{ "id": 1472423, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK MAGUIRE, Defendant-Appellant", "name_abbreviation": "People v. Maguire", "decision_date": "2002-05-16", "docket_number": "No. 5\u201400\u20140524", "first_page": "1186", "last_page": "1198", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 1186" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "752 N.E.2d 1195", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "323 Ill. App. 3d 429", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171764 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "435" }, { "page": "434" }, { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0429-01" ] }, { "cite": "615 N.E.2d 1283", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "following and adopting the reasoning in Back" } ], "opinion_index": 0 }, { "cite": "246 Ill. App. 3d 311", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5388709 ], "year": 1993, "pin_cites": [ { "parenthetical": "following and adopting the reasoning in Back" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0311-01" ] }, { "cite": "752 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "26-27" } ], "opinion_index": 0 }, { "cite": "322 Ill. App. 3d 271", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126330 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/322/0271-01" ] }, { "cite": "605 N.E.2d 689", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "696" }, { "page": "695" }, { "page": "696" }, { "page": "696" } ], "opinion_index": 0 }, { "cite": "239 Ill. App. 3d 44", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5147141 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "54" }, { "page": "51-52" }, { "page": "53" }, { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0044-01" ] }, { "cite": "547 N.E.2d 1335", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "1343" } ], "opinion_index": 0 }, { "cite": "191 Ill. App. 3d 529", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2512525 ], "year": 1989, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0529-01" ] }, { "cite": "699 N.E.2d 577", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "584" }, { "page": "584" }, { "page": "586" } ], "opinion_index": 0 }, { "cite": "183 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209980 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "115" }, { "page": "114-15" }, { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0103-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "1130" } ], "opinion_index": 0 }, { "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" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 9, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "455" }, { "page": "2362-63" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] } ], "analysis": { "cardinality": 1092, "char_count": 29568, "ocr_confidence": 0.742, "pagerank": { "raw": 5.0011153170616546e-08, "percentile": 0.31395150836979296 }, "sha256": "1e002f01364c254bacef1af1713b4d103f09077ab15c47a766f0dc6f588e3b7e", "simhash": "1:44a6713e6324f771", "word_count": 4925 }, "last_updated": "2023-07-14T18:00:16.668960+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. MARK MAGUIRE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nAfter a jury trial in the circuit court of Madison County, Mark Maguire (defendant) was convicted of predatory criminal sexual assault of a child (720 ILCS 5/12 \u2014 14.1(a)(1) (West 1998)). Thereafter, the trial court found defendant to be a habitual criminal pursuant to section 33B \u2014 1 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/33B \u2014 1 (West 1998)) and sentenced defendant to life in prison. On appeal, defendant contends that (1) his conviction must be reversed because the State failed to prove that he was the person who committed the crime, (2) the trial court deprived him of his rights to compulsory process and due process by preventing him from compelling the testimony of the child victim at the reliability hearing, and (3) section 33B \u2014 1 of the Criminal Code, under which he was found to be a habitual criminal, violates a defendant\u2019s constitutional rights to due process and a trial by jury as set forth by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm.\nFACTS\nThe victim was four years old when she alleged that defendant molested her by placing his penis in her mouth. Defendant and his family lived in the same trailer park as the victim and her family. Prior to the trial, the State notified defendant that pursuant to section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115 \u2014 10 (West 1998)), it intended to introduce statements allegedly made by the victim to Susan Redmon, Sergeant Larry Coles, Kris J., M.J., S.J., and Lieutenant Jack Stalcup. The trial court then set the matter for a reliability hearing to determine whether the hearsay testimony was sufficiently reliable. Defendant subpoenaed the victim to testify at the reliability hearing. The State moved to quash the subpoena. The trial court granted the State\u2019s motion to quash.\nThe six witnesses listed by the State in its notice of intention to admit hearsay statements testified at the reliability hearing. Sergeant Larry Coles testified that on July 25, 1999, he was dispatched to the home of Kris J., the victim\u2019s mother, where he spoke with both Kris and the victim. Sergeant Coles asked the victim to tell him what happens when she goes to defendant\u2019s house to play. The victim initially hesitated, but after being reassured by her mother, she told Coles that defendant pulls down his pants in the living room when his son, J.D., goes outside to play. Defendant then gets under some covers with the victim and puts his \u201cwiener\u201d in her mouth. The victim said that this happened a lot. It occurs when Diane, defendant\u2019s wife, is at work.\nUpon completing the interview with the victim, Sergeant Coles telephoned his supervisor, Lieutenant Stalcup. Stalcup told Coles to ask the victim and her mother to come to headquarters so he could speak to them. Stalcup and Coles then interviewed the victim together at the police station. The victim\u2019s mother was also present. Coles asked the victim to tell Lieutenant Stalcup what happens when she plays at defendant\u2019s house. The victim said that defendant tells his son, J.D., to go outside and play. She and defendant then lie on the couch under the covers. Defendant then pulls down his pants and puts his \u201cwiener\u201d in her mouth. Defendant tells her not to tell anyone. He also gives her candy and lets her play with his kittens afterwards. Sergeant Coles specifically asked the victim whether she saw defendant\u2019s underwear. The victim said that she did not because defendant does not wear underwear. The victim said she is afraid of defendant. The victim said that she keeps her clothes on under the covers and denied that defendant ever touched her anywhere else.\nLieutenant Stalcup observed Sergeant Coles interview the victim at police headquarters while the victim\u2019s mother was in the room. Stalcup reiterated Coles\u2019 testimony about the interview. Stalcup also testified that later that day he and Coles went to defendant\u2019s house and placed defendant under arrest. The next day, Stalcup interviewed M.J., one of the victim\u2019s brothers. M.J. told him that the week before defendant\u2019s arrest, defendant babysat for him, his two brothers, and the victim and spanked all of them because they were fighting. According to Stalcup, M.J. did not seem mad about being spanked. M.J. also told Stalcup that he had walked over to defendant\u2019s trailer looking for the victim. When he entered, he saw the victim\u2019s head pop out from underneath covers on the couch. Defendant was also on the couch.\nSusan Redmon, a Department of Children and Family Services (DCFS) employee, went to the South Roxana police department at Lieutenant Stalcup\u2019s request for assistance with the instant case. Red-mon met with the victim and her mother in a small room at police headquarters. Redmon stated that the mother was present but did not interfere with Redmon\u2019s interview of the victim. According to Red-mon, the victim could distinguish her \u201cfake\u201d stuffed duck from her \u201creal dog,\u201d could count, and knew her colors. Redmon testified that the victim used the words \u201cbutt\u201d and \u201cpee-pee\u201d and \u201cwiener\u201d for the parts of anatomically correct dolls. Redmon recalled that without being specifically asked, the victim started talking about her neighbor J.D. and his father and mother. The victim told Redmon that defen-dont did a bad thing to her. She said that defendant did something bad while J.D. was outside playing and defendant\u2019s wife, Diane, was at work. She said that she and defendant would be under the blankets on the couch and that defendant would have his pants down around his feet. The victim said she did not remove any of her clothes. The victim told Redmon that after they were under the covers, defendant would put his \u201cwiener\u201d in her mouth and that his \u201cwiener\u201d would go in and out of her mouth. The victim said that her brothers were outside, except on one occasion when her brother M.J. saw her with her head under the covers.\nThe victim told M.J. what defendant did to her. According to Red-mon, the victim then said that M.J. \u201ctold on her\u201d to her mother. Red-mon specifically asked the victim about his underwear, and the victim replied that defendant does not wear underwear. The victim also said that sometimes when defendant put his \u201cwiener\u201d in her mouth it would make her cough. Redmon testified that the victim\u2019s concept of time was not good, but the victim did tell her that it was warm out when it occurred and that it happened more than once.\nKris J. testified that she lives with her boyfriend and four children, including the victim, in a trailer park. Her trailer and defendant\u2019s trailer are separated only by a vacant lot. Defendant\u2019s son, J.D., is approximately IV2 years older than the victim. The two children often played together, and the victim spent time at defendant\u2019s\" trailer. Defendant and his family got along well with the victim\u2019s family. On occasion, Kris saw the victim and defendant lying together underneath a blanket on defendant\u2019s couch. Kris\u2019s sons were not allowed in defendant\u2019s trailer. When Kris questioned defendant about this unequal treatment, defendant explained that he treated the victim differently because she was like his daughter that he never gets to see.\nAt the end of July 1999, Kris first learned of the alleged assault when one of the victim\u2019s brothers, age nine, informed her that the victim told him defendant \u201chad stuck his wiener in [the victim\u2019s] mouth.\u201d Kris immediately approached her daughter and asked her whether the allegations made by her brother were true. The victim told Kris that it was true and that it had occurred more than once. Kris asked a friend for advice. The friend talked to the victim, and the victim told the same story about defendant. Kris then contacted the police.\nBetween the time Kris learned about the alleged assault and the time she called the police, defendant became aware that the victim made accusations against him. Defendant asked Kris whether he could speak with the victim. Kris allowed defendant to speak with the victim while Kris was present. Defendant asked the victim whether she told anyone that he stuck his \u201cwiener\u201d in her mouth. The victim denied making such an allegation. Kris stated, \u201cI could tell [the victim] was a little scared *** [b]y the look on her face.\u201d Kris described what defendant said then, while in the victim\u2019s presence: \u201c[Defendant stated] that he didn\u2019t really need to have this kind of thing getting around, because if it did, if one word of this got out, that [sic] he would go back to prison.\u201d Sometime after the victim and Kris talked to defendant, Kris asked her daughter whether, when defendant pulled his pants down, he also pulled his underwear down, and the victim said, \u201cNo, mommy, he doesn\u2019t wear underwear.\u201d\nThe victim\u2019s brother M.J., age 12, testified that on one occasion, h\u00e9 saw defendant and the victim on defendant\u2019s couch underneath some blankets. According to M.J., the victim liked to play with defendant\u2019s son, but she did not like going over to defendant\u2019s house. M.J. said that the victim told him \u201cthat when she went over there, she had to suck [defendant\u2019s] wienie.\u201d M.J. did not immediately tell his mother what the victim told him. M.J. admitted that sometimes he got in trouble when he was playing at defendant\u2019s house. On cross-examination, defense counsel asked M.J. whether, a few days before defendant\u2019s arrest, defendant had paddled him, and M.J. responded: \u201cYeah. But he like tapped us. He tapped me.\u201d\nThe victim\u2019s brother S.J., age nine, also testified that he saw the victim and defendant under the covers on defendant\u2019s couch. According to S.J., the victim later told him \u201cthat once when she was laying [szc] under the covers, [defendant] told her to suck his private.\u201d S.J. said that the victim used the term \u201cpee-pee\u201d rather than \u201cprivate.\u201d S.J. said that the victim had a \u201csad face\u201d and was crying when she told him about the incident and that she had never made this type of allegation before. S.J. told his mother what the victim told him about defendant. S.J. further testified that defendant would occasionally babysit for him and his siblings and that sometimes he would get in trouble at defendant\u2019s house. Defendant paddled S.J. and bis siblings while he was babysitting for them right before he went to jail.\nAfter the State presented its witnesses, the prosecutor declared that the State would not be using Lieutenant Stalcup at the trial as a witness to the victim\u2019s hearsay statements. The trial court found that the time, contents, and circumstances of the victim\u2019s statements to S.J., M.J., Kris J., Susan Redmon, and Sergeant Coles were sufficiently reliable to allow those witnesses to testify at the trial about the victim\u2019s hearsay statements. The trial court noted defendant\u2019s continuing objection to the hearsay statements.\nAt the trial, Sergeant Coles, M.J., S.J., Kris J., and Susan Redmon testified consistently with their testimony at the reliability hearing. The victim, age five at the time of the trial, testified that she had completed preschool and would be starting kindergarten. She identified J.D. as a boy who lived next door. She said that she liked to play with J.D. and that they played both inside and outside. She said that J.D.\u2019s dad\u2019s name is Mark and his mom\u2019s name is Diane. She said that Mark told her to keep a secret and that, in exchange for her keeping the secret, Mark gave her gum and let her play with his kittens. She said that the secret happened when she and Mark were on the couch and Diane was at work. Using anatomically correct dolls, she testified that Mark would take off his clothes and put his penis in her mouth. The victim ultimately told her brothers the secret, and her brothers told her mother.\nLieutenant Stalcup, an investigator with the South Roxana police department who has special training to deal with sexual assaults, testified that he interviewed both the victim and defendant. He recalled that the victim was scared but did not have trouble relaying what had happened. He also stated that while the victim\u2019s mother was present during the interview, the mother did nothing that concerned him. As to the interview of defendant, he recalled that defendant was read his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)), signed a waiver of his rights, and proceeded to talk to Stalcup. Stalcup told defendant he was being investigated due to sexual assault allegations made by the victim. Stal-cup asked defendant for his version of events. Defendant said, \u201c[T]he situation come [sic] up, and the mother called the little girl over, and I was supposed to have done something.\u201d Stalcup asked him what he was supposed to have done, and defendant replied that one of the victim\u2019s brother\u2019s said he stuck his \u201cwienie\u201d in the victim\u2019s mouth. Defendant said that when he was talking to the victim and her mother, the victim specifically denied that this happened. Stalcup asked defendant if there was ever an opportunity for this to occur and whether he was ever alone with the victim. According to Stalcup, defendant responded: \u201cJust when she got a drink of water or lemonade. But my son, J.D., was always there.\u201d Stalcup asked defendant whether he had any gum or candy, and defendant told him he had some \u201cChiclets\u201d gum that his wife\u2019s father gave her. Defendant admitted that he had been under the covers on the couch with the victim, but he said that J.D. was also under the covers with them each time. Defendant said he had no idea why someone would make up such allegations. Defendant volunteered that he babysat for the children and had recently \u201cwhipped their butts for fighting.\u201d He said he had permission from their mother to do so.\nStalcup also asked defendant whether he had any kittens, and defendant stated that he did. Stalcup asked defendant whether he wore any underwear. According to Stalcup, defendant replied that when he went to work he wore underwear but that he did not wear any underwear around the house. Stalcup searched defendant\u2019s trailer and found gum under the couch and kittens in a bedroom. He also retrieved a brown and black blanket from the couch. The parties stipulated that if Kris J. was recalled, she would testify that the blanket retrieved by Stalcup was the blanket she had seen on defendant\u2019s couch near the time in question.\nAfter the State finished presenting its evidence, defendant moved for a directed verdict, arguing that insufficient evidence had been presented to convict defendant beyond a reasonable doubt. The trial court denied defendant\u2019s motion. Defendant did not present any evidence. Ultimately, the jury returned a verdict of guilty.\nAt the sentencing, it was disclosed that defendant had seven prior felony convictions, including convictions for Class X felonies. For example, in January 1978 defendant was convicted of armed robbery and burglary. Defendant was sentenced to 4^2 years in the Department of Corrections on the armed robbery conviction and 1 to 3 years\u2019 imprisonment on the burglary. In June 1980 defendant was convicted of home invasion and rape and was sentenced to 15 years in the Department of Corrections. In October 1989 defendant was convicted of residential burglary and was sentenced to four years in the Department of Corrections. In 1995, defendant was convicted of one count of aggravated criminal sexual assault and one count of kidnaping against an adult female. A memo dated July 27, 1999, from a sex therapist with the Department of Corrections was also introduced. The memo stated, inter alia:\n\u201c[Defendant\u2019s] progress in treatment has been minimal at best. Client has been resistant and has consistently tried to undermine the group therapy process with his hostile and passive[-]aggressive tendencies. He does not accept responsibilities [sic] for any of his offending behavior[ ] but[,] rather, views himself as a victim of circumstance.\nGiven the fact that client is so criminally versatile [,] it is this therapist [sic] opinion that he be considered a high risk to re[ ]offend[,] both sexually and criminally. Recent allegations involving [the] new sex offense charge would seem to confirm this prediction. Ghent is not amenable to treatment and would better be [sic] served if placed in a more restrictive environment.\u201d\nAfter hearing all the evidence, the trial court found that defendant qualified as a habitual criminal, and the court sentenced defendant to life imprisonment pursuant to section 33B \u2014 1 of the Criminal Code (720 ILCS 5/33B \u2014 1 (West 1998)). Defendant now appeals.\nANALYSIS\nI. Identification of Defendant\nDefendant first contends that his conviction must be reversed because the State failed to prove that he is. the person who committed the crime. Defendant insists that none of the witnesses identified him as the person who committed the crime. The State points out that defendant\u2019s identity was never at issue in this case and that defendant waived this issue by failing to raise it at the trial or in his posttrial motion. Additionally, the State asserts that the victim\u2019s mother identified defendant in open court.\nGenerally, both an objection at the trial and a written posttrial motion are required to preserve an error for review. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988). Because defendant failed to raise the issue complained of here, either at the trial or in his posttrial.motion, the issue is waived. Even assuming, arguendo, that the issue was not waived, we find it to be without merit.\nA review of the record supports the State\u2019s assertion that defendant\u2019s identity was never at issue in this case. The victim identified \u201cMark\u201d as the person who sexually assaulted her. \u201cMark\u201d lived next door to her and has a son named J.D. The victim\u2019s mother, Kris J., and the victim\u2019s siblings all testified about \u201cMark\u201d and his family and about the fact that defendant was their neighbor. Furthermore, the record shows that Kris was specifically asked whether she saw defendant in the courtroom. Kris replied that she did and pointed out that defendant was \u201cwearing a white shirt\u201d and \u201c[h]as a reddish[-] white beard.\u201d The prosecutor asked that the record reflect that Kris identified defendant. The trial court replied, \u201cThe witness is pointing to Mr. Maguire.\u201d Under these circumstances, we cannot agree with defendant that the State failed to meet its burden of proving that he was the person who committed the crime charged.\nII. Reliability Hearing\nDefendant next contends that the trial court deprived him of his rights to compulsory process and due process by preventing him from compelling the testimony of the victim at the reliability hearing and that, in light of these constitutional deprivations, his conviction must be reversed and the cause remanded for a new reliability hearing and a new trial. Defendant insists that by quashing the subpoena for the victim, the trial court deprived him of a key method of testing the reliability and admissibility of the victim\u2019s hearsay statements. We disagree.\nSection 115 \u2014 10(a)(2) of the Code provides that for any prosecution of a sexual offense committed on a child under the age of 13, testimony of the child\u2019s out-of-court statements which describe any complaint of such an act or matter or detail pertaining to any act which is an element of the charged offense is admissible as an exception to the hearsay rule. 725 ILCS 5/115 \u2014 10(a)(2) (West 1998). The admission of such testimony is subject to the requirements of section 115 \u2014 10(b) of the Code, which provides:\n\u201c(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 (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 1998).\nThe hearsay exception found in section 115 \u2014 10 of the Code was a legislative response to the difficulty associated with convicting a person accused of sexually assaulting a child. It is well accepted that at a trial a child witness, especially one who is extremely young, might lack the cognitive or language skills to effectively communicate about the abuse or might be impeded psychologically in his or her effort to do so. People v. Bowen, 183 Ill. 2d 103, 115, 699 N.E.2d 577, 584 (1998).\nThe requirement that the court find that the \u201ctime, content, and circumstances\u201d of the statement provide sufficient safeguards of reliability has been held to secure compliance with the defendant\u2019s sixth amendment right to be confronted with the witnesses against him (U.S. Const., amend. VI). People v. Rocha, 191 Ill. App. 3d 529, 541, 547 N.E.2d 1335, 1343 (1989). However, the actual testimony of the child at the reliability hearing is not necessary to enable the judge to evaluate whether there were sufficient safeguards of reliability when the statements were made. People v. Back, 239 Ill. App. 3d 44, 54, 605 N.E.2d 689, 696 (1992). In Back, the trial court allowed certain witnesses to testify regarding statements made to each of them by the child victim in a sexual assault, even though the child victim did not testify at the reliability hearing. Back, 239 Ill. App. 3d at 51-52, 605 N.E.2d at 695. The Back court held that the term \u201cproceeding,\u201d as used in section 115 \u2014 10 of the Code, \u201crefers to trial proceedings, not the reliability hearing.\u201d 239 Ill. App. 3d at 53, 605 N.E.2d at 696. This decision was based on the statute\u2019s direction that the focus of the reliability hearing be on the time, content, and circumstances surrounding the child victim\u2019s statements. The Back court specifically stated, \u201cThe child\u2019s testimony at the reliability hearing is not necessary to enable the trial judge to evaluate whether there were sufficient safeguards of reliability when the statements were made.\u201d 239 Ill. App. 3d at 54, 605 N.E.2d at 696. We recently adopted and followed the reasoning of Back. People v. Murphy, 322 Ill. App. 3d 271, 752 N.E.2d 19 (2001); see also People v. Wilson, 246 Ill. App. 3d 311, 615 N.E.2d 1283 (1993) (following and adopting the reasoning in Back).\nNotwithstanding these decisions, defendant insists that it was unfair to impair defendant\u2019s chosen method for testing the reliability of the out-of-court statements, which in this case was to call the child victim. Defendant insists that quashing the subpoena harmed his interests and lightened the State\u2019s load. However, upon a close examination, it is clear that defendant is not challenging the trial court\u2019s findings that the time, content, and circumstances of the victim\u2019s statements about the events in question ensure their reliability.\nSection 115 \u2014 10(b)(2)(A) of the Code refers to only one \u201cproceeding\u201d at which the child victim must testify. 725 ILCS 5/115\u2014 10(b)(2)(A) (West 1998). The logical argument is that the \u201cproceeding\u201d means the trial rather than the reliability hearing, because such an.interpretation protects a defendant\u2019s confrontation rights at a trial. Murphy, 322 Ill. App. 3d at 280, 752 N.E.2d at 26-27. In making such a determination, the Murphy court relied on People v. Bowen, 183 Ill. 2d 103, 699 N.E.2d 577 (1998). In Bowen, the Illinois Supreme Court determined that the testimony of the child is essential at the trial, not at the reliability hearing, and the court specifically stated, \u201c[Ujnless a finding of unavailability is made, statements admitted under section 115 \u2014 10 can never serve as substitutes for trial testimony, because section 115 \u2014 10 makes the introduction of the statements expressly contingent upon the child\u2019s production for direct and cross-examination at trial.\u201d Bowen, 183 Ill. 2d at 114-15, 699 N.E.2d at 584. In the instant case, the victim testified at the trial.\nIn determining the reliability of the child victim\u2019s hearsay statement, relevant factors include the following: (1) the spontaneity and consistent repetition of the statement, (2) the mental state of the child victim giving the statement, (3) the use of terminology not expected in a child of comparable age, and (4) the lack of a motive to fabricate. Bowen, 183 Ill. 2d at 120, 699 N.E.2d at 586. In the instant case, the victim\u2019s first allegation occurred spontaneously when she told her brother that \u201cMark\u201d told her to suck his \u201cpee-pee.\u201d The language evoked by the victim in describing the assault was consistent with the language one would expect a young child to use. The victim\u2019s brother said that the victim was crying when she made this statement and that the victim had never made this type of allegation before. The victim made essentially the same allegations to police and a DCFS caseworker each time she was asked to repeat what had occurred. When the mother questioned the victim about the alleged assault, the victim gave her virtually the same details she had given her brother.\nMoreover, some of the victim\u2019s details about the alleged assault indicate that her statements were reliable. For example, when she was asked about defendant\u2019s underwear, the victim replied that defendant did not wear underwear. When questioned by the police, defendant admitted that he did not wear underwear around the house. The victim said that defendant gave her gum and let her play with his kittens after the assault occurred. When the police interviewed defendant at his home and searched his house, they found a container full of gum and a fitter of kittens in a back bedroom.\nThe victim\u2019s mother recalled that her family got along well with defendant\u2019s family. The victim often played with defendant\u2019s son. The only evidence of any motive to fabricate was that defendant recently had disciplined the children while they were in his care. There is no question that the State presented sufficient evidence at the reliability hearing to show that the statements were reliable.\nBecause there is no statutory requirement that the child victim testify at the reliability hearing, we cannot say that the trial court abused its discretion in quashing the subpoena, especially in fight of the fact that the victim testified at the trial and defense counsel was given the opportunity to thoroughly cross-examine the victim. Nevertheless, we are not insensitive to defendant\u2019s concerns. We caution trial courts in the future to make certain that a defendant has a reasonable opportunity to test the reliability of the hearsay statements in a reasonable manner. However, we find that remanding the instant cause for a new reliability hearing would serve no purpose. Defendant failed to show that the statements were unreliable. For all these reasons, we find that the trial court did not deprive defendant of his constitutional rights to compulsory process or due process when it prevented him from compelling the testimony of the child victim at the reliability hearing.\nIII. Apprendi Concerns\nDefendant\u2019s final contention on appeal is that the fife sentence imposed by the trial court pursuant to section 33B \u2014 1 of the Criminal Code must be vacated because it was imposed in violation of the requirements set forth by the United States Supreme Court in Ap-prendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). In Apprendi, the United States Supreme Court held, \u201cOther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury[ ] and proved beyond a reasonable doubt.\u201d 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.\nIn People v. Pickens, 323 Ill. App. 3d 429, 752 N.E.2d 1195 (2001), this court rejected the same arguments raised by defendant herein. We specifically stated, \u201cSince the increase in the defendant\u2019s penalty beyond the sentencing range otherwise provided was based on prior convictions, it was constitutionally permissible for the trial judge to impose life imprisonment.\u201d Pickens, 323 Ill. App. 3d at 435, 752 N.E.2d at 1200. The holding and rationale in Pickens are equally applicable to the case at bar. As in Pickens, here, defendant\u2019s prior convictions are not an element of the crimes that he committed. Defendant\u2019s convictions are a part of his past, a criminal history obtained through proceedings that provided procedural safeguards. See Pickens, 323 Ill. App. 3d at 434, 752 N.E.2d at 1199. Because section 33B \u2014 1 of the Criminal Code requires punishment enhancement based upon the existence of prior convictions, it does not run afoul of Apprendi. Pickens, 323 Ill. App. 3d at 434, 752 N.E.2d at 1199. Accordingly, we reject defendant\u2019s contention that his sentence must be vacated. Considering defendant\u2019s criminal propensity, the life sentence imposed by the trial court is warranted.\nFor the foregoing reasons, the judgment of the circuit court of Madison County is hereby affirmed.\nAffirmed.\nKUEHN and CHAPMAN, Melissa, JJ., concur.", "type": "majority", "author": "JUSTICE GOLDENHERSH" } ], "attorneys": [ "Daniel M. Kirwan and John H. Gleason, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "William Haine, State\u2019s Attorney, of Edwardsville (Norbert J. Goetten, Stephen E. Norris, and Sharon Shanahan, 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. MARK MAGUIRE, Defendant-Appellant.\nFifth District\nNo. 5\u201400\u20140524\nOpinion filed May 16, 2002.\nDaniel M. Kirwan and John H. Gleason, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nWilliam Haine, State\u2019s Attorney, of Edwardsville (Norbert J. Goetten, Stephen E. Norris, and Sharon Shanahan, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1186-01", "first_page_order": 1204, "last_page_order": 1216 }