{ "id": 910213, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN ALLAN SIMPKINS, Defendant-Appellant", "name_abbreviation": "People v. Simpkins", "decision_date": "1998-06-10", "docket_number": "No. 4\u201497\u20140632", "first_page": "668", "last_page": "683", "citations": [ { "type": "official", "cite": "297 Ill. App. 3d 668" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "563 N.E.2d 1010", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1021", "parenthetical": "allowing testimony of nurse, physician, and therapist regarding behavioral characteristics of child victims of sexual abuse" } ], "opinion_index": 0 }, { "cite": "205 Ill. App. 3d 567", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2569177 ], "year": 1990, "pin_cites": [ { "page": "585", "parenthetical": "allowing testimony of nurse, physician, and therapist regarding behavioral characteristics of child victims of sexual abuse" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/0567-01" ] }, { "cite": "569 N.E.2d 1321", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1326", "parenthetical": "allowing therapist's testimony regarding behaviors indicative of sexual abuse and application of such knowledge to the facts of the case" } ], "opinion_index": 0 }, { "cite": "211 Ill. App. 3d 264", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2528577 ], "year": 1991, "pin_cites": [ { "page": "271", "parenthetical": "allowing therapist's testimony regarding behaviors indicative of sexual abuse and application of such knowledge to the facts of the case" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0264-01" ] }, { "cite": "608 N.E.2d 906", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "912-13", "parenthetical": "allowing police officer's testimony regarding the tendency of child sexual abuse victims to initially deny that they have been sexually abused" } ], "opinion_index": 0 }, { "cite": "241 Ill. App. 3d 236", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2433821 ], "year": 1993, "pin_cites": [ { "page": "244-45", "parenthetical": "allowing police officer's testimony regarding the tendency of child sexual abuse victims to initially deny that they have been sexually abused" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/241/0236-01" ] }, { "cite": "615 N.E.2d 1283", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "1288" }, { "page": "1289" }, { "page": "1289" } ], "opinion_index": 0 }, { "cite": "246 Ill. App. 3d 311", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5388709 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "320" }, { "page": "322" }, { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0311-01" ] }, { "cite": "564 N.E.2d 1155", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "1164" }, { "page": "1165" }, { "page": "1165", "parenthetical": "expert opinion testimony would not have aided the trier of fact in reaching its conclusion when the testimony regarding purported \"myths\" of eyewitness testimony had little or no similarities to the eyewitnesses in that case" } ], "opinion_index": 0 }, { "cite": "139 Ill. 2d 264", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5574337 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "288" }, { "page": "289-90" }, { "page": "289-90" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0264-01" ] }, { "cite": "558 N.E.2d 1208", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "1216-17" }, { "page": "1217" }, { "page": "1218", "parenthetical": "allowing pediatrician's testimony as to behavioral characteristics of child victims of sexual abuse under the label of posttraumatic stress syndrome" } ], "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 166", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2594646 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "178" }, { "page": "179" }, { "page": "180", "parenthetical": "allowing pediatrician's testimony as to behavioral characteristics of child victims of sexual abuse under the label of posttraumatic stress syndrome" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0166-01" ] }, { "cite": "670 N.E.2d 624", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "629" }, { "page": "631", "parenthetical": "Harrison, J., specially concurring, joined by McMorrow, J." }, { "page": "628-29" }, { "page": "629" } ], "opinion_index": 0 }, { "cite": "173 Ill. 2d 220", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147614 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "229" }, { "page": "233" }, { "page": "228-29" }, { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0220-01" ] }, { "cite": "643 N.E.2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "162 Ill. 2d 314", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477550 ], "year": 1994, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0314-01" ] }, { "cite": "609 N.E.2d 1010", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1021", "parenthetical": "the fact that the defendant was the child's father explained the several-month delay in reporting the abuse" } ], "opinion_index": 0 }, { "cite": "241 Ill. App. 3d 1066", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2435526 ], "year": 1993, "pin_cites": [ { "page": "1081", "parenthetical": "the fact that the defendant was the child's father explained the several-month delay in reporting the abuse" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/241/1066-01" ] }, { "cite": "605 N.E.2d 689", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "700" } ], "opinion_index": 0 }, { "cite": "239 Ill. App. 3d 44", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5147141 ], "year": 1992, "pin_cites": [ { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0044-01" ] }, { "cite": "600 N.E.2d 1169", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1992, "pin_cites": [ { "page": "1172" }, { "page": "1172" }, { "page": "1172" }, { "page": "1172", "parenthetical": "\"A trial court should not presume from a silent record that suggestive interview techniques were not used\"" }, { "page": "1172-73" } ], "opinion_index": 0 }, { "cite": "151 Ill. 2d 37", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3291537 ], "weight": 5, "year": 1992, "pin_cites": [ { "page": "45" }, { "page": "44" }, { "page": "44-45" }, { "page": "45" }, { "page": "45-46" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0037-01" ] }, { "cite": "674 N.E.2d 440", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "446" } ], "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 14", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295635 ], "year": 1996, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0014-01" ] }, { "cite": "632 N.E.2d 1004", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "1008-09" } ], "opinion_index": 0 }, { "cite": "158 Ill. 2d 155", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780290 ], "year": 1994, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0155-01" ] } ], "analysis": { "cardinality": 1231, "char_count": 35738, "ocr_confidence": 0.757, "pagerank": { "raw": 2.3909866229480636e-07, "percentile": 0.7978542378339433 }, "sha256": "719bb20283d0f5c10be2b27323c5b8f0b8fdf7db8ec65f953829c9e9b0a02c1e", "simhash": "1:a2b3f42e4f5d1c07", "word_count": 5828 }, "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. JOHN ALLAN SIMPKINS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn May 1997, a jury convicted defendant, John Allan Simpkins, of three counts of aggravated criminal sexual assault, finding that he committed acts of sexual penetration with his daughter, K.S., when she was under 13 years of age (720 ILCS 5/12 \u2014 14(b)(1) (West 1992)). In June 1997, the trial court entered a judgment of guilty as to two counts, but granted defendant\u2019s motion for judgment of acquittal notwithstanding the verdict as to the remaining count (count III). The court then sentenced defendant to eight years in prison on count I and seven years in prison on count II, with those sentences to be served consecutively.\nDefendant appeals, arguing that the trial court erroneously (1) admitted certain hearsay testimony in violation of section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115 \u2014 10 (West 1992)); (2) admitted certain hearsay testimony in violation of section 115 \u2014 13 of the Code (725 ILCS 5/115 \u2014 13 (West 1992)); (3) permitted the jury to take into the jury room during deliberations an Illinois Department of Children and Family Services (DCFS) report which had not been admitted into evidence; (4) admitted certain opinion testimony; and (5) sentenced defendant to consecutive sentences. Defendant also argues that the State failed to prove him guilty beyond a reasonable doubt. We reverse and remand for a new trial.\nI. BACKGROUND\nIn November 1995, the State charged defendant by indictment with three counts of aggravated criminal sexual assault. Counts I and II alleged that sometime between October 1, 1993, and November 30, 1993, defendant committed acts of sexual penetration with K.S. (five years old at the time of the offenses and eight years old at trial) using his finger (count I) and a bottle (count II). Count III alleged that sometime between June 1, 1994, and July 30, 1994, defendant committed an act of sexual penetration with K.S. using his finger. 720 ILCS 5/12 \u2014 14(b)(1) (West 1992).\nA. The Section 115 \u2014 10 Hearing\nIn April 1996, the State filed a notice of intent \u2014 under section 115 \u2014 10 of the Code \u2014 to offer at defendant\u2019s trial statements K.S. made to Mel Devall, a DCFS child protective services investigator. Later during that same month, the State filed another such notice of intent to offer statements K.S. made to her mother, Annette Simpkins.\nIn April 1997, the trial court conducted a section 115 \u2014 10 hearing, and the following testimony was presented. Devall testified that on September 16, 1994, he interviewed K.S. (then six years old) at her grade school pursuant to allegations of physical abuse of K.S. and her siblings by defendant and allegations of sexual abuse of an older sibling (D.D.) by defendant, which had been reported to DCFS. During that interview, Devall initially established that K.S. knew the difference between the truth and a lie, a good touch and a bad touch, and inside and outside. Devall then asked K.S. if she remembered him. (Devall had interviewed K.S. about one month earlier pursuant to a report of sexual abuse of D.D. by a grandfather.) K.S. responded that she remembered that he had previously talked with her \u201cabout grandpa touching [D.D.].\u201d Devall then testified that K.S. indicated that defendant had touched her, as follows:\n\u201cA. [Devall:] Then I asked her, has anyone ever touched you in a bad way? She said yes, daddy had, that daddy had spanked her real hard and left bruises on her.\n* * *\nQ. [Prosecutor:] What did you ask her then?\nA. Has anyone else ever touched you in a bad way?\nQ. And what, if anything, did she ever say?\nA. Yes \u2014 daddy.\n* * *\nQ. What was the [next] question?\nA. How did daddy touch you in a bad way?\nQ. And what, if anything, did she say?\nA. She stated that daddy had taken her upstairs and put her on [a sibling\u2019s] bed, had pulled her pants and underwear down, had inserted his finger inside of her private, that daddy also had put a bottle inside of her private. She stood up at that point and said daddy told me to lay on the bed like this, and she stood up and spread her legs apart. She said that blood had come out of that, and that it hurt.\u201d\nDevall also stated that K.S. told him that the sexual abuse had happened on more than one occasion, the first time was when she bled and the last time was on the Fourth of July.\nOn cross-examination, Devall acknowledged that he did not specifically recall what he had asked K.S. during his previous interview of her (which took place about one month before the September 16, 1994, interview). He stated, however, that typically he would ask whether the child had been told anything about the alleged abuser. Devall also stated that he did not ask K.S. when the first incident happened or which Fourth of July she was referring to. He also stated that Annette told him that K.S. had recanted the allegations against defendant.\nAnnette (K.S.\u2019 mother) testified that on one occasion after Devall\u2019s September 16, 1994, interview of K.S., K.S. came to her and asked why defendant \u201cwould do something like that.\u201d K.S. said nothing else, and Annette did not question her about the statement. On another occasion when Annette and K.S. were in a pharmacy, K.S. brought a bottle of Betadine to Annette and said \u201cthis is what daddy used.\u201d Annette told her to put the bottle back and did not question K.S. about the statement. Annette also testified about K.S.\u2019 recantation, as follows:\n\u201c[I]t was a few months ago, [K.S.] \u2014 well, the girls went with their [paternal] grandparents for that Saturday, and a few days \u2014 it was like two or three days later \u2014 [K.S.] says how come we can\u2019t see dad, and I\u2019m just like, we can\u2019t talk about that. She said, well, I know why, and I lied about what daddy did, and I said, why would you lie about something like that, and she said because [K.S.] was mad at him. And I said why were you mad at him, and she was, like because he used to hit us all of the time.\u201d\nThe trial court determined that the statements K.S. made to Devall and Annette were admissible pursuant to section 115 \u2014 10 of the Code.\nB. Trial Testimony\nAt defendant\u2019s trial, K.S. testified that defendant had spanked her with a belt but had not done anything else that hurt her. She stated that she had told Devall \u201cbad things\u201d and what she told him was a \u201cbig he.\u201d She further stated that she did not know why she lied to Devall. K.S. remembered seeing Dr. Lance Cordoni, a pediatrician at the Pediatric Resource Center (a child abuse center), but she did not remember talking to him.\nOn cross-examination, K.S. testified that she did not remember Devall interviewing her the first time. She stated that she had lied to her mother because K.S. was mad at defendant. She also stated that defendant had not put his finger or a bottle inside her.\nAnnette testified that on one occasion when K.S. was in kindergarten, Annette noticed blood on K.S.\u2019 underwear. That same day, she took K.S. to Dr. Jivan Patel, K.S.\u2019 pediatrician. Patel visually examined K.S. and told Annette that K.S. was \u201cfine.\u201d Annette also stated that K.S. told her that she had lied about defendant sexually abusing her because she was mad at him. She also testified substantially the same as she had at the section 115 \u2014 10 hearing regarding the statements K.S. made to her after Devall\u2019s September 16, 1994, interview of K.S.\nOn cross-examination, Annette testified that when she noticed blood on K.S.\u2019 underwear, she asked K.S. what happened and K.S. responded that she did not know. She also stated that when K.S. showed her the bottle of Betadine in the pharmacy, K.S. did not say what defendant had done with the bottle. She further stated that she and defendant routinely kept Betadine in their home and used it on their children.\nDevall testified that he had been a DCFS child protective services investigator for seven years, and he had to complete 20 hours of continuing education each year. He stated that he had interviewed \u201cover a thousand\u201d children who had reported sexual abuse. Devall also stated that prior to his September 16, 1994, interview of K.S. at her grade school, he had spoken with her about possible sexual abuse of D.D. by a grandfather. During the first interview, Devall asked K.S. \u201cvery generic questions,\u201d such as \u201cHow is grandpa?\u201d He acknowledged having talked with K.S. about the allegations of sexual abuse by the grandfather during the first interview. K.S. knew about the grandfather \u201cpossibly touching [D.D.] in a sexual way.\u201d\nDuring Devall\u2019s September 16, 1994, interview of K.S., K.S. told him that defendant had touched her in a bad way. K.S. told him that defendant put his finger inside her \u201cprivate\u201d and \u201cblood came out.\u201d K.S. held up her right index finger when Devall asked her which finger defendant had put inside her private. K.S. also told him that the incident happened at nighttime, and the alleged sexual abuse occurred on more than one occasion \u2014 namely, when she bled and on the Fourth of July. Devall stated that during the interview, K.S. was \u201cvery matter of fact\u201d and \u201ckept very good eye contact.\u201d\nK.S. also told Devall that defendant told her that he had to put medicine on her, and he put a bottle inside of her. She also told Devall that when defendant touched her, her mother was downstairs sleeping. K.S. also told him that her mother found the bloody underwear and took her to Patel\u2019s office.\nDevall also testified that he was familiar with studies and articles relating to child sexual abuse and he reads such literature as part of his investigator duties. Over defendant\u2019s objection, Devall testified that he has interviewed children who made allegations of sexual abuse who subsequently recanted. Devall also testified that in his experience, recantation occurs in 50% of the cases. Devall further testified regarding the reasons child victims recant their allegations of sexual abuse, as follows:\n\u201cQ. [Prosecutor:] And in your training and experience and the articles you have read and the education you have had in this area, what are some of the reasons given for why children recant?\n[Defense counsel]: I will object as to reasons given. I don\u2019t believe this witness is qualified to testify in that respect. What articles he refers to[,] what he has read, whether they are experts in the area, I don\u2019t think he has been qualified as an expert in the field of child psychology.\nTHE COURT: I will allow the question. Overruled.\nA. [Devall:] It can be some of unsupported [sic] family, a family member that does not believe that the abuse occurred. There has [sic] been cases that I have dealt with [where] the child has been away from a father or a mother for a period of time and has been scapegoated or blamed by the other family members and that child has changed the story. There could be many reasons like that.\u201d\nOn cross-examination, Devall testified that on September 16, 1994, he recorded the interview \u201c[w]ord-for-word\u201d using shorthand. Later that same day, he typed the report (which the prosecutor used to refresh his recollection) and destroyed his handwritten notes. He also stated that when he typed the report, he put it into a question and answer format. He further stated that during the first interview with K.S., she knew he was there to discuss the grandfather\u2019s alleged sexual abuse of D.D. because D.D. had told her siblings.\nPatel testified that on November 9, 1993, Annette brought K.S. to see him because Annette had noticed bleeding around K.S.\u2019 vaginal area. Patel stated that he conducted a visual examination of K.S.\u2019 vaginal area and \u201cfound everything pretty normal.\u201d He therefore did not conduct an internal examination of K.S. On redirect examination, Patel testified that it was possible, although unlikely, for someone to have an internal injury even though a visual examination appeared normal.\nCordoni testified that on October 25, 1994, he saw K.S. pursuant to a DCFS report of possible sexual abuse. On that day, Cordoni took K.S.\u2019 medical history and completed a physical examination. While taking her medical history, Cordoni asked K.S. if she knew why she was at the center. K.S. told him that she was there because defendant touched her \u201cdown there.\u201d K.S. simultaneously pointed to her vaginal area. Cordoni then asked her what defendant did to her, and she told him that defendant touched her and put medicine in her. Cordoni asked K.S. if defendant touched her with his hand, and she said that defendant put his hand inside her and again pointed to her vaginal area. Cordoni further stated that when he first met K.S. on October 25, 1994, she was \u201cvery open\u201d and \u201csomewhat playful.\u201d However, when he questioned her about the alleged sexual abuse, she became \u201cquiet and withdrawn.\u201d\nCordoni then conducted a physical examination of K.S. Cordoni found no physical signs of sexual abuse; however, he stated that 80% of child victims of sexual abuse have \u201ca normal physical examination.\u201d He further stated that, given K.S.\u2019 description of the sexual abuse, he would not expect to find any physical evidence of sexual abuse even a day after it occurred.\nDefendant testified and denied committing the crimes charged. He also stated that he did not recall K.S. having bloody underwear. Defendant\u2019s parents testified that although they regularly visited K.S. and her siblings, they never discussed the sexual abuse allegations with the children. On this evidence, the jury convicted defendant.\nII. HEARSAY STATEMENTS ADMITTED PURSUANT TO SECTION 115 \u2014 10\nDefendant first argues that the trial court erred by admitting K.S.\u2019 statements to Devall regarding the sexual abuse pursuant to section 115 \u2014 10 of the Code (725 ILCS 5/115 \u2014 10 (West 1992)). We agree.\nSection 115 \u2014 10(b) of the Code provides that certain evidence shall be admitted as an exception to the hearsay rule under the following circumstances:\n\u201c(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(b) (West 1992).\nWhen conducting a section 115 \u2014 10 hearing, a trial court must evaluate the totality of the circumstances surrounding the making of the hearsay statements. Some factors that are important in making the reliability determination include the following: (1) the child\u2019s spontaneity and consistent repetition of the incident; (2) the child\u2019s mental state; (3) use of terminology unexpected of a child of similar age; and (4) the lack of motive to fabricate. People v. West, 158 Ill. 2d 155, 164, 632 N.E.2d 1004, 1008-09 (1994); People v. Peck, 285 Ill. App. 3d 14, 23, 674 N.E.2d 440, 446 (1996).\nThe State, as the proponent of out-of-court statements sought to be admitted pursuant to section 115 \u2014 10 of the Code, bears the burden of establishing that the statements were reliable and not the result of adult prompting or manipulation. People v. Zwart, 151 Ill. 2d 37, 45, 600 N.E.2d 1169, 1172 (1992). A reviewing court will reverse a trial court\u2019s determination pursuant to section 115 \u2014 10 of the Code only when the record clearly demonstrates that the court abused its discretion. Zwart, 151 Ill. 2d at 44, 600 N.E.2d at 1172.\nIn this case, the circumstances surrounding K.S.\u2019 allegations made to Devall are particularly troubling. Approximately one month prior to K.S.\u2019 making statements to Devall implicating defendant, Devall interviewed her regarding alleged sexual abuse of an older sibling by a grandfather. The State did not introduce any evidence regarding the substance of Devall\u2019s previous interview of K.S. On cross-examination, Devall acknowledged that he could not specifically recall what he had asked K.S. during that prior interview.\nThe circumstances here are similar to those in Zwart, in which the alleged child victim had been interviewed on three prior occasions regarding alleged sexual abuse, and the State failed to introduce any evidence regarding the substance of those prior interviews. The supreme court in Zwart concluded that \u201c[w]ithout such evidence, it was impossible for the trial court to determine whether the victim was questioned in a suggestive manner or was encouraged to accuse the defendant of sexual abuse.\u201d Zwart, 151 Ill. 2d at 44-45, 600 N.E.2d at 1172. Although the prior interview in this case dealt with allegations of sexual abuse of a sibling by someone other than defendant, without any evidence of the substance of that interview, it is impossible to determine to what extent Devall discussed the alleged sexual abuse by the grandfather or whether Devall questioned K.S. in a suggestive manner or somehow intimated that defendant was also a sexual abuser. See Zwart, 151 Ill. 2d at 45, 600 N.E.2d at 1172 (\u201cA trial court should not presume from a silent record that suggestive interview techniques were not used\u201d). Evidence as to what transpired during the prior interview was particularly important here because K.S.\u2019 age made her susceptible to suggestion from outsiders.\nThe lesson of Zwart is clear. When the declarant of a statement the State seeks to offer under section 115 \u2014 10 of the Code has been previously interviewed concerning allegations of sexual misconduct and the previous interview is relatively recent with regard to the timing of the section 115 \u2014 10 statement, the State must affirmatively establish the content of the previous interview and must affirmatively demonstrate that it did not compromise the reliability of the proffered statement. If the State fails to offer any evidence regarding the substance and circumstances of the prior interview, the proffered statement should not be admitted unless other factors strongly suggest that the statement is reliable and not the result of suggestiveness by others. Those individuals \u2014 particularly law enforcement officers or child abuse investigators \u2014 interviewing an alleged child victim should understand the importance of recording those interviews; it is simply not good enough to testify, \u201cI don\u2019t recall what I asked the alleged victim.\u201d\nIn a given case, a statement by a child to a third party may have been given under circumstances which suggest sufficient indicia of reliability, and yet an argument could be made \u2014 perhaps successfully \u2014 that the statement was a product of suggestive interviewing techniques or manipulation. The best means to respond to this argument is for the child protective services investigator to audiotape (or record in some fashion) his interview of the alleged victim. Doing so provides the best evidence that no adult prompting or manipulation occurred, and trial courts can reasonably view the failure to do so as a negative factor when evaluating witness credibility and the State\u2019s claim that no improper interviewing techniques were used. Considering that many of the issues in a section 115 \u2014 10 hearing are close, and considering further the deference courts of review would give to a trial court\u2019s ruling denying admission of the child\u2019s statement under section 115 \u2014 10 of the Code, the State henceforth should be on notice of the risk it takes by not recording interviews of alleged child victims.\nThe descriptive terms K.S. used in response to Devall\u2019s questions tend to lend support to the reliability of K.S.\u2019 statements. For example, she referred to her vagina as her \u201cprivate\u201d (a term indicative of a young girl not versed in the nomenclature of bodily organs). See People v. Back, 239 Ill. App. 3d 44, 59, 605 N.E.2d 689, 700 (1992). However, K.S. did not make the out-of-court statements to Devall spontaneously. They occurred only during questioning by Devall after a report of sexual abuse against D.D. by a grandfather, a report of physical abuse against K.S. and her siblings by defendant, and a report of sexual abuse against D.D. by defendant. Moreover, K.S.\u2019 statements to Devall and Cordoni were inconsistent, which does not tend to support the reliability of her statements. For example, during her physical examination by Cordoni, K.S. told him that defendant put medicine in her, whereas K.S. told Devall that defendant put a bottle inside her \u201cprivate.\u201d\nIn addition, K.S. recanted her allegations against defendant a few months prior to the April 1997 section 115 \u2014 10 hearing. Regarding K.S.\u2019 motive to fabricate, Annette testified that K.S. told her that she had lied about defendant sexually abusing her because she was mad at defendant for hitting her and her siblings.\nSection 115 \u2014 10 of the Code specifies that the time of the victim\u2019s statements must provide sufficient safeguards for their reliability. In this case, the State alleged that the abuse occurred between October and November 1993, and between June and July 1994. K.S.\u2019 statement to Devall was not made until September 16, 1994. K.S.\u2019 delay in reporting defendant\u2019s actions, standing alone, does not undermine the reliability of K.S.\u2019 statement. See Zwart, 151 Ill. 2d at 45-46, 600 N.E.2d at 1172-73; see also People v. Land, 241 Ill. App. 3d 1066, 1081, 609 N.E.2d 1010, 1021 (1993) (the fact that the defendant was the child\u2019s father explained the several-month delay in reporting the abuse). However, the delay becomes significant when considered in light of other factors which tend to show that K.S.\u2019 statements to Devall lacked reliability.\nViewing the totality of the circumstances surrounding the statements K.S. made to Devall, we conclude that the State failed to show the statements possessed sufficient \u201csafeguards of reliability\u201d under section 115 \u2014 10 of the Code. Accordingly, we hold that the trial court abused its discretion by admitting the statements pursuant to that statutory provision, and our conclusion precludes their admission on remand.\nWe further conclude that the remaining evidence was sufficient to support a finding of guilt beyond a reasonable doubt. Thus, we remand for a new trial, noting that defendant faces no risk of double jeopardy on retrial on count I. See People v. Cruz, 162 Ill. 2d 314, 374, 643 N.E.2d 636, 664 (1994).\nIII. ISSUES ON REMAND\nWe now consider issues likely to arise on remand.\nA. Hearsay Statements Admitted Pursuant to Section 115 \u2014 13\nDefendant argues that the trial court erred by admitting K.S.\u2019 statements to Cordoni pursuant to section 115 \u2014 13 of the Code. Specifically, he contends that Cordoni\u2019s testimony violated section 115 \u2014 13 because K.S. did not see Cordoni for purposes of medical treatment or diagnosis but, rather, to compile evidence to be used in a subsequent prosecution. We disagree.\nSection 115 \u2014 13 of the Code provides, as follows:\n\u201cIn a prosecution for violation of [s]ection 12 \u2014 13, 12 \u2014 14, 12-\u2014 15[,] or 12 \u2014 16 of the \u2018Criminal Code of 1961[,\u2019] statements made by the victim to medical personnel for purposes of medical diagnosis or treatment including descriptions of the cause of symptom, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admitted as an exception to the hearsay rule.\u201d 725 ILCS 5/115 \u2014 13 (West 1992).\n(Defendant here was being tried for aggravated criminal sexual assault, a violation of section 12 \u2014 14 of the Criminal Code of 1961 (720 ILCS 5/12 \u2014 14(b)(1) (West 1992)).) Section 115 \u2014 13 of the Code is a narrow codification of the common law rule permitting the use of hearsay evidence revealed during medical treatment. People v. Falaster, 173 Ill. 2d 220, 229, 670 N.E.2d 624, 629 (1996).\nIn Falaster, following the child victim\u2019s report of abuse to authorities, an assistant State\u2019s Attorney accompanied the child to an examining physician\u2019s office. Falaster, 173 Ill. 2d at 233, 670 N.E.2d at 631 (Harrison, J., specially concurring, joined by McMorrow, J.). Once there, a registered nurse obtained a medical history from the child prior to the physician\u2019s examination. During the taking of the history, the child described the sexual abuse and identified the defendant as her offender. The trial court allowed the nurse\u2019s testimony regarding the child\u2019s statements. On appeal, the defendant contended that section 115 \u2014 13 did not authorize the use of the nurse\u2019s testimony because the victim was not at the doctor\u2019s office \u201cfor purposes of medical diagnosis or treatment.\u201d Instead, the defendant claimed that the victim underwent the examination solely as a means of developing evidence for use in a subsequent prosecution. Falaster, 173 Ill. 2d at 228-29, 670 N.E.2d at 628-29. In rejecting the defendant\u2019s contention, the supreme court wrote the following:\n\u201cWe do not agree with the defendant that the diagnostic purpose of the examination would be incompatible with its investigatory function. We note, moreover, that the statute does not distinguish between examining physicians and treating physicians.\u201d (Emphasis added.) Falaster, 173 Ill. 2d at 229, 670 N.E.2d at 629.\nIn the present case, Devall took K.S. to be examined by Cordoni on October 25, 1994. Cordoni testified that he obtained a medical history from K.S. and completed a physical examination of her. Cordoni stated that the purpose of taking a medical history from K.S. \u201cwas to obtain information about the nature of the alleged sexual assault, exactly what happened to her[,] and get an idea of what possible potential findings or abnormalities might be present.\u201d Cordoni further stated that a medical history is relevant to both his examination and diagnosis of a patient. During the taking of K.S.\u2019 medical history, K.S. described to Cordoni the sexual abuse and identified defendant as her offender.\nConsistent with the supreme court\u2019s decision in Falaster, we conclude that the examination conducted in this case was for a purpose within the scope of section 115 \u2014 13 of the Code. Accordingly, we hold that the trial court did not err by admitting Cordoni\u2019s testimony regarding K.S.\u2019 statements pursuant to that section.\nHaving so concluded, we also reject defendant\u2019s contention that if section 115 \u2014 13 of the Code \u201cis interpreted to permit the admission of such statements, that section violates the constitutional right of confrontation.\u201d In People v. Roy, 201 Ill. App. 3d 166, 178, 558 N.E.2d 1208, 1216-17 (1990), this court addressed this issue and held that statements properly admitted pursuant to section 115 \u2014 13 of the Code do not deny a defendant his confrontation rights. In so concluding, this court wrote, as follows:\n\u201cSection 115 \u2014 13 is a codification of the firmly rooted common law hearsay exception allowing statements describing medical history, symptoms, pain, or sensations made for purposes of medical diagnosis or treatment. The assumption underlying both section 115 \u2014 13 and the common law exception is that the desire for proper diagnosis or treatment outweighs any motive to falsify. Mere codification of the common law rule does not change these assumptions, nor are they negated when minor children are involved.\u201d Roy, 201 Ill. App. 3d at 179, 558 N.E.2d at 1217.\nB. The Trial Court\u2019s Decision To Allow the DCFS Investigator To\nTestify Regarding Recantation by Sexually Abused Children\nDefendant argues that the trial court erred by allowing Devall to testify about the frequency with which child victims of sexual abuse recant and the reasons for such recantation. Specifically, he contends that Devall\u2019s testimony constituted an improper comment on the veracity of K.S:\u2019 trial testimony and invaded the province of the jury to assess K.S.\u2019 credibility. We agree.\nA trial court should allow expert testimony only if (1) the proffered expert has knowledge and qualifications uncommon to laypersons that distinguish him as an expert; (2) the expert\u2019s testimony would help the jury understand an aspect of the evidence that it otherwise might not understand, without invading the province of the jury' to determine credibility and assess the facts of the case; and (3) the expert\u2019s testimony would reflect generally accepted scientific or technical principles. People v. Enis, 139 Ill. 2d 264, 288, 564 N.E.2d 1155, 1164 (1990); People v. Wilson, 246 Ill. App. 3d 311, 320, 615 N.E.2d 1283, 1288 (1993).\nSection 115- \u2014 -7.2 of the Code allows admission, as evidence, of the testimony of an expert qualified by the trial court relating to any recognized and accepted form of posttraumatic stress syndrome. 725 ILCS 5/115 \u2014 7.2 (West 1992). This court has previously applied this statute to allow experts to explain or testify with respect to certain symptoms or behavioral characteristics of child victims of sexual abuse, including (1) abnormal fears; (2) nightmares; (3) acting out sexually with toys or other children; (4) precocious sexual knowledge and the ability to relate explicit sexual behavior; (5) excessive masturbation; (6) regressive behavior, including bed-wetting; (7) being fearful and clinging to certain people; (8) tantrums and sudden mood swings; (9) complaints of pain in the vaginal or anal areas; (10) self-destructive behavior; (11) problems communicating with others; (12) inability to trust others; (13) failure in school; and (14) initial denial of the abuse. See People v. Turner, 241 Ill. App. 3d 236, 244-45, 608 N.E.2d 906, 912-13 (1993) (allowing police officer\u2019s testimony regarding the tendency of child sexual abuse victims to initially deny that they have been sexually abused); People v. Wasson, 211 Ill. App. 3d 264, 271, 569 N.E.2d 1321, 1326 (1991) (allowing therapist\u2019s testimony regarding behaviors indicative of sexual abuse and application of such knowledge to the facts of the case); People v. Roy, 201 Ill. App. 3d 166, 180, 558 N.E.2d 1208, 1218 (1990) (allowing pediatrician\u2019s testimony as to behavioral characteristics of child victims of sexual abuse under the label of posttraumatic stress syndrome); People v. Coleman, 205 Ill. App. 3d 567, 585, 563 N.E.2d 1010, 1021 (1990) (allowing testimony of nurse, physician, and therapist regarding behavioral characteristics of child victims of sexual abuse).\nHowever, in Wilson, 246 Ill. App. 3d at 322, 615 N.E.2d at 1289, this court upheld the trial court\u2019s rejection of the defendant\u2019s proffered expert testimony concerning the reliability of child-victim testimony, specifically child victims\u2019 allegedly poor memories and proclivities to invent accusations. In that case, the defendant\u2019s expert testified in an offer of proof regarding his findings in studies about how the limited cognitive ability of child victims taints their recollection of events. In upholding the trial court\u2019s ruling, this court concluded that the proffered testimony (1) would not have provided the jury with much information beyond the knowledge of an average layperson, and (2) would have severely impinged on the province of the jury to determine credibility and assess the facts of that case.\nThe Wilson court noted that the supreme court in Enis had addressed a similar situation when the defendant in that case offered an expert to testify about the reliability of eyewitness testimony, as follows:\n\u201cAlthough the [Erais] court noted that much of the expert\u2019s testimony would have resolved purported \u2018myths\u2019 about eyewitness testimony that were not pertinent to that case, the court wrote the following:\n\u2018We caution against the overuse of expert testimony. Such testimony, in this case concerning the unreliability of eyewitness testimony, could well lead to the use of expert testimony concerning the unreliability of other types of testimony and, eventually, to the use of experts to testify as to the unreliability of expert testimony. So-called experts can usually be obtained to support most any position. The determination of a lawsuit should not depend upon which side can present the most or the most convincing expert witnesses. We are concerned with the reliability of eyewitness expert testimony [citations], whether and to what degree it can aid the jury, and if it is necessary in light of defendant\u2019s ability to cross-examine eyewitnesses. An expert\u2019s opinion concerning the unreliability of eyewitness testimony is based on statistical averages. The eyewitness in a particular case may well not fit within the spectrum of these averages. It would be [inappropriate] for a jury to conclude, based on expert testimony, that all eyewitness testimony is unreliable.\u2019 \u201d Wilson, 246 Ill. App. 3d at 321, 615 N.E.2d at 1289, quoting Enis, 139 Ill. 2d at 289-90, 564 N.E.2d at 1165.\nIn the present case, we hold that Devall\u2019s testimony regarding the frequency of and reasons for recantation by child victims of sexual abuse (1) did not aid the jury in reaching its conclusion, and (2) severely impinged upon the province of the jury to determine credibility and assess the facts of the case. Devall testified that, in his experience, about 50% of children who made allegations of sexual abuse subsequently recanted those allegations. He further testified that based upon his education and training, including articles he had read, some of the reasons child victims recant include an unsupportive family and the child feeling blamed for the abusive parent\u2019s absence from the family. However, in this case, no evidence was presented that K.S. recanted her allegations against defendant because of an unsupportive family or because she felt like a scapegoat. Thus, Devall\u2019s testimony had nothing to do with K.S.\u2019 credibility. See Enis, 139 Ill. 2d at 289-90, 564 N.E.2d at 1165 (expert opinion testimony would not have aided the trier of fact in reaching its conclusion when the testimony regarding purported \u201cmyths\u201d of eyewitness testimony had little or no similarities to the eyewitnesses in that case).\nWhen stripped to its basic level, Devall\u2019s testimony regarding recantation by child victims constitutes a commentary on K.S.\u2019 credibility, similar to eyewitness opinion testimony. In essence, Devall was being asked to give his opinion on the believability of K.S., the child witness in this case. We view testimony regarding symptoms and behavioral characteristics as being different because such testimony does not constitute direct commentary on the child witness\u2019 believability. Instead, that testimony constitutes circumstantial evidence\u2014 that is, it describes certain behaviors shown by sexually abused children; thus, if other evidence shows the victim in a particular case engaged in those behaviors, a jury could reasonably view that evidence as supporting the State\u2019s claim that the child had been sexually abused. Just as trial courts reject defense attempts to offer purported expert testimony attacking witnesses\u2019 credibility, so should trial courts reject the State\u2019s attempt to use purported expert testimony to bolster witnesses\u2019 credibility. These are matters best left to the trier of fact. Accordingly, we hold that the trial court abused its discretion by allowing Devall\u2019s testimony regarding recantation by child victims of sexual abuse.\nIV CONCLUSION\nFor the reasons stated, we reverse and remand for a new trial consistent with the views expressed herein.\nReversed and remanded.\nGREEN and McCULLOUGH, JJ., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Michael B. Metnick and Diana N. Cherry (argued), both of Metnick, Cherry & Frazier, of Springfield, for appellant.", "Charles G. Reynard, State\u2019s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Charles F. Mansfield (argued), all 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. JOHN ALLAN SIMPKINS, Defendant-Appellant.\nFourth District\nNo. 4\u201497\u20140632\nArgued April 15, 1998.\n\u2014 Opinion filed June 10, 1998.\n\u2014 Modified on denial of rehearing August 6, 1998.\nMichael B. Metnick and Diana N. Cherry (argued), both of Metnick, Cherry & Frazier, of Springfield, for appellant.\nCharles G. Reynard, State\u2019s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Charles F. Mansfield (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0668-01", "first_page_order": 686, "last_page_order": 701 }