{
  "id": 2549109,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARTHOLD ZWART, Defendant-Appellant",
  "name_abbreviation": "People v. Zwart",
  "decision_date": "1990-12-27",
  "docket_number": "No. 1\u201489\u20142652",
  "first_page": "407",
  "last_page": "412",
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      "cite": "208 Ill. App. 3d 407"
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    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
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      "reporter": "Ill. App. 3d",
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  "last_updated": "2023-07-14T21:36:42.825942+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARTHOLD ZWART, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nDefendant, Barthold Zwart, was charged by information with four counts of aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 14.) After a bench trial, he was found guilty of two counts of aggravated criminal sexual assault and sentenced to two concurrent terms of seven years in the Illinois Department of Corrections.\nOn appeal, defendant contends that the trial court erroneously admitted hearsay testimony pursuant to the common law \u201cspontaneous declaration\u201d exception. Specifically, defendant objects to the admission of statements made by the victim to her mother, Maria, on July 1 and 14, 1988. Defendant also alleges that these admissions violated his' right to confront witnesses against him guaranteed by the sixth amendment to the United States Constitution and section 8 of the Illinois Constitution. We hold that the testimony was erroneously admitted pursuant to the \u201cspontaneous utterance\u201d exception. However, we do not reach the question of whether the trial court violated defendant\u2019s constitutional right to confront the witness.\nWe reverse and remand.\nBackground\nThe pertinent facts are as follows.\nDefendant is a 60-year-old man who resided in Chicago Heights, Illinois. Defendant met Maria in 1987. He testified that he and Maria first had sexual intercourse in the summer of 1987. Since that time, the couple has engaged in sexual intercourse on a regular basis. Maria is the mother of three children \u2014 two girls, ages 4 and 3, and a boy, age 10.\nIn March or April of 1988, defendant began \u201cbaby-sitting\u201d for Maria\u2019s children. Defendant baby-sat Maria\u2019s children approximately eight times during the month of June 1988. On six of these occasions, defendant was alone with the two girls.\nOn the evening of June 24, 1988, defendant made sexual advances toward Maria. Subsequently, the couple argued and defendant left in an angry mood. After defendant left Maria\u2019s home, her older daughter, while lying on the floor, opened her legs and asked Maria to kiss her genitals. Maria was surprised by her daughter\u2019s behavior. The next morning, June 25, defendant returned to Maria\u2019s house and baby-sat for the children. Maria testified that when she returned from work she noticed that her younger daughter was pulling at her diaper and complaining of pain. Maria took both of her daughters to Suburban Heights Medical Center to be examined. When Maria told defendant she was leaving to take her younger daughter to the hospital, defendant said, \u201cOh my gosh you don\u2019t think I hurt her, do you?\u201d After Maria returned home, defendant appeared pale and anxious. Defendant asked Maria what the doctor had said about her younger daughter. Maria told defendant that the physician \u201csuspected child molestation.\u201d Defendant then told Maria, \u201cI would never hurt your kids.\u201d On June 27, the police and an agent of the Department of Children and Family Services (DCFS) visited Maria\u2019s home to investigate the report of alleged child abuse.\nOn June 28, 1988, Maria took both of her daughters to Mount Sinai Hospital. Maria stayed in the hospital with them for five days. On June 30, Dr. Marisa Aguila examined Maria\u2019s older daughter. Dr. Aguila diagnosed the child with hymenal trauma. Dr. Aguila testified that her medical diagnosis was consistent with sexual abuse. However, during the examination, the child did not accuse anyone of having sexually abused her. In addition, during a subsequent child development interview, she denied that she had been physically or sexually abused.\nPrior to the trial, the judge conducted a hearing pursuant to section 115 \u2014 14 of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 14). The statute mandates that a witness be capable of expressing himself or herself in an understandable manner, or capable of understanding the duty of a witness to tell the truth. The judge found the complainant incompetent to testify.\nAt trial, the People were allowed to introduce the complainant\u2019s statements into evidence through testimony by Maria. Four of the statements challenged by defendant were made by Maria\u2019s older daughter on the evening of July 1, 1988, at 8 p.m.; at that time Maria was preparing her for bed. When Maria pulled her daughter\u2019s underpants, the child said, \u201cDon\u2019t do that.\u201d When Maria asked why, she answered, \u201cBecause Bart does that.\u201d Maria then asked her daughter, \u201cWhat else [does] Bart [do?]\u201d The child replied, \u201cHe put his lollipop in my cola.\u201d Maria explained to the court that \u201clollipop\u201d and \u201ccola\u201d are Spanish colloquialisms for the terms penis and vagina, respectively. Another statement in issue was made approximately one hour later when Maria was told by her older daughter that \u201cBart\u201d put his tongue in her privates and hurt her, and that Bart \u201cput the lollipop in her mouth.\u201d\nIn addition, defendant contends that several statements made on July 14, 1988, were erroneously admitted by the trial court. On that date, Maria took her older daughter to see Cheryl Wolf, a therapist. Prior to the visit with Ms. Wolf, Maria took her daughter to the bathroom. While in the bathroom, the child told her that Bart once \u201cput her head in a toilet and flushed it.\u201d The child also alleged that defendant told her not to tell her mother about the incident. She also informed Maria that when defendant put his lollipop in her cola, he said, \u201cI\u2019m coming, I\u2019m coming.\u201d Finally, she told her mother that defendant made her \u201call wet\u201d and \u201cgo potty.\u201d\nDefendant admitted that he baby-sat for the two girls on June 25. However, he testified that both girls \u201cwere fine.\u201d Defendant maintains that he never assaulted any of Maria\u2019s children, and that he did not stick her older daughter\u2019s head in a toilet bowl.\nOpinion\nThe record shows that the trial court admitted the older child\u2019s statements made on July 1, 1988, and her declarations made on July 14, 1988, referring to intercourse with defendant, pursuant to the \u201cspontaneous utterance\u201d exception. The trial judge stated that he \u201cdecided only to allow those statements which [he] believe[d] were spontaneous in nature\u201d and \u201cfirmly rooted in the hearsay exception to the rule.\u201d The People maintain that the statements were admissible pursuant to section 115 \u2014 10 of the Code of Criminal Procedure (hereinafter the Code). (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10.) Defendant contends that the child\u2019s statements are inadmissible pursuant to the Code because she was not an \u201cunavailable\u201d witness within the meaning of the statute.\nSection 115 \u2014 10 provides as follows:\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(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and\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.\n(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.\n(d) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.\u201d (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10.\nWe find that complainant is an unavailable witness within the meaning of the statute. This court has already held that \u201cthe legislature\u2019s intent was to include within the meaning of \u2018unavailable\u2019 witnesses those children who are unable to testify because of fear, inability to communicate in the courtroom setting, or incompetence.\u201d (Emphasis added.) (People v. Rocha (1989), 191 Ill. App. 3d 529, 539.) The witness in the case at bar was \u201cunavailable\u201d because she was adjudicated incompetent to testify.\nHowever, we hold that the statements made by the child on July 1, 1988, and July 14, 1988, are inadmissible pursuant to section 115\u2014 10 of the Code. We also find that the trial court erred when it admitted the child\u2019s statement about defendant\u2019s attempt to flush her head down the toilet bowl. The trial court admitted this testimony pursuant to section 115 \u2014 10 of the Code.\nWe 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. There were insufficient safeguards of reliability with respect to the timing of the declarations because during the physical examination and the subsequent interview the victim failed to identify anyone as having sexually abused her. Furthermore, there was a time lapse between when the acts occurred and the first time that she allegedly told her mother of the acts. There were insufficient safeguards of reliability with respect to the circumstances surrounding the allegations because Maria had had a sexual relationship with defendant, and the allegations were made after the couple quarreled.\nThe trial judge conducted a hearing to determine the time, content, and circumstances of the statement pursuant to the Code. However, we find that the time and circumstances of the statement provide insufficient safeguards of reliability because of the time lapse between when the acts occurred and the first time the victim told her mother about the acts. The child failed to allege sexual abuse during the physical examination on June 30 or during the interview which followed. Therefore, the statements are inadmissible pursuant to section 115 \u2014 10 of the Code.\nDefendant next contends that the trial court violated his constitutional right to confront a witness against him at trial by admitting the child\u2019s declarations. It is not necessary for us to address this issue as we have reversed defendant\u2019s conviction on the aforementioned grounds.\nFor the foregoing reasons, we reverse defendant\u2019s conviction and remand this cause for a new trial.\nReversed and remanded.\nMcMORROW, P.J., and JIGANTI, J., concur.",
        "type": "majority",
        "author": "JUSTICE JOHNSON"
      }
    ],
    "attorneys": [
      "Theodore A. Gottfried, of State Appellate Defender\u2019s Office, of Chicago, for appellant.",
      "Cecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and William P. Pistorius, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARTHOLD ZWART, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201489\u20142652\nOpinion filed December 27, 1990.\nTheodore A. Gottfried, of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and William P. Pistorius, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0407-01",
  "first_page_order": 429,
  "last_page_order": 434
}