{ "id": 5253623, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES ROBERT EDWARDS, Defendant-Appellant", "name_abbreviation": "People v. Edwards", "decision_date": "1992-02-04", "docket_number": "No. 2\u201490\u20140023", "first_page": "1017", "last_page": "1033", "citations": [ { "type": "official", "cite": "224 Ill. App. 3d 1017" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "96 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3115686 ], "weight": 3, "pin_cites": [ { "page": "332" }, { "page": "333" }, { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0327-01" ] }, { "cite": "114 Ill. 2d 61", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542613 ], "weight": 2, "pin_cites": [ { "page": "66" }, { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0061-01" ] }, { "cite": "84 Ill. 2d 400", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045432 ], "year": 1986, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0400-01" ] }, { "cite": "137 Ill. 2d 500", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251520 ], "weight": 2, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0500-01" ] }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "weight": 16, "pin_cites": [ { "page": "815" }, { "page": "3146" }, { "page": "815" }, { "page": "3147" }, { "page": "819" }, { "page": "3149" }, { "page": "821-22" }, { "page": "3150" }, { "page": "826" }, { "page": "3152" }, { "page": "826" }, { "page": "3152" } ], "opinion_index": 0, "case_paths": [ "/us/497/0805-01" ] }, { "cite": "188 Ill. App. 3d 95", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2692311 ], "weight": 2, "pin_cites": [ { "page": "103" }, { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0095-01" ] }, { "cite": "203 Ill. App. 3d 401", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2580044 ], "weight": 4, "pin_cites": [ { "page": "417" }, { "page": "418" }, { "page": "418" }, { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/203/0401-01" ] }, { "cite": "210 Ill. App. 3d 1001", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2535222 ], "year": 1990, "pin_cites": [ { "page": "1010" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/1001-01" ] }, { "cite": "216 Ill. App. 3d 609", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5290053 ], "weight": 2, "pin_cites": [ { "page": "619" }, { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0609-01" ] }, { "cite": "139 Ill. App. 3d 947", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3569432 ], "weight": 2, "pin_cites": [ { "page": "951" }, { "page": "951" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0947-01" ] }, { "cite": "143 Ill. App. 3d 636", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5667128 ], "year": 1986, "pin_cites": [ { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0636-01" ] }, { "cite": "187 Ill. App. 3d 257", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2664179 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "260" }, { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0257-01" ] }, { "cite": "148 Ill. App. 3d 775", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3642908 ], "weight": 2, "pin_cites": [ { "page": "778" }, { "page": "778" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0775-01" ] }, { "cite": "36 Ill. 2d 620", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5377129 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "622" }, { "page": "621-22" }, { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0620-01" ] } ], "analysis": { "cardinality": 1334, "char_count": 37057, "ocr_confidence": 0.785, "pagerank": { "raw": 2.015152680315145e-07, "percentile": 0.7446997875165695 }, "sha256": "90110c24ef5ebdbca031833f8c606b724b425d7e85150fef25d4c9d41611ef61", "simhash": "1:e67b4f2d7a0a966f", "word_count": 6314 }, "last_updated": "2023-07-14T21:10:25.672470+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. JAMES ROBERT EDWARDS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nDefendant, James Robert Edwards, appeals from his conviction of aggravated criminal sexual assault. Following a bench trial in the circuit court of Kane County, defendant was sentenced to 15 years\u2019 imprisonment. The issues presented for review are whether: (1) the court abused its discretion when it found the five-year-old victim competent to testify about events that occurred at age three; (2) the court erred in barring expert testimony offered by defendant; (3) the admission of certain out-of-court statements violated the ex post facto clause; (4) the court erred in admitting hearsay; and (5) the court relied on an improper factor when sentencing defendant. We affirm in part, vacate in part, and remand.\nDefendant was charged with aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12\u201414(b)(1).) The indictment alleged that between September 1987 and January 1988 defendant committed an act of sexual anal penetration with his son, RBL, who was under 13 years of age when the act was committed.\nRBL was bom to defendant and his wife, JL, on August 20, 1984. Defendant and JL were divorced in January 1986; JL married again in February 1986. After the divorce, RBL lived with JL. Under the terms of the divorce decree, defendant had rights to visitation with RBL.\nOn direct, JL testified that RBL developed unusual behaviors around the end of 1986 and early 1987. According to JL, RBL masturbated excessively, was obsessed with being naked, and would smash his penis up against the faces of people on television. RBL would also wake up in the middle of the night vomiting or having nightmares. He complained of stomachaches and had problems with bowel movements. He would refuse to eat for days at a time and then eat until he vomited. JL further testified that RBL acted in a sexual manner with other children. She caught him fondling them several times. Sometimes he put tape on his penis and rectum. RBL would also push JL\u2019s head down towards his penis and say, \u201cgo ahead and taste it Mommy, it\u2019s okay.\u201d\nJL asserted that, during the period between September 1987 and January 1988, RBL was reluctant to go with defendant when he came to exercise his visitation rights. JL testified that on these occasions RBL would lock himself in his room, or hide between JL\u2019s legs, or curl up in a fetal position and say that \u201cDaddy Jim\u201d was mean to him. During this period of time, RBL referred to defendant as \u201cDaddy Jim.\u201d Upon his return from visitation with defendant, RBL would be lethargic, or he would bang his head, kick, spit, cry, punch, pull his hair or call JL a bitch or a whore. Defendant denied that JL ever spoke to him about RBL\u2019s problems, and defendant denied that RBL was ever reluctant to accompany defendant on visitation days.\nIn January 1988, JL took RBL to see his pediatrician, Dr. Khoka. By this time it was apparent that RBL was suffering from a case of venereal warts on his rectum, a condition commonly caused by sexual contact. On Dr. Khoka\u2019s advice, JL had RBL examined for learning disabilities. Based on the results of this evaluation, JL spoke with a social worker who determined that RBL showed signs of having been physically abused.\nOn or around February 2, 1988, a Department of Children and Family Services (DCFS) worker, Mary Ellen Schaid, and Sergeant Wayne Fieroh of the Illinois State Police went to JL\u2019s home and spoke with RBL. JL was not present during this interview. During the interview, RBL indicated that he and defendant had \u201cbad secrets.\u201d RBL refused to explain himself further.\nOn February 4, 1988, RBL was admitted to the child development program at Mercy Center in Aurora. During his stay, RBL was under the care of Marjorie Foreman, a psychiatrist. In treating RBL, Dr. Foreman relied upon the history provided by JL. JL explained that she had been concerned about RBL\u2019s welfare for about a year prior to his admission and that she consulted a lawyer during that year to see about discontinuing defendant\u2019s visitation rights.\nAt the outset of RBL\u2019s hospitalization, Foreman informed JL that the staff was not there to get information about the abuse and that it would be inappropriate to ask RBL specific questions about the abuse. Sometime during RBL\u2019s stay, Dr. Foreman had to ask JL to focus on therapeutic issues rather than on her attempts to prove what happened between RBL and defendant.\nAn examination performed by a medical doctor at Mercy revealed that RBL suffered from venereal warts and abnormally loose sphincter tone. RBL also had a scar resulting from a tear in the skin surrounding his rectum.\nJL testified that after RBL was released from Mercy Center on March 21, 1988, he began seeing Tina Grossman, a therapist who specialized in treating and evaluating child sexual abuse. RBL\u2019s first session with Grossman was on March 27, 1988. After that, he saw her regularly for one-hour sessions, two times a week. Six months preceding the trial, Grossman changed the sessions to two-hour sessions, one time a week.\nRBL testified at trial that he had seen Grossman hundreds of times. During his therapy, RBL stabbed a \u201cDaddy Jim\u201d doll with a play knife. RBL also stepped on the \u201cDaddy Jim\u201d doll and picked it up and threw it down with Grossman\u2019s help. RBL testified that he talked about what \u201cDaddy Jim\u201d did to him each time he went to Grossman\u2019s. RBL also had the opportunity to mark the \u201cDaddy Jim\u201d doll with imitation blood. In addition, it is apparent that RBL recreated the abusive acts using a \u201c[RBL] doll\u201d and a \u201cDaddy Jim doll.\u201d\nSergeant Fieroh conducted further interviews with RBL on March 31, 1988. JL briefed Fieroh on RBL\u2019s behaviors up to that point in time. Fieroh\u2019s questions focused on these behaviors and on RBL\u2019s relationship with defendant.\nIn November 1988, RBL wrapped an electrical cord around his neck and jumped off his dresser. He said he just wanted to die. In February 1989, RBL was standing naked in the living room with his belt wrapped around his neck. His face was blue, and his tongue was hanging out. He said he had to die because he had told bad secrets. Thereafter, RBL was hospitalized for six weeks at Lutheran General Hospital and was released sometime in March 1989.\nDefendant testified that he never talked to RBL about bad secrets, that he never threatened to hurt JL if RBL told bad secrets, that he never physically or sexually abused RBL, and that he (defendant) was never physically or sexually abused. Defendant was found guilty after a bench trial. He was given a 15-year sentence for having committed a Class X felony, for which a sentence of not less than six years or more than 30 years must be imposed. Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1(a)(3).\nDefendant first contends that the trial court abused its discretion when it allowed five-year-old RBL to testify about events that occurred when he was three. Defendant argues that the court incorrectly looked to RBL\u2019s present ability to testify rather than his ability to perceive and testify at the date the events occurred.\nThe competency of a witness is a determination that lies within the discretion of the trial court and will be reversed only when there has been an abuse of that discretion or where there has been a manifest misapprehension of some legal principle. (People v. Ballinger (1967), 36 Ill. 2d 620, 622; In re A.M.C. (1986), 148 Ill. App. 3d 775, 778.) The well-established rule is that the degree of intelligence of a child is the factor which determines competency, not chronological age. (Ballinger, 36 Ill. 2d at 621-22; A.M.C., 148 Ill. App. 3d at 778; People v. Barfield (1989), 187 Ill. App. 3d 257, 260; People v. Epps (1986), 143 Ill. App. 3d 636, 639; People v. McNichols (1986), 139 Ill. App. 3d 947, 951.) In order to determine a child\u2019s competence, a court should consider whether the child is sufficiently mature to (1) receive correct impressions from his senses; (2) recollect these impressions; (3) understand questions and narrate answers intelligently; and (4) appreciate the moral duty to tell the truth. Ballinger, 36 Ill. 2d at 622; McNichols, 139 Ill. App. 3d at 951.\nWhen RBL testified at trial, he was five years old. In determining RBL\u2019s competence, the trial judge looked at RBL\u2019s present ability to answer questions and to understand the nature of those questions. He also looked at RBL\u2019s past ability to receive impressions and his ability to recollect those impressions. In addition, the court noted that RBL knew his family members, was able to count to 24, could recite his ABC\u2019s, knew his colors, named his school, identified the judge and his function, and was aware of the difference between the truth and a lie.\nDefendant argues that, regardless of RBL\u2019s present ability to testify, the court below should have required a showing that RBL could accurately perceive events at age three. For example, defendant states that RBL testified incorrectly with regard to the location and layout of defendant\u2019s house, the identity and relationship of defendant\u2019s brothers and sisters, and that RBL testified he was raped 11 times when he could not count that high at the time.\nWe determine that these errors of fact or memory are unrelated to RBL\u2019s consistent testimony that he was sexually abused at least once. \u201cIt is not necessary for the child to give perfect answers to questions during the competency determination or at trial for the child to be deemed a competent witness.\u201d (Barfield, 187 Ill. App. 3d at 261.) The witness\u2019 ability to remember is to be tested on cross-examination. The test of competency is measured by intelligence, not memory. Therefore, the trial court did not abuse its discretion in finding RBL competent to testify.\nDefendant next contends that the court erred in excluding portions of expert testimony which would have shown that defendant\u2019s makeup was such that he was unlikely to have committed the acts of abuse.\nAt trial defendant called a clinical psychologist as an expert witness in order to testify that defendant did not exhibit the same traits as those typically exhibited by persons who sexually abuse children. The expert testified that there was nothing in her analysis which suggested that defendant was a pedophile. The expert then began to explain conditions under which someone who is not a pedophile might abuse a child and how she found no evidence of circumstances that would suggest abuse by defendant. Upon objection by the State, the court disallowed further testimony on this matter because it spoke to the ultimate issue of the case.\nDefendant argues that he should be able to submit evidence of his personality if the victim is allowed to submit evidence of post-traumatic stress syndrome (Ill. Rev. Stat. 1989, ch. 38, par. 115\u20147.2). We do not agree. Section 115 \u2014 7.2 simply gives the victim a method of showing that abuse has occurred. Such evidence does not necessarily indicate that defendant caused that abuse. In contrast, defendant\u2019s expert in the present case proposed to testify that defendant did not commit the abuse. Thus, defendant\u2019s evidence speaks directly to the issue.\n\u201cWhile a defendant may introduce evidence to establish that his character traits are inconsistent with committing the crime with which he is charged, this must be shown only by evidence of general reputation and not by the personal opinion of the witness.\u201d (People v. Wheeler (1991), 216 Ill. App. 3d 609, 619.) In Wheeler the trial court prevented defendant from presenting the testimony of two psychologists that he did not possess traits consistent with those of a pedophile. (Wheeler, 216 Ill. App. 3d at 619.) The trial judge here was more liberal than the Wheeler court because defendant was able to introduce evidence that he did not possess traits consistent with a pedophile. Instead, defendant here was simply prohibited from introducing testimony that there was no evidence of other circumstances that would suggest he committed child abuse. In light of Wheeler, it is apparent that the exclusion below did not amount to an abuse of discretion.\nDefendant next contends that the admission of out-of-court statements by RBL pursuant to section 115 \u2014 10 violates the ex post facto clause where the offense charged preceded the effective date of the amendment. We disagree.\nSection 115 \u2014 10 provides a hearsay exception which allows a child to testify that an out-of-court statement was made in which he or she complained that an act of abuse took place. (Ill. Rev. Stat. 1989, ch. 38, par. 115\u201410.) In addition, section 115 \u2014 10 provides that the child may testify as to the contents of that complaint. (Ill. Rev. Stat. 1989, ch. 38, par. 115\u201410(a)(2).) Under prior statutes, a child was permitted to testify that he/she complained of an abusive act to another, but no hearsay exception was provided as to the contents of that complaint. Ill. Rev. Stat. 1987, ch. 38, par. 115\u201410(a)(1).\nSection 115 \u2014 10 concerns trial procedures rather than substantive matters, and, therefore, the more recent version of the statute applies. People v. Nicholl (1991), 210 Ill. App. 3d 1001, 1010; People v. Priola (1990), 203 Ill. App. 3d 401, 417.\nWe agree with defendant\u2019s assertion that a law is ex post facto if it makes criminal an act that was not criminal at the time the act was committed, or if it increases the punishment for an offense previously committed, or if it alters the rule of evidence to make a conviction easier. (Priola, 203 Ill. App. 3d at 418.) However, the most recent version of section 115 \u2014 10 requires a determination that safeguards exist which bolster the reliability of the statements. Therefore, its provisions do not necessarily make conviction easier. Priola, 203 Ill. App. 3d at 418.\nDefendant next contends that the court erred in admitting hearsay pursuant to section 115 \u2014 10 because the evidence of the time, content, and circumstances of the statements failed to show sufficient safeguards of reliability. Defendant also argues that the content of some of the statements exceeded the scope of what is admissible under section 115 \u2014 10.\nSection 115 \u2014 10 of the Code 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 Ill. Rev. Stat. 1989, ch. 38, par. 115-10.\nWe begin by noting that cases which involve the determination of the reliability of section 115 \u2014 10 statements are fact specific. Therefore, our holding in this matter will be considered sui generis.\nThe first series of statements defendant complains about are those which preceded RBL\u2019s hospitalization at Mercy Center. At trial JL testified that when it was time for RBL to accompany defendant on visitation days between September 1987 and January 1988, RBL would \u201cmake a scene\u201d and say that he did not want to go to \u201cDaddy Jim\u2019s\u201d house and that \u201cDaddy Jim\u201d was \u201cmean\u201d to him. Defendant argues that these statements do not describe \u201cdetail[s] pertaining to any act which is an element of an offense\u201d and, therefore, they do not fall within the purview of the hearsay exception provided by section 115 \u2014 10(aX2). The trial court admitted these statements for the fact that they may have been said and not for the truth of the matter asserted. To this extent, the statements are not hearsay. Therefore, section 115 \u2014 10 would not apply.\nDefendant also argues for the inadmissibility of testimony offered by Sergeant Fieroh. Sergeant Fieroh testified that on February 2, 1988, he and Schaid came to interview RBL in response to a report made by JL. Fieroh testified that Schaid initiated the interview and spoke with RBL about neutral topics with the intention of learning whether RBL understood different concepts. Schaid then gave RBL anatomically correct dolls with which he could play. RBL wanted to disrobe the dolls but hesitated and told Fieroh and Schaid that his mother said that it was not a nice thing to do. Schaid then told RBL that he could disrobe the dolls.\nAccording to Fieroh, when asked about the male doll, RBL simply looked at the penis area and made a bellowing sound. RBL said he did not know what the penis was. Schaid asked if RBL did not know, or if it was a secret. RBL did not answer but looked startled. Schaid then asked if RBL had any secrets, and whether they were good secrets that made him happy or bad secrets that made him sad. RBL said that he had bad secrets. Schaid asked RBL who told him these secrets, and RBL responded, \u201cDaddy Jim.\u201d\nThe trial court ruled that these statements were within the purview of section 115 \u2014 10 because they were a form of identification of the defendant. We agree. The general rule is that statements which identify the defendant in a child abuse case are admissible as hearsay exceptions under section 115 \u2014 10. People v. Morton (1989), 188 Ill. App. 3d 95, 103; Priola, 203 Ill. App. 3d at 418.\nThe second series of statements defendant objects to are those made during RBL\u2019s hospitalization at Mercy Center. At trial, JL testified that on February 4, 1988, she was with RBL in his room at the hospital. RBL asked who could come to see him. JL responded by asking RBL whom he wanted to see. After RBL named several relatives, JL asked him if he wanted to see his \u201cDaddy Jim.\u201d When RBL said \u201cno,\u201d JL asked him why. RBL replied, \u201c \u2018Cause he\u2019s mean to me and everything.\u201d JL pressed RBL to explain what he meant by \u201cand everything.\u201d Eventually RBL turned around and yelled, \u201c \u2018Cause he pokes my hole.\u201d JL asked what hole, and RBL pointed to his buttocks. JL then immediately left the room to get a staff member to come listen to what RBL had to say. A nurse, Mary Beth Hutches, returned with JL. Hutches testified that when she asked RBL to repeat what he had told his mother, RBL climbed into his younger brother\u2019s playpen and began to talk like a baby. After a little while, RBL climbed out of the playpen, got on top of a desk, and lay in a fetal position. After JL asked RBL to tell Hutches what \u201cDaddy Jim\u201d does to him, RBL said, \u201c \u2018Daddy Jim\u2019 pokes my hole.\u201d Hutches asked RBL if there was anything else. RBL shook his head \u201cno.\u201d Hutches testified that RBL had a tightened look on his face and was quivering. At bedtime later that evening, when Hutches and RBL were alone, Hutches asked RBL what \u201cDaddy Jim\u201d does. RBL said \u201che pokes my hole.\u201d Hutches asked him what hole, and RBL pointed to his buttocks. At that point, RBL lay back in his bed and stared off into space.\nDefendant alleges that the statements above do not qualify as section 115 \u2014 10 hearsay exceptions because the surrounding circumstances do not provide adequate assurances of reliability.\nIn determining whether there were sufficient safeguards of reliability pursuant to section 115 \u2014 10(b)(1), the trial judge made the following statements:\n\u201cI think based upon what I\u2019ve heard here in this case, and the condition of diagnosis back in the early part of February that the child has post-traumatic stress disorder, shows that the child was very fragile. And that it sounds naturally after listening to the doctor that he\u2019s not going to just blurt out everything that happened. There\u2019s going to have to be a little bit of questioning, a little bit of prying into ***.\nWe have to use the word prompting, I\u2019ll use the word prompting. There has to be some prompting. Not all prompting is wrong. I think it\u2019s the degree of prompting that might create a situation where a safeguard for reliability might be overcome.\nThe prompting that seemed to have taken place on February 1st or 2nd with Mary Ellen Schaid and Wayne Fieroh did not seem to be excessive. The prompting that took place *** on February 20th when the mother first found out doesn\u2019t seem to be excessive.\nNow, when Mary Beth Hutches, more or less [a] stranger to the family situation, to the family nucleus, was called in and the mother said now tell her, there was quite a bit of prompting there. But at that time the poke in the hole had already been mentioned. And it appears that she simply was \u2014 the mother simply now is trying to get her child to tell this stranger the story.\nAnd it might take \u2014 it\u2019s logical that it would take a little bit more prompting *** because the child now is trying to tell it to a stranger rather than his mother who he felt safe with. But he did tell the story.\nAnd Mary Beth Hutches, I think rightfully so, wanting to check it out herself, later on when the mother was gone, asked on her own, and she also got some admissions about the event.\u201d\nThe United States Supreme Court court has set forth guidelines which should be applied by a court making a reliability determination under a hearsay exception. (Idaho v. Wright (1990), 497 U.S. 805, Ill L. Ed. 2d 638, 110 S. Ct. 3139.) Wright held that absent a firmly rooted hearsay exception, a showing of particularized guarantees of trustworthiness must be made in order to satisfy the confrontation clause. (Wright, 497 U.S. at 815, 111 L. Ed. 2d at 652, 110 S. Ct. at 3146.) Although the present case does not involve a confrontation clause question, we find Wright instructive when making a reliability determination. The central issue in Wright was whether the State carried its burden of proving that a 21/2-year-old victim\u2019s incriminating statements bore sufficient indicia of reliability in order to withstand scrutiny under the confrontation clause. (Wright, 497 U.S. at 815, 111 L. Ed. 2d at 653, 110 S. Ct. at 3147.) According to Wright, the relevant circumstances to be examined when determining reliability are those that surround the making of the statement and that render the declarant particularly worthy of belief. (Wright, 497 U.S. at 819, 111 L. Ed. 2d at 655, 110 S. Ct. at 3149.) The court cited spontaneity of repetition, consistency of repetition, and use of unexpected terminology as some of the factors which may be helpful in determining the reliability of incriminating statements. (Wright, 497 U.S. at 821-22, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150.) The court also stated that it is permissible to examine whether the child had a motive to fabricate when making a reliability determination. (Wright, 497 U.S. at 826, 111 L. Ed. 2d at 659, 110 S. Ct. at 3152.) In reaching its decision, the court in Wright focused on the improper method of interrogation used by a physician who examined the allegedly abused child. Specifically, the facts show that the physician asked the child questions which focused directly upon the defendant\u2019s involvement with the child. The court determined that the physician had preconceived notions that defendant committed the abuse and asked impermissibly suggestive questions. Wright, 497 U.S. at 826, Ill L. Ed. 2d at 659, 110 S. Ct. at 3152.\nWe note that it was the leading nature of the questions that rendered them deserving of being censored. However, the mere fact that the testimony was obtained as a result of questioning does not alone render it inadmissible. (Morton, 188 Ill. App. 3d at 104.) To hold otherwise would leave unprotected those children who do not come forth of their own volition to complain about the abuse.\nIn the present case, we determine that RBL\u2019s statements were made under circumstances which provided particularized guarantees of trustworthiness. Most importantly, RBL\u2019s initial statement that defendant abused him was made in response to a nonleading question. JL carefully worded her questions to RBL when asking him about whom he would like to come to the hospital. JL was neither suggestive nor leading in her questioning format. RBL freely stated that he did not want to see \u201cDaddy Jim\u201d because \u201che pokes my hole.\u201d Subsequent questioning by JL, hospital staff, and other medical personnel simply sought further details about the incident.\nRBL was, indeed, subject to extensive questioning about the abuse. However, such questioning, in and of itself, should not render his testimony unreliable. The essence of RBL\u2019s story was always the same. RBL never equivocated or withdrew his statements. RBL had no motive to fabricate such an accusation, nor was such a description expected of a child of his age.\nIn light of the above, we determine that the trial court properly found RBL\u2019s statements to be reliable and thus admissible. We agree with the trial judge that the prompting used was a legitimate and necessary method to get RBL to talk about a very sensitive subject. We do not feel that the facts here indicate that improperly suggestive or leading questions were asked. In sum, RBL\u2019s freely given initial statements about his \u201cDaddy Jim,\u201d coupled with his unwavering adherence to the essential facts of the story, provide sufficient guarantees of reliability to satisfy section 115 \u2014 10.\nA final series of statements defendant objects to are those made after RBL was discharged from Mercy Center. JL testified that on March 28, RBL asked her if she wanted to play the \u201cpeeper game.\u201d JL said that she told RBL she did not want to play. However, she asked him to show her how it was done. RBL then touched his penis untE it became erect. JL asked what would happen next, and RBL said that \u201cDaddy Jim\u201d would get the \u201csharp stuff.\u201d When JL asked what he meant, RBL said, \u201cthe fork.\u201d At JL\u2019s request, RBL went to the kitchen and came back with a fork. He touched his penis with the fork and said, \u201cThen [\u2018Daddy Jim\u2019] pokes it in my hole.\u201d\nFieroh came to interview RBL on March 31, 1988. JL testified that she told Fieroh about the March 28 statements so he could question RBL about them. Fieroh said that he asked RBL where \u201cDaddy Jim\u201d lived. RBL told Fieroh that he did not like to go there. When Fieroh asked him why, RBL stated that \u201cDaddy Jim\u201d \u201cpoked his hole.\u201d Fieroh asked RBL to explain and RBL pointed to his buttocks and repeated \u201che pokes my hole.\u201d Fieroh asked what \u201cDaddy Jim\u201d used, and RBL said \u201ca fork.\u201d At Fieroh\u2019s request, RBL got a fork from the kitchen and pointed to the prong end when asked which side \u201cDaddy Jim\u201d used.\nFieroh said he asked RBL if there was anything else he did not like about going to \u201cDaddy Jim\u2019s.\u201d RBL said sometimes they played the \u201cpeeper game.\u201d In response to Fieroh\u2019s questions, RBL indicated that by \u201cpeeper\u201d he meant \u201cpenis.\u201d RBL explained that \u201c \u2018Daddy Jim\u2019 poked [RBL\u2019s] hole\u201d with his \u201cpeeper\u201d and that sometimes \u201cwhite sticky stuff\u201d came out. Fieroh asked if there was anything else. RBL said sometimes they played the \u201cdoctor game.\u201d In response to several more questions, RBL said \u201cDaddy Jim\u201d would have him kiss \u201cDaddy Jim\u2019s\u201d penis and that sometimes \u201csticky stuff\u201d would come out. RBL also said that whenever they played the \u201cpeeper game\u201d or the \u201cdoctor game,\u201d \u201cDaddy Jim\u201d would tell him these games were their secrets and RBL should not tell anyone or \u201cDaddy Jim\u201d would pull all of his mommy\u2019s hair out.\nDefendant now argues that the circumstances surrounding these statements preclude a finding of reliab\u00fcity. First, defendant asserts that the increasingly detailed accounts of the abuse tend to undercut their reliab\u00fcity. Second, defendant attacks the accuracy of the statements because they were made several months after any abuse could have occurred. Third, defendant questions whether the statements were voluntary because they were made after weeks of therapy conducted by the Mercy Center staff. It is apparent from the reliability hearing that the trial judge considered all the circumstances surrounding each of the statements made by RBL. With respect to the statements above which were made between March 28 and March 31, the trial judge held that there had been sufficient safeguards of reliability in the areas of time, content and circumstances. We agree. We view the detail which RBL adds over time to be more of a reflection of RBL\u2019s ability to cope with and talk about the trauma, rather than an indication of a false story. In addition, we view the time lapse defendant complains about as insignificant. The facts indicate that the abuse could have occurred only three months earlier. Furthermore, RBL\u2019s therapy does not undercut his reliability in light of the fact that incriminating statements had already been made.\nIf section 115 \u2014 10 is to have any meaningful effect, then it must be permissible to question children about the alleged abuse. We see nothing impermissibly suggestive or leading about the questions asked by Fieroh or JL. It is entirely unrealistic to expect a child to speak about such topics in the course of casual conversation. We recognize the leading nature of the questions that were used in Wright, and we determine that the questions asked here do not rise to the same level of suggestibility. (Wright, 497 U.S. 805, Ill L. Ed. 2d 638, 110 S. Ct. 3139.) Defendant argues that the Mercy Center staff was told that \u201cDaddy Jim\u201d had sexually abused RBL and engaged in repeated playing out of the abuse between a \u201c \u2018Daddy Jim\u2019 doll\u201d and a \u201cRBL doll.\u201d Again, in light of the fact that RBL had already labeled defendant as the abuser, we do not view this therapy as unduly manipulative.\nDefendant next argues that the statements cited above should have been excluded to the extent that they included details which exceed the scope of section 115 \u2014 10. Defendant asserts that the charge upon which the State proceeded to trial was that defendant committed an act of penile/anal penetration. Defendant asserts that he was not charged for having committed an offense which included oral/penile or sexual penetration with a fork. We do not agree.\nSection 115 \u2014 10 allows the court to admit statements describing \u201cdetail 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. 1989, ch. 38, par. 115\u201410(a)(2).) In the present case, defendant was charged for having committed an aggravated criminal sexual assault under section 12 \u2014 14(b)(l). (Ill. Rev. Stat. 1987, ch. 38, par. 12\u201414(b)(1).) This section defines an aggravated criminal sexual assault as one where \u201cthe accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 12\u201414(b)(1).) The fact which the State put forth in order to support its allegation that defendant committed an aggravated sexual assault was that he committed an act of anal/ penile penetration.\nIn People v. Thomas (1990), 137 Ill. 2d 500, an indictment specifically alleged that defendant knew a single victim was present when he set fire to a garage. The court held that this allegation satisfied the statutory requirement that the defendant knew or should have known that \u201cone or more persons\u201d were present in the structure. The court also held that it was not error for the trial court to admit evidence that defendant knew or should have known that other people besides the named victim were present and injured. The court reasoned that the identity of the persons injured was not a material element of the offense. Thus, evidence that the defendant should have known others were present was considered to be surplusage. The court noted that it would have been redundant for the State to allege that the defendant should have known that others were present when that fact was implicit in the language of the statute under which the defendant was charged. Thomas, 137 Ill. 2d at 522.\nApplying this reasoning to the present case, we hold that the evidence admitted at trial that defendant committed oral/penile penetration and sexual penetration with a fork was consistent with the statute under which defendant was charged. Both of these acts are acts of sexual penetration. We determine that defendant had adequate notice that he was being charged for having committed an act of sexual penetration. Following the reasoning in Thomas, evidence adduced at trial that the defendant committed these other forms of penetration was surplusage in light of the facts contained in the information, alleging that defendant committed an act of aggravated sexual assault.\nDefendant\u2019s remaining objections to the hearsay exceptions admitted below are equally unpersuasive. Because the statements were contextually and substantively similar to those already discussed, we see no reason to question their reliability at this time. We are convinced that the trial court carefully considered the reliability of RBL\u2019s various out-of-court statements, and we determine that the admission of this evidence should be affirmed.\nDefendant\u2019s final argument is that the trial court abused its discretion in sentencing defendant because the court improperly relied upon RBL\u2019s age as an aggravating factor. We agree.\nThe general rule is that a factor necessarily implicit in a crime should not be used as an aggravating factor when sentencing for that crime. (People v. Conover (1981), 84 Ill. 2d 400, 404.) To illustrate, in People v. White (1986), 114 Ill. 2d 61, 66, the court held that the victim\u2019s age should not be considered as an aggravating factor in sentencing for a crime where the youth of the victim was an element of the offense of aggravated battery of a child.\nIn the present case, the trial judge asserted that RBL was under 12 years of age and that this fact was a basis to increase defendant\u2019s sentence. We hold that it was error for the trial judge to make such a determination because the age of the victim is an inherent element of the crime of aggravated criminal sexual assault. Ill. Rev. Stat. 1987, ch. 38, par. 12\u201414(b)(1).\nWe must now determine whether remand for sentencing is required. A case must be remanded for resentencing when the reviewing court is unable to determine the weight given to an improperly considered factor. People v. Bourke (1983), 96 Ill. 2d 327, 332.\nIn White, the court considered the emphasis placed on the improper sentencing factor to be insignificant because the trial court placed primary importance on the need to deter. (White, 114 Ill. 2d at 67.) In Bourke, the court examined the length of the sentence imposed when it considered the weight placed upon the improperly considered factor. Bourke, 96 Ill. 2d at 333.\nHere, the trial judge made no indication that it placed primary importance on any single factor. Thus, we are unable to determine the weight given to the improperly considered factor, i.e., the child\u2019s age. Furthermore, the 15-year sentence imposed was substantially above the six-year minimum. Thus, we cannot say that the weight placed on the improperly considered aggravating factor was so insignificant that it did not result in a greater sentence. (Bourke, 96 Ill. 2d at 333.) Accordingly, the sentence must be vacated and the cause remanded for resentencing. This holding should not be construed as a commentary upon what the sentence should be; it simply asserts error due to improper reliance upon an aggravating factor that should not have been considered in the context of sentencing. In all other respects, the judgment is affirmed.\nThe judgment of the circuit court of Kane County is affirmed in part and vacated in part, and the cause is remanded for resentencing.\nAffirmed in part; vacated in part and remanded.\nGEIGER and DUNN, JJ., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "Robinson & Skelnik, of Elgin (Mary Robinson, of counsel), for appellant.", "Gary V. Johnson, State\u2019s Attorney, of Geneva (William L. Browers, 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. JAMES ROBERT EDWARDS, Defendant-Appellant.\nSecond District\nNo. 2\u201490\u20140023\nOpinion filed February 4, 1992.\nRobinson & Skelnik, of Elgin (Mary Robinson, of counsel), for appellant.\nGary V. Johnson, State\u2019s Attorney, of Geneva (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1017-01", "first_page_order": 1041, "last_page_order": 1057 }