{ "id": 3600075, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASON M. SHARP, Defendant-Appellant", "name_abbreviation": "People v. Sharp", "decision_date": "2005-03-02", "docket_number": "No. 4\u201402\u20140913", "first_page": "786", "last_page": "804", "citations": [ { "type": "official", "cite": "355 Ill. App. 3d 786" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "803 N.E.2d 626", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "632" } ], "opinion_index": 0 }, { "cite": "345 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3739574 ], "year": 2004, "pin_cites": [ { "page": "953" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/0945-01" ] }, { "cite": "660 N.E.2d 901", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "909-10", "parenthetical": "\"Plain error marked by 'fundamental [un]fairness' occurs only in situations which 'reveal breakdowns in the adversary system,' as distinguished from 'typical trial mistakes' [citation]\"" } ], "opinion_index": 0 }, { "cite": "169 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909174 ], "year": 1995, "pin_cites": [ { "page": "17", "parenthetical": "\"Plain error marked by 'fundamental [un]fairness' occurs only in situations which 'reveal breakdowns in the adversary system,' as distinguished from 'typical trial mistakes' [citation]\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0001-01" ] }, { "cite": "520 U.S. 461", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11652245 ], "weight": 6, "year": 1997, "pin_cites": [ { "page": "466-67" }, { "page": "727" }, { "page": "1549" }, { "page": "467" }, { "page": "727" }, { "page": "1549" } ], "opinion_index": 0, "case_paths": [ "/us/520/0461-01" ] }, { "cite": "535 U.S. 625", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 353467 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "631-32" }, { "page": "868" }, { "page": "1785" }, { "page": "631" }, { "page": "868" }, { "page": "1785" } ], "opinion_index": 0, "case_paths": [ "/us/535/0625-01" ] }, { "cite": "788 N.E.2d 1117", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "1124", "parenthetical": "supplemental opinion upon denial of rehearing" }, { "page": "1124" } ], "opinion_index": 0 }, { "cite": "203 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799372 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "348", "parenthetical": "supplemental opinion upon denial of rehearing" }, { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0335-01" ] }, { "cite": "697 N.E.2d 302", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "308", "parenthetical": "in which we put the State \"on notice of the risk it takes by not recording interviews\"" } ], "opinion_index": 0 }, { "cite": "297 Ill. App. 3d 668", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910213 ], "year": 1998, "pin_cites": [ { "page": "678", "parenthetical": "in which we put the State \"on notice of the risk it takes by not recording interviews\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0668-01" ] }, { "cite": "600 N.E.2d 1169", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1173" } ], "opinion_index": 0 }, { "cite": "151 Ill. 2d 37", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3291537 ], "year": 1992, "pin_cites": [ { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0037-01" ] }, { "cite": "727 N.E.2d 404", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "406" } ], "opinion_index": 0 }, { "cite": "312 Ill. App. 3d 467", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411576 ], "year": 2000, "pin_cites": [ { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0467-01" ] }, { "cite": "699 N.E.2d 577", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "586" } ], "opinion_index": 0 }, { "cite": "183 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209980 ], "year": 1998, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0103-01" ] }, { "cite": "780 N.E.2d 807", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "811" }, { "page": "811" } ], "opinion_index": 0 }, { "cite": "335 Ill. App. 3d 786", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637105 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "791" }, { "page": "791" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0786-01" ] }, { "cite": "553 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "135 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256584 ], "year": 1990, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0252-01" ] }, { "cite": "538 N.E.2d 481", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "490" }, { "page": "489" } ], "opinion_index": 0 }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "90" }, { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "399 U.S. 149", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168934 ], "weight": 6, "year": 1970, "pin_cites": [ { "page": "158" }, { "page": "497" }, { "page": "1935" } ], "opinion_index": 0, "case_paths": [ "/us/399/0149-01" ] }, { "cite": "484 U.S. 554", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 601912 ], "weight": 15, "year": 1988, "pin_cites": [ { "page": "564" }, { "page": "961" }, { "page": "845" }, { "page": "560" }, { "page": "958-59" }, { "page": "843" }, { "page": "561" }, { "page": "959" }, { "page": "844" } ], "opinion_index": 0, "case_paths": [ "/us/484/0554-01" ] }, { "cite": "474 U.S. 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196542 ], "weight": 15, "year": 1985, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" }, { "page": "18" }, { "page": "18" }, { "page": "293-94" }, { "page": "18" }, { "page": "18" }, { "page": "293" }, { "page": "20" }, { "page": "19" }, { "page": "294" }, { "page": "20" }, { "page": "19" }, { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/us/474/0015-01" ] }, { "cite": "815 N.E.2d 37", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 2004, "pin_cites": [ { "page": "43" }, { "page": "44" }, { "page": "44" }, { "page": "45", "parenthetical": "in which this court recommended that interviews of alleged child victims be recorded" } ], "opinion_index": 0 }, { "cite": "351 Ill. App. 3d 857", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083879 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "864" }, { "page": "864" }, { "page": "865" }, { "page": "866" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0857-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 9, "year": 2004, "pin_cites": [ { "page": "60" }, { "page": "198" }, { "page": "1369" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "66" }, { "page": "608" }, { "page": "2539" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "816" }, { "page": "653" }, { "page": "3147" } ], "opinion_index": 0, "case_paths": [ "/us/497/0805-01" ] }, { "cite": "739 N.E.2d 455", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "478" } ], "opinion_index": 0 }, { "cite": "193 Ill. 2d 306", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963678 ], "year": 2000, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0306-01" ] }, { "cite": "815 N.E.2d 789", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "800" } ], "opinion_index": 1 }, { "cite": "351 Ill. App. 3d 976", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083803 ], "year": 2004, "pin_cites": [ { "page": "988" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/351/0976-01" ] }, { "cite": "355 Ill. App. 3d 992", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599477 ], "weight": 2, "pin_cites": [ { "page": "1000-01" }, { "page": "1000", "parenthetical": "noting Crawford applies only to statements made to governmental officials, not those made to nongovernmental personnel such as family members or physicians" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/355/0992-01" ] }, { "cite": "817 N.E.2d 183", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "190", "parenthetical": "finding the victim's statements to his mother were properly admitted under section 115 - 10 and did not raise any confrontation-clause issues" } ], "opinion_index": 1 }, { "cite": "352 Ill. App. 3d 776", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5457769 ], "year": 2004, "pin_cites": [ { "page": "784", "parenthetical": "finding the victim's statements to his mother were properly admitted under section 115 - 10 and did not raise any confrontation-clause issues" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/352/0776-01" ] }, { "cite": "821 N.E.2d 1148", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 1 }, { "cite": "213 Ill. 2d 340", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448849 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "344" }, { "page": "345" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/213/0340-01" ] }, { "cite": "355 Ill. App. 3d 564", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599639 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "576" }, { "page": "792" }, { "page": "576" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/355/0564-01" ] }, { "cite": "815 N.E.2d 37", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "44" } ], "opinion_index": 1 }, { "cite": "351 Ill. App. 3d 857", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083879 ], "year": 2004, "pin_cites": [ { "page": "864" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/351/0857-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 15, "year": 2004, "pin_cites": [ { "page": "68" }, { "page": "203" }, { "page": "1374" }, { "page": "68" }, { "page": "203" }, { "page": "1374" }, { "page": "51" }, { "page": "192" }, { "page": "1364" } ], "opinion_index": 1, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "500 U.S. 453", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6226195 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "464", "parenthetical": "construing statutes to uphold them if possible is not a license for the judiciary to rewrite language enacted by the legislature" }, { "page": "537-38", "parenthetical": "construing statutes to uphold them if possible is not a license for the judiciary to rewrite language enacted by the legislature" }, { "page": "1927", "parenthetical": "construing statutes to uphold them if possible is not a license for the judiciary to rewrite language enacted by the legislature" } ], "opinion_index": 2, "case_paths": [ "/us/500/0453-01" ] }, { "cite": "236 N.E.2d 698", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "page": "704", "parenthetical": "provisions are not separable if they are essentially and inseparably connected in substance" } ], "opinion_index": 2 }, { "cite": "39 Ill. 2d 531", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856713 ], "year": 1968, "pin_cites": [ { "page": "540", "parenthetical": "provisions are not separable if they are essentially and inseparably connected in substance" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/39/0531-01" ] }, { "cite": "671 N.E.2d 700", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "712", "parenthetical": "test is whether legislature would have passed the valid portions of the statute absent the invalid portions" } ], "opinion_index": 2 }, { "cite": "173 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147575 ], "year": 1996, "pin_cites": [ { "page": "372", "parenthetical": "test is whether legislature would have passed the valid portions of the statute absent the invalid portions" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/173/0348-01" ] }, { "cite": "568 N.E.2d 895", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "899" } ], "opinion_index": 2 }, { "cite": "142 Ill. 2d 548", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236817 ], "year": 1991, "pin_cites": [ { "page": "557" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/142/0548-01" ] }, { "cite": "563 N.E.2d 1010", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1020" } ], "opinion_index": 2 }, { "cite": "205 Ill. App. 3d 567", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2569177 ], "year": 1990, "pin_cites": [ { "page": "583" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/205/0567-01" ] }, { "cite": "355 Ill. App. 3d 28", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599340 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "34-35" }, { "page": "41", "parenthetical": "reasonable probability admission contributed to convictions" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/355/0028-01" ] }, { "cite": "351 Ill. App. 3d 976", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083803 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "989-92" }, { "page": "994-95" }, { "page": "997" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/351/0976-01" ] }, { "cite": "817 N.E.2d 183", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "188" }, { "page": "189-90" }, { "page": "189-90", "parenthetical": "key is ability to cross-examine the witness" } ], "opinion_index": 2 }, { "cite": "352 Ill. App. 3d 776", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5457769 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "781" }, { "page": "783" }, { "page": "783" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/352/0776-01" ] }, { "cite": "355 Ill. App. 3d 564", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599639 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "574-75" }, { "page": "576" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/355/0564-01" ] }, { "cite": "699 N.E.2d 577", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "584", "parenthetical": "\"Catch-22\" if defense must either call the child and risk inflaming the jury against it or forgo completely its right to cross-examine" } ], "opinion_index": 2 }, { "cite": "183 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209980 ], "year": 1998, "pin_cites": [ { "page": "114-15" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/183/0103-01" ] }, { "cite": "538 N.E.2d 481", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "489" } ], "opinion_index": 2 }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "year": 1989, "pin_cites": [ { "page": "88" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "484 U.S. 554", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 601912 ], "weight": 6, "year": 1988, "pin_cites": [ { "page": "560" }, { "page": "958" }, { "page": "843" }, { "page": "561" }, { "page": "959" }, { "page": "844" } ], "opinion_index": 2, "case_paths": [ "/us/484/0554-01" ] }, { "cite": "351 Ill. App. 3d 857", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083879 ], "year": 2004, "pin_cites": [ { "page": "869-70" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/351/0857-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 12, "year": 2004, "pin_cites": [ { "page": "50" }, { "page": "192" }, { "page": "1363" }, { "page": "68" }, { "page": "203" }, { "page": "1374" }, { "page": "63" }, { "page": "200" }, { "page": "1371", "parenthetical": "\"amorphous,\" \"unpredictable,\" \"demonstrated capacity to admit\" statements that should be excluded" } ], "opinion_index": 2, "case_paths": [ "/us/541/0036-01" ] } ], "analysis": { "cardinality": 1650, "char_count": 45679, "ocr_confidence": 0.72, "pagerank": { "raw": 1.932988225911154e-07, "percentile": 0.7344547886768688 }, "sha256": "88f363af41b4fb178a8927e2f91c99cbea570382280193e2d0b2739fd39bab03", "simhash": "1:aa38bf56bf078ce3", "word_count": 7572 }, "last_updated": "2023-07-14T21:57:27.413698+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. JASON M. SHARP, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn September 2002, a jury convicted defendant, Jason M. Sharp, of predatory criminal sexual assault of a child, finding that he committed an act of sexual penetration with J.E. when she was under 13 years of age (720 ILCS 5/12 \u2014 14.1(a)(1) (West Supp. 2001)). The trial court later sentenced him to 20 years in prison.\nDefendant appeals, arguing that (1) the trial court erred by admitting certain hearsay testimony in violation of (a) the confrontation clause of the sixth amendment (U.S. Const., amend. VI) and (b) section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115 \u2014 10 (West 2000)) and (2) he was denied a fair trial by the prosecutor\u2019s rebuttal argument. We disagree and affirm.\nI. BACKGROUND\nIn January 2002, the State charged defendant (who was then 20 years old) with predatory criminal sexual assault of a child, alleging that he committed an act of sexual penetration with J.E. (who was 11 years old at the time of the offense and 12 years old at defendant\u2019s trial) by placing his penis in her vagina (720 ILCS 5/12 \u2014 14.1(a)(1) (West Supp. 2001)). In February 2002, the State filed a motion under section 115 \u2014 10 of the Code (725 ILCS 5/115 \u2014 10 (West 2000)), seeking to offer at defendant\u2019s trial statements J.E. made to (1) her mother, Lydia E., (2) Mary Whitaker, the associate director of operations for the McLean County Children\u2019s Advocacy Center, and (3) her then-14year-old friend, Tasha B.\nA. The Section 115 \u2014 10 Hearing\nAt a March 2002 hearing on the State\u2019s section 115 \u2014 10 motion, Lydia testified that on January 2, 2002, she heard from her then-15year-old son, Jesse E., that defendant had had sexual intercourse with J.E. Later that day, Lydia had a conversation with J.E. Lydia first said, \u201c[J.E.], I heard a rumor today,\u201d to which J.E. responded, \u201cWhat, Mom?\u201d Lydia then said \u201c[I heard that defendant] had sex with my little girl.\u201d J.E. initially denied it, and Lydia said, \u201cOkay, honey, you know it\u2019s one thing for two adults to be having sex, but when a 20[-] some[-]year[-]old man is having sex with an 11 year old, that\u2019s rape, and it\u2019s wrong, and you need to tell me.\u201d At that point, J.E. burst into tears and said, \u201cYes, I told him to stop, but he wouldn\u2019t.\u201d Lydia then asked J.E. if defendant penetrated her, and J.E. responded that she did not know what the term \u201cpenetrated\u201d meant. Lydia explained the term, and J.E. said that defendant had penetrated her. J.E. also told Lydia that defendant had pushed her into a building at the local fairgrounds and sexually assaulted her. Lydia then telephoned the police and reported the incident.\nWhitaker testified that on January 11, 2002, she interviewed J.E. in the De Witt County sheriffs department \u201cvictim[-]sensitive interview room.\u201d Whitaker explained that the room had a \u201cliving[-]room setting\u201d and was set up so that the alleged child victim would not be distracted. She also explained that Jo Sipes, an Advocacy Center staff member, was present during the interview, and the interview was audiotaped and later transcribed. For the purpose of the section 115 \u2014 10 hearing, the trial court admitted in evidence the transcript and original audiotape of the interview. The transcript and audiotape showed that Whitaker asked J.E. open-ended questions and resorted to leading questions only to clarify details. After initial general questioning, Whitaker showed J.E. a drawing of an anatomically correct female child, and J.E. identified certain body parts, including the vagina (which J.E. referred to as \u201cPeechacho\u201d). J.E. then described the incident. In particular, J.E. stated that after she, Tasha, defendant (whom J.E. did not know), and Billy Joe W (a 12- or 13-year-old boy whom J.E. knew), walked to the county fairgrounds, defendant and BUly Joe walked up the grandstand stairway. Defendant tried to convince J.E. and Tasha to walk up the stairway, but they refused. Following several requests by defendant, J.E. and Tasha agreed to walk up the stairway. When they reached the stairway landing, defendant pulled J.E. into a room, while Tasha and Billy Joe remained at the top of the stairway. After defendant pulled J.E. into the room, he tripped her, and she fell to the floor. Defendant then pulled down J.E.\u2019s pants and underwear, took off his own pants and underwear, pinned J.E. down by holding her arms, and got on top of her. J.E. put her hands out in front of her and told defendant to \u201cstop now.\u201d She told him to stop \u201cabout [5] to [10] times.\u201d Defendant did not respond to J.E.\u2019s requests and, instead, continued to hold her down.\nWhitaker asked J.E. what happened next, but J.E. did not respond. Then Whitaker showed J.E. a drawing of an anatomically correct male and asked the following questions to which J.E. gave the following answers:\n\u201c[WHITAKER]: Okay[,] use whatever words you want, and you know what you, you don\u2019t even have to use a specific word[,] you can just tell me what happened.\n[J.E.]: He stuck his [\u2018]thing[\u2019] in ***.\n[WHITAKER]: Okay you said he stuck his [\u2018]thing[\u2019] in ***? [J.E.]: My Peechacho.\n[WHITAKER]: [Your] Peechac[h]o okay. When you say his [\u2018]thing[,\u2019] what what\u2019s his [\u2018]thing[\u2019]? You know another word for that, or would you like to use the drawing?\n[J.E.]: His pee pee.\u201d\nWhitaker then clarified that J.E. knew the difference between \u201cinside\u201d and \u201coutside.\u201d J.E. told Whitaker that after defendant put his \u201cpee pee\u201d inside her, he put his pants back on and told her to pull up her pants. J.E. then found Tasha and ran down the grandstand stairway. She acknowledged telling Lydia about the incident but denied telling Tasha about it. J.E. also said that when Jesse asked her if it was true that defendant had \u201cscrewed\u201d her, she denied it because she was \u201ctoo embarrassed.\u201d\nTasha testified that after she and J.E. left the fairgrounds, J.E. told her that defendant had had sex with J.E.\nAfter considering the testimony and counsel\u2019s arguments, the trial court took the matter under advisement. Later in March 2002, the court entered a docket entry order in which it (1) granted the State\u2019s motion seeking to offer at defendant\u2019s trial statements J.E. made to Lydia and Whitaker and (2) denied the State\u2019s motion seeking to offer the statements J.E. made to Tasha.\nB. Trial Testimony\nAt defendant\u2019s September 2002 trial, J.E. testified as to the circumstances surrounding how she, defendant, Tasha, and Billy Joe ended up in the grandstand of the fairgrounds on December 1, 2001. J.E. did not know the exact time the four of them walked to the fairgrounds, but it was \u201cturning dark.\u201d After they walked up the grandstand stairs, defendant opened a door, pushed J.E. inside a room, and shut the door. Tasha and Billy Joe remained outside the room on the stairway landing. Once inside the room, defendant tripped J.E. and pushed her to the floor.\nJ.E. did not respond on direct examination to five different questions about what defendant did to her when they were alone inside the room. However, she stated that she told defendant to \u201cstop\u201d about five times. J.E. also stated that everything she told Whitaker during the January 11, 2002, interview was true and accurate.\nOn cross-examination, J.E. answered all of defense counsel\u2019s questions (which were of a general sort) regarding (1) J.E.\u2019s activities on the day in question and (2) a description of the room involved. Defense counsel elected not to ask her any questions as to what happened in the room when defendant and she were in it together.\nTasha testified that after she, J.E., Billy Joe, and defendant walked up the grandstand stairway, defendant took J.E. into the room at the top of the stairs. Tasha and Billy Joe sat on a couch on the stairway landing. Shortly thereafter, Tasha heard J.E. say, \u201cStop it, ouch, that hurts\u201d and \u201cLeave me alone.\u201d She recalled hearing J.E. say \u201cOuch\u201d more than once. After around 15 to 30 minutes, when it was \u201cabout dark,\u201d J.E. and defendant came out of the room, and Tasha and J.E. walked to Tasha\u2019s residence.\nJesse testified that on December 31, 2001, he heard a rumor about defendant and J.E. That evening, he and two friends, Daniel Taylor and Steven Wisegarver, went to defendant\u2019s residence to confront him about the rumor. Defendant, who was there alone, let them in, and the four of them sat down in defendant\u2019s bedroom. Defendant said he had something to tell Jesse and then left the bedroom for a short time. When defendant returned, he told Jesse that he had \u201cfucked [Jesse\u2019s] sister.\u201d (J.E. is Jesse\u2019s only sister.) Jesse \u201cfreaked out,\u201d pinned defendant down, and they had \u201csome words.\u201d Jesse, Taylor, and Wisegarver then left.\nTaylor testified and gave substantially the same version of events that took place at defendant\u2019s residence on December 31, 2001, as did Jesse.\nWisegarver testified that after he, Jesse, and Taylor arrived at defendant\u2019s residence on the evening of December 31, 2001, the four of them sat down in defendant\u2019s bedroom. They were \u201cjust talking\u201d when Jesse asked defendant if the rumor about defendant and J.E. was true. Defendant replied that it was and then said, \u201cI fucked [Jesse\u2019s] sister.\u201d\nLydia testified substantially the same as she had at the section 115 \u2014 10 hearing regarding the statements J.E. made to her on January 2, 2002. However, she also stated that when she initially told J.E. about the rumor that defendant had had sex with J.E., J.E., who was drinking a soft drink, nodded her head.\nWhitaker testified substantially the same as she had at the section 115 \u2014 10 hearing regarding the statements J.E. made to her on January 11, 2002. The court admitted in evidence the State\u2019s exhibit No. 2, which Whitaker identified as a true and accurate audiotape of the January 11, 2002, interview. The court then allowed the State to play the audiotape for the jury.\nDefendant presented two alibi witnesses regarding the late afternoon of December 1, 2001, but did not testify himself. On this evidence, the jury convicted defendant. This appeal followed.\nII. ANALYSIS\nA. J.E.\u2019s Hearsay Statements\n1. Admissibility of the Statements Under the Confrontation Clause\nDefendant first argues that because section 115 \u2014 10 of the Code created a hearsay exception that is not \u201cfirmly rooted\u201d in the common law, the confrontation clause of the sixth amendment (U.S. Const., amend. VI) required that J.E.\u2019s statements to Lydia and Whitaker possess \u201c \u2018 \u201cparticularized guarantees of trustworthiness\u201d \u2019 \u201d (People v. Williams, 193 Ill. 2d 306, 350, 739 N.E.2d 455, 478 (2000), quoting Idaho v. Wright, 497 U.S. 805, 816, 111 L. Ed. 2d 638, 653, 110 S. Ct. 3139, 3147 (1990), quoting Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539 (1980), overruled on other grounds in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004)). For the following reasons, we conclude that the confrontation clause is not an issue under the circumstances of this case.\nIn People v. Miles, 351 Ill. App. 3d 857, 815 N.E.2d 37 (2004), this court addressed the same argument defendant raises here. We first noted that the United States Supreme Court\u2019s decision in Crawford v. Washington, 541 U.S. at 60, 158 L. Ed. 2d at 198, 124 S. Ct. at 1369, rendered the phrases \u201cindicia of reliability\u201d and \u201cparticularized guarantees of trustworthiness\u201d irrelevant to confrontation-clause analysis. Miles, 351 Ill. App. 3d at 864, 815 N.E.2d at 43. We further noted that the Crawford Court held that when \u201c \u2018the declarant appears for cross-examination at trial, the [c]onfrontation [c]lause places no constraints at all on the use of his prior testimonial statements.\u2019 \u201d Miles, 351 Ill. App. 3d at 864, 815 N.E.2d at 44, quoting Crawford, 541 U.S. at 60 n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1369 n.9.\nAlthough we adhere to our decision in Miles, we now further consider what the Crawford Court meant when it wrote about the hearsay declarant appearing for cross-examination at trial. In addition, we determine whether, under the circumstances of this case, the complainant, J.E., \u201cappear[ed] for cross-examination at trial,\u201d so that the introduction of her hearsay statements to Lydia and Whitaker did not implicate the confrontation clause.\na. What It Means To \u201cAppear for Cross-Examination\u201d\nThe Supreme Court in Crawford did not explain what it means for a declarant to \u201cappear for cross-examination.\u201d However, the Court\u2019s decision in Crawford neither overruled nor called into question its two earlier decisions that addressed and resolved this issue: Delaware v. Fensterer, 474 U.S. 15, 88 L. Ed. 2d 15, 106 S. Ct. 292 (1985) (per curiam), and United States v. Owens, 484 U.S. 554, 98 L. Ed. 2d 951, 108 S. Ct. 838 (1988).\nIn Fensterer, 474 U.S. at 18, 88 L. Ed. 2d at 18, 106 S. Ct. at 293-94, the Supreme Court, in a per curiam order, held that the confrontation clause does not require exclusion of expert opinion testimony, when the expert is unable to recall the basis for his opinion. In that case, the Delaware Supreme Court reversed the defendant\u2019s murder conviction because the prosecution\u2019s expert witness could not recall the theory upon which his opinion was based when he testified about cat hairs that were important in linking the defendant to the murder. The Delaware Supreme Court held that, absent an acknowledgment by the expert of the basis of his opinion, \u201c \u2018defense counsel\u2019s cross-examination of the [witness] was nothing more than an exercise in futility.\u2019 \u201d Fensterer, 474 U.S. at 18, 88 L. Ed. 2d at 18, 106 S. Ct. at 293. In reversing, the Supreme Court stated as follows: \u201cGenerally speaking, the [c]onfrontation [c]lause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.\u201d (Emphasis in original.) Fensterer, 474 U.S. at 20, 88 L. Ed. 2d at 19, 106 S. Ct. at 294.\nThree years later, in Owens, the Supreme Court held \u201cthat neither the Confrontation [c]lause nor Federal Rule of Evidence 802 is violated by admission of an identification statement of a witness who is unable, because of a memory loss, to testify concerning the basis for the identification.\u201d Owens, 484 U.S. at 564, 98 L. Ed. 2d at 961, 108 S. Ct. at 845. In that case, the defendant was charged with attacking and brutally beating a correctional counselor at a federal prison. As a result of his injuries, the victim\u2019s memory was severely impaired. Three weeks after the attack, the victim, although still hospitalized, had sufficiently improved to be interviewed by an FBI agent. During the interview, the victim described the attack, named the defendant as his attacker, and identified him from an array of photographs.\nAt the defendant\u2019s trial, the victim testified that he clearly remembered identifying the defendant as his assailant during his interview with the FBI agent but conceded that he could not then remember seeing his assailant at the time of the attack. Further, despite evidence that he had received numerous visitors during his hospitalization, he was unable to remember any of them except the FBI agent to whom he identified the defendant, and he could not remember whether any of the other visitors had suggested that the defendant was the assailant. Efforts to refresh his recollection were not successful. The Ninth Circuit Court of Appeals reversed the defendant\u2019s conviction, but the Supreme Court reversed that court and reinstated it. In doing so, the Court reaffirmed what it said in Fensterer, writing as follows:\n\u201cThe dangers associated with hearsay inspired the Court of Appeals in the present case to believe that the Constitution required the testimony to be examined for \u2018indicia of reliability\u2019 [citation] or \u2018particularized guarantees of trustworthiness\u2019 [citation]. We do not think such an inquiry is called for when a hearsay declarant is present at trial and subject to unrestricted cross-examination. In that situation, as the [C]ourt recognized in [California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970)], the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness\u2019 demeanor satisfy the constitutional requirements. [Citation.] We do not think that a constitutional line drawn by the [Confrontation [c]lause falls between a forgetful witness\u2019 live testimony that he once believed this defendant to be the perpetrator of the crime, and the introduction of the witness\u2019 earlier statement to that effect.\u201d Owens, 484 U.S. at 560, 98 L. Ed. 2d at 958-59, 108 S. Ct. at 843.\nThe Owens Court also rejected the defendant\u2019s argument that the Court of Appeals\u2019 decision should be affirmed under Federal Rule of Evidence 802, which generally excludes hearsay. The Supreme Court concluded that the witness was \u201csubject to cross-examination\u201d concerning the prior identification, as that phrase was used in Federal Rule of Evidence 801(d)(1)(C). In so concluding, the Court stated as follows:\n\u201cIt seems to us that the more natural reading of \u2018subject to cross-examination concerning the statement\u2019 includes what was available here. Ordinarily a witness is regarded as \u2018subject to cross-examination\u2019 when he is placed on the stand, under oath, and responds willingly to questions.\u201d (Emphasis added.) Owens, 484 U.S. at 561, 98 L. Ed. 2d at 959, 108 S. Ct. at 844.\nIn People v. Flores, 128 Ill. 2d 66, 90, 538 N.E.2d 481, 490 (1989), the Supreme Court of Illinois followed the analysis of the United States Supreme Court in Fensterer and Owens in rejecting the defendant\u2019s argument that a witness\u2019 professed memory loss as to the content of a conversation he had with the defendant deprived defense counsel of an opportunity to cross-examine the witness concerning his prior testimony (which was admitted under section 115 \u2014 10.1 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 115 \u2014 10.1)). The Flores court wrote, in pertinent part, as follows:\n\u201cThe confrontation clause is not violated by admitting a declarant\u2019s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination. [Delaware v. Fensterer, 474 U.S. 15, 20, 88 L. Ed. 2d 15, 19, 106 S. Ct. 292, 296 (1985); Green, 399 U.S. at 158, 26 L. Ed. 2d at 497, 90 S. Ct. at 1935.] Contrary to the defendant\u2019s assertions, a gap in the witness\u2019 recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination. See, e.g., United States v. Owens, 484 U.S. 554, 98 L. Ed. 2d 951, 108 S. Ct. 838 (1988).\u201d Flores, 128 Ill. 2d at 88, 538 N.E.2d at 489.\nSee also People v. Redd, 135 Ill. 2d 252, 310, 553 N.E.2d 316, 342 (1990), where the supreme court cited Owens, Green, and Flores and wrote the following: \u201cAs long as the [hearsay] declarant is actually testifying as a witness and is subject to full and effective cross-examination, then the confrontation clause is not violated by admitting the out-of-court statement of the declarant.\u201d\nb. J.E. \u201cAppeared\u201d for Cross-Examination at Defendant\u2019s Trial\nAs mentioned earlier, J.E., who was then 12 years old, testified at defendant\u2019s September 2002 trial at some length regarding what she did and with whom she did it on December 1, 2001. However, at the point in her testimony when she described how defendant pulled her into the room at the top of the grandstand stairway and pushed her down to the floor, she stopped her narrative. When the prosecutor asked her what happened next, the record shows, \u201cNo response by witness.\u201d The prosecutor tried four more times to get J.E. to relate what happened to her, but each time the record shows, \u201cNo response by witness.\u201d However, J.E. later testified on direct examination about her activities after defendant released her from the room, mentioning where she went, with whom, and how long she engaged in those activities the rest of the day.\nOn cross-examination, J.E. answered all of the questions put to her by defense counsel. However, defense counsel made no attempt to cross-examine J.E. regarding what his client did while in the room with her.\nDespite J.E.\u2019s apparent unwillingness or inability to testify on direct examination about what defendant did to her in the room, this record demonstrates that J.E. \u201cappeared\u201d for cross-examination at trial within the meaning of Crawford. The key inquiry is whether she was present for cross-examination and answered questions asked of her by defense counsel. Because she was present for cross-examination and answered defense counsel\u2019s questions, the confrontation clause places absolutely no constraints on the use of J.E.\u2019s prior statements to Lydia and Whitaker. (Because J.E. answered defense counsel\u2019s questions on cross-examination, we need not decide what the legal consequences would be, if any, if she had instead answered some, but not all, of those questions.) In other words, the question of the admissibility of those prior statements must be measured only by whether they meet the requirements of section 115 \u2014 10 of the Code (725 ILCS 5/115 \u2014 10 (West 2002)), as discussed in the next section of this opinion. For purposes of the confrontation clause, because J.E. \u201cappeared\u201d for cross-examination at trial within the meaning of Crawford, any prior statement of J.E. being offered at trial is a nonevent.\n2. Admissibility of the Statements Under Section 115 \u2014 10\nDefendant also argues that the trial court erred by admitting J.E.\u2019s statements to Lydia and Whitaker, pursuant to section 115 \u2014 10 of the Code (725 ILCS 5/115 \u2014 10 (West 2002)). Specifically, he contends that J.E.\u2019s statements were not reliable.\nInitially, we note that defendant has forfeited this issue on appeal by failing to object to J.E.\u2019s statements to Lydia and Whitaker at the section 115 \u2014 10 hearing. The record shows that defendant objected only to J.E.\u2019s statements to Tasha. However, even assuming that defendant had not forfeited this issue, we nonetheless reject it on the merits.\nAlthough the \u201creliability\u201d test in Roberts and Wright is defunct as far as the confrontation clause is concerned, it remains a part of the statutory exception to the hearsay rule set forth in section 115 \u2014 10 of the Code (725 ILCS 5/115 \u2014 10 (West 2002)). Miles, 351 Ill. App. 3d at 865, 815 N.E.2d at 44. Section 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 (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 2002).\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) the child\u2019s use of terminology unexpected of a child of similar age, and (4) the child\u2019s lack of motive to fabricate. People v. Cookson, 335 Ill. App. 3d 786, 791, 780 N.E.2d 807, 811 (2002).\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. Cookson, 335 Ill. App. 3d at 791, 780 N.E.2d at 811. A reviewing court will reverse a trial court\u2019s determination pursuant to section 115 \u2014 10 of the Code only when the record demonstrates that the court abused its discretion. People v. Bowen, 183 Ill. 2d 103, 120, 699 N.E.2d 577, 586 (1998). An abuse of discretion occurs when the court\u2019s ruling is arbitrary, fanciful, or unreasonable or when no reasonable person would take the same view. People v. Robertson, 312 Ill. App. 3d 467, 469, 727 N.E.2d 404, 406 (2000).\nIn this case, we recognize that (1) a 33-day delay occurred between the December 1, 2001, incident and J.E.\u2019s statement to Lydia and (2) J.E. initially denied that defendant sexually assaulted her when Lydia asked her. However, a delay in reporting an assault or initial denials of assault will not automatically render a victim\u2019s statements inadmissible under section 115 \u2014 10 of the Code. People v. Zwart, 151 Ill. 2d 37, 46, 600 N.E.2d 1169, 1173 (1992). Thus, as defendant concedes, the timing of J.E.\u2019s statement, standing alone, does not make the statement unreliable. After her initial denial, J.E. began crying and told Lydia that defendant had sexually assaulted her despite her pleas that he stop. Further, Lydia did not coach J.E. as to what she should say. Contrary to defendant\u2019s claim, the fact that Lydia had to explain the term \u201cpenetrated\u201d to J.E. does not render the statement unreliable. Defendant seems to suggest that if J.E. were a victim of sexual assault, she should be better versed in sexual terminology. However, this was not a case in which a child victim had been \u201cgroomed\u201d by a sexual predator and assaulted or abused over a period of time. Instead, J.E. was sexually assaulted on one occasion, and the fact that she did not know the term \u201cpenetrated\u201d suggests (if anything) that she was not coached as to what to say.\nIn addition, the version of events that J.E. shared with Lydia was substantially consistent with the account of the assault she gave to Whitaker. As to Whitaker\u2019s January 11, 2002, interview of J.E., we note that Whitaker audiotaped the interview. See Miles, 351 Ill. App. 3d at 866, 815 N.E.2d at 45 (in which this court recommended that interviews of alleged child victims be recorded); People v. Simpkins, 297 Ill. App. 3d 668, 678, 697 N.E.2d 302, 308 (1998) (in which we put the State \u201con notice of the risk it takes by not recording interviews\u201d). Whitaker did not coach J.E. on what to say, and she asked leading questions only to clarify details. Further, nothing in the record indicates that J.E. had any motive to lie about the assault by defendant.\nReviewing the record under the appropriate standard of review, we conclude that the trial court did not abuse its discretion by admitting J.E.\u2019s statements to Lydia and Whitaker regarding the sexual assault, pursuant to section 115 \u2014 10 of the Code (725 ILCS 5/115 \u2014 10 (West 2002)).\nB. The Prosecutor\u2019s Rebuttal Argument\nLast, defendant argues that he was denied a fair trial by the prosecutor\u2019s comments during rebuttal argument. Specifically, he complains that the prosecutor (1) improperly misrepresented that J.E.\u2019s statements to Whitaker were not hearsay and (2) compounded the misrepresentation by commenting that defense counsel\u2019s closing argument was a \u201csmokescreen\u201d and defense counsel was \u201cmudslinging.\u201d In response to defense counsel\u2019s comment during closing argument that the State\u2019s case rested \u201con hearsay evidence and hearsay evidence alone,\u201d the prosecutor made the following remarks:\n\u201cDefendant wants to characterize this [case] as nothing but a hearsay case. That\u2019s not true at all. Again, that\u2019s twisting the facts. [J.E.\u2019s] testimony in her interview where she tells what happened to her, that *** [she was] pinned to the floor and sexually penetratedf,] is not hearsay. That\u2019s not hearsay at all, ladies and gentlemen. This case does not revolve around hearsay [J.E.] just told you what happened to her. She was there. That\u2019s not hearsay at all. A [sic] whole case does not revolve [sic] hearsay. Don\u2019t fall for the smokescreen. [Tasha] stated that she was there; she walked out to the fairgrounds, too, and she knows who went into that little room. *** I don\u2019t think there is any reasonable doubt in this particular case, but what [defendant] is doing is simply mudslinging, trying to muddy up the waters, trying to confuse the jurors, throw a bucket of mud on the wall and hope some of it sticks somewhere. [The police officer] wasn\u2019t at fault. This was 32 days later when he found out about it. This wasn\u2019t his fault. It\u2019s not [Jesse\u2019s] fault. It is not [Wisegarver\u2019s] fault. It is not [Taylor\u2019s] fault. It is not [Tasha\u2019s] fault and it\u2019s not [Lydia\u2019s] fault. It\u2019s not [J.E.\u2019s] fault. The person who is at fault, ladies and gentlemen, is [defendant]. Don\u2019t be deceived by the smokescreen.\u201d\nDefendant concedes that by failing to raise a timely objection at trial, he has forfeited this issue on appeal. Nonetheless, he urges us to review it under the plain-error rule.\nOur supreme court has addressed the issue of plain error as follows:\n\u201c \u2018 \u201c[B]efore an appellate court can correct an error not raised at trial, there must be (1) \u2018error,\u2019 (2) that is \u2018plain,\u2019 and (3) that \u2018affect[s] substantial rights.\u2019 [Citation.] If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error \u2018 \u201c \u2018seriously affects the fairness, integrity, or public reputation of judicial proceedings.\u2019 \u201d \u2019 [Citations.]\u201d \u2019 \u201d People v. Crespo, 203 Ill. 2d 335, 348, 788 N.E.2d 1117, 1124 (2001) (supplemental opinion upon denial of rehearing), quoting United States v. Cotton, 535 U.S. 625, 631-32, 152 L. Ed. 2d 860, 868, 122 S. Ct. 1781, 1785 (2002), quoting Johnson v. United States, 520 U.S. 461, 466-67, 137 L. Ed. 2d 718, 727, 117 S. Ct. 1544, 1549 (1997).\nSee People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901, 909-10 (1995) (\u201cPlain error marked by \u2018fundamental [un]fairness\u2019 occurs only in situations which \u2018reveal breakdowns in the adversary system,\u2019 as distinguished from \u2018typical trial mistakes\u2019 [citation]\u201d).\nThis court will take our supreme court at its word and find plain error only in exceptional circumstances in which \u201c \u2018 \u201cthe error \u2018 \u201c \u2018seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.\u2019 \u201d \u2019 [Citations.]\u201d \u2019 \u201d Crespo, 203 Ill. 2d at 348, 788 N.E.2d at 1124, supplemental opinion upon denial of rehearing, quoting Cotton, 535 U.S. at 631, 152 L. Ed. 2d at 868, 122 S. Ct. at 1785, quoting Johnson, 520 U.S. at 467, 137 L. Ed. 2d at 727, 117 S. Ct. at 1549.\nEven accepting defendant\u2019s contention that the complained-of remarks were improper, we conclude that \u2014 when viewed in the context of the parties\u2019 closing arguments as a whole \u2014 they did not result in substantial prejudice to defendant or compromise the fairness or integrity of the trial process. In that regard, we note that (1) the trial court instructed the jury that closing arguments were not evidence and arguments not based on the evidence were to be disregarded and (2) the prosecutor\u2019s allegedly improper comments were not overly extensive. Accordingly, we will not address defendant\u2019s argument under the plain-error doctrine. See People v. Brooks, 345 Ill. App. 3d 945, 953, 803 N.E.2d 626, 632 (2004) (in which the appellate court declined to address on the merits the defendant\u2019s claim that the prosecutor\u2019s closing argument denied him a fair trial, upon concluding that no reason existed to excuse the defendant\u2019s procedural default because the complained-of remarks did not prejudice the defendant or compromise the integrity or fairness of the trial).\nIII. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment.\nAffirmed.", "type": "majority", "author": "JUSTICE STEIGMANN" }, { "text": "JUSTICE TURNER,\nspecially concurring:\nAlthough I fully concur with the majority opinion, I write separately to voice my disagreement with our dissenting colleague\u2019s conclusion \u201c[t]he applicability of Crawford to section 115 \u2014 10 could not be clearer. Section 115 \u2014 10 is unconstitutional.\u201d 355 Ill. App. 3d at 804, citing In re E.H., 355 Ill. App. 3d 564, 576 (2005).\nA statute is facially unconstitutional only if no circumstances exist in which it could be validly applied. Lucien v. Briley, 213 Ill. 2d 340, 344, 821 N.E.2d 1148 (2004). Thus, if a statute permits an unconstitutional procedure, but also allows for a constitutionally correct procedure, the statute is not facially unconstitutional. See Lucien, 213 Ill. 2d at 345.\nAs recognized by the majority opinion (see 355 Ill. App. 3d at 792), the Crawford Court noted that \u201cwhen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of prior testimonial statements.\u201d Crawford, 541 U.S. at 60 n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1369 n.9. While section 115 \u2014 10 does require a judicial determination of the statement\u2019s reliability before the statement is admissible, the section also requires that the child declarant either (1) testify at the proceeding or (2) be unavailable as a witness and corroborative evidence of the act that is the subject of the statement exists. 725 ILCS 5/115 \u2014 10(b)(1), (b)(2) (West 2002). Thus, when the declarant testifies at trial, the hearsay statements admitted under section 115 \u2014 10 do not violate Crawford. See Miles, 351 Ill. App. 3d at 864, 815 N.E.2d at 44. Accordingly, section 115 \u2014 10 clearly provides for the constitutional admission of hearsay statements when the declarant does testify.\nMoreover, the Crawford Court further stated that \u201c[w]here non-testimonial hearsay is at issue, it is wholly consistent with the Framers\u2019 design to afford the States flexibility in their development of hearsay law \u2014 as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.\u201d Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Hence, where the declarant\u2019s statements are nontestimonial, section 115 \u2014 10 again permits the admissibility of statements that do not violate the confrontation clause. See In re Rolandis G., 352 Ill. App. 3d 776, 784, 817 N.E.2d 183, 190 (2004) (finding the victim\u2019s statements to his mother were properly admitted under section 115 \u2014 10 and did not raise any confrontation-clause issues); see also People v. R.F., 355 Ill. App. 3d 992, 1000-01 (finding Crawford did not apply to the victim\u2019s hearsay statements to her mother and grandmother that were admitted under section 115 \u2014 10).\nAlthough the majority opinion properly did not address the nature of the victim\u2019s testimony since the victim did testify for confrontation-clause purposes, I will address the nature of the victim\u2019s statements to her mother to further demonstrate that section 115 \u2014 10 is facially constitutional.\nWhile the Supreme Court in Crawford did not provide a comprehensive definition of \u201ctestimonial,\u201d it did provide some instructive examples. The term \u201capplies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.\u201d Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The Crawford Court also provided other clues as to what constitutes testimonial statements. For example, the Court noted \u201c[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.\u201d Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364. Additionally, in responding to the special concurrence, the Court stated \u201c[ijnvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse \u2014 a fact borne out time and again throughout a history with which the Framers were keenly familiar.\u201d Crawford, 541 U.S. at 56 n.7, 158 L. Ed. 2d at 196 n.7, 124 S. Ct. at 1367 n.7. Thus, \u201cCrawford indicates that governmental involvement in some fashion in the creation of a formal statement is necessary to render the statement testimonial in nature.\u201d In re T.T., 351 Ill. App. 3d 976, 988, 815 N.E.2d 789, 800 (2004); see also R.F., 355 Ill. App. 3d at 1000 (noting Crawford applies only to statements made to governmental officials, not those made to nongovernmental personnel such as family members or physicians).\nHere, Lydia questioned the child as a concerned and loving parent. Lydia desired to determine if her child had been sexually abused, and she questioned J.E. to determine the veracity of her suspicions. Lydia\u2019s questions and J.E.\u2019s responses were not prompted by police officers or any other governmental authority, and I conclude the responses elicited were thus nontestimonial in nature. Because J.E.\u2019s statements to her mother were nontestimonial, Crawford is not implicated and admitting these statements under section 115 \u2014 10 is constitutional.\nThe dissent\u2019s rationale for pronouncing all of section 115 \u2014 10 unconstitutional based upon Crawford is untenable. Its generalization that most child victims are unavailable to testify at trial does not render section 115 \u2014 10 of the Code unconstitutional where the section clearly provides for circumstances in which hearsay statements are constitutionally admissible. Likewise, for the reasons stated in this special concurrence, I disagree with the First District\u2019s finding section 115 \u2014 10 is unconstitutional in E.H., 355 Ill. App. 3d at 576.", "type": "concurrence", "author": "JUSTICE TURNER," }, { "text": "PRESIDING JUSTICE COOK,\ndissenting:\nI respectfully dissent and would reverse and remand for a new trial. Section 115 \u2014 10 is in essential conflict with Crawford, hut the majority would allow section 115 \u2014 10\u2019s use of ex parte examinations to continue, by pro forma putting the child on the stand even if she is unable to answer a single question.\nThe majority is complimentary of the questioning of J.E. at the De Witt County sheriff\u2019s department. Whitaker, a social worker employed by McLean County to pursue such investigations, \u201casked J.E., open-ended questions and resorted to leading questions only to clarify details.\u201d 355 Ill. App. 3d at 789. Whitaker even audiotaped the interview, following the recommendations issued by this court in other cases. 355 Ill. App. 3d at 797. Whitaker did not coach J.E. on what to say (at least so far as we know). 355 Ill. App. 3d at 797.\nThe problem, however, is that neither defendant nor his attorney was present for the interrogation. There was no opportunity to cross-examine. What we have here is the principal evil at which the confrontation clause was directed, the use of ex parte examinations as evidence against the accused. See Crawford, 541 U.S. at 50, 158 L. Ed. 2d at 192, 124 S. Ct. at 1363. The statement taken by Whitaker was clearly testimonial. The similar tape-recorded statement in Crawford, \u201cknowingly given in response to structured police questioning, qualifies under any conceivable definition.\u201d Crawford, 541 U.S. at 53 n.4, 158 L. Ed. 2d at 194 n.4, 124 S. Ct. at 1365 n.4. Whatever else \u201ctestimonial\u201d covers, it applies at a minimum to police interrogations. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374; People v. West, 355 Ill. App. 3d 28, 34-35 (2005). The Whitaker questioning, which had as its goal the production of testimony with an eye toward trial, was a police interrogation. Where the Department of Children and Family Services (DCFS) works at the behest of and in tandem with the State\u2019s Attorney with the intent and purpose of assisting in the prosecutorial effort, DCFS functions as an agent of the prosecution. T.T., 351 Ill. App. 3d at 989-92, 815 N.E.2d at 801-03 (surrogate testimony of social workers); Rolandis G., 352 Ill. App. 3d at 781, 817 N.E.2d at 188. The Whitaker interrogation was clearly a substitute for testimony at trial. The confrontation-clause errors in this case could not have been harmless. See T.T., 351 Ill. App. 3d at 994-95, 815 N.E.2d at 805 (testimonial statements provided significantly more detail about the assault than evidence properly admitted at trial); West, 355 Ill. App. 3d at 41 (reasonable probability admission contributed to convictions); E.H., 355 Ill. App. 3d at 574-75.\nThe majority seeks to justify the admission of this ex parte examination on the basis that J.E. appeared at trial and was \u201csubject to unrestricted cross-examination.\u201d Owens, 484 U.S. at 560, 98 L. Ed. 2d at 958, 108 S. Ct. at 843. \u201c[A] witness is regarded as \u2018subject to cross-examination\u2019 when he is placed on the stand, under oath, and responds willingly to questions.\u201d Owens, 484 U.S. at 561, 98 L. Ed. 2d at 959, 108 S. Ct. at 844. The confrontation clause is not violated where the declarant testifies and is \u201csubject to full and effective cross-examination.\u201d Flores, 128 Ill. 2d at 88, 538 N.E.2d at 489. There clearly was not unrestricted cross-examination in this case. A declarant who gives only some preliminary testimony is not \u201cavailable\u201d as a witness. Rolandis G., 352 Ill. App. 3d at 783, 817 N.E.2d at 189-90. A child witness becomes \u201cunavailable\u201d for purposes of section 115 \u2014 10 when she testifies that the defendant had given her a \u201cbad touch\u201d but then freezes up and refuses to discuss details of the incident. People v. Coleman, 205 Ill. App. 3d 567, 583, 563 N.E.2d 1010, 1020 (1990); Rolandis G., 352 Ill. App. 3d at 783, 817 N.E.2d at 189-90 (key is ability to cross-examine the witness).\nJ.E. did not respond fully and willingly to questions. She would not answer questions about what happened after she and defendant were alone. The State\u2019s Attorney asked four variations of the question: \u201cWhat happened *** after you went to the ground?\u201d In each instance, J.E. remained silent. Defense counsel was entitled to accept the answers to the prosecutor\u2019s questions and was not required to re-ask the questions, risking antagonizing the jury for no purpose other than to bail out the prosecution. See Bowen, 183 Ill. 2d at 114-15, 699 N.E.2d at 584 (\u201cCatch-22\u201d if defense must either call the child and risk inflaming the jury against it or forgo completely its right to cross-examine).\nCrawford was not a children\u2019s hearsay case, and neither were Owens and Fenster, the cases cited by the majority. Those unusual cases were not mentioned by Crawford. See Miles, 351 Ill. App. 3d at 869-70, 815 N.E.2d at 47-48 (Cook, J., specially concurring). Inability to testify is not unusual in children\u2019s hearsay cases. In most cases child victims, due to their tender years, are unavailable to testify at trial. T.T., 351 Ill. App. 3d at 997, 815 N.E.2d at 807 (O\u2019Mara Frossard, RJ., specially concurring). It is a stretch to justify a statute where witnesses are routinely not available for cross-examination on the basis of the isolated cases cited by the majority. The solution provided by section 115 \u2014 10, allowing children\u2019s statements without cross-examination, provided they are found rehable by a judge, was specifically rejected in Crawford. T.T., 351 Ill. App. 3d at 997, 815 N.E.2d at 807 (O\u2019Mara Frossard, RJ., specially concurring).\nEven where the declarant is \u201cavailable\u201d for cross-examination, hearsay may not be admitted unless it fits within some recognized exception, statutory or otherwise. The presence of the declarant in court does not excuse compliance with the hearsay rule. People v. Lawler, 142 Ill. 2d 548, 557, 568 N.E.2d 895, 899 (1991). Is there anything left of section 115 \u2014 10? Is it still a recognized exception? Section 115 \u2014 10\u2019s test for admissibility relies on an ad hoc judicial determination of the reliability of the statement, contrary to the very essence of Crawford. R. Ruebner & T. Scahill, Crawford v. Washington, the Confrontation Clause and Hearsay: A New Paradigm for Illinois Evidence Law,_Loy. U. Chi. L.J. (forthcoming). Crawford was very critical of \u201csufficient safeguards of reliability\u201d hearings. Crawford, 541 U.S. at 63, 158 L. Ed. 2d at 200, 124 S. Ct. at 1371 (\u201camorphous,\u201d \u201cunpredictable,\u201d \u201cdemonstrated capacity to admit\u201d statements that should be excluded). It is questionable whether the legislature would reenact portions of a statute which are dependent upon such a highly criticized test. People v. Warren, 173 Ill. 2d 348, 372, 671 N.E.2d 700, 712 (1996) (test is whether legislature would have passed the valid portions of the statute absent the invalid portions). We should not try to pick out pieces of section 115 \u2014 10 that might survive Crawford. Fiorito v. Jones, 39 Ill. 2d 531, 540, 236 N.E.2d 698, 704 (1968) (provisions are not separable if they are essentially and inseparably connected in substance). The legislature should decide whether it wants a new section 115 \u2014 10, one which will be very different from the one it enacted. Chapman v. United States, 500 U.S. 453, 464, 114 L. Ed. 2d 524, 537-38, 111 S. Ct. 1919, 1927 (1991) (construing statutes to uphold them if possible is not a license for the judiciary to rewrite language enacted by the legislature). The applicability of Crawford to section 115 \u2014 10 could not be clearer. Section 115 \u2014 10 is unconstitutional. E.H., 355 Ill. App. 3d at 576.\nIn response to Justice Turner\u2019s special concurrence, it is not my suggestion that this area is off-limits for the legislature. I suggest only that section 115 \u2014 10 as it presently exists raises many questions. The legislature may want to rewrite section 115 \u2014 10, but we should not attempt to do so ourselves.", "type": "dissent", "author": "PRESIDING JUSTICE COOK," } ], "attorneys": [ "Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Jerry A. Johnson, State\u2019s Attorney, of Clinton (Norbert J. Goetten, Robert J. Biderman, and James C. Majors, 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. JASON M. SHARP, Defendant-Appellant.\nFourth District\nNo. 4\u201402\u20140913\nOpinion filed March 2, 2005.\nTURNER, J., specially concurring.\nCOOK, EJ., dissenting.\nDaniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJerry A. Johnson, State\u2019s Attorney, of Clinton (Norbert J. Goetten, Robert J. Biderman, and James C. Majors, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0786-01", "first_page_order": 804, "last_page_order": 822 }