{ "id": 910270, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY L. ARMSTRONG, Defendant-Appellant", "name_abbreviation": "People v. Armstrong", "decision_date": "1998-06-22", "docket_number": "No. 2\u201497\u20140560", "first_page": "46", "last_page": "49", "citations": [ { "type": "official", "cite": "297 Ill. App. 3d 46" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "249 Ill. App. 3d 750", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5410783 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "761" }, { "page": "761", "parenthetical": "corroborative evidence existed in the form of the defendant's own inculpatory statements" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/249/0750-01" ] }, { "cite": "239 Ill. App. 3d 44", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5147141 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "53" }, { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0044-01" ] }, { "cite": "288 Ill. App. 3d 1025", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596994 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "1035" }, { "page": "1035" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/1025-01" ] }, { "cite": "191 Ill. App. 3d 529", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2512525 ], "year": 1989, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0529-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] } ], "analysis": { "cardinality": 452, "char_count": 8138, "ocr_confidence": 0.763, "pagerank": { "raw": 1.0997720922370316e-07, "percentile": 0.5679058894939435 }, "sha256": "3f9bf7d53fe1d154c70e5a935e17e6aa51b99eb5c30a8556bd8fded0d8b64dd0", "simhash": "1:b13ad42e735a5570", "word_count": 1330 }, "last_updated": "2023-07-14T14:41:46.412422+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. GARY L. ARMSTRONG, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE GEIGER\ndelivered the opinion of the court:\nFollowing a bench trial, the defendant, Gary L. Armstrong, was convicted of aggravated criminal sexual assault (count I) (720 ILCS 5/12 \u2014 14(b)(i) (West 1994)), aggravated criminal sexual abuse (count II) (720 ILCS 5/12 \u2014 16(c)(1) (West 1994)), and predatory criminal sexual assault of a child (count III) (720 ILCS 5/12 \u2014 14.1(a)(1) (West Supp. 1995)). The trial court denied the defendant\u2019s motion for a new trial and sentenced the defendant to a term of 15 years\u2019 imprisonment for count I and concurrent terms of 7 years for count II and 15 years for count III.\nThe defendant timely appeals, arguing that, since the State failed to produce corroborating evidence of the defendant\u2019s criminal conduct at the pretrial reliability hearing on the admissibility of certain hearsay statements (see 725 ILCS 5/115 \u2014 10 (West 1996)), the trial court erred in finding that the statements were admissible as statutory exceptions to the hearsay rule. We disagree. We affirm the judgment.\nWe recite only a few salient facts sufficient to an understanding of our disposition of this appeal. The complainant, T.B., was born in October 1988 and is the natural daughter of the defendant\u2019s wife Sonya. T.B. made certain statements to third parties regarding the defendant\u2019s sexual conduct with her. Following a pretrial reliability hearing, the trial court found the statements sufficiently reliable to be admissible as exceptions to the hearsay rule and to allow them to be used at the trial as evidence of the defendant\u2019s guilt.\nAt the reliability hearing, the State presented the testimony of Viola (T.B.\u2019s grandmother), who testified regarding T.B.\u2019s reaction to a naked man they had inadvertently seen on television. T.B. related that she had seen a naked man before and that she had taken a shower with the defendant. The defendant had her hold his penis, and he also kissed her \u201cdown below\u201d in the vaginal area. Sonya, the defendant\u2019s wife and the mother of T.B., testified that she saw T.B. masturbating in the living room. Sonya testified regarding T.B.\u2019s accounts to her about four incidents involving the defendant\u2019s sexual behavior with T.B. Mark Thatcher of the Illinois State Police and Jim Faivre of the Department of Children and Family Services testified regarding T.B.\u2019s statements to them about the defendant\u2019s sexual acts with her.\nAt the trial, when T.B. began to testify, she became emotionally upset when questioned about the defendant\u2019s sexual contacts with her, and the trial court declared her an unavailable witness. The other witnesses testified concerning T.B.\u2019s statements to them.\nAdditionally, Thatcher testified about an interview he had with the defendant in the presence of Special Agent Paula Vercillo at the Mount Morris police department. The defendant consented to a taped interview in which he described taking a bath with T.B. in August 1995. He admitted that he asked her to wash him in his \u201cprivate area\u201d and that, when she washed his penis \u201cup and down,\u201d he got an erection. He related another incident in which he took a shower with T.B. and she washed him everywhere, including his \u201cprivate area,\u201d and he got an erection. He also washed her \u201cprivate area.\u201d The defendant denied that he penetrated her vagina with his fingers, but admitted that he separated the lips of her vagina. He told her not to tell her mother about the incident. The defendant also related another incident in which he put his hand inside T.B.\u2019s underwear, touched her in the private area between her legs, and got an erection. He realized that what he was doing was wrong. In yet another incident, while wrestling on the floor with T.B., the defendant removed T.B.\u2019s pants and underwear, he put his mouth between her legs, licked between the folds of her vagina, and began to get an erection. The defendant\u2019s recorded statement was admitted into evidence at trial.\nIt appears that the defendant did not make specific objections to the admission of the out-of-court statements at the trial, and, in his posttrial motion, he only objected generally to the admission of the hearsay statements. The main thrust of his objection regarding the statements was that the child was deemed \u201cunavailable\u201d to testify. However, on appeal, the defendant now argues that the State was required to produce corroborating evidence of the offenses at the reliability hearing rather than at the trial. This issue is technically waived because the defendant failed to preserve it by raising it specifically in his posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988).\nEven if the issue is not waived, the defendant\u2019s argument is without merit. Under the child hearsay exception found in section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115 \u2014 10 (West 1996)), a child is deemed unavailable to testify for purposes of this statutory hearsay exception when the child is found emotionally unable to testify. People v. Rocha, 191 Ill. App. 3d 529, 537 (1989). Thus, the court properly found that T.B. was unavailable to testify.\nFurthermore, we conclude that the State was only required to provide corroborating evidence at the trial, rather than at the reliability hearing. Section 115 \u2014 10 of the Code provides, as an exception to the hearsay rule, that a child\u2019s statements to others concerning sex crimes perpetrated against her are admissible so long as the time, content, and circumstances of the statements provide sufficient safeguards of reliability and the child testifies at the proceedings, or the child is unavailable and there is corroborating evidence of the act that is the subject of the statement. People v. Courtney, 288 Ill. App. 3d 1025, 1035 (1997); 725 ILCS 5/115 \u2014 10 (West 1996). A reviewing court will not disturb the trial court\u2019s finding of reliability unless the trial court abuses its discretion. Courtney, 288 Ill. App. 3d at 1035. The statute requires the trial court to conduct a reliability hearing outside the presence of the jury, and the child must either testify at the \u201cproceeding\u201d or be unavailable as a witness. 725 ILCS 5/115 \u2014 10(b) (West 1996); People v. Back, 239 Ill. App. 3d 44, 53 (1992). However, the testimony of the child, or the corroborating evidence where the child is unavailable, is required not at the reliability hearing, but at the trial \u201cproceeding.\u201d People v. Embry, 249 Ill. App. 3d 750, 761 (1993); Back, 239 Ill. App. 3d at 53. It would make little sense to require both the child\u2019s testimony and the corroborating evidence to make use of this exception to the hearsay rule at the trial. The corroborating testimony only becomes important at the trial \u2014 when the child witness becomes unavailable.\nHere, the child\u2019s out-of-court statements were found reliable by the trial court, and the defendant has not specifically enumerated why they were unreliable. We therefore need not analyze the statements in terms of the usual reliability factors in order to determine whether the trial court abused its discretion. The defendant argues only that the State was required to produce corroborating evidence at the reliability hearing. We disagree. The State presented corroborating evidence at the trial \u2014 where it was needed \u2014 in the form of the defendant\u2019s own incriminating confession to the officers. Furthermore, the defendant testified and was cross-examined at the trial. We conclude that there was sufficient corroborating evidence to satisfy the statutory requirement. See Embry, 249 Ill. App. 3d at 761 (corroborative evidence existed in the form of the defendant\u2019s own inculpatory statements).\nAccordingly, the judgment of the circuit court of Carroll County is affirmed.\nAffirmed.\nMcLAREN and DOYLE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE GEIGER" } ], "attorneys": [ "Peter B. Nolte, of Rockford, for appellant.", "Val Gunnarsson, State\u2019s Attorney, of Mt. Carroll (Martin E Moltz and Joan M. Kripke, both 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. GARY L. ARMSTRONG, Defendant-Appellant.\nSecond District\nNo. 2\u201497\u20140560\nOpinion filed June 22, 1998.\nPeter B. Nolte, of Rockford, for appellant.\nVal Gunnarsson, State\u2019s Attorney, of Mt. Carroll (Martin E Moltz and Joan M. Kripke, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0046-01", "first_page_order": 64, "last_page_order": 67 }