{ "id": 222624, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY L. JOHNSON, Defendant-Appellant", "name_abbreviation": "People v. Johnson", "decision_date": "1998-04-09", "docket_number": "No. 1\u201497\u20140950", "first_page": "53", "last_page": "66", "citations": [ { "type": "official", "cite": "296 Ill. App. 3d 53" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "631 N.E.2d 779", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "\"In light of the principles surrounding the admission of a statement as an exception to the hearsay rule, section 115 - 10 of the Code should be narrowly construed\"" } ], "opinion_index": 0 }, { "cite": "259 Ill. App. 3d 344", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2870216 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "349", "parenthetical": "\"In light of the principles surrounding the admission of a statement as an exception to the hearsay rule, section 115 - 10 of the Code should be narrowly construed\"" }, { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0344-01" ] }, { "cite": "562 N.E.2d 377", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "objection to uncharged conduct statements waived, no plain error to admit evidence of uncharged conduct that may have taken place at same time and place as charged conduct" } ], "opinion_index": 0 }, { "cite": "204 Ill. App. 3d 820", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2577729 ], "year": 1990, "pin_cites": [ { "parenthetical": "objection to uncharged conduct statements waived, no plain error to admit evidence of uncharged conduct that may have taken place at same time and place as charged conduct" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0820-01" ] }, { "cite": "586 N.E.2d 1326", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "evidence of other forms of penetration occurring at same time as charged conduct was mere surplusage" } ], "opinion_index": 0 }, { "cite": "224 Ill. App. 3d 1017", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5253623 ], "year": 1992, "pin_cites": [ { "parenthetical": "evidence of other forms of penetration occurring at same time as charged conduct was mere surplusage" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/1017-01" ] }, { "cite": "548 N.E.2d 788", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "hearsay testimony that defendant threatened to kill victim's family if she told of sexual assault was admissible where spoken contemporaneously with the sexual acts" } ], "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 444", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2505942 ], "year": 1989, "pin_cites": [ { "parenthetical": "hearsay testimony that defendant threatened to kill victim's family if she told of sexual assault was admissible where spoken contemporaneously with the sexual acts" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0444-01" ] }, { "cite": "587 N.E.2d 1050", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "225 Ill. App. 3d 636", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5247031 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "650-51" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0636-01" ] }, { "cite": "679 N.E.2d 481", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "287 Ill. App 3d 709", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520948 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0709-01" ] }, { "cite": "615 N.E.2d 1270", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "246 Ill. App. 3d 689", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5388066 ], "year": 1993, "pin_cites": [ { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0689-01" ] }, { "cite": "614 N.E.2d 1213", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "155 Ill. 2d 344", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4809979 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-2d/155/0344-01" ] }, { "cite": "558 N.E.2d 1208", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 166", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2594646 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0166-01" ] }, { "cite": "607 N.E.2d 317", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "239 Ill. App. 3d 582", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5148518 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0582-01" ] }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "820-21" }, { "page": "655-56" }, { "page": "3149-50" } ], "opinion_index": 0, "case_paths": [ "/us/497/0805-01" ] }, { "cite": "600 N.E.2d 1169", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "151 Ill. 2d 37", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3291537 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "44" }, { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0037-01" ] }, { "cite": "637 N.E.2d 992", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "159 Ill. 2d 272", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781338 ], "year": 1994, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0272-01" ] }, { "cite": "633 N.E.2d 1022", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "262 Ill. App 3d 29", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2851871 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "33" }, { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0029-01" ] }, { "cite": "667 N.E.2d 91", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "172 Ill. 2d 386", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55982 ], "year": 1996, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0386-01" ] }, { "cite": "461 N.E.2d 941", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "101 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160338 ], "year": 1984, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0209-01" ] }, { "cite": "682 N.E.2d 59", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "177 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317107 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "9" }, { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0001-01" ] } ], "analysis": { "cardinality": 1163, "char_count": 30838, "ocr_confidence": 0.742, "pagerank": { "raw": 7.70447798922641e-08, "percentile": 0.45362567470149806 }, "sha256": "0d421d76b42aa75e0f9f740ece2e80a5d3472629c8a95b3a5f166fcd6d4119c3", "simhash": "1:325152a0fb125fe1", "word_count": 5197 }, "last_updated": "2023-07-14T20:46:46.961592+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. BILLY L. JOHNSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nThe rule against hearsay evidence has been a fixed principle of Anglo-American jurisprudence since the late 1600s, when Lord Coke, in his Third Institute, denounced \u201cthe strange conceit that one may be an accuser by hearsay.\u201d See 2 J. Strong, McCormick On Evidence \u00a7 244, at 425 (4th ed. 1992).\nThe sixth amendment to the United States Constitution, various state and federal evidence codes, and common law court decisions reflect a strong preference that the accuser in a criminal case be present in open court, under oath, subject to cross-examination.\nThere are exceptions to the rule against hearsay, most of them firmly rooted in evidence law and therefore thought to be trustworthy enough to excuse the need for personal appearance, oath, and cross-examination. This appeal concerns an exception created by the General Assembly in cases where the defendant is accused of physically or sexually assaulting a child under the age of 13.\nWe are called on to define the parameters and application of section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 \u2014 10 (West 1996)). We do so. In the process, we find the unauthorized admission of hearsay evidence concerning uncharged conduct requires reversal and remandment of the defendant\u2019s conviction for aggravated criminal sexual assault.\nFACTS\nBecause this case turns on who said what to whom, we set out the testimony in some detail.\nOn November 15, 1995, Billy L. Johnson (Johnson) was charged by indictment with two counts of aggravated criminal sexual assault, six counts of criminal sexual assault, and three counts of aggravated criminal sexual abuse, based on allegations made by C.D., Johnson\u2019s 12-year-old stepdaughter.\nOn December 4, 1996, Johnson\u2019s bench trial began. At a previous hearing, a judge determined C.D. was unavailable to testify and her out-of-court statements would be admissible under section 115 \u2014 10 of the Code.\nAt trial, the evidence against Johnson was presented through the testimony of Chicago police youth officer Stanley Richards. Richards testified he met C.D. at the 18th District police station on October 20, 1995. Officers Walsh and McMurdo, who brought C.D. to the station, were present during Richards\u2019 interview with her. C.D. told Richards she had run away from home because Johnson had been sexually abusing her since she began living with him in April 1995. Johnson, she said, would force her to allow him to pull down her panties and lick her vagina. Recently, while in Ohio for a family funeral, Johnson came to the bedroom where C.D. was staying, licked her vagina, and then attempted to have sexual intercourse with her. She forced him away by biting him on the arm and chest and scratching him.\nAfter talking with C.D., Richards interviewed Johnson. Richards informed Johnson of his constitutional rights and then told him about C.D.\u2019s allegations. Johnson agreed to waive his rights and speak to Richards.\nJohnson admitted to Richards that he had been having sexual contact with C.D. since she began living with him in April 1995. He said whenever C.D. wanted her freedom, or to leave the house, the price she had to pay was to submit to him. He \u201cgot down on all fours like a dog and licked her pussy.\u201d When he was a child, he explained, he had been forced to perform these acts on his Aunt Bertha.\nWhen asked whether he remembered specific dates when he had sexual contact with C.D., Johnson told Richards he remembered having oral sex with C.D. sometime between September 1 and September 15, 1995. Johnson also admitted that he \u201cgrinded on\u201d C.D. when he was with C.D. in Ohio for a funeral in October 1995.\nBecause of Johnson\u2019s oral admissions, Richards notified felony review. Assistant State\u2019s Attorney (ASA) Guinn came to the station later that evening to interview Johnson. In Richards\u2019 presence, Johnson repeated his admissions to ASA Guinn. Again, the admissions were not reduced to writing.\nAs further corroboration of C.D.\u2019s statements, Richards testified he observed bite marks and scratches on Johnson\u2019s left arm and chest area. Richards took photographs of these marks and the photos were submitted as evidence at trial.\nAfter the State presented its evidence, Johnson moved for an acquittal. The court granted the motion as to 7 of the 11 counts because the evidence supporting these charges referred to conduct which took place in Ohio, outside the jurisdiction of the court. The court dismissed counts II, VI, VII, VIII, IX, X, and XI. The court denied the motion as to counts I, III, IV, and V.\nThe first witness called by the defense was Corleatha Thompson. She testified she had known Johnson for five years. In September and October 1995, Johnson and C.D. lived with Thompson and her family at 3809 South King Drive.\nBecause C.D. did not want to go to school, Thompson testified, Johnson fought with C.D. nearly every school day. Sometimes the fights between C.D. and Johnson became physical altercations. Thompson said she witnessed one such incident when C.D. attempted to leave the house. Johnson grabbed C.D., they struggled, and C.D. bit Johnson on the chest. Other times Thompson saw C.D. scratch Johnson on his back and arms during altercations. In the period of time C.D. lived in Thompson\u2019s home, C.D. ran away at least twice.\nJohnson testified in his own defense. He said he filed a missing persons report on October 20, 1995, because his 12-year-old daughter, C.D., had neither called nor returned home the previous day. Johnson said C.D., who came to live with him in April 1995, had a history of running away from home. Johnson also said he had difficulty disciplining C.D. Sometimes, when he attempted to restrain C.D. from leaving the house, she would bite and scratch him.\nAfter the missing persons report was filed, Johnson testified, he looked for C.D. at an apartment building on North Burling. Johnson found C.D. on the third floor of this building, hiding behind some friends. C.D. accompanied Johnson and the building security guard to the lobby and the police were called. Two officers arrived. C.D. spoke privately with one of the police officers in the security office in the building. When the officer finished speaking to C.D., he told Johnson allegations of sexual abuse had been made against him. One officer then took C.D. to the hospital, while the other officer took Johnson to the 18th District police station.\nAt the station, Johnson said, he first spoke with an unidentified assistant State\u2019s Attorney. Johnson admitted he freely chose to speak with this State\u2019s Attorney, telling him of the disciplinary problems he was having with C.D. Johnson said he denied the allegations of sexual abuse made by C.D.\nJohnson said he was taken to the \u201cbull pen\u201d after he finished speaking to the assistant State\u2019s Attorney. Johnson made some vague allegations about being threatened and insulted by officers while in the \u201cbull pen,\u201d but said he was not questioned further until 6 or 7 p.m. At that time Officer Richards came to the \u201cbull pen\u201d and asked him if he had any bite marks. He said he did, showed the marks to the officer, and the officer took pictures of the marks.\nJohnson admitted C.D. was the cause of the bites and scratches, but denied they occurred because he was abusing C.D. He said the bites and scratches occurred during disciplinary altercations. Johnson admitted, too, he had taken C.D. to Ohio, but denied that he abused her there.\nJohnson testified he told the officer and State\u2019s Attorney C.D. was lying, trying to save herself from \u201cgoing to juvenile.\u201d Johnson said he remarked, \u201cWhy is it that you people find it easier to believe a lie than the truth? What do you think, I am a dog that I would get down on all fours and lick my own daughter?\u201d\nIn rebuttal, the State presented the testimony of Assistant State\u2019s Attorney Guinn. He said he was assigned to the Johnson case on October 20, 1995. He arrived at District 18 Police Station at about 8 p.m. At the station ASA Guinn spoke with several officers and C.D., upon her return from the hospital. Then he spoke to Johnson.\nASA Guinn said Johnson told him C.D. had always had an \u201cunnatural love\u201d for him. Johnson told him C.D., even as a young child, used to \u201crub up against him.\u201d When C.D. was seven years old Johnson kicked her out of his house because of her \u201cunnatural love\u201d for him.\nASA Guinn also said Johnson told him when C.D. began living with him again in April 1995, she began exhibiting her \u201cunnatural love\u201d again. Johnson spoke to his grandmother about this and she warned him that \u201cincest ran in the family.\u201d A few weeks later, one night when Johnson came home late, C.D. came to him and told him she would \u201cdo anything to get her freedom.\u201d Johnson then rubbed his penis against her vagina, but stopped because \u201cit didn\u2019t feel like a grown woman\u2019s.\u201d\nJohnson told ASA Guinn of another incident when C.D. agreed to do anything for her freedom. This time, Johnson told ASA Guinn, he got down on his knees, like a dog, and licked C.D.\u2019s vagina. ASA Guinn testified Johnson began to cry after telling him this and then refused to speak anymore.\nAfter hearing all of the evidence, the court found Johnson guilty on count I of the indictment. Johnson was convicted of one count of aggravated criminal sexual assault and sentenced to 6V2 years\u2019 imprisonment.\nNow, on appeal, Johnson raises the following issues: (1) whether C.D.\u2019s out-of-court statements were properly admitted under section 115 \u2014 10 of the Code; (2) whether the section 115 \u2014 10 hearing held to determine the reliability of C.D.\u2019s statements encompassed the statements admitted at trial; and (3) whether C.D.\u2019s statements regarding uncharged conduct in Ohio were properly admitted at trial.\nDECISION\n(1) Section 115 \u2014 10 and Child\u2019s Age at Trial\nFirst, the provisions of section 115 \u2014 10 relevant to this case.\nSection 115 \u2014 10 of the Code of Criminal Procedure, entitled \u201cCertain hearsay exceptions,\u201d states, in relevant 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 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 or physical act perpetrated upon or against a child ***.\n(b) Such testimony shall only be admitted if:\n(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and\n(2) The child *** either:\n(A) testifies at the proceeding; or\n(B) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.\u201d 725 ILCS 5/115 \u2014 10(a), (b) (West 1996).\nC.D. did not testify. A court determined she was unavailable and that decision is not challenged on appeal. Her accusations against Johnson were presented to the trial court through Officer Richards, under paragraphs (a)(2) and (b)(2)(B) of section 115 \u2014 10. C.D. was under the age of 13 at the time of the alleged sexual abuse and when she talked to Richards at the police station.\nOur supreme court has held child outcry statements are admissible under section 115 \u2014 10(a)(2) only if the victim was under the age of 13 when the physical or sexual act occurred and when the outcry statement was made. People v. Holloway, 177 Ill. 2d 1, 682 N.E.2d 59 (1997). Here, the defendant, relying on Holloway, asks us to find an additional age requirement in the statute \u2014 that the child victim must be under the age of 13 at the time the hearsay statements are admitted at trial.\nThe State contends the issue has been waived. The defendant did not make that specific objection at trial, nor did he raise it in his posttrial motion.\nWe note that the rule of waiver, or, more accurately, procedural default, limits parties, not courts, and reviewing courts may address the issue where justice requires. People v. Hoskins, 101 Ill. 2d 209, 219, 461 N.E.2d 941 (1984). We choose to address the defendant\u2019s contention because C.D.\u2019s hearsay statements were indispensable to the State\u2019s case.\nHolloway did not address the issue raised by Johnson. In this appeal Johnson seizes on the court\u2019s statement that the legislature was concerned about \u201cthe ability of the victim to understand and articulate what happened during the incident and the reluctance many victims have relating the details of the incident at trial.\u201d Holloway, 177 Ill. 2d at 9. The importance of allowing the outcry hearsay, said the court, \u201cis dictated by the victim\u2019s ability to adequately testify to the alleged incident.\u201d Holloway, 177 Ill. 2d at 10.\nJohnson contends, given the supreme court\u2019s statements in Holloway, section 115 \u2014 10 should be read to mean the phrase \u201cThe child\u201d in subsection (b)(2) of the statute is defined by the phrase \u201ca child under the age of 13\u201d in subsection (a). The conclusion Johnson reaches is that the child must be under the age of 13 when her statements are introduced at trial and C.D. was not.\nWe do not share Johnson\u2019s view of the supreme court\u2019s meaning in Holloway or of the General Assembly\u2019s intent in passing the statute. The statutory ambiguity found by the court in Holloway related to the issue of the child\u2019s age at the time the outcry statement was made, not the child\u2019s age at trial. While the court referred to difficulties young children may have in testifying to details of an assault, the statement had to do with the legislative determination that the need for a specially created hearsay exception in child assault cases does not outweigh traditional notions of confrontation when the declarant is 13 or more at the time the outcry is made.\nWe see no ambiguity in the statute concerning the age of the child victim at the time of trial. The fact that C.D. was 13 at the time of trial does not affect the reliability of her outcry statements one way or the other. Nothing in the statute indicates a legislative intent to add the restriction urged on us by Johnson. When there is no ambiguity in the statute, we look no further than its plain words. See Nottage v. Jeka, 172 Ill. 2d 386, 392, 667 N.E.2d 91 (1996).\nWe have gone further, anyway. We have examined transcripts of the legislative hearings held in regard to the enactment of section 115 \u2014 10 in 1995 (see 89th Ill. Gen. Assem., House Bill 160, 1995 Sess.) and its predecessor (see 82d Ill. Gen. Assem., Senate Bill 1077, 1982 Sess.), and we find nothing to indicate the legislative bodies ever considered the child\u2019s age at time of trial.\nThe reading urged by Johnson would add nothing to the reliability of the hearsay and, in fact, would invite grave mischief. In cases where the child victim is approaching 13, delay of trial, inadvertent or not, justified or not, would defeat admissibility. The State, on the other hand, would race to the courthouse. An offender could benefit by fleeing the jurisdiction before arrest, returning when the child reaches 13. Flight, then, would trump the statute, which, understandably, contains no provision for dealing with delay of trial.\nWhile our view of the statute applies to subsections (a)(1), when the child testifies at trial, and (a)(2), when the child does not testify, the defendant\u2019s argument falls by its own weight in this case, where the child did not testify. We cannot see why the age of a nontestifying child at time of trial would have any relevance to the admissibility of the child\u2019s hearsay.\nOne of the cases the Holloway court relied on was People v. E.Z., 262 Ill. App 3d 29, 633 N.E.2d 1022 (1994). In that case the court reversed the defendant\u2019s conviction because the trial judge allowed the child victim and the child\u2019s mother to testify to outcry statements the child made when she was more than 13. The case was remanded for a new trial, the court observing that other outcry statements made when the child was under 13 could be admitted if found reliable under the provisions of section 115 \u2014 10. Since the child would have been more than 13 at the time of a second trial, the court was inferring, without holding, that the child\u2019s age at time of trial made no difference.\nTo sum, we find no principled reason to hold that the victim\u2019s age at the time of trial has anything to do with admissibility of outcry hearsay under the provisions of section 115 \u2014 10.\n(2) C.D.\u2019s Statements and the Section 115 \u2014 10 Reliability Hearing\nJohnson contends his sixth amendment right of confrontation was violated because the trial court never determined the reliability of the hearsay admitted at trial \u2014 C.D.\u2019s statements to Officer Richards at the 18th District police station. He asks us to apply a de novo standard of review to his contention.\nThe State first responds the defendant never made that objection at trial, nor did he raise it in his posttrial motion. The State\u2019s claim of waiver has merit, because the objections raised for the first time in this appeal are the kind that should be brought to the trial judge\u2019s attention for timely consideration. However, because application of the statute implicates serious constitutional protections, we decline to find a procedural default and we will decide the issue. See People v. Hobley, 159 Ill. 2d 272, 310, 637 N.E.2d 992 (1994).\nThere are two sets of hearsay statements in this case. The first took place at the apartment building on North Burling Street at about 2 p.m. on October 20, 1995. C.D. had run away from home. Johnson was looking for her. He called the police to report his daughter missing. When Johnson tried to find her, she hid behind some friends. Reluctantly, at the urging of her friends, C.D. informed Officer McMurdo of the sexual abuse by Johnson she had been enduring for the past several months.\nThe second statement by C.D., to Officers McMurdo and Richards, took place about four hours later, at the 18th District police station. During those four hours, C.D. had been taken to the hospital, examined, and released. There is no testimony concerning anything that might have been said to her during those four hours.\nThe two statements were almost identical. There is no evidence of manipulation or intervention by any adult. Nor is there any indication C.D. suffered from a faulty memory. Once she began speaking, she showed no reluctance. Her statement was specific, not vague or faltering. She made no prior or subsequent inconsistent statements. She was old enough to understand and relate the events she described.\nA problem is created because C.D.\u2019s statement to McMurdo at the North Burling Street building was the subject of the section 115 \u2014 10 reliability hearing, while C.D.\u2019s statement to McMurdo and Richards at the police station was the hearsay introduced at trial. McMurdo did not testify at the trial. The judge who presided at the section 115 \u2014 10 hearing was not the trial judge.\nThe abuse of discretion standard is used to review admissibility of outcry hearsay under section 115\u201410. People v. Zwart, 151 Ill. 2d 37, 44, 600 N.E.2d 1169 (1992). We use that standard. Here, the hearing judge examined the circumstances surrounding C.D.\u2019s statement to McMurdo at North Burling Street, concluding the State carried its burden of proving that the \u201ctime, content, and circumstances\u201d of C.D.\u2019s statement provided sufficient safeguards of reliability to satisfy the statute. Although this statutory hearsay exception is not firmly rooted in the law, the statute and the sixth amendment will be satisfied when the totality of circumstances surrounding the making of the statement provides a particularized guarantee of trustworthiness. Idaho v. Wright, 497 U.S. 805, 820-21, 111 L. Ed. 2d 638, 655-56, 110 S. Ct. 3139, 3149-50 (1990); People v. Zwart, 151 Ill. 2d at 43.\nAfter reviewing the record in this case, we cannot say the hearing court abused its discretion when it found C.D.\u2019s statement to McMurdo at North Burling Street satisfied the statute.\nThat, of course, does not answer the question raised by the defendant. Was it reversible error to qualify one statement under section 115 \u2014 10 and use another statement at trial? We do not think it was. The statements were substantially the same, made within hours of each other without any intervening circumstances that would taint the second statement. Reliability was unchanged. In fact, it was enhanced by similarity.\nWhile a technical error may have been committed, we cannot see how, in this bench trial, it caused any prejudice to the defendant. See People v. Burnett, 239 Ill. App. 3d 582, 607 N.E.2d 317 (1993); People v. Roy, 201 Ill. App. 3d 166, 558 N.E.2d 1208 (1990). In People v. Mitchell, 155 Ill. 2d 344, 614 N.E.2d 1213 (1993), relied on by the defendant for his claim of reversible error, there never was a hearing on the reliability of the outcry hearsay. We see no abuse of discretion in this case.\n(3) Hearsay Concerning Uncharged Conduct\nThis final issue concerns the admission of C.D.\u2019s statements to Richards about Johnson\u2019s conduct in Ohio, during October 1995. She told Richards the defendant licked her vagina and then attempted to have sexual intercourse with her. She said she forced him away by biting him on the arm and chest and by scratching him.\nA photograph of the bite and scratch marks was introduced at trial. Johnson and one of his witnesses testified C.D. bit and scratched him when he tried to stop her from leaving the house. While Richards testified the defendant told him he \u201cgrinded on\u201d C.D. when they were in Ohio, the officer does not quote the defendant as having said anything about bite and scratch marks being caused by a sexual attack. Neither does ASA Guinn. The only connection between a sexual attack in Ohio and the bite and scratch marks is contained in C.D.\u2019s statements to Richards at the 18th District.\nThe State concedes Johnson could not be and was not charged with the Ohio conduct. It contends, however, the Ohio sexual attack evidence was properly admitted as corroborative evidence of C.D.\u2019s actions and her credibility.\nThe defendant does not dispute the well-established principle that evidence of a defendant\u2019s prior sexual activity with the same child is admissible to prove a course of conduct and to corroborate the victim\u2019s testimony. People v. Jahn, 246 Ill. App. 3d 689, 705, 615 N.E.2d 1270 (1993). He does dispute the way in which the other crimes evidence was admitted \u2014 through section 115 \u2014 10(a)(2).\nHere, again, defense counsel at trial did not make the specific hearsay objection now being raised on appeal. But his hearsay objection to all of Richards\u2019 testimony had been overruled, and when Richards testified to C.D.\u2019s statement about events in Ohio, defense counsel made a timely objection and motion to strike, saying: \u201cIt goes beyond the scope of jurisdiction. She\u2019s trying to testify to something that didn\u2019t even happen in Cook County.\u201d\nWe believe the objection was close enough to raise the issue. Even if it weren\u2019t, the interests at stake in this close case justify our consideration of the issue under the plain error rule. People v. Mitchell, 155 Ill. 2d 344, 614 N.E.2d 1213 (1993); People v. E.Z., 262 Ill. App. 3d 29, 33, 633 N.E.2d 1022 (1994).\nC.D.\u2019s statements to Richards were introduced for their truth. They are hearsay. They would have no relevance if offered for any purpose other than their truth. The State treated them as truthful accusations at trial and the tri\u00e1l judge considered them for their truth. See People v. E.Z., 262 Ill. App. 3d at 34. It is too late for the State to say, as it did during oral argument, that the evidence had a nonhearsay purpose.\nThe question is whether section 115 \u2014 10(a)(2) permits admission of hearsay concerning uncharged conduct when the declarant does not testify. We conclude it does not.\nSection 115 \u2014 10(a)(2) provides that testimony about the child\u2019s out-of-court statement must describe a complaint of an \u201cact 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 perpetrated upon or against a child.\u201d (Emphasis added.) 725 ILCS 5/115 \u2014 10(a)(2) (West 1996).\nClearly, events in Ohio were not part of the elements of the offenses charged in Illinois. The prosecutor said so when she offered the testimony:\n\u201cYour Honor, this is not an, allegation that we have charged within this document. It\u2019s only offered to show the corroboration for what actually did happen within this jurisdiction.\u201d\nWith that understanding, the trial judge admitted the testimony over objection.\nTwo appellate decisions support our conclusion that the hearsay evidence concerning uncharged conduct was not authorized by section 115 \u2014 10(a)(2). No other hearsay exception is proposed by the State; none could apply.\nIn People v. Kinnett, 287 Ill. App 3d 709, 679 N.E.2d 481 (1997), the court affirmed a trial judge\u2019s pretrial ruling excluding a child\u2019s section 115 \u2014 10 hearsay concerning the defendant\u2019s uncharged sexual conduct. There, the uncharged-conduct evidence was deemed relevant but was barred by the hearsay rule. The court held section 115 \u2014 10 did not extend to conduct occurring at times and places not contained in the charging document. In the instant case, the Ohio conduct related by C.D. occurred in October. The charged conduct occurred during the first two weeks of September, in Chicago.\nKinnett relied on People v. Anderson, 225 Ill. App. 3d 636, 587 N.E.2d 1050 (1992). There, the court held hearsay evidence of uncharged sexual conduct should not have been admitted at the defendant\u2019s sexual abuse trial:\n\u201cWhile section 115 \u2014 10 creates an exception to the hearsay rule, it does not abrogate the rule nor remove its effect other than in the area of the exception. The plain language of the statute limits the exception to complaints of, or details about, sexual acts which are the subject of a prosecution.\u201d Anderson, 225 Ill. App. 3d at 650-51.\nErroneous admission of the hearsay was harmless error in Anderson because the child victim testified to the uncharged events and was available for cross-examination.\nWe agree with the reasoning of Kinnett and Anderson. Those cases, and ours, are distinguishable from People v. Rushing, 192 Ill. App. 3d 444, 548 N.E.2d 788 (1989) (hearsay testimony that defendant threatened to kill victim\u2019s family if she told of sexual assault was admissible where spoken contemporaneously with the sexual acts), People v. Edwards, 224 Ill. App. 3d 1017, 586 N.E.2d 1326 (1992) (evidence of other forms of penetration occurring at same time as charged conduct was mere surplusage), and People v. Schmitt, 204 Ill. App. 3d 820, 562 N.E.2d 377 (1990) (objection to uncharged conduct statements waived, no plain error to admit evidence of uncharged conduct that may have taken place at same time and place as charged conduct).\nWe believe section 115 \u2014 10(a)(2), which by legislative fiat creates a previously nonexistent hearsay exception, must be strictly construed where the defendant has no opportunity to confront and cross-examine his accuser. See People v. Bridgewater, 259 Ill. App. 3d 344, 349, 631 N.E.2d 779 (1994) (\u201cIn light of the principles surrounding the admission of a statement as an exception to the hearsay rule, section 115 \u2014 10 of the Code should be narrowly construed\u201d).\nWe believe the legislature understood the inherent danger to cherished principles of confrontation when unexamined hearsay is allowed in a criminal trial. Confining the outcry hearsay to acts that are an element of the offense charged was a considered judgment, created from a perceived necessity in a narrow class of cases. If the legislature intended any broader application of the hearsay exception, beyond the elements of the offense charged, it could easily have said so. Other hearsay exceptions in the Code do not contain similar limitations. See 725 ILCS 5/115 \u2014 10.1, 115 \u2014 10.2 (West 1996). We have no desire to broaden the terms of the statute by judicial fiat, lest the exception swallow a rule that has served so well for so long.\nFinally, all else failing, the State urges us to find admission of the hearsay about the Ohio events was harmless error. We do not believe it was.\nThe trial record tells us C.D.\u2019s statement to Richards about biting and scratching Johnson during an Ohio sexual attack played a crucial role in this trial. Neither Richards nor Guinn testified the defendant admitted receiving the scratch and bite marks in the process of \u201cgrinding on\u201d C.D. in Ohio. On the other hand, Johnson and his witness, Corleatha Thompson, testified C.D. bit and scratched Johnson when he tried to stop her from running away. Without C.D.\u2019s hearsay, the defense testimony concerning bites and scratches would be uncontradicted.\nThe trial judge rejected the defense version of how the bites and scratches were received. Referring to C.D.\u2019s hearsay account of the Ohio assault, the judge said:\n\u201cThis is corroborative of [C.D.\u2019s] testimony as well as the testimony of the officers as to what the defendant said.\u201d\nSince C.D.\u2019s outcry hearsay and Richards\u2019 and Guinn\u2019s accounts of Johnson\u2019s oral statements were just about the State\u2019s entire case, we cannot see how the erroneous admission of the uncharged conduct hearsay could be characterized as harmless.\nGiven the testimony in this bench trial, we cannot say \u201cthe properly admitted evidence was so overwhelming, without the erroneously admitted hearsay statements, that no fair-minded trier of fact could reasonably have acquitted the defendant.\u201d People v. Bridgewater, 259 Ill. App. 3d at 349. Admission and use of C.D.\u2019s hearsay concerning uncharged conduct was reversible error.\nWe are not making a finding as to Johnson\u2019s guilt or innocence. Retrial of Johnson, without the inadmissible uncharged conduct hearsay, would not constitute double jeopardy.\nCONCLUSION\nBecause inadmissible hearsay evidence of uncharged conduct was admitted and relied on by the trial judge, we reverse the defendant\u2019s conviction and remand this cause for a new trial.\nReversed and remanded.\nCERDA, P.J., and McNAMARA, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Michael J. Pelletier and Christopher W. Buckley, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Mary L. Boland, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY L. JOHNSON, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201497\u20140950\nOpinion filed April 9, 1998.\nMichael J. Pelletier and Christopher W. Buckley, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Mary L. Boland, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0053-01", "first_page_order": 71, "last_page_order": 84 }