People v. Sandefur

Filed 12/28/07 NO. 4-06-0822

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
PAUL W. SANDEFUR, ) No. 04CF1064
Defendant-Appellant. )
) Honorable
) Leo J. Zappa, Jr.,
) Judge Presiding.
______________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In May 2006, a jury found defendant, Paul W. Sandefur,

guilty of two counts of aggravated criminal sexual abuse and one

count of predatory criminal sexual assault. In September 2006,

the trial court sentenced defendant to consecutive terms of nine

and four years in prison, respectively, for the predatory crimi-

nal sexual assault of O.W. and the aggravated criminal sexual

abuse of L.W.

On appeal, defendant argues the trial court erred in

(1) refusing the defendant's jury instruction on the lesser-

included offense of battery and (2) admitting hearsay statements

of the minors. We affirm.

I. BACKGROUND

In October 2004, a grand jury indicted defendant on two

counts of predatory criminal sexual assault (720 ILCS 5/12-

14.1(a)(1) (West 2004)), alleging defendant, over the age of 17,

committed an act of sexual penetration with O.W., under the age

of 13 at the time of the act, by placing his finger in her sex
organ. The second count alleged defendant committed the same

offense by placing his penis in contact with the sex organ or

anus of L.W. The grand jury also indicted defendant on two

counts of aggravated criminal sexual abuse (720 ILCS 5/12-

16(c)(1)(i) (West 2004)), alleging he committed an act of sexual

conduct with O.W. when he knowingly touched her body for the

purpose of his own sexual arousal. The second count alleged

defendant committed the same offense when he knowingly touched

the body of L.W. for the purpose of his own sexual arousal.

Defendant pleaded not guilty.

A. Section 115-10 Hearing

In September 2005, the State filed a notice of intent

to offer hearsay statements of L.W. and O.W. pursuant to section

115-10 of the Code of Criminal Procedure of 1963 (Procedure Code)

(725 ILCS 5/115-10 (West 2004)). Thereafter, the trial court

conducted a hearing on the State's motion.

Somiko Granderson testified she is the mother of L.W.

and O.W. On or around June 17, 2002, Granderson was staying with

her mother, Mae Ella Bolden. At that time, Bolden was seeing

defendant; O.W. was seven years old and L.W. was six. They would

sleep in one bedroom, while Bolden and defendant slept in

Bolden's bedroom. Granderson slept in the living room. On June

17, 2002, Granderson returned home from a night out and found

L.W. asleep in bed with defendant. When Granderson removed the

cover, she "noticed that [L.W.'s] underwears [sic] were off."

She stated L.W.'s nightgown was lifted up above her waist. When

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Granderson asked L.W. where her underpants were, L.W. said,

"'Paw-paw hid them up under the pillow.'" L.W. referred to

defendant as Paw-paw. Shortly thereafter, Granderson asked L.W.

if defendant touched her in any type of way. L.W. stated, "'He

touched my butt.'" Granderson then took her to the hospital.

On cross-examination, Granderson testified it was not

unusual for L.W. to climb into bed with Bolden and defendant.

She stated L.W. had a habit of wetting herself and would then

hide her underwear. Granderson stated neither the bed nor L.W.

was wet at the time. She also stated she looked under

defendant's pillow but did not find any underwear. Granderson

stated her mother found the underwear in her dirty clothes.

Tracy Pearson, a forensic interviewer with the Sangamon

County Child Advocacy Center, testified she interviewed L.W. on

June 28, 2002. The interview was taped, but the tape was de-

stroyed when the case was ruled unfounded. Pearson asked L.W. if

anyone touched her private, referring to her vagina, and L.W.

said no. When Pearson asked her if anyone ever touched her butt,

L.W. responded "'Paw-paw.'" L.W. stated it occurred at her

grandma's house and the touching occurred under her clothes.

Pearson then asked L.W. if she could tell her what defendant did,

but L.W. responded, "'I don't know.'" When asked whether it hurt

to be touched, L.W. nodded her head yes.

Pearson also interviewed L.W. and O.W. on May 17, 2004.

L.W. told Pearson she did not know the reason for the interview.

When Pearson asked her whether anyone ever touched her private

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part in back, L.W. stated her "Grandpa" Paul touched her at her

grandma's house. At one point, Pearson asked if L.W. could tell

her exactly what Grandpa Paul did and L.W. stated, "I forgot."

After further questioning, she stated she was wearing a

nightshirt and she was lying down. When asked what Grandpa Paul

touched her with, L.W. stated "his stuff," which she stated was

his front part. L.W. stated if felt "nasty." L.W. stated she

did not see his "stuff." She also stated defendant's clothes

were off when he touched her and he took off her underwear.

O.W. told Pearson her stepgrandpa Paul "Andaver"

touched her at her grandma's house when she was seven. When she

was sleeping on the couch in the living room, defendant touched

her inside her private part, her "coochie," with his finger under

her clothes. She tried to push him away. She stated it later

was hard for her "to pee." She told her grandma the night of the

incident, but her grandma did not believe her. She told her

mother after learning about touching private parts at a school

program.

The trial court allowed the statements under section

115-10. The court considered the time, content, and

circumstances of the children's statements and found the

statements provided sufficient safeguards of reliability to allow

admission into evidence under section 115-10.

B. Jury Trial

In May 2006, defendant's jury trial commenced. Mae

Ella Bolden testified Granderson came home and asked where L.W.

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was because she was not in her bed. Bolden found L.W. at the

foot of her bed and defendant at the head of the bed. Granderson

asked L.W. where her underwear was, and L.W. stated "'Paw-paw

told me to take them off.'" Bolden later found L.W.'s underwear

behind the dryer.

Somiko Granderson testified Bolden watched L.W. as she

and her boyfriend went out the evening of June 16, 2002. Upon

returning, she found L.W. lying on Bolden's bed next to

defendant. Granderson noticed L.W.'s "gown was up" and "she

didn't have any underwears [sic] on." She asked L.W. where her

underwear was, and L.W. stated, "'Paw-paw put them under the

pillow.'" She took L.W. to the bathroom and asked her if defen-

dant touched her. L.W. stated he touched her buttocks.

On cross-examination, Granderson stated L.W. had a

problem with wetting the bed. L.W. also had a habit of hiding

her underwear when she wet the bed. This incident was the first

time she ever found L.W. without underwear on because L.W. would

always clean herself and put on new underwear.

O.W. testified she was 11 years old. When she was

seven, she lived with her mom, her siblings, Bolden, and

defendant. On one occasion, she was lying on the couch in the

living room when defendant came in and touched her on her

"private parts and stuff." O.W. stated defendant put his finger

in her "coochie" and it "really hurt." She stated it "kept

hurting for a while" when she had used the bathroom. She tried

telling her grandma at a later time but "she didn't understand."

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She then saw a movie at school about what to do when

inappropriately touched by someone and told a grown-up about what

happened. O.W. stated she did not tell her mom or her grandma

again about what happened because she was scared of defendant.

L.W. testified she was 10 years old. When she was six

years old, she was in bed in her grandma's bedroom when defendant

touched her "bottom" with "his private part." She did not

remember what it felt like.

Dr. Victoria Nichols-Johnson testified she specializes

in obstetrics and gynecology and performs medical examinations of

children to assess sexual abuse. She stated she conducted an

examination of L.W. in June 2004. L.W. stated her grandpa had

touched her back private area with "his stuff." L.W. indicated

it hurt at the time it happened but it did not hurt afterward

when she went to the bathroom. A physical examination did not

reveal anything out of the ordinary. Dr. Nichols-Johnson stated

she expected a normal exam because L.W. did not give any indica-

tion that she was in pain afterward or observed any bleeding.

Dr. Nichols-Johnson also examined O.W. in June 2004.

O.W. stated her stepgrandpa had touched her in her private area

with his finger. She stated it hurt and later noticed "a dot of

blood on the tissue afterwards when she went to the bathroom." A

medical examination revealed "some defects in the hymenal ring

that appeared to be traumatic in origin," that being caused by

"some external force." Dr. Nichols-Johnson stated the injury

could be caused by an adult finger being inserted into the

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child's genitals. She also stated the examination revealed a

"bump" on the hymenal ring that could have been caused by the

healing of the initial injury. Dr. Nichols-Johnson was of the

opinion that O.W. had been sexually assaulted.

Herbie McBride, a convicted felon, testified he resided

at Graham Correctional Center. While in the Sangamon County

jail, McBride had a conversation with defendant in September

2005. Defendant told him O.W. had "a bump" down by her leg and

he was "checking it." He said he rubbed on the bump to make sure

it was not a major sore or infection.

Laundra Haynes testified he was housed at the Sangamon

County jail at the same time as defendant and McBride. Haynes

overheard a conversation between defendant and McBride, wherein

defendant stated the "little girl" had a rash near her vagina and

he was trying to see what it was by rubbing on it. On cross-

examination, Haynes testified he had pending cases for

trafficking in marijuana and unlawful use of a weapon and faced 8

to 30 years in prison.

Tracy Pearson testified she interviewed L.W. in June

2002. The interview was taped but the tape was later destroyed

because the Department of Children and Family Services case was

unfounded. Pearson found L.W. reluctant to answer the questions.

When asked whether someone touched her butt, L.W. stated "'Paw-

paw.'" When asked how "Paw-paw touched her butt," L.W. stated

she did not know. In May 2004, Pearson conducted taped

interviews of both L.W. and O.W., and they were played for the

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jury.

Dr. Maria Spivey testified for the defense as an expert

in pediatrics. She reviewed the reports authored by Dr. Nichols-

Johnson in connection with this case. As to L.W., Dr. Spivey was

unable to draw a conclusion from the information. As to O.W.,

she found the history provided by O.W. was consistent with sexual

assault. Dr. Spivey did not agree with Dr. Nichols-Johnson's

opinion that the "mound" that extended into O.W.'s vagina was

evidence of an intrusion because that "bump of tissue" is normal

in newborn infants and children who have not been abused. Dr.

Spivey indicated nothing in the photographs showed evidence of

scar tissue.

Bill Clutter, a licensed private investigator,

testified he interviewed Mae Ella Bolden in May 2005. Bolden

told him L.W. would periodically wet her bed and her mother would

"whip her at times." L.W. would oftentimes hide her underwear

"to avoid the beatings." On Father's Day in June 2002, Bolden

found L.W. sleeping at the foot of Bolden's bed on top of the

covers. After Granderson took L.W. to the hospital, Bolden found

L.W.'s underwear, which smelled like urine, behind the washing

machine. Clutter also interviewed Bolden with respect to O.W.

Bolden stated O.W. never brought to her attention any allegation

of touching by defendant. Bolden also questioned O.W.'s

truthfulness.

Defendant exercised his constitutional right not to

testify. See U.S. Const., amend. V. Following closing

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arguments, the jury found defendant guilty of aggravated criminal

sexual abuse as to L.W., aggravated criminal sexual abuse as to

O.W., and predatory criminal sexual assault as to O.W. The jury

found defendant not guilty of predatory criminal sexual assault

as to L.W.

In June 2006, defendant filed a motion for a new trial,

alleging, inter alia, the trial court erred in allowing hearsay

statements of the victims and in denying defendant's tendered

jury instructions. In September 2006, the court denied the

motion. Thereafter, the court sentenced defendant to nine years

in prison for the offense of predatory criminal sexual assault as

to O.W. and four years for the offense of aggravated criminal

sexual abuse as to L.W. The court ordered the sentences to run

consecutively. Also, the conviction for aggravated criminal

sexual abuse as to O.W. merged into the conviction for predatory

criminal sexual assault. This appeal followed.

II. ANALYSIS

A. Lesser-Included-Offense Instruction

Defendant argues the trial court erred in refusing to

tender defendant's jury instruction on the lesser-included

offense of battery. We disagree.

"A defendant generally may not be convicted

of an offense for which the defendant has not

been charged. However, in an appropriate

case, the defendant is entitled to have the

jury instructed on less serious offenses that

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 are included in the charged offense. Such a

practice provides an important third option

to a jury. If a jury believes that a

defendant is guilty of something, but

uncertain whether the charged offense has

been proved, the jury might convict the

defendant of the lesser offense rather than

convict or acquit the defendant of the

greater offense." People v. Ceja, 204 Ill.

2d 332, 359, 789 N.E.2d 1228, 1246 (2003).

In Illinois, courts determine whether an offense is a

lesser-included offense using the two-tiered charging-instrument

approach. Ceja, 204 Ill. 2d at 360, 789 N.E.2d at 1246. The

first tier requires the reviewing court to determine whether the

charging instrument describes the lesser offense. Ceja, 204 Ill.

2d at 360, 789 N.E.2d at 1246. "At a minimum, the instrument

charging the greater offense must contain a broad foundation or

main outline of the lesser offense." Ceja, 204 Ill. 2d at 360,

789 N.E.2d at 1246.

If the charging instrument describes the lesser

offense, the court moves to the second tier and determines

whether the evidence adduced at trial rationally supports the

conviction on the lesser-included offense. Ceja, 204 Ill. 2d at

360, 789 N.E.2d at 1247. "A court must examine the evidence

presented and determine whether the evidence would permit a jury

to rationally find the defendant guilty of the lesser-included

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offense, but acquit the defendant of the greater offense." Ceja,

204 Ill. 2d at 360, 789 N.E.2d at 1247.

1. Predatory Criminal Sexual Assault

In the case sub judice, the indictment alleged

defendant committed the offense of predatory criminal sexual

assault in that he, over the age of 17, committed an act of

sexual penetration with O.W., under the age of 13 at the time the

act was committed, by placing his finger in her sex organ. See

720 ILCS 5/12-14.1(a)(1) (West 2004). "Sexual penetration" is

defined as "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). A person

commits the offense of battery if he "intentionally or knowingly

without legal justification and by any means *** makes physical

contact of an insulting or provoking nature with an individual."

720 ILCS 5/12-3(a) (West 2004).

In People v. Poulos, 303 Ill. App. 3d 818, 819-20, 709

N.E.2d 303, 304 (1999), the defendant was charged with two counts

of residential burglary and one count of criminal sexual assault.

The evidence showed the defendant entered the residence of the

victim, who felt "'something penetrating inside of [her]

vagina.'" Poulos, 303 Ill. App. 3d at 820, 709 N.E.2d at 304.

She awoke to find the defendant stroking his penis. Poulos, 303

Ill. App. 3d at 820, 709 N.E.2d at 304. A police detective

testified the defendant initially denied touching the victim but

later stated he touched her thigh, not her vaginal area. Poulos,

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303 Ill. App. 3d at 821-22, 709 N.E.2d at 305.

The defendant sought a jury instruction on the offense

of battery as a lesser-included offense of criminal sexual

assault, but the trial court refused. Poulos, 303 Ill. App. 3d

at 822, 709 N.E.2d at 306. A jury found him guilty of criminal

trespass to a residence and criminal sexual assault. Poulos, 303

Ill. App. 3d at 822, 709 N.E.2d at 306.

On appeal, the defendant argued the trial court erred

in refusing to instruct the jury on the offense of battery as a

lesser-included offense of criminal sexual assault. Poulos, 303

Ill. App. 3d at 822, 709 N.E.2d at 306. The Second District

disagreed, concluding an examination of the charging instrument

and evidence at trial indicated the offense of battery as

described by the defendant was not described by the charging

document of criminal sexual assault. Poulos, 303 Ill. App. 3d at

824, 709 N.E.2d at 307.

"The indictment charges defendant with

penetrating W.S.'s vagina with his finger.

Defendant disputed that any touching of the

vagina occurred; the defendant claims a

touching of W.S.'s thigh was the factual

basis that a battery occurred. Clearly, the

indictment does not describe a battery

premised on an insulting or provoking

touching of the thigh. *** Here, the proposed

insulting touch was a different act of

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touching a different part of the body. It

could not be proved by the same or less than

all the facts or a less culpable mental state

than that required to establish the

commission of criminal sexual assault.

[Citation.] To accept defendant's argument

would be to accept that a charge of criminal

sexual assault includes an insulting or

provoking touch anywhere on the body, despite

the limited description of the charge. This

is an absurdity. Touching the thigh is no

more contemplated by the indictment in this

case than is tickling the bottom of the foot

or punching the back of the head. If

defendant touched W.S. on the thigh, he could

have been charged with a separate offense of

battery and could have been convicted of both

criminal sexual assault for inserting his

finger into W.S.'s vagina and battery for

touching her thigh. The indictment does not

describe the battery that defendant proposes;

therefore, the court did not err in refusing

to give the battery instruction to the jury."

(Emphasis in original.) Poulos, 303 Ill.

App. 3d at 824, 709 N.E.2d at 307.

In this case, defendant contends his claimed battery,

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that he knowingly and by any means made physical contact of an

insulting or provoking nature with O.W.'s leg, is a lesser-

included offense of the charged predatory criminal sexual assault

of O.W. Defendant cites testimony from McBride, who heard

defendant say he was rubbing on O.W.'s leg.

Here, the indictment does not describe a battery

premised on an insulting or provoking touching of O.W.'s leg. As

in Poulos, if defendant touched O.W. on the leg, he could have

been charged with the separate offense of battery and could have

been convicted of both predatory criminal sexual assault for

placing his finger in O.W.'s sex organ and battery for touching

her leg. As the indictment does not describe the battery that

defendant proposes, the trial court did not err in refusing to

give the battery instruction as a lesser-included offense of

predatory criminal sexual assault.

2. Aggravated Criminal Sexual Abuse

In this case, the indictments alleged defendant, over

the age of 17, committed an act of sexual conduct with O.W. and

L.W., both under the age of 13 when the acts were committed, in

that he knowingly touched the bodies of O.W. and L.W. for the

purpose of his own sexual arousal. See 720 ILCS 5/12-16(c)(1)(i)

(West 2004). "Sexual conduct" has been defined as "any inten-

tional or knowing touching or fondling by the victim or the

accused, either directly or through clothing, of the sex organs,

anus[,] or breast of the victim or the accused, or any part of

the body of a child under 13 years of age *** for the purpose of

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sexual gratification or arousal of the victim or the accused."

720 ILCS 5/12-12(e) (West 2004).

Defendant argues the jury could have found he touched

the buttocks of L.W. without finding his purpose was for his own

sexual arousal. Although defendant correctly points out L.W.

testified at trial he touched her "butt" and she told others

outside of trial the same thing, defendant fails to mention he

used his penis to touch her. Dr. Nichols-Johnson testified L.W.

told her defendant had touched her back private area with "his

stuff." At trial, L.W. testified defendant touched her bottom

with "his private part." When asked at trial to mark the place

she was referring to as defendant's private area on a drawing of

a naked adult male, L.W. drew a line near the penis.

Here, the evidence would not permit a rational jury to

find defendant guilty of battery and acquit him of the aggravated

criminal sexual abuse of L.W. The sexual arousal a defendant

seeks by touching a young girl's buttocks with his penis so

outweighs the insulting or provoking nature of the touch that it

can constitute nothing less than sexual conduct.

Defendant argues the facts presented here are similar

to those in People v. Reynolds, 359 Ill. App. 3d 207, 832 N.E.2d

512 (2005), and required instructing the jury on the lesser-

included offense of battery. There, the defendant used his hand

to rub the victim's back to within an inch of her buttocks.

Reynolds, 359 Ill. App. 3d at 209, 832 N.E.2d at 515. The trial

court found the State failed to prove the defendant's touching

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was for the purpose of his sexual arousal and found him guilty of

the lesser-included offense of battery. Reynolds, 359 Ill. App.

3d at 211, 832 N.E.2d at 517.

Here, defendant used his penis to touch defendant's

buttocks. Given the evidence at trial, the jury could only

conclude that, if he touched L.W.'s buttocks with his penis, he

did so for the purpose of his own sexual arousal. Therefore, the

jury instruction on the offense of battery was not warranted, and

the trial court did not err in refusing to give the instruction.

Defendant also claims the jury could have convicted

defendant of battery as to O.W., thereby requiring an instruction

on the lesser-included offense. However, "there is no final

judgment in a criminal case until the imposition of a sentence,

and, in the absence of a final judgment, an appeal cannot be

entertained." People v. Johnson, 318 Ill. App. 3d 281, 291, 743

N.E.2d 150, 158 (2000); see also People v. Baldwin, 199 Ill. 2d

1, 5, 764 N.E.2d 1126, 1128 (2002) ("Absent a sentence, a convic-

tion is not a final and appealable judgment").

Here, the trial court merged defendant's conviction for

aggravated criminal sexual abuse as to O.W. into his conviction

for predatory criminal sexual assault. The court then sentenced

defendant on the convictions for predatory criminal sexual

assault and aggravated criminal sexual abuse as to L.W. Since no

judgment of conviction was entered or sentence imposed on the

aggravated-criminal-sexual-abuse offense as to O.W., defendant is

barred from challenging any aspect of that charge on appeal.

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 B. Hearsay Statements

Defendant argues the trial court erred when it admitted

out-of-court hearsay statements of the minors pursuant to section

115-10. We disagree.

In prosecuting a defendant for a physical or sexual act

against a child under the age of 13, certain evidence shall be

admitted as an exception to the hearsay rule pursuant to section

115-10(b) of the Procedure Code under the following

circumstances:

"(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:

(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(b) (West 2004).

At the section 115-10 hearing, the trial court must

consider the totality of the circumstances surrounding the

hearsay statements and should consider the following factors in

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making a reliability determination: "(1) the child's spontaneity

and consistent repetition of the incident, (2) the child's mental

state, (3) the child's use of terminology unexpected of a child

of similar age, and (4) the child's lack of motive to fabricate."

People v. Sharp, 355 Ill. App. 3d 786, 796, 825 N.E.2d 706, 714

(2005), citing People v. Cookson, 335 Ill. App. 3d 786, 791, 780

N.E.2d 807, 811 (2002).

"The State bears the burden of proving that the state-

ments 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 not overturn a trial court's

evidentiary ruling pursuant to section 115-10 absent an abuse of

discretion. People v. Stechly, 225 Ill. 2d 246, 312-13, 870

N.E.2d 333, 372 (2007); Sharp, 355 Ill. App. 3d at 797, 825

N.E.2d at 714. "An abuse of discretion occurs when the court's

ruling is arbitrary, fanciful, or unreasonable or when no

reasonable person would take the same view." Sharp, 355 Ill.

App. 3d at 797, 825 N.E.2d at 714.

Defendant argues the time, content, and circumstances

of the following statements did not provide sufficient safeguards

of reliability: (1) L.W.'s statement to her mother following the

June 17, 2002, incident; (2) L.W.'s statement to Pearson on June

28, 2002; (3) L.W.'s statement to Pearson on May 17, 2004; and

(4) O.W.'s statement to Pearson on May 17, 2004.

1. L.W.'s June 17, 2002, Statements

Granderson testified she returned home and found L.W.

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sleeping in Bolden's bed while defendant was watching television.

After lifting the covers off L.W. to carry her to her own bed,

Granderson saw L.W.'s underpants were off and her nightgown was

up above her waist. Granderson asked L.W. where her underpants

were, and L.W. stated "'Paw-paw hid them up under the pillow.'"

Granderson took L.W. to the bathroom and again asked, "Where's

your underwear?" L.W. responded, "'Paw-paw got them, they're up

under his pillow.'" Granderson then asked her if defendant

touched her in any way. L.W. stated, "'He touched my behind.'"

Granderson went on to testify L.W. pointed to her butt and said,

"'He touched my butt.'"

L.W.'s statements to her mother were made within hours

of the incident with defendant. She also used terminology that

could be expected of a six-year-old child. Further, her

statements were made in response to her mother's reasonable

questions concerning her underwear. Granderson's questions were

not designed to evoke an incriminating response but were general

in nature in terms of where L.W.'s underwear was located and

whether defendant touched her in any type of way. Defendant

argues Granderson's recollection of the statements "were tainted

by alcohol." However, this argument goes to the evidentiary

weight of the statements and does not address admissibility under

section 115-10. We find no abuse of discretion.

2. L.W.'s June 28, 2002, Statements

Pearson interviewed L.W. at the Child Advocacy Center

less than two weeks after the incident. The interview was taped,

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but the tape was later destroyed when the case was determined to

be unfounded. Pearson stated L.W. was six years old and "seemed

very shy." With children that young, Pearson stated she uses

anatomical drawings of the front and back view of a child. She

asked L.W. to identify all the body parts and asked her to point

out the "private parts on the drawing." She named them "'private

and butt'" and later pointed and called them "'private and

private.'"

When Pearson asked L.W. if anyone had touched her

private area, referring to her vagina, L.W. said no. When she

asked if anyone ever touched her butt, L.W. nodded her head yes.

Pearson asked who, and L.W. said "'Paw-paw.'" L.W. then told her

it occurred at her grandma's house on the big bed in Bolden's

room. Further, she had her clothes on, but the touching occurred

under her clothes. After Pearson left the room to talk with

investigators, she returned and asked L.W. if she could tell her

what defendant did. L.W. said, "'I don't know.'" When asked if

it hurt to be touched, L.W. nodded her head yes.

Defendant argues L.W. was confused by naming both body

parts her private area and then stating defendant did not touch

her private but touched her butt. However, we find it natural

for a six-year-old child to label her vaginal and anal area as

her "privates" and refer to her buttocks as "butt." Although

L.W. could not tell Pearson exactly what defendant did, it is

reasonable to conclude she was unable to articulate what happened

or did not see what defendant was "exactly" doing to her from

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behind.

We note that a taped interview "provides a better means

for assuring that there was no adult prompting or manipulation

involved, and the failure to do so may be considered a negative

factor when considering reliability." Cookson, 335 Ill. App. 3d

at 792, 780 N.E.2d at 811. The questions asked by Pearson did

not suggest an affirmative answer to the issue of touching or who

may have done the touching. L.W. answered no when asked if

anyone touched her vaginal area and yes when asked about her

buttocks. When asked who touched her, L.W. referred to

defendant. We find no abuse of discretion.

3. L.W.'s May 17, 2004, Statements

On May 17, 2004, Pearson again conducted an interview

with L.W., which was recorded and shown to the trial court. When

Pearson asked L.W. whether anyone ever touched her private part

in back, L.W. responded her "Grandpa" Paul touched her at her

grandma's house. When asked what defendant touched her with,

L.W. stated "his stuff." During the interview, L.W. oftentimes

responded "I don't know" or "I don't remember." Further, long

pauses would sometimes occur after Pearson asked a question,

requiring Pearson to ask the question again. Defendant argues

L.W.'s statements were inconsistent and not spontaneous.

However, it is clearly evident that L.W. had difficulties talking

about the incident. Those difficulties are understandable

considering her age, educational level, and the emotional toll

required to talk about the incident. L.W.'s statements on May

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17, 2004, do not differ substantively from what she previously

told Pearson or her mother. Her responses to Pearson's

questions, as evidenced by the taped interview, indicate L.W. was

not prompted or manipulated into falsely incriminating defendant.

Instead, her statements were consistent with her prior statements

that defendant touched her buttocks. We find no abuse of dis-

cretion.

4. O.W.'s May 17, 2004, Statements

On May 17, 2004, Pearson conducted an interview with

O.W., which was recorded and shown to the trial court. When

Pearson asked O.W. who touched her, she responded her stepgrand-

pa. O.W. stated she was sleeping on the couch in the living room

of her grandma's house when defendant touched her private part

with his finger. She stated it "really hurt" and it "kept

hurting for a while" when she had to use the bathroom.

Defendant argues O.W.'s statements were not reliable

because she had trouble spelling her middle name, called

defendant "Paul Andaver," did not state when the incident

occurred, and did not tell anyone, besides Bolden, until she

learned about child abuse at school. However, the taped

interview indicates O.W. was an articulate and talkative young

girl who provided explanations to the questions asked. She did

not exaggerate defendant's conduct or attempt to add other acts

of misconduct. For example, she stated defendant did not touch

her anywhere else on her body and that he had not shown his

private parts to her or asked her to touch his private parts.

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 Although O.W. did not state the date of the incident,

she did indicate it happened at night, in the living room, on the

couch, when she was seven years old. While she did not disclose

the incident to anyone other than her grandma until she learned

about inappropriate touching at school, "[d]elays in reporting

sexual acts do not automatically render a child victim's

statements inadmissible." Cookson, 335 Ill. App. 3d at 792, 780

N.E.2d at 811. Further, considering her grandma's response and

the likelihood O.W. did not understand the inappropriate nature

of the touching, her delay in reporting the incident was under-

standable.

The taped interview indicates O.W. was not prompted or

manipulated into falsifying the incident and incriminating

defendant. The interview shows the time, content, and circum-

stances of the making of O.W.'s statements to Pearson provided

sufficient safeguards of reliability to be admissible under

section 115-10. We find no abuse of discretion.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment. As part of our judgment, we award the State its $50

statutory assessment against defendant as costs of this appeal.

Affirmed.

APPLETON, P.J., and STEIGMANN, J., concur.

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