No. 2--96--0504
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lee County.
)
Plaintiff-Appellant, )
) No. 95--CF--154
v. )
)
WALTER J. KINNETT, ) Honorable
) John E. Payne,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________
JUSTICE McLAREN delivered the opinion of the court:
The State appeals a pretrial ruling excluding the testimony of
two corroborating witnesses in an aggravated criminal sexual abuse
trial. We affirm.
The defendant, Walter Kinnett, was charged with two counts of
aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(i) (West
1994)), in that he knowingly placed the child-victim's (hereinafter
c.v.'s) hand on his penis and placed his hands on the c.v's
buttocks on or about July 4, 1995. The c.v. was eight years old
at the time of the alleged incident. The defendant is the c.v.'s
paternal stepgrandfather.
Before trial, the State sought to have admitted the
corroborating testimony of Geri Hysom, a Department of Children and
Family Services investigator, and Fran Taylor, the c.v.'s maternal
grandmother. The trial court held a hearing in accordance with
section 115--10 of the Code of Criminal Procedure of 1963 (725 ILCS
5/115--10 (West 1994)).
At the hearing Hysom provided the following testimony. After
a brief introduction on September 6, 1995, Hysom spoke at length
with the c.v. on September 7, 1995, at Amboy City Hall. The c.v.'s
mother and Police Chief Paul Smith were both present. After asking
the c.v. to perform simple tasks such as reciting the ABCs and
counting, Hysom determined that the c.v. was developmentally on
task for her age. Hysom then discussed the difference between the
truth and lies and good and bad touches. When Hysom asked the c.v.
why the c.v. thought she was there, the c.v. replied that she was
there to talk about grandpa. The c.v. stated that she had told her
mother, father, and Grandma Fran about the incidents.
Hysom asked c.v. to start at the beginning and tell her how it
all started. The c.v. stated that she told her Grandma Fran that
her grandpa was "doing weird things" like putting her hands on his
"winkie" (penis). The c.v. stated that this happened when she
slept at Grandma Sissy's and grandpa's house. The c.v. stated that
she usually slept in the living room but would sleep in grandma's
and the defendant's bed when she became afraid of the dark. The
c.v. also stated that she slept in underpants only, between her
grandparents. When everyone was asleep, the defendant would pull
his "winkie" out from his underpants and put the c.v.'s hand around
it. The c.v. stated that the defendant would pretend to be asleep
by closing his eyes, but she knew he was not sleeping because he
was not snoring.
When Hysom asked the c.v. when the incidents happened, the
c.v. said "a lot" but could not recall specific dates. However,
when asked when the last incident occurred, the c.v. replied that
it was during the Fourth of July weekend at a campground.
The c.v. also stated that when she had her hand around the
defendant's "winkie" her fingers could touch the palm of her hand.
But then the defendant's "winkie" got bigger and her fingers could
no longer touch the palm of her hand. When Hysom asked if there
was any wetness, the c.v. replied that the defendant's "winkie" got
"sweaty."
Further, the c.v. told Hysom that if she took her hand away
the defendant would put her hand back on his "winkie." The c.v.
also stated that, on one or two occasions, the defendant slid his
hands down the c.v.'s underpants and put his hands on her buttocks
to bring the c.v. closer to him.
In addition, the c.v. told Hysom that she told her Grandma
Fran about the incidents after watching a movie called "The Muffin
Man." The c.v. stated that she told Grandma Fran because the movie
said that you should not protect people who do something wrong.
Fran Taylor, the c.v.'s maternal grandmother, also testified
at the hearing. Taylor stated that during the school year she and
the c.v.'s other grandmother each baby-sat part-time. During the
summer of 1995, Taylor saw the c.v. mostly on weekends.
One Friday afternoon or evening, sometime after the July 4th
weekend, the c.v. watched a movie on television called "The Muffin
Man" while Taylor cleaned her home. Shortly after the movie was
over, the c.v., who is usually talkative and happy, became quiet
and serious. The c.v. then told Taylor that sometimes, when she
got in bed with her Grandma Sissy and the defendant, the defendant
would put her hand on his "winkie." The c.v. said that "winkie"
means penis. Taylor told the c.v. that if this happened again she
should wake Grandma Sissy and yell loudly.
The c.v. then told Taylor that the same thing happened in a
camper once when she went fishing with the defendant. The c.v.
stated that her brother was also on the trip but slept in the car
with Grandma Sissy. Taylor told the c.v. to tell her mother about
the incidents, but the c.v. asked Taylor to tell her mother instead
because the c.v. was too embarrassed.
At the trial the defendant did not object to the competence of
the c.v. The c.v. provided the following testimony at the hearing.
The c.v. stated that she told Taylor that the defendant had done
something bad to her. The c.v. told Taylor because she had watched
a movie. The c.v. told Taylor that the defendant put her hand on
his "thing." She stated that the incidents occurred at the
defendant's house and once in a trailer on July 4, during a fishing
trip. However, she also stated that she did not tell Taylor that
it happened in a trailer.
The c.v.'s mother testified that the c.v. went camping with
the defendant during the summer of 1995 a couple of times, on the
weekend either just before or after the Fourth of July.
The trial court ruled that Hysom's statements regarding the
incidents which allegedly occurred at the trailer on July 4 were
admissible. However, the trial court ruled that both Hysom's and
Taylor's statements regarding other acts were inadmissible because
they did not fall under the section 115--10 exception to the
hearsay rule. The trial court also ruled that Taylor's testimony
regarding the trailer incident was inadmissible because it was
insufficiently reliable. The trial court reasoned that Taylor's
testimony was unreliable because the c.v. denied telling Taylor
about the trailer incident. The State then timely filed a
certificate of impairment pursuant to Supreme Court Rule 604(a)(1)
(145 Ill. 2d R. 604(a)(1)) and a notice of appeal. Jurisdiction of
the appeal of the trial court's order suppressing evidence is
appropriate pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d
R. 604(a)(1)).
The State argues that the trial court erroneously excluded
corroborative hearsay testimony regarding other acts committed by
the defendant against the c.v. During the section 115--10 hearing,
Hysom and Taylor testified that the c.v. told them about incidents
which occurred in a trailer on the Fourth of July and the
defendant's home. The trial court ruled that Hysom and Taylor
could testify about the c.v.'s statements regarding the July 4th
incident but not about the c.v's statements about other incidents.
The State asserts that the testimony regarding the incidents not
occurring on July 4 falls within the statutory hearsay exception
provided in section 115--10 of the Code of Criminal Procedure of
1963 (725 ILCS 115--10 (West 1994)). The defendant argues that the
statements are inadmissible because they concern acts with which
the defendant has not been charged. We agree with the defendant.
Generally, out-of-court statements offered for the truth of
the matter asserted are hearsay statements and, thus, are
inadmissible. Halleck v. Coastal Building Maintenance Co., 269
Ill. App. 3d 887, 891 (1995). However section 115--10 of the Code
of Criminal Procedure of 1963 (Code) provides an exception to the
hearsay rule. Section 115--10(a)(2) of the Code provides:
"(a) In a prosecution for a physical or sexual act
perpetrated upon or against a child under the age of 13, ***
including but not limited to prosecutions for violations of
Sections 12--13 through 12--16 of the Criminal Code of 1961,
*** the following evidence shall be admitted as an exception
to the hearsay rule:
***
(2) testimony of an out of court statement made by
such child *** 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 perpetrated upon
or against a child ***. 725 ILCS 5/115--10(a)(2) (West
1994).
Thus, the plain language of section 115--10(a)(2) of the Code
limits the hearsay "exception to complaints of, or details about,
sexual acts which are the subject of a prosecution." People v.
Anderson, 225 Ill. App. 3d 636, 651 (1992). A trial court's
decision to admit hearsay statements pursuant to section 115--10 of
the Code (725 ILCS 5/115--10 (West 1994)) will not be disturbed
absent an abuse of discretion. People v. West, 158 Ill. 2d 155,
164-65 (1994).
In Anderson, the defendant was charged with two counts of
sexual abuse. The trial court admitted the testimony of three
witnesses who testified that the victim told them about an April
1990 incident with which the defendant was charged and other
incidents with which the defendant was not charged. The Appellate
Court, Third District, held that the trial court erred in admitting
the statements regarding the uncharged incidents. Anderson, 225
Ill. App. 3d at 651. The court reasoned:
"While section 115--10 creates an exception to the hearsay
rule, it does not abrogate the rule nor remove its effect
other than in the area of the exception. The plain language
of the statute limits the exception to complaints of, or
details about, sexual acts which are the subject of a
prosecution." Anderson, 225 Ill. App. 3d at 650-51.
However, the court held that the error was harmless because it was
corroborated by the victim and other evidence.
The reasoning in Anderson is applicable to the case at bar.
In the instant case, the defendant was charged with two counts of
aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(i) (West
1994)) by knowingly placing the victim's hand on his penis and his
hands on the victim's buttocks on or about July 4, 1995. At the
section 115--10 hearing, Hysom and Taylor testified that the victim
told them about an incident which occurred during the July 4th
weekend in a trailer. Hysom and Taylor also testified that the
victim told them about other incidents which occurred in the
defendant's bedroom. Because Hysom and Taylor testified regarding
the out-of-court statements made by the victim and the statements
would be offered for the truth of the matter asserted, the
testimony is hearsay. Anderson, 225 Ill. App. 3d at 650. Further,
because the defendant was only charged with acts that occurred on
July 4, the statements regarding the other incidents do not fit
into the section 115--10 exception to the hearsay rule. Anderson,
225 Ill. App. 3d at 650.
The State argues that evidence of other crimes is admissible
to establish the intent, lack of mistake, modus operandi
(identification), design, course of conduct, the intimate
relationship between the victim and the defendant, or to
corroborate the victim's testimony regarding the charged offenses.
The State cites Anderson for this proposition. Anderson, 225 Ill.
App. 3d 636.
It is well established that evidence of other crimes is
inadmissible to show the defendant's propensity to commit the crime
with which he is charged. People v. Oaks, 169 Ill. 2d 409, 454
(1996). However, we agree with the State that evidence of other
crimes may be admitted to show modus operandi (identification),
design, motive, or knowledge. Oaks, 169 Ill. 2d at 454; Anderson,
225 Ill. App. 3d at 647. Further, evidence of other crimes may be
admitted to show that the victim and defendant had a continuing or
intimate relationship or knew each other. People v. Jahn, 246 Ill.
App. 3d 689, 705-06 (1993), citing People v. Cregar, 172 Ill. App.
3d 807, 822 (1988). However, as Anderson makes clear, such
evidence is admissible only if the statements are not prohibited by
the hearsay rule. Anderson, 225 Ill. App. 3d at 650. Thus, a
nonhearsay witness, such as a complainant, may testify about other
incidents involving the complaint and the defendant. Anderson, 225
Ill. App. 3d at 647-48.
The statements at issue in the case at bar are clearly hearsay
since they contain the c.v.'s out-of-court statements and are
offered for the truth of the matters asserted. Anderson, 225 Ill.
App. 3d at 650. Thus, Taylor's and Hysom's statements regarding
other crimes are admissible only if the State establishes that the
statements are subject to an exception to the hearsay rule.
We recognize that a hearsay statement may be admitted if it
expresses the declarant's state of mind at the time of the
utterance, such as intent, plan, motive, or design. People v.
Lawler, 142 Ill. 2d 548, 559 (1991); People v. Sanchez, 189 Ill.
App. 3d 1011, 1016 (1989); M. Graham, Cleary & Graham's Handbook of
Illinois Evidence §803.4 (6th ed. 1994). However, this exception
applies only if the declarant's state of mind is relevant to a
material issue in the case. People v. Floyd, 103 Ill. 2d 541, 546
(1984); People v. Nyberg, 275 Ill. App. 3d 570, 580 (1995).
Because the State has failed to show how the c.v.'s state of mind
is relevant to the case at bar, the State's argument fails.
Furthermore, the cases cited by the defendant to support his
argument are factually distinguishable. The defendant cites People
v. Jahn, 246 Ill. App. 3d 689 (1993), People v. Edwards, 224 Ill.
App. 3d 1017 (1992), and People v. Schmitt, 204 Ill. App. 3d 820
(1990). In Jahn, the defendant was charged with aggravated
criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12--
16(c)(1)(i) (now 720 ILCS 5/12--16(c)(1)(i) (West 1994))) in that
he intentionally touched the vaginal area of the child-complainant.
The trial court allowed the complainant's therapist to testify that
the complainant told the therapist that the sexual incidents had
occurred over a two- or three-year period. This court held that
the issue regarding the admissibility of the hearsay statements was
waived and did not constitute plain error. Jahn, 246 Ill. App. 3d
at 705. This court reasoned that the admission of the statements
did not constitute plain error because the evidence was not closely
balanced. Jahn, 246 Ill. App. 3d at 705-06. The case at bar
requires this court to determine whether the trial court erred in
excluding the statements at issue, not whether the admission of the
statements constitutes plain error. Thus, Jahn is inapplicable.
Further in Edwards, the State charged the defendant with
aggravated criminal sexual assault. See Ill. Rev. Stat. 1987, ch.
38, par. 12--14(b)(1) (now 720 ILCS 5/12--14(b)(1) (West 1994)).
In support of this charge, the State alleged that the defendant
committed an act of anal/penile penetration. The defendant argued
that hearsay testimony concerning other acts of penetration should
not have been admitted. This court held that the testimony was
properly admitted under section 115--10 because the defendant had
adequate notice that he was being charged with having committed an
act of sexual penetration. Edwards, 224 Ill. App. 3d at 1032.
Thus, this court reasoned that the hearsay statements regarding
other forms of penetration were mere surplusage. Edwards, 224 Ill.
App. 3d at 1032.
In Schmitt, the defendant was charged with aggravated criminal
sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12--14 (now 720
ILCS 5/12--14 (West 1994))) and criminal sexual assault (Ill. Rev.
Stat. 1987, ch. 38, par. 12--13 (now 720 ILCS 5/12--13 (West
1994))). The trial court allowed the child-complainant's
grandmother to testify that the child-complainant told her that the
defendant licked the child-complainant's penis and rectum. On
appeal the defendant argued that the trial court erred when it
allowed the grandmother to testify regarding the statement that the
defendant licked the child-complainant's rectum. The defendant
argued that this was inadmissible because he was not charged with
this act. The Appellate Court, Fourth District, held that the
issue was waived. Schmitt, 204 Ill. App. 3d at 828. However, the
court discussed the admissibility of the statement on the merits
and determined that it was admissible under section 115--10 because
it constituted a detail of the crime charged. Schmitt, 204 Ill.
App. 3d at 829.
The case at bar is factually distinguishable from Edwards and
Schmitt because in both Edwards and Schmitt the State did not
specify the date or location of the alleged incidents. Thus, the
other acts of sexual conduct could have been part of the same
incidents with which the defendants were charged. However, in the
case at bar, the State alleged that the defendant committed certain
acts of sexual assault on a specific date, July 4, 1995, and at a
specific location, in a trailer while camping. Thus, the other
acts of sexual assault that allegedly occurred at the defendant's
home, on dates other than July 4, could not have been part of the
same incident with which the defendant was charged, and, therefore,
they could not have been details of the act charged. Accordingly,
the trial court did not abuse its discretion when it excluded the
hearsay testimony of Taylor and Hysom regarding other acts.
Next, the State argues that the trial court erroneously
excluded Taylor's testimony regarding the trailer incident. The
State claims that the fact that the c.v. denied having told Taylor
about the trailer incident does not make the statement unreliable
for purposes of section 115--10 (725 ILCS 5/115--10 (West 1994)).
The defendant contends that the trial court's decision to exclude
Taylor's testimony is not an abuse of discretion. We agree with
the defendant.
Because the c.v. denied having told Taylor about the trailer
incident, Taylor's testimony regarding the incident constitutes a
prior inconsistent statement of the c.v. Thus, it is only
admissible as substantive evidence if it complies with the
requirements of section 115--10.1 (725 ILCS 5/115--10.1 (West
1994)). Under section 115--10.1(c) a prior inconsistent statement
is admissible only if:
"(c) the statement--
(1) was made under oath at a trial, hearing, or
other proceeding, or
(2) narrates, describes, or explains an event or
condition of which the witness had personal knowledge,
and
(A) the statement is proved to have been
written or signed by the witness, or
(B) the witness acknowledged under oath the
making of the statement either in his testimony at
the hearing or trial in which the admission into
evidence of the prior statement is being sought, or
at a trial, hearing, or other proceedings, or
(C) the statement is proved to have been
accurately recorded by a tape recorder, videotape
recording, or any other similar electronic means of
sound recording." 725 ILCS 5/115--10.1(c) (West
1994).
In the case at bar, the c.v. denied under oath that she told
Taylor about the trailer incident. Further, the c.v.'s alleged
statement to Taylor was not made under oath, was not written or
signed by the c.v., and was not recorded. Thus, Taylor's hearsay
testimony regarding the c.v.'s alleged statements about the trailer
incident are not admissible as substantive evidence. 725 ILCS
5/115--10.1 (West 1994). Accordingly, the trial court did not
abuse its discretion by excluding such testimony.
Finally, the State argues that Hysom's testimony regarding
other acts of abuse and all of Taylor's testimony is admissible
under the spontaneous utterance exception to the hearsay rule. A
hearsay statement is admissible as a spontaneous utterance when (1)
the occurrence is sufficiently startling to produce a spontaneous
and unreflecting statement; (2) there is an absence of time to
fabricate; and (3) the statement relates to the circumstances of
the occurrence. People v. Zwart, 151 Ill. 2d 37, 46 (1992). While
the second requirement must be examined on a case-by-case basis,
our supreme court has established some guidelines. Zwart, 151 Ill.
2d at 46-47.
In Zwart, our supreme court held that a statement made by a
child-victim of sexual abuse, five weeks after the sexual abuse
occurred, was not admissible as a spontaneous utterance. Zwart,
151 Ill. 2d at 46-47. The court reasoned that the second
requirement was not met because the time lapse destroyed the
spontaneity of the child-victim's statement. See also People v.
Velasco, 216 Ill. App. 3d 578, 585 (1991) (court held that a nine-
day time lapse is too long).
In the case at bar, Taylor testified that the c.v. told her
about the sexual abuse three or four weeks before the police were
notified. The record reveals that the c.v.'s mother reported the
incidents to the police on or about September 6, 1995. Thus, the
earliest the c.v. spoke with Taylor was August 9, 1995, or five
weeks after the alleged occurrence. Hysom testified that the c.v.
told her about the sexual abuse on September 7, 1995, or at least
eight weeks after the alleged occurrence.
As in Zwart, we believe that a five and eight week "time lapse
between the startling event and the victim's statements destroyed
the spontaneity of [the c.v.'s] statements." Zwart, 151 Ill. 2d at
47. Thus, the c.v.'s statements to Taylor and Hysom are not
subject to the spontaneous utterance exception to the hearsay rule.
Accordingly, the trial court did not abuse its discretion by
excluding the statements.
The judgment of the circuit court of Lee County is affirmed.
Affirmed.
INGLIS and HUTCHINSON, JJ., concur.