out-of-court statements made by the victim to her father and two police officers. The motion was granted on condition that the child testify. At trial, the victim testified to preliminary matters but then became too emotionally distraught to continue, and therefore did not testify on direct examination to any of the alleged incidents of sexual abuse. The circuit court concluded the child nevertheless had testified for purposes of section 115\u201410, and allowed the State to introduce her hearsay statements. The appellate court reversed, holding that the victim did not \u201ctestify\u201d within the meaning of the statute. The court reasoned that a victim must give \u201caccusatoiy testimony,\u201d i.e., \u201cconfront the defendant and accuse him of [some]thing.\u201d Learn, 396 Ill. App. 3d at 898-901. The court stated: \u201c[The victim\u2019s] spoken testimony was not incriminating; thus, defendant was not confronted by his accuser nor given the right to rigorously test the accusation against him through cross-examination.\u201d Learn, 396 Ill. App. 3d at 901-02. Here, by contrast, K.J.K. and M.J.B. \u201caccused\u201d defendant of multiple acts of sexual abuse, through their direct testimony. Learn is distinguishable from the case at bar.\nGiven that defendant has failed to demonstrate there was any error with respect to this issue, his forfeiture stands. See People v. Keene, 169 Ill. 2d 1, 17-18 (1995).\nB. Constitutionality of Section 115 \u2014 10\nDefendant next argues that section 115\u201410 is unconstitutional on its face. Defendant points to Crawford v. Washington, 541 U.S. 36 (2004), which reinterpreted the confrontation clause, and argues that, in light of Crawford, section 115 \u2014 10 violates the confrontation clause of the United States Constitution (U.S. Const., amend. VI) as well as that of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a78). Specifically, defendant contends the statute is unconstitutional because: (1) it improperly incorporates the now-defunct reliability standard for determining whether admission of hearsay testimony comported with the confrontation clause, and (2) it does not incorporate the limitations on admissibility imposed by Crawford. According to defendant, the hearsay statements in the case at bar were improperly admitted under an unconstitutional statute, section 115\u201410, and defendant \u201cmust receive a new trial.\u201d\nInitially, there is a \u201cstrong presumption\u201d that a legislative enactment passes constitutional muster, and a party challenging the constitutionality of a statute bears the burden of clearly establishing its invalidity. People v. Thurow, 203 Ill. 2d 352, 367 (2003). A statute is unconstitutional on its face only if no set of circumstances exists under which it would be valid. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008). \u201cThus, so long as there exists a situation in which a statute could be validly applied, a facial challenge must fail.\u201d Hill v. Cowan, 202 Ill. 2d 151, 157 (2002). Whether a statute is constitutional is a question of law, which we review de novo. People v. McCarty, 223 Ill. 2d 109, 135 (2006).\nSection 115 \u2014 10 provides, in pertinent part:\n\u201c(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:\n(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\n(2) testimony of an out of court statement made by the victim 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 or physical act against that victim.\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 725 ILCS 5/115 \u2014 10 (West 2004).\nSection 115 \u2014 10 allows for a child victim\u2019s hearsay statement to be admitted under two scenarios: (1) the court deems the statement reliable and the child testifies at trial (subsections (b)(1) and (b)(2)(A)); or (2) the child does not testify, the statement is deemed reliable, and the allegations of sexual abuse are independently corroborated (subsections (b)(1) and (b)(2)(B)). Here, the circuit court admitted KJ.K\u2019s and M.J.B.\u2019s hearsay statements under the first scenario, as both children testified at trial.\nUnder Crawford, the confrontation clause poses no restrictions on the admission of hearsay testimony if the declarant testifies at trial and is present \u201cto defend or explain\u201d that testimony.\n\u201c[W]e reiterate 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. See California v. Green, 399 U.S. 149, 162 (1970). *** The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.\u201d Crawford, 541 U.S. at 59 n.9.\nAccordingly, where K.J.K. and M.J.B. testified at trial and were present to defend or explain their testimony on cross-examination, the admission of their hearsay statements under section 115 \u2014 10 does not violate the confrontation clause.\n1. Ohio v. Roberts Reliability Standard\nDefendant argues, however, that section 115\u201410 is facially unconstitutional because it incorporates the now-repudiated reliability standard set forth in Ohio v. Roberts, 448 U.S. 56 (1980). Under Roberts, the presentation of hearsay testimony of an unavailable witness comported with the confrontation clause if the statement fell within a \u201cfirmly rooted hearsay exception\u201d or showed \u201cparticularized guarantees of trustworthiness.\u201d Roberts, 448 U.S. at 66. The language of section 115 \u2014 10 tracks the Roberts standard in part because it allows hearsay statements of a child witness to be admitted only if \u2014 among other things \u2014 the circuit court finds that \u201cthe time, content, and circumstances of the statement provide sufficient safeguards of reliability\u201d (725 ILCS 5/115 \u2014 10(b)(1) (West 2004)).\nIn Crawford, however, the Supreme Court repudiated the Roberts reliability test. Crawford held that the confrontation clause requires the reliability of testimony to be tested through cross-examination, and that no judicial assessment of \u201creliability\u201d may be substituted for this form of credibility testing. Crawford, 541 U.S. at 61-62. Now, under Crawford, testimonial statements of an unavailable witness may be admitted\u2014regardless of their perceived \u201creliability\u201d \u2014 only if the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68.\nSection 115 \u2014 10 satisfies Crawford in part. Under this statute, a child\u2019s reliable hearsay statement, i.e., one which has been found reliable under subsection (b)(1), is admissible only if (1) the child testifies (subsection (b)(2)(A)), or (2) the child \u201cis unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement\u201d (subsection (b)(2)(B)). Under the second scenario, which does not apply here, a statement deemed reliable by a judge could conceivably be admitted if the child were \u201cunavailable\u201d and the statement was supported by \u201ccorroborative evidence.\u201d Crawford, however, requires something different: where the declarant is unavailable, the defendant must have had a prior opportunity for cross-examination. The situation is different under the first scenario \u2014 the one at issue in this case \u2014 because there the declarant is not absent, but testifies at trial and is present to defend or explain the testimony on cross-examination. See Crawford, 541 U.S. at 59 n.9. Admitting a hearsay statement under the first scenario thus comports with Crawford. See People v. Cookson, 215 Ill. 2d 194, 204 (2005).\nThat a hearsay statement admitted under section 115\u201410 must meet the additional reliability requirement of subsection (b)(1) is not problematic. See People v. Reed, 361 Ill. App. 3d 995, 1002 (2005). Indeed, the requirement of \u201csufficient safeguards of reliability\u201d provides defendants with additional protection, i.e., \u201cprotection over and above the confrontation clause.\u201d Reed, 361 Ill. App. 3d at 1002; accord People v. Cannon, 358 Ill. App. 3d 313, 320 (2005). This additional reliability requirement does not affect the constitutionality of section 115\u201410 because hearsay testimony still must satisfy Crawford\u2019s constitutional requirements, in addition to the statutory requirement of reliability. See In re E.H., 224 Ill. 2d 172, 179-80 (2006).\n2. \u201cBlanket Prohibition\u201d\nDefendant next contends that section 115 \u2014 10 is unconstitutional because it does not incorporate the limitations on admissibility imposed by Crawford. Specifically, defendant argues the statute is unconstitutional because it \u201cfails to incorporate a blanket prohibition of testimonial statements\u201d where the declarant is absent from trial and the defense had no prior opportunity for cross-examination. However, hearsay exceptions such as section 115 \u2014 10 need not be coextensive with the scope of the confrontation clause to pass constitutional muster. See California v. Green, 399 U.S. 149, 155 (1970) (although \u201cit may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values,\u201d the overlap need not be complete).\nIndeed, the evidentiary question of whether hearsay testimony satisfies a statutory exception (such as section 115 \u2014 10) is separate from, and antecedent to, the issue of whether admitting the testimony satisfies the confrontation clause. See In re E.H., 224 Ill. 2d at 179-80 (courts must engage in two-step analysis, first statutory and then constitutional, to determine admissibility of hearsay testimony). Because testimony is admissible only if it meets both evidentiary and constitutional requirements, the two standards need not be identical.\nIn sum, we reject defendant\u2019s argument that section 115 \u2014 10 is facially unconstitutional in light of Crawford\u2019s reinterpretation of the confrontation clause.\nC. Statutory Assessment\nDefendant\u2019s final argument concerns the appellate court\u2019s grant to the State of its statutory assessment of $50 against defendant as costs of this appeal.\nSection 4 \u2014 2002 of the Counties Code provides that a State\u2019s Attorney in a county such as Schuyler is entitled to a fee of $50 \u201c[flor each case of appeal taken from his county *** to the Supreme or Appellate Court when prosecuted *** by him.\u201d 55 ILCS 5/4 \u2014 2002(a) (West 2008). Defendant argues that the appellate court here erred in ordering him to pay this $50 fee because the State\u2019s Attorneys Appellate Prosecutor (SAAP), and not the Schuyler County State\u2019s Attorney herself, prosecuted his appeal.\nThis is an issue of statutory construction, which is reviewed de novo. People v. Cardamone, 232 Ill. 2d 504, 511 (2009). When construing a statute, this court seeks \u201cto give effect to the legislature\u2019s intent,\u201d considering \u201cthe subject [the statute] addresses and the legislature\u2019s apparent objective in enacting it,\u201d and adopting the plain and ordinary meaning of the statutory terms. Cardamone, 232 Ill. 2d at 512.\nUnder the applicable statutory scheme, it appears that any case in which SAAP appears is, by necessity, prosecuted or defended by a State\u2019s Attorney. See 55 ILCS 5/3 \u2014 9005 (West 2008) (it is State\u2019s Attorney\u2019s duty to commence and prosecute all criminal actions arising out of his or her county). Moreover, under section 4.01 of the State\u2019s Attorneys Appellate Prosecutor\u2019s Act, SAAP attorneys are authorized to \u201crepresent the People of the State of Illinois\u201d in the appellate court when \u201crequested to do so and at the direction of\u2019 a State\u2019s Attorney. 725 ILCS 210/4.01 (West 2008). Once taking on this representation, SAAP attorneys may prepare, file and argue briefs in the appellate court \u201cwith the advice and consent of the State\u2019s Attorney.\u201d Under this statute, it appears that State\u2019s Attorneys retain a central role in an appeal even where they utilize SAAP\u2019s services.\nWe conclude, contrary to defendant, that the appellate court correctly granted the State its $50 statutory assessment in this case.\nIII. CONCLUSION\nWe affirm the judgment of the appellate court.\nAffirmed.\nPrior to trial, the State dismissed count VIII.\nK.J.K.\u2019s direct testimony differed from her out-of-court statement with regard to the time defendant began inserting his penis inside her vagina, and the number of times this occurred. According to the transcribed statement, defendant began having sexual intercourse with K.J.K. in June 2002, and he repeated this act about once a week. According to K.J.K.\u2019s direct testimony, which was less precise with regard to dates, this conduct apparently began about December 2000 or January 2001 and was repeated \u201ca couple times a month.\u201d\nAlthough defendant was tried and sentenced in absentia, he subsequently returned to the jurisdiction, and has been in the custody of the Illinois Department of Corrections since March 6, 2007.", "type": "majority", "author": "JUSTICE FREEMAN" } ], "attorneys": [ "Michael J. Pelletier, State Appellate Defender, Gary R Peterson, Deputy Defender, and Nancy L. Vincent, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.", "Lisa Madigan, Attorney General, of Springfield, and Teena Griffin, State\u2019s Attorney, of Rushville (Michael A. Scodro, Solicitor General, and Michael M. Glick and Erin M. O\u2019Connell, Assistant Attorneys General, of Chicago, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 108769.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RICHARD D. KITCH, Appellant.\nOpinion filed January 21, 2011.\nMichael J. Pelletier, State Appellate Defender, Gary R Peterson, Deputy Defender, and Nancy L. Vincent, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.\nLisa Madigan, Attorney General, of Springfield, and Teena Griffin, State\u2019s Attorney, of Rushville (Michael A. Scodro, Solicitor General, and Michael M. Glick and Erin M. O\u2019Connell, Assistant Attorneys General, of Chicago, of counsel), for the People." }, "file_name": "0452-01", "first_page_order": 466, "last_page_order": 485 }