People v. Kitch

Docket No. 108769.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
RICHARD D. KITCH, Appellant.

Opinion filed January 21, 2011.

JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Thomas, Garman, Karmeier,
Burke, and Theis concurred in the judgment and opinion.

OPINION

Following a jury trial, defendant Richard Kitch was convicted of
nine counts of predatory criminal sexual assault of a child and one
count of aggravated criminal sexual abuse. The circuit court of
Schuyler County sentenced him to nine consecutive natural life prison
terms for predatory criminal sexual assault of a child, and a concurrent
14-year extended term for aggravated criminal sexual abuse. The
appellate court ordered the natural life prison terms to be served
concurrently rather than consecutively, and affirmed in all other
respects. 392 Ill. App. 3d 108. For the reasons set forth below, we
affirm the judgment of the appellate court.
 I. BACKGROUND
In February 2005, the State charged defendant with multiple
counts of sexual assault and abuse allegedly perpetrated against his
stepdaughter, K.J.K., who was born January 8, 1991, and his stepson,
M.J.B., who was born May 5, 1994. Specifically, the State charged
defendant with predatory criminal sexual assault of a child (720 ILCS
5/12–14.1(a)(1) (West 2004)), alleging that, between March 2000 and
March 2003, defendant (a) placed his penis in the mouth of K.J.K.
(counts I and II); (b) allowed his penis to have contact with K.J.K.’s
vaginal area (count III); (c) placed his penis in K.J.K.’s vagina (counts
IV, V, and VI); and (d) placed his penis in the mouth of M.J.B.
(counts IX, X, and XI). The State also charged defendant with
aggravated criminal sexual abuse (720 ILCS 5/12–16(c)(1)(i) (West
2004)), alleging that in November 2002 he knowingly touched
M.J.B.’s penis with his fingers for the purpose of sexual arousal
(counts VII and VIII).1
Pursuant to section 115–10 of the Code of Criminal Procedure of
1963 (725 ILCS 5/115–10 (West 2004)), the State filed a pretrial
notice of intent to introduce hearsay statements of K.J.K. and M.J.B.
describing the alleged abuse. Defendant objected. At a hearing,
Schuyler County Sheriff Don Schieferdecker (Don) and one of his
employees, Anna Marie Schieferdecker (Anna Marie), testified to the
circumstances of their interviews of the children and introduced the
children’s written statements, which Anna Marie and Don had
transcribed. The State indicated K.J.K. and M.J.B. would testify at
trial. The circuit court found the hearsay statements admissible under
the statute, on the condition that the children testified.
Defendant fled the jurisdiction prior to trial and was subsequently
tried in absentia in October 2005. The evidence at trial included
testimony from K.J.K. and M.J.B.; their mother, Susan; Anna Marie
and Don; an obstetric gynecologist; and two forensic scientists.
Dr. Victoria Nichols-Johnson, an obstetric gynecologist, testified
she examined K.J.K. on July 3, 2003. K.J.K. told her that her “mom’s
husband” had touched her breasts and vagina. When Dr. Nichols-
Johnson visually examined K.J.K.’s genital area, she observed

1
Prior to trial, the State dismissed count VIII.

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“changes in the hymenal ring” that suggested possible penetration by
an external object. She encountered little resistance when inserting her
fingers or a speculum into K.J.K.’s vagina, and opined that
“something had been there before.” According to Dr. Nichols-
Johnson, it was “highly likely that [K.J.K.] had been abused.”
Susan testified that she and her children moved in with defendant
on December 16, 1999, and she married defendant on February 29,
2000. Thereafter, Susan noticed defendant “started to favor” K.J.K.
and became less friendly toward M.J.B. Defendant also began
disciplining the children. He spanked them with a leather strap and
would “scream at them.”
Susan testified further that defendant often hugged and kissed
K.J.K., and would grab her buttocks and breasts. When K.J.K. was 11
years old, defendant tattooed her bare buttock while she was partially
clothed and lying on the dining room table. When K.J.K. was 12,
Susan observed defendant rubbing lotion on K.J.K.’s breasts. On one
occasion, Susan saw defendant coming out of a shower he had been
sharing with K.J.K. When Susan confronted him, he said he had been
helping K.J.K. wash her hair.
In March 2003 Susan moved out of defendant’s residence. As she
and the children drove away, she assured K.J.K. and M.J.B. they
would not have to live with defendant again. K.J.K. and M.J.B. then
told her defendant had sexually abused them. Susan reported the
allegations to the sheriff. In June 2003, Susan provided the sheriff
with the comforter that K.J.K. had on her bed when they lived with
defendant. Susan testified she and defendant never engaged in any
sexual activity on the comforter.
Anna Marie testified she interviewed K.J.K. in March 2003 at the
sheriff’s department. Anna Marie wrote down the questions she asked
K.J.K., followed by K.J.K.’s answers. The statement was admitted
into evidence without objection.
Anna Marie testified regarding K.J.K.’s statement. In March 2000
K.J.K. was home alone with defendant when he came into her room.
He asked her if she wanted to have sex and she said no. K.J.K. tried
to leave, but defendant blocked the doorway, pushed her down on the
floor, and forced his penis into her mouth. Later that day defendant
returned to K.J.K.’s room and again forced his penis into her mouth.

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When he was finished, he told her that if she told anyone, he would
kill her. Anna Marie asked K.J.K. if this happened again, and she
replied: “Anytime my mom was gone, in the shower, or sleeping late.”
In the summer of 2001, K.J.K. was home alone with defendant.
K.J.K. had blocked the entrance to her bedroom, but defendant forced
his way in, pushed her down on the bed, and put his penis between her
legs, rubbing his penis on her vaginal area. Defendant repeated this act
almost every time K.J.K. was home alone with him until June 2002,
when defendant began inserting his penis inside her vagina. After June
2002 defendant had sexual intercourse with K.J.K. about once a week.
K.J.K. testified consistently with her statement to Anna Marie
regarding defendant forcing his penis into her mouth, between her
legs, and into her vagina.2 K.J.K. also explained that a couple of
months after defendant began putting his penis between her legs, he
started putting his fingers in her vagina, telling her he was doing it so
his penis would eventually “fit.” K.J.K. also described an instance
when defendant’s ejaculate dripped onto her comforter, and defendant
told her to wipe it up with some paper towels. K.J.K. identified the
comforter as the one Susan had testified she gave to the sheriff. K.J.K.
also testified about defendant rubbing cocoa butter on her breasts,
showering with her, and putting a tattoo on her right buttock.
Don, the Schuyler County sheriff, testified that in March 2003 he
interviewed M.J.B. at the sheriff’s office. Don wrote out the questions
he asked M.J.B., followed by M.J.B.’s answers. The statement was
admitted into evidence without objection.
Don testified regarding M.J.B.’s statement. Sometime after
Thanksgiving 2002, defendant came into M.J.B.’s room, grabbed
M.J.B.’s penis, and began rubbing it for about 30 seconds. In January

2
K.J.K.’s direct testimony differed from her out-of-court statement with
regard to the time defendant began inserting his penis inside her vagina, and
the number of times this occurred. According to the transcribed statement,
defendant began having sexual intercourse with K.J.K. in June 2002, and he
repeated this act about once a week. According to K.J.K.’s direct testimony,
which was less precise with regard to dates, this conduct apparently began
about December 2000 or January 2001 and was repeated “a couple times a
month.”

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2003, defendant took M.J.B. into the bathroom, put M.J.B.’s hand on
defendant’s penis, and told M.J.B. to move his hand up and down.
M.J.B. did this for about one minute, and defendant ejaculated. Later
that same month, defendant took M.J.B. into the bathroom, put his
penis in M.J.B.’s mouth, and told him to suck it. M.J.B. told the
sheriff that, subsequently, defendant forced him to perform this same
oral act an additional three or four times. Don also testified about an
April 2003 written statement by K.J.K. which described how
defendant’s ejaculate came to be on her comforter.
M.J.B. testified, in relevant part, that when he was about eight
years old defendant touched M.J.B.’s penis in M.J.B.’s bedroom.
Other incidents occurred in the bathroom. On one occasion, defendant
forced M.J.B. to touch defendant’s penis, and on three or four
occasions defendant put his penis in M.J.B.’s mouth.
Forensic scientists at the Illinois State Police Forensic Science
Laboratory testified that the deoxyribonucleic acid (DNA) profile
identified in a semen stain on K.J.K.’s comforter matched defendant’s
DNA profile.
The jury convicted defendant on all 10 counts. Defendant filed a
motion for a new trial, which the circuit court denied. In November
2005 the court sentenced defendant in absentia3 to nine natural life
prison terms for predatory criminal sexual assault of a child, each to
run consecutively, and a 14-year extended-term sentence for
aggravated criminal sexual abuse, to run concurrently.
The appellate court affirmed defendant’s convictions but modified
his natural life prison sentences from consecutive to concurrent terms.
392 Ill. App. 3d 108. The court also granted the State its statutory
assessment of $50 against defendant as costs of the appeal. We
allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
Feb. 26, 2010).

3
Although defendant was tried and sentenced in absentia, he subsequently
returned to the jurisdiction, and has been in the custody of the Illinois
Department of Corrections since March 6, 2007.

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 II. ANALYSIS
A. Direct Testimony of K.J.K. and M.J.B.
Defendant first argues K.J.K. and M.J.B. did not testify in enough
detail to have “appeared” for cross-examination within the meaning of
the confrontation clause. Specifically, defendant contends the State
failed to ask K.J.K. and M.J.B. “about each incident in enough detail
to establish each and every element of every count,” and defendant
was unable to engage in effective cross-examination, in violation of his
right to confrontation under the sixth amendment (U.S. Const.,
amend. VI).
The State argues defendant forfeited this argument. “To preserve
an alleged error for review, a defendant must raise a timely objection
at trial and raise the error in a written posttrial motion.” People v.
Cosby, 231 Ill. 2d 262, 271 (2008). “The failure to object to alleged
error at trial and raise the issue in a posttrial motion ordinarily results
in the forfeiture of the issue on appeal.” People v. Allen, 222 Ill. 2d
340, 350 (2006). Here, defendant did neither. He did not object at
trial, as he does before this court, that the child witnesses were not
available for cross-examination, such that admitting their hearsay
testimony violated the confrontation clause. Nor did he contend in his
motion for new trial that admission of the hearsay testimony violated
his confrontation right; rather, he argued only that the hearsay
statements were not sufficiently reliable, an apparent reference to
section 115–10(b)(1), which requires a judicial determination that “the
time, content, and circumstances of the statement provide sufficient
safeguards of reliability” (725 ILCS 5/115–10(b)(1) (West 2004)). We
therefore agree with the State that defendant has forfeited this issue.
Defendant however maintains that if we conclude there was
forfeiture, we should review the issue under the plain-error doctrine.
Rule 615(a), the basis for this doctrine, provides: “Any error, defect,
irregularity, or variance which does not affect substantial rights shall
be disregarded. Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the trial
court.” Ill. S. Ct. R. 615(a). The plain-error doctrine creates “a
narrow and limited exception to the general rule of forfeiture, whose
purpose is to protect the rights of the defendant and the integrity and
reputation of the judicial process.” Allen, 222 Ill. 2d at 353, citing
People v. Herron, 215 Ill. 2d 167, 177 (2005). The defendant bears

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the burden of establishing plain error. Herron, 215 Ill. 2d at 187.
We observe, initially, that defendant does not challenge in this
court the adequacy of K.J.K.’s testimony with regard to counts I, II,
and III. In his brief, defendant challenges the adequacy of the victims’
testimony only with respect to counts IV, V, and VI (involving acts
of vaginal penetration against K.J.K.) and counts VII, IX, X, and XI
(involving M.J.B.).
The first step in plain-error review is to determine whether an
error occurred. In re M.W., 232 Ill. 2d 408, 431 (2009). In making
this determination, we consider whether, as defendant argues, the
State improperly failed to ask the victims about each incident in
enough detail to establish the elements of each count. Counts IV
through VI and IX through XI all charged defendant with predatory
criminal sexual assault of a child (720 ILCS 5/12–14.1(a)(1) (West
2004)), and count VII charged him with aggravated criminal sexual
abuse (720 ILCS 5/12–16(c)(1)(i) (West 2004)). To prove predatory
criminal sexual assault of a child, the State needed to show that (1)
defendant was 17 years of age or older when he (2) committed “an act
of sexual penetration” with (3) a victim under the age of 13. 720 ILCS
5/12–14.1(a)(1) (West 2004). “Sexual penetration” is “any contact,
however slight, between the sex organ or anus of one person by an
object, the sex organ, mouth or anus of another person.” 720 ILCS
5/12–12(f) (West 2004). As defendant acknowledged in the appellate
court, when the State files multiple charges, “the State is not required
to prove dates of commission,” but only to provide “some way to
differentiate between” the various counts. To prove aggravated
criminal sexual abuse (count VII), the State needed to show that (1)
defendant was 17 years of age or older when he (2) committed “an act
of sexual conduct” with (3) a victim under the age of 13. 720 ILCS
5/12–16(c)(1)(i) (West 2004). “Sexual conduct” is “any intentional or
knowing touching or fondling by the victim or the accused, either
directly or through clothing, of *** any part of the body of a child
under 13 years of age *** for the purpose of sexual gratification or
arousal of the victim or the accused.” 720 ILCS 5/12–12(e) (West
2004).
It is undisputed that defendant was over the age of 17 and the
victims were under the age of 13 when the offenses occurred. The
question, then, is whether the State, through the victims’ direct

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testimony, proved “an act of sexual penetration” with regard to counts
IV through VI and IX through XI, and “an act of sexual conduct”
with regard to count VII.
The counts pertaining to K.J.K. alleged defendant penetrated her
vagina with his penis once in June 2002 (count IV); once between July
1, 2002, and February 28, 2003 (count V); and once on approximately
March 1, 2003 (count VI). At trial, K.J.K. testified that, on multiple
occasions, defendant “put his penis inside [her] vagina” while they
were in her bedroom, adding that sometimes ejaculate ran down her
leg onto her comforter and that “[o]ccasionally, after he was finished,
[she] would go to the bathroom and it stung a little.” While K.J.K.’s
testimony was somewhat unclear as to when every incident occurred,
it nevertheless established that at least three acts occurred between
June 2002 (count IV) and March 2003 (counts V and VI). K.J.K.
testified that defendant (1) first forced her to have oral sex “[a] couple
months” after defendant married her mother in February 2000; (2)
touched her vaginal area with his penis “[a] couple months after he
had started doing it oral”; (3) put his fingers in her vagina two or three
months later; and (4) began having vaginal intercourse with K.J.K.
approximately three months after that. According to this testimony,
defendant would have begun having vaginal intercourse with K.J.K.
about December 2000 or January 2001. K.J.K. testified defendant
repeated this act “a couple times a month” until K.J.K. moved out in
March 2003.
The counts pertaining to M.J.B. alleged that (1) defendant touched
M.J.B.’s penis in about November 2002 (count VII); and (2) on three
occasions, twice in approximately January 2003 (counts IX and X)
and once in February 2003 (count XI), defendant placed his penis in
M.J.B.’s mouth. At trial, M.J.B. testified that defendant “[p]ut his
hand on [M.J.B.’s] penis” when M.J.B. was about eight years old, and
subsequently defendant placed his penis in M.J.B.’s mouth “[t]hree or
four times.” According to this testimony, defendant touched M.J.B.’s
penis after May 5, 2002 (count VII), and placed his penis in M.J.B.’s
mouth “three or four times” thereafter (counts IX through XI).
Accordingly, K.J.K.’s and M.J.B.’s direct testimony, standing
alone, was sufficient to establish the elements of the relevant counts
against defendant. We also conclude, largely for this reason, that
K.J.K.’s and M.J.B.’s direct testimony was sufficient to allow for

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effective cross-examination. Their direct testimony provided enough
detail to allow for cross-examination within the meaning of the
confrontation clause. Our review of the record shows that both K.J.K.
and M.J.B. answered all of the questions put to them by defense
counsel on cross-examination. Their answers were forthright. There
was no indiction they were being evasive.
There is nothing in People v. Learn, 396 Ill. App. 3d 891 (2009),
a case on which defendant relies, that compels a different result. In
Learn, the defendant was charged with one count of aggravated
criminal sexual abuse. The victim was his four-year-old niece. Prior to
trial, the circuit court granted the State’s section 115–10 motion to
admit out-of-court statements made by the victim to her father and
two police officers. The motion was granted on condition that the
child testify. At trial, the victim testified to preliminary matters but
then became too emotionally distraught to continue, and therefore did
not testify on direct examination to any of the alleged incidents of
sexual abuse. The circuit court concluded the child nevertheless had
testified for purposes of section 115–10, and allowed the State to
introduce her hearsay statements. The appellate court reversed,
holding that the victim did not “testify” within the meaning of the
statute. The court reasoned that a victim must give “accusatory
testimony,” i.e., “confront the defendant and accuse him of
[some]thing.” Learn, 396 Ill. App. 3d at 898-901. The court stated:
“[The victim’s] spoken testimony was not incriminating; thus,
defendant was not confronted by his accuser nor given the right to
rigorously test the accusation against him through cross-examination.”
Learn, 396 Ill. App. 3d at 901-02. Here, by contrast, K.J.K. and
M.J.B. “accused” defendant of multiple acts of sexual abuse, through
their direct testimony. Learn is distinguishable from the case at bar.
Given that defendant has failed to demonstrate there was any error
with respect to this issue, his forfeiture stands. See People v. Keene,
169 Ill. 2d 1, 17-18 (1995).

B. Constitutionality of Section 115–10
Defendant next argues that section 115–10 is unconstitutional on
its face. Defendant points to Crawford v. Washington, 541 U.S. 36
(2004), which reinterpreted the confrontation clause, and argues that,

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in light of Crawford, section 115–10 violates the confrontation clause
of the United States Constitution (U.S. Const., amend. VI) as well as
that of the Illinois Constitution (Ill. Const. 1970, art. I, §8).
Specifically, defendant contends the statute is unconstitutional
because: (1) it improperly incorporates the now-defunct reliability
standard for determining whether admission of hearsay testimony
comported with the confrontation clause, and (2) it does not
incorporate the limitations on admissibility imposed by Crawford.
According to defendant, the hearsay statements in the case at bar were
improperly admitted under an unconstitutional statute, section
115–10, and defendant “must receive a new trial.”
Initially, there is a “strong presumption” that a legislative
enactment passes constitutional muster, and a party challenging the
constitutionality of a statute bears the burden of clearly establishing its
invalidity. People v. Thurow, 203 Ill. 2d 352, 367 (2003). A statute is
unconstitutional on its face only if no set of circumstances exists under
which it would be valid. Napleton v. Village of Hinsdale, 229 Ill. 2d
296, 306 (2008). “Thus, so long as there exists a situation in which a
statute could be validly applied, a facial challenge must fail.” Hill v.
Cowan, 202 Ill. 2d 151, 157 (2002). Whether a statute is
constitutional is a question of law, which we review de novo. People
v. McCarty, 223 Ill. 2d 109, 135 (2006).
Section 115–10 provides, in pertinent part:
“(a) In a prosecution for a physical or sexual act
perpetrated upon or against a child under the age of 13 ***
the following evidence shall be admitted as an exception to the
hearsay rule:
(1) testimony by the victim of an out of court
statement made by the victim that he or she complained of
such act to another; and
(2) testimony of an out of court statement made by the
victim describing any complaint of such act or matter or
detail pertaining to any act which is an element of an
offense which is the subject of a prosecution for a sexual
or physical act against that victim.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the

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 presence of the jury that the time, content, and
circumstances of the statement provide sufficient
safeguards of reliability; and
(2) The child *** either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is
corroborative evidence of the act which is the subject
of the statement[.]” 725 ILCS 5/115–10 (West 2004).
Section 115–10 allows for a child victim’s hearsay statement to be
admitted under two scenarios: (1) the court deems the statement
reliable and the child testifies at trial (subsections (b)(1) and
(b)(2)(A)); or (2) the child does not testify, the statement is deemed
reliable, and the allegations of sexual abuse are independently
corroborated (subsections (b)(1) and (b)(2)(B)). Here, the circuit
court admitted K.J.K.’s and M.J.B.’s hearsay statements under the
first scenario, as both children testified at trial.
Under Crawford, the confrontation clause poses no restrictions on
the admission of hearsay testimony if the declarant testifies at trial and
is present “to defend or explain” that testimony.
“[W]e reiterate that, when the declarant appears for cross-
examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.
See California v. Green, 399 U.S. 149, 162 (1970). *** The
Clause does not bar admission of a statement so long as the
declarant is present at trial to defend or explain it.” Crawford,
541 U.S. at 59 n.9.
Accordingly, where K.J.K. and M.J.B. testified at trial and were
present to defend or explain their testimony on cross-examination, the
admission of their hearsay statements under section 115–10 does not
violate the confrontation clause.
1. Ohio v. Roberts Reliability Standard
Defendant argues, however, that section 115–10 is facially
unconstitutional because it incorporates the now-repudiated reliability
standard set forth in Ohio v. Roberts, 448 U.S. 56 (1980). Under
Roberts, the presentation of hearsay testimony of an unavailable
witness comported with the confrontation clause if the statement fell
within a “firmly rooted hearsay exception” or showed “particularized

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guarantees of trustworthiness.” Roberts, 448 U.S. at 66. The language
of section 115–10 tracks the Roberts standard in part because it
allows hearsay statements of a child witness to be admitted only
if–among other things–the circuit court finds that “the time, content,
and circumstances of the statement provide sufficient safeguards of
reliability” (725 ILCS 5/115–10(b)(1) (West 2004)).
In Crawford, however, the Supreme Court repudiated the Roberts
reliability test. Crawford held that the confrontation clause requires
the reliability of testimony to be tested through cross-examination, and
that no judicial assessment of “reliability” may be substituted for this
form of credibility testing. Crawford, 541 U.S. at 61-62. Now, under
Crawford, testimonial statements of an unavailable witness may be
admitted–regardless of their perceived “reliability”–only if the
defendant had a prior opportunity to cross-examine the declarant.
Crawford, 541 U.S. at 68.
Section 115–10 satisfies Crawford in part. Under this statute, a
child’s reliable hearsay statement, i.e., one which has been found
reliable under subsection (b)(1), is admissible only if (1) the child
testifies (subsection (b)(2)(A)), or (2) the child “is unavailable as a
witness and there is corroborative evidence of the act which is the
subject of the statement” (subsection (b)(2)(B)). Under the second
scenario, which does not apply here, a statement deemed reliable by
a judge could conceivably be admitted if the child were “unavailable”
and the statement was supported by “corroborative evidence.”
Crawford, however, requires something different: where the declarant
is unavailable, the defendant must have had a prior opportunity for
cross-examination. The situation is different under the first
scenario–the one at issue in this case–because there the declarant is
not absent, but testifies at trial and is present to defend or explain the
testimony on cross-examination. See Crawford, 541 U.S. at 59 n.9.
Admitting a hearsay statement under the first scenario thus comports
with Crawford. See People v. Cookson, 215 Ill. 2d 194, 204 (2005).
That a hearsay statement admitted under section 115–10 must
meet the additional reliability requirement of subsection (b)(1) is not
problematic. See People v. Reed, 361 Ill. App. 3d 995, 1002 (2005).
Indeed, the requirement of “sufficient safeguards of reliability”
provides defendants with additional protection, i.e., “protection over
and above the confrontation clause.” Reed, 361 Ill. App. 3d at 1002;

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accord People v. Cannon, 358 Ill. App. 3d 313, 320 (2005). This
additional reliability requirement does not affect the constitutionality
of section 115–10 because hearsay testimony still must satisfy
Crawford’s constitutional requirements, in addition to the statutory
requirement of reliability. See In re E.H., 224 Ill. 2d 172, 179-80
(2006).
2. “Blanket Prohibition”
Defendant next contends that section 115–10 is unconstitutional
because it does not incorporate the limitations on admissibility
imposed by Crawford. Specifically, defendant argues the statute is
unconstitutional because it “fails to incorporate a blanket prohibition
of testimonial statements” where the declarant is absent from trial and
the defense had no prior opportunity for cross-examination. However,
hearsay exceptions such as section 115–10 need not be coextensive
with the scope of the confrontation clause to pass constitutional
muster. See California v. Green, 399 U.S. 149, 155 (1970) (although
“it may readily be conceded that hearsay rules and the Confrontation
Clause are generally designed to protect similar values,” the overlap
need not be complete).
Indeed, the evidentiary question of whether hearsay testimony
satisfies a statutory exception (such as section 115–10) is separate
from, and antecedent to, the issue of whether admitting the testimony
satisfies the confrontation clause. See In re E.H., 224 Ill. 2d at 179-80
(courts must engage in two-step analysis, first statutory and then
constitutional, to determine admissibility of hearsay testimony).
Because testimony is admissible only if it meets both evidentiary and
constitutional requirements, the two standards need not be identical.
In sum, we reject defendant’s argument that section 115–10 is
facially unconstitutional in light of Crawford’s reinterpretation of the
confrontation clause.

C. Statutory Assessment
Defendant’s final argument concerns the appellate court’s grant to
the State of its statutory assessment of $50 against defendant as costs
of this appeal.
Section 4–2002 of the Counties Code provides that a State’s
Attorney in a county such as Schuyler is entitled to a fee of $50 “[f]or

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each case of appeal taken from his county *** to the Supreme or
Appellate Court when prosecuted *** by him.” 55 ILCS 5/4–2002(a)
(West 2008). Defendant argues that the appellate court here erred in
ordering him to pay this $50 fee because the State’s Attorneys
Appellate Prosecutor (SAAP), and not the Schuyler County State’s
Attorney herself, prosecuted his appeal.
This is an issue of statutory construction, which is reviewed de
novo. People v. Cardamone, 232 Ill. 2d 504, 511 (2009). When
construing a statute, this court seeks “to give effect to the legislature’s
intent,” considering “the subject [the statute] addresses and the
legislature’s apparent objective in enacting it,” and adopting the plain
and ordinary meaning of the statutory terms. Cardamone, 232 Ill. 2d
at 512.
Under the applicable statutory scheme, it appears that any case in
which SAAP appears is, by necessity, prosecuted or defended by a
State’s Attorney. See 55 ILCS 5/3–9005 (West 2008) (it is State’s
Attorney’s duty to commence and prosecute all criminal actions
arising out of his or her county). Moreover, under section 4.01 of the
State’s Attorneys Appellate Prosecutor’s Act, SAAP attorneys are
authorized to “represent the People of the State of Illinois” in the
appellate court when “requested to do so and at the direction of” a
State’s Attorney. 725 ILCS 210/4.01 (West 2008). Once taking on
this representation, SAAP attorneys may prepare, file and argue briefs
in the appellate court “with the advice and consent of the State’s
Attorney.” Under this statute, it appears that State’s Attorneys retain
a central role in an appeal even where they utilize SAAP’s services.
We conclude, contrary to defendant, that the appellate court
correctly granted the State its $50 statutory assessment in this case.

III. CONCLUSION
We affirm the judgment of the appellate court.

Affirmed.

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