{ "id": 2645500, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY KELLY, a/k/a Wayne Kelly, Defendant-Appellant", "name_abbreviation": "People v. Kelly", "decision_date": "1989-06-26", "docket_number": "No. 3-88-0371", "first_page": "43", "last_page": "54", "citations": [ { "type": "official", "cite": "185 Ill. App. 3d 43" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "477 N.E.2d 820", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 962", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3443188 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0962-01" ] }, { "cite": "370 N.E.2d 1315", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. App. 3d 764", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3410726 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0764-01" ] }, { "cite": "442 N.E.2d 284", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "289" } ], "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 250", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2997899 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0250-01" ] }, { "cite": "432 U.S. 98", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177400 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/432/0098-01" ] }, { "cite": "484 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "137 Ill. App. 3d 606", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3639922 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/0606-01" ] }, { "cite": "516 N.E.2d 1371", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "1382" } ], "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 959", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3546394 ], "year": 1985, "pin_cites": [ { "page": "974" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/0959-01" ] }, { "cite": "532 N.E.2d 587", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "590" }, { "page": "590" } ], "opinion_index": 0 }, { "cite": "177 Ill. App. 3d 679", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3622385 ], "weight": 2, "pin_cites": [ { "page": "683" }, { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0679-01" ] }, { "cite": "98 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3122553 ], "opinion_index": 1, "case_paths": [ "/ill-2d/98/0502-01" ] }, { "cite": "149 Ill. App. 3d 733", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3461311 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/ill-app-3d/149/0733-01" ] } ], "analysis": { "cardinality": 979, "char_count": 23159, "ocr_confidence": 0.744, "pagerank": { "raw": 2.7655044318740794e-07, "percentile": 0.8339223638134887 }, "sha256": "ede26d5e8623eb7711a504dde0e9fbd49f1f8372cc7f6a2411e2251c8c78465b", "simhash": "1:8ffe69dd69486547", "word_count": 3783 }, "last_updated": "2023-07-14T17:15:46.579667+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY KELLY, a/k/a Wayne Kelly, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nDefendant was charged with two counts of aggravated criminal sexual assault, a Class X felony (Ill. Rev. Stat. 1987, ch. 38, pars. 12 \u2014 14(b)(1), (c)). The alleged victims of the offenses were five-year old Amy Sims and her seven-year-old cousin, Sara Sims. After a jury trial, defendant was found guilty of aggravated criminal sexual assault against Sara and aggravated criminal sexual abuse of both girls. He was found not guilty of aggravated criminal sexual assault against Amy. Defendant was sentenced to eight years in the Department of Corrections on the Class X felony and five years for the lesser offense against Amy, the sentences to run concurrently. Defendant appeals from his convictions.\nThe State\u2019s evidence as presented at trial established that Sara Sims is the daughter of Patricia Sims, who was married to a Fred Hill for a period of time prior to July 1986. Sara lived with her mother in a trailer park in Colona, Illinois. Fred Hill resided in another trailer in the park after he and Patricia were divorced. Between June and the end of August 1986, Patricia baby-sat in her home for her niece, Amy. Patricia\u2019s sister, Sharon Sims, frequently took care of Sara at her home in Green Rock. Sharon testified that during the period of July and August 1986, Sara was very dirty when Sharon came to pick her up at Patricia\u2019s home. Sara wanted a lot of baths, and she became quiet and cried frequently during this period. However, Sharon did not attribute Sara\u2019s behavior to any abuse at the time.\nOn April 11, 1987, Sara telephoned Sharon and asked her to pick her up. Sara was quiet and wanted a bath. After she was dressed for bed, Sara began crying. According to Sharon, Sara said she was sorry and that she hurt between her legs. Sharon undressed the child and inspected Sara\u2019s vaginal area, noting that it was red and raw. Sara continued crying. She was shaking and acted very scared. Sharon asked Sara what had happened. Sara said that her mother had hit her with a flyswatter. Not satisfied with the response, Sharon again asked how she had been hurt. This time, Sara said that Fred Hill had poked her with his finger. The following morning, Sharon took Sara to a hospital for an examination.\nBecause of suspected abuse, Corporal Heidi Owens of the Colona police department came to Sharon\u2019s home on April 12 to investigate. After interviewing Sara, Owens had Fred Hill arrested and his trailer was searched for photographs. An appointment was made for Sara to see Dr. Linda Ozaki, a pediatrician practicing in Davenport, Iowa, on April 15. Ozaki\u2019s examination of Sara revealed an enlarged introitus, a tear at the back of the hymen and marked redness next to the hymen. Ozaki testified that her findings were consistent with a finger having been inserted in the child\u2019s vagina; however, she was unable to specify when the injuries had occurred. She could determine only that the injury to the hymen had not occurred within several days immediately preceding her examination.\nMeanwhile, on the evening of April 14, Sharon received a telephone call from Vicky Sims, Amy\u2019s mother, indicating that Amy had been sexually abused by Fred Hill. Sharon immediately telephoned Owens, who launched another investigation. At the time, Amy was staying with her aunt, Kelly Tinney, at a trailer in the same park where Fred Hill and Patricia Sims lived. Owens talked with Amy for a while, but she became too upset and Owens returned to her regular duties. About an hour later, Mrs. Tinney called Owens back, stating that Amy refused to go to bed until she talked with Owens again. Owens went back out to the trailer park, and this time Amy said that a second person, a \u201ccross-eyed\u201d man named Tom, was involved.\nOn April 16, Vicky telephoned Sharon and told her about Amy\u2019s report of another man. Sharon then sat down with Sara and asked her if anyone else had hurt her like Fred Hill had. At first Sara only cried and refused to talk about it. When she did acknowledge that there had been another man, she described him as a \u201ccross-eyed\u201d man named Tommy Kelly. According to Sharon, Sara said that he had \u201cpoked her with his finger too.\u201d At that point, Sharon reported again to Owens, and proceedings against defendant were initiated.\nOwens testified that when Sharon and Sara came to her office on April 16, Owens showed Sara some pictures confiscated during the search of Fred Hill\u2019s trailer. Sara immediately identified defendant from one showing defendant and Fred Hill together on a couch in the living room of Hill\u2019s trailer.\nDr. Ozaki testified that she examined Amy Sims on April 20 and found that she had an enlarged introitus, but no signs of bruising or tearing of the vagina. Ozaki stated that her findings were consistent with finger penetration.\nFred Hill was tried and convicted separately before defendant\u2019s case came up for trial. In this case, Amy and Sara were both found competent to testify. Amy, with the aid of anatomically correct dolls, testified that defendant had touched her in her private area with his finger, that it hurt, and that he told her if she told anybody \u201cthey would send [her] away from home.\u201d Amy testified that Fred had \u201ctouched her down here\u201d as well. She said that she and defendant were in the living room of Fred\u2019s trailer when defendant had touched her, and Fred had touched her in the kitchen.\nSara, also using the dolls, testified that defendant had touched her with his finger \u201cin [her] naughty place.\u201d At the time, her panties were off and she and defendant were in the living room or kitchen of Fred\u2019s trailer. Amy and Fred were in the kitchen. She also stated that Fred had touched her in her \u201cnaughty place\u201d when they were all in the living room. Afterwards, the men told the girls to \u201ckeep [their] mouths shut.\u201d Sara testified on cross-examination that Fred Hill had been bothering her for a long time, even when he was married to her mother.\nOver defendant\u2019s objection, the State introduced testimony of Pamela Klein, a psychotherapist with expertise in the area of child sexual abuse and molestation. Klein testified to a theory of behavior known as the rape trauma syndrome. She described delayed disclosure within that context and explained the \u201cdouble bind\u201d or \u201capproach avoidance situation\u201d where a child is told to keep a secret and has also been taught to mind. In a molestation situation, the child knows what happened is wrong, but she is unable to communicate information about it. Klein, who had interviewed both girls prior to the trial, testified that their behavior \u2014 including their failure to report the molestation promptly, their refusal to disclose information to their mothers and their failure to identify both men when they initially disclosed that they had been molested \u2014 was not inconsistent with rape trauma syndrome.\nDefendant and several friends and family members testified on defendant\u2019s behalf. Defendant acknowledged having stayed overnight in Fred Hill\u2019s trailer once in July 1986, but denied having seen either of the girls on that occasion. Defendant usually stayed with his mother or in an apartment in LeClaire, Iowa, and with his uncle in Moline, Illinois, during July and August when the girls were molested. Defendant testified that he worked every day from August 2 until sometime in October 1986 on a driveway for the mother of his friend, Russell Williams. Defendant\u2019s alibi was substantially corroborated by witnesses called by the defense.\nIn rebuttal, the State called Roger Sims, Amy and Sara\u2019s 16-year-old uncle, who testified that he frequently went swimming in the Rock River with friends in July and August 1986 and would stop by Fred Hill\u2019s trailer on the way. Sims testified that he had been introduced to defendant by Hill and had seen him in the trailer that summer on two, three or four occasions. Sims was certain that he had seen Sara in the trailer when defendant was there, but he could not state that Amy was there when he saw defendant in the trailer.\nDefendant was found guilty of three of the four offenses charged and sentenced to concurrent terms of imprisonment, as aforesaid. His post-trial motion was denied, and he appeals from his convictions. The issues on appeal are: (1) whether the trial court erred in allowing testimony of hearsay statements of the minor victims; (2) whether the single-photograph identification procedure used by the investigator was impermissibly suggestive in this case; (3) whether the testimony of Pamela Klein was improperly admitted; and (4) whether the jury\u2019s verdicts were contrary to the manifest weight of the evidence.\nDefendant first argues that the corroborative complaint testimony of Sharon Sims and Heidi Owen was improperly admitted because the minors\u2019 complaints were not made promptly and were elicited by suggestive questioning by the witnesses, and the witnesses\u2019 testimony focused on the identification of the perpetrator rather than on the fact that a complaint was made. Currently section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (Code) provides in pertinent part:\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(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.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10, as amended by Pub. Act 85 \u2014 837, eff. Jan. 1, 1988.)\nIn its current form, the statute permits hearsay testimony concerning the details of sexual acts reportedly perpetrated upon the minor victims beyond the mere fact that a complaint was made. Compare Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10, as amended by Pub. Act 83\u2014 1067, \u00a73, eff. July 1,1984.\nDefendant\u2019s contention that the minor victims\u2019 delay in reporting the sexual acts renders their hearsay statements irrelevant and thus inadmissible has been consistently discounted by the Illinois Appellate Court interpreting section 115 \u2014 10. (See People v. Bailey (1988), 177 Ill. App. 3d 679, 683, 532 N.E.2d 587, 590 (and cases cited therein).) The court\u2019s reasoning is that \u201c[i]n the absence of a statutory requirement [that] there be no unexplained delay, *** it was the intent of the legislature that any evidence of delay in making the complaint will affect the weight, rather than the admissibility, of the evidence.\u201d (Bailey, 177 Ill. App. 3d at 683, 532 N.E.2d at 590.) This reasoning applies with equal force to defendant\u2019s argument that Sara\u2019s statements to Sharon Sims and Corporal Owens were in part elicited by questioning. Accordingly, we find no reversible error in the trial court\u2019s admission of the hearsay testimony of Sims and Owens concerning the circumstances of the sexual acts reported by Sara.\nFurther, hearsay testimony of Corporal Owens relative to Sara\u2019s identification of defendant was clearly admissible under section 115 \u2014 12 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 12). Sara testified at trial, was available for cross-examination concerning her prior identification and made a positive in-court identification, thereby assuring the reliability of Owens\u2019 hearsay testimony. (See People v. Page (1987), 163 Ill. App. 3d 959, 974, 516 N.E.2d 1371, 1382, citing People v. Hudson (1985), 137 Ill. App. 3d 606, 484 N.E.2d 1246 (\u201cBoth the officer and the declarant must be present in court subject to cross-examination to assure the reliability of the [hearsay] statement\u201d).) Moreover, with respect to Sharon Sims\u2019 hearsay testimony of Sara\u2019s identification of defendant, admission of her statement was merely cumulative, and, under the circumstances, if error, it was harmless beyond a reasonable doubt.\nNor do we find error in the trial court\u2019s denial of defendant\u2019s motion to suppress the minor victims\u2019 out-of-court identifications. As a rule, the use of a single-photograph display is unduly suggestive and gives rise to a substantial likelihood of irreparable misidentification if the totality of the circumstances surrounding the identification renders it unreliable. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) Defendant in this case was described by specific, unique characteristics \u2014 his name and crossed eyes. He was further described as a friend of Hill\u2019s. These characteristics \u2014 together with the children\u2019s certainty upon viewing the photograph of defendant and Hill, and the circumstances surrounding the offenses that rendered the likelihood of misidentification remote (see People v. Pruden (1982), 110 Ill. App. 3d 250, 442 N.E.2d 284, 289 (and cases cited therein)) \u2014 support the court\u2019s decision to admit evidence of the out-of-court, single-photograph identifications in this case.\nNext, defendant argues that the admission of Pamela Klein\u2019s testimony as an expert was improper because she was not qualified as a behavioral psychologist, psychiatrist or physician pursuant to section 115 \u2014 7.2 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 7.2). Prior to January 1, 1989, section 115 \u2014 7.2 provided:\n\u201cIn a prosecution for an illegal sexual act perpetrated upon a victim, including but not limited to prosecutions for violations of Sections 12 \u2014 13 through 12 \u2014 16 of the Criminal Code of 1961, expert testimony by a behavioral psychologist, psychiatrist or physician relating to any recognized and accepted form of post-traumatic stress syndrome shall be admissible as evidence.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 7.2.)\nThis legislation was added by Public Act 85 \u2014 837, which became effective on January 1, 1988. We note that Public Act 85 \u2014 837 contains other substantive changes to section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10) and to section 12 \u2014 13 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 13), which provide some insight into the legislative intent of section 115 \u2014 7.2. In section 115 \u2014 10, as indicated earlier in this opinion, the legislation significantly expanded the scope of admissible hearsay testimony of a child victim\u2019s out-of-court statements concerning sexual offenses. In section 12 \u2014 13, the legislation provides for Class X sentencing in subsequent convictions of criminal sexual assault.\nThe gist of the amendments to sections 115 \u2014 10 and 12 \u2014 13 is to liberalize the hearsay rule in prosecutions for sexual offenses against children and to permit more severe sentences for repeat offenders. Likewise, it is apparent that section 115 \u2014 7.2 was enacted for the purpose of admitting in prosecutions for sexual offenses expert testimony that might otherwise be excluded on grounds of relevancy. Given the tenor of the legislation, it is our opinion that the legislature\u2019s list of professionals who may testify to post-traumatic stress syndrome was not intended to be an exclusive, but rather a generic, list of professionals who are qualified to give expert testimony as to a victim\u2019s psychological and physiological reactions to a sex offense. The decision whether to admit such testimony through witnesses not specifically enumerated by the statute remains within the sound discretion of the trial court. (We note that the provision was subsequently clarified by deleting the list of professionals and replacing it with \u201can expert qualified by the court.\u201d See Pub. Act 85 \u2014 1279, amending section 115\u2014 7.2, eff. Jan. 1, 1989.)\nIn this case, the State introduced Klein\u2019s testimony to explain the minor victims\u2019 delayed and fragmented reports of the offenses. Although Klein\u2019s professional title is \u201cpsychotherapist\u201d and she does not claim a doctorate degree, the record on appeal establishes that her expert qualifications in the area of child sexual abuse are legion. Her testimony was undeniably relevant on the issue of whether the children were victims of one or both of the men charged with the offenses. Under the circumstances, we find no abuse of the court\u2019s discretion in admitting Klein\u2019s expert testimony relating to post-traumatic stress syndrome.\nLastly, we address defendant\u2019s contentions that the jury\u2019s verdicts are contrary to the manifest weight of the evidence. Defendant first argues that the convictions must be reversed because the State failed to prove any specific date of the offenses. This contention is meritless. The exact date of the offenses was neither an element of the crimes charged, nor a factor in determining whether the prosecution was time barred. And, given defendant\u2019s alibi defense that he was never at Hill\u2019s trailer when the victims were there, defendant was not prejudiced by lack of proof of the precise date of the offenses. See People v. Long (1977), 55 Ill. App. 3d 764, 370 N.E.2d 1315.\nDefendant also contends that the State failed to prove penetration or that any offense at all had occurred. We agree that there was insufficient proof of penetration. The hearsay evidence indicated that Sara complained to Sharon Sims that defendant had \u201cpoked\u201d her. At trial, Sara testified only that he had \u201ctouched\u201d her in her \u201cnaughty place.\u201d Without more, neither statement would support a conviction based on penetration. (See Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 12(f)) (defining \u201cpenetration,\u201d inter alia, as an \u201cintrusion, however slight, of any part of the body of one person *** into the sex organ *** of another person.\u201d (Emphasis added)).) Although Dr. Ozaki\u2019s testimony established that the vaginas of both girls may have been penetrated, there was no evidence that defendant had done so. The jury was left to speculate whether Fred Hill or defendant or both had penetrated the girls. Under the circumstances, we reverse defendant\u2019s conviction for the offense of aggravated criminal sexual assault and vacate his sentence of eight years for that offense.\nThe record on appeal supports the jury\u2019s verdict finding defendant guilty of the aggravated criminal sexual abuse of both victims. Clearly, the jury was not required to and in fact did not believe defendant\u2019s alibi defense. Accordingly, we remand this cause for reinstatement of defendant\u2019s conviction for aggravated criminal abuse of Sara (count IV) and for sentencing thereon. See People v. Pecina (1985), 132 Ill. App. 3d 962, 477 N.E.2d 820 (wherein this court reversed defendant\u2019s conviction of felony murder and remanded cause for reinstatement of jury verdicts on intentional murder charges which had been vacated by trial court solely for the purpose of avoiding multiple convictions for single murder).\nThe judgment of the circuit court is affirmed in part, reversed in part and remanded with directions.\nAffirmed in part; reversed in part and remanded.\nSTOUDER, J., concurs.", "type": "majority", "author": "JUSTICE BARRY" }, { "text": "JUSTICE HEIPLE,\nconcurring in part and dissenting in part:\nThe defendant, Wayne Thomas Kelly, was charged with two counts of aggravated criminal sexual assault against five-year-old Amy Sims and her seven-year-old cousin, Sara Sims. Following a jury trial, the defendant was convicted of one count of aggravated criminal sexual assault against Sara and was convicted of aggravated criminal sexual abuse against both girls. I agree with the majority that the jury\u2019s verdict finding the defendant guilty of aggravated sexual abuse of both victims should be upheld. I do not agree, however, with that portion of the majority opinion which found that there was insufficient proof of penetration to support a conviction for the offense of aggravated criminal sexual assault.\nSexual penetration is statutorily defined as \u201cany intrusion, however slight *** of any *** object into the sex organ or anus of another.\u201d (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 12(f).) The question of whether penetration has occurred is one for the jury to determine after examining the evidence presented at trial. (People v. Morgan (1986), 149 Ill. App. 3d 733.) A reviewing court should not set aside a guilty verdict unless the evidence is so palpably contrary to the finding or so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt about the accused\u2019s guilt. People v. Yates (1983), 98 Ill. 2d 502.\nIn the instant case, Sharon Sims, Sara\u2019s aunt, testified that when she was giving Sara a bath she noticed that Sara\u2019s vaginal area was very red and raw. Sharon further testified that when she asked Sara how the defendant had hurt her, Sara responded \u201che had poked her with his finger too.\u201d Sara, with the aid of anatomically correct dolls, testified at trial that the defendant had touched her \u201cnaughty place\u201d while she was lying down with her panties off and that it felt \u201cbad.\u201d Dr. Ozaki then testified that the evidence supported a finding that Sara\u2019s vagina had been penetrated.\nThis testimony reveals that the jury verdict cannot be considered unreasonable or improbable. The jury could have concluded that if the defendant had \u201cpoked\u201d Sara\u2019s vaginal area with his finger until it hurt that this would constitute penetration under the statute.\nNevertheless, the majority maintains that the testimony of Sharon was improper to the extent that it added the element of penetration which was not specifically testified to by Sara. Merely because Sara did not recite the magic words that defendant placed his fingers \u201cinto\u201d her vagina, however, is no reason to discount Sharon\u2019s testimony. Section 115 \u2014 10 (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10) provides in relevant part:\n\u201c(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 \u2014 13 through 12 \u2014 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule: * * *\n(2) testimony of an out of court statement made by such child describing any complaint of such act or matter of 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.\u201d (Emphasis added.)\nThe statute simply does not state that the child must first specifically testify in court to the element of penetration before Sharon can be allowed to testify to Sara\u2019s out-of-court statement which referred to the defendant \u201cpoking\u201d Sara\u2019s vagina. Sara\u2019s statement to Sharon described a detail of the defendant\u2019s sexual misconduct which related to the element of penetration. Thus, Sharon\u2019s testimony was proper under the statute. Consequently, I would uphold the jury verdict in its entirety and affirm the defendant\u2019s conviction for the offense of aggravated criminal sexual assault.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE HEIPLE," } ], "attorneys": [ "Braud/Warner, Ltd., of Rock Island (Duane Thompson, of counsel), for appellant.", "Larry VanDerSnick, State\u2019s Attorney, of Cambridge (Gary F. Gnidovec, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY KELLY, a/k/a Wayne Kelly, Defendant-Appellant.\nThird District\nNo. 3-88-0371\nOpinion filed June 26, 1989.\nHEIPLE, J., concurring in part and dissenting in part.\nBraud/Warner, Ltd., of Rock Island (Duane Thompson, of counsel), for appellant.\nLarry VanDerSnick, State\u2019s Attorney, of Cambridge (Gary F. Gnidovec, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0043-01", "first_page_order": 69, "last_page_order": 80 }