People v. Lara

Filed 6/28/10 NO. 4-08-0983

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Woodford County
ANTHONY LARA, ) No. 08CF55
Defendant-Appellant. )
) Honorable
) John B. Huschen,
) Judge Presiding.
_________________________________________________________________

JUSTICE POPE delivered the opinion of the court:

In September 2008, a jury found defendant guilty of

predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West

2006)). Defendant appeals, arguing (1) section 115-10 of the

Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10

(West 2008)) is unconstitutional; (2) the trial court abused its

discretion by allowing the State to introduce R.K.'s videotaped

statement pursuant to section 115-10 of the Code (725 ILCS 5/115-

10 (West 2008)); (3) the State failed to establish defendant's

guilt beyond a reasonable doubt; and (4) defendant's trial

counsel was ineffective for failing to argue R.K.'s testimony at

trial made her unavailable as a witness and denied defendant his

right to confront witnesses against him. We affirm.

I. BACKGROUND

In June 2008, a grand jury indicted defendant, charging

him with predatory criminal sexual assault for committing an act
of sexual penetration on R.K. between July 13, 2007, and May 7,

2008. At the time of the offense, R.K. was 5 years old (born

September 16, 2002) and defendant was 25 years old. The indict-

ment alleged defendant placed his mouth on R.K.'s vagina.

In June 2008, the State filed a notice of its intent to

use out-of-court statements made by R.K. to Officer Eric Luckey,

a Eureka police officer, on May 9, 2008, at the Child Advocacy

Center in Eureka, Illinois, pursuant to section 115-10(a) of the

Code (725 ILCS 5/115-10(a) (West 2006)).

In July 2008, a hearing was held on R.K.'s out-of-court

statement. At the hearing, Officer Luckey testified he had been

a police officer for 20 years. He testified he had received

special training on how to interview children who are victims of

sexual abuse or severe physical abuse. In April 2006, he at-

tended a 40-hour class geared toward preparing individuals to

interview children in situations such as this case. Luckey

testified he received additional training in April 2007 and May

2007.

Officer Luckey testified these training sessions taught

him the key to interviewing children is to ask open-ended, non-

leading questions in an environment that is comfortable for the

child. Luckey testified he typically does not know the alleged

facts of the case before interviewing a child so that he can

avoid leading the child. Luckey testified he wants a child he is

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interviewing to feel comfortable and not intimidated so the child

can tell him what happened.

According to Luckey, he had conducted between 30 and 50

interviews with children alleged to be victims of sexual or

physical abuse. Luckey testified individuals observing the

interview, who are not in the interview room, are able to commu-

nicate with him through a computer monitor mounted on the wall in

the interview room.

Luckey testified he interviewed R.K., who was five at

the time, at the Child Advocacy Center in Eureka in May 2008. He

was the only individual in the room with R.K., but the interview

was both audio- and video-recorded. The video of the interview

was admitted into evidence at the hearing as People's exhibit No.

1. Luckey testified he did not believe R.K. had been coached

prior to the interview.

In August 2008, the trial court granted the State's

motion to admit R.K.'s out-of-court statement, provided R.K.

testified at trial. The court found the interview contained

sufficient safeguards of reliability.

In September 2008, at defendant's jury trial, Kathleen

K. testified she is R.K.'s mother. She, R.K., and her son live

in a two-story house with a basement. R.K. had her own bedroom

on the first floor of the house. Kathleen's bedroom was on the

second floor.

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 Kathleen testified she dated defendant between July

2007 and May 2008. She testified defendant stayed at her house

during that period. According to her testimony, defendant began

to stay at her house more frequently in January 2008, approxi-

mately five nights per week. She testified her children were

present in the home when defendant spent nights there.

According to her testimony, her roommate and babysit-

ter, Dustin Plitus, watched R.K. and her brother while Kathleen

was at work. She testified most of the time, she did not leave

the children alone with defendant. However, she testified he was

alone with the children once or twice for approximately two hours

when she went to the grocery store. Kathleen testified she left

for work at 4 a.m. Dustin and defendant would be sleeping on the

second floor when she left. She testified defendant had to leave

her house between 5:30 and 6 a.m. to get to work.

Kathleen also testified defendant had an eyebrow ring,

two lip rings, a labret piercing, and a tongue ring. She stated

defendant usually always wore his jewelry, even while sleeping,

unless he was going to church.

Kathleen testified R.K. told her about the allegations

against defendant in the car when she and R.K. were alone.

Kathleen said she and R.K. had never talked about any type of

sexual matters prior to this. Kathleen called the Child Advocacy

Center, which referred her to the Department of Children and

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Family Services (DCFS) and the police.

Kathleen testified she still loved defendant. She

testified R.K. and defendant got along well together and R.K.

considered defendant her friend. She said she had never seen

defendant do anything inappropriate to R.K.

The State called R.K. as a witness. R.K. testified

people are not supposed to touch certain parts of her body. When

asked which parts, R.K. pointed down. When asked what she called

the part to which she pointed, she said "[b]ottom body." R.K.

testified it was on the front of her body and that defendant had

touched her on that part of her body. When asked how many times

defendant had touched her "bottom body," she said "100."

When asked by the State, "Did he touch you with any-

thing else beside his hand," R.K. answered, "No." She said she

told defendant to "quit it" when he touched her. R.K. testified

defendant would stand and look at her when he was not touching

her. R.K. testified she told her mother, while riding in the car

with her, what defendant had done to R.K. When asked why she

told her mom, R.K. responded, "Because he was doing something

wrong."

R.K. said no one else had ever touched her "down

there." Besides her mom and the people in the courtroom, she

testified she had never told anyone else about what happened.

R.K. testified defendant's hands touched her below her clothes.

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She also testified his hands were outside her underwear. R.K.

stated defendant was not wearing facial jewelry when he touched

her "down there." She said defendant did not take off any of his

clothes when he touched her "down there," nor did he take off any

of her clothes.

R.K. testified she considered defendant her friend.

However, when the State asked R.K. if she liked defendant, she

said no because he did something wrong.

Defense counsel chose to limit his cross-examination of

R.K. Defense counsel did not ask her any questions about the

alleged incident or any other incidents of inappropriate contact.

After R.K. testified, the trial court heard arguments

outside the presence of the jury regarding R.K.'s videotaped

statement. Defense counsel argued R.K. did not testify to the

elements charged in this case. According to defense counsel,

R.K.'s testimony at trial was completely different from what she

told Luckey. As a result, defense counsel questioned the reli-

ability of the videotaped interview. However, as to R.K.'s

availability as a witness, the following exchange occurred:

"[TRIAL COURT]: Just so that I under-

stand clearly your argument, Mr. Neiner,

you're not arguing that her testimony was so

deficient as to make her not available?

[DEFENSE COUNSEL]: Well, she was avail-

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 able. Just because she is testifying differ-

ently doesn't mean it's not available."

The court noted it had previously found the time, content, and

circumstances of R.K.'s recorded statement to be reliable. Based

on testimony the court had heard at the trial, it found R.K.'s

prior statements were still reliable, even if they were

inconsistent with her trial testimony. The trial then resumed.

Officer Luckey testified he was a police officer with

the City of Eureka and had been a police officer for 20 years.

Luckey testified he had received specialized training in inter-

viewing children alleged to be victims of sexual or physical

abuse. The videotaped interview and a transcript of the inter-

view were admitted into evidence. The jurors were each provided

a transcript of the videotaped statement while the videotape was

played for the jury.

During R.K.'s interview with Luckey, Luckey asked her

if there were places on her body other people should not touch.

She said, "They're not supposed to lick my pee pee." When asked

if anyone had ever licked her "pee pee," R.K. said, "[Defendant]

did." She said sometimes defendant spent the night at her house.

Luckey then asked her about what happens when defendant licks her

"pee pee."

"[LUCKEY:] Can you tell me what happens

when he does that?

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 [R.K.:] When he hurts it he licks it.

[LUCKEY:] When he hurts it he licks it?

[R.K.:] Yeah. He's pretending he is

kissing it but he is licking it."

R.K. said this happens in the room where she sleeps. Luckey

later asked R.K. more questions about defendant licking her.

[LUCKEY:] When he is licking your pee

pee, does it happen in the daytime, night

time, or some other time?

[R.K.] Daytime.

[LUCKEY:] Daytime. And what are you

usually doing before this happens? Are you

in your, are you in your bedroom or are you

somewhere else?

[R.K.] When I was so tired I went to

sleep in the daytime. When he just pulled

down my pants and he licked my pee pee.

[LUCKEY:] He pulled down your pants and

licked your pee pee. Okay. Where did he

lick you when he was licking you [R.K.]?

[R.K.:] Inside my pee pee."

R.K. also stated defendant told her not to tell anybody about him

licking her "pee pee." R.K. said defendant licked her "pee pee"

more than one time. When asked how it felt, R.K. said:

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 "[R.K.:] Feels like he is stabbing me

with his lip rings.

[LUCKEY:] It feels like he is stabbing

you with his lip rings.

[R.K.:] Yeah.

[LUCKEY:] Does he have rings in his

lips?

[R.K.:] Yeah. Right here and right here

and right here."

Following Officer Luckey's testimony, the State rested.

Defendant called Marshall Smith, a deputy with the

Woodford County sheriff's department. Deputy Smith testified he

was dispatched to Kathleen K.'s home on May 9, 2008, talked to

Kathleen, and took a report. He did not interview R.K. or anyone

else living at the residence. Deputy Smith testified he had no

further involvement with the investigation and this was normal

procedure once a case had been turned over to the detective

division of the department.

Terry Glaub testified he is a detective with the

Woodford County sheriff's office and a member of the Child

Advocacy Center in Woodford County. He was assigned to investi-

gate the allegations involving R.K. Glaub also testified he

requested a physical exam of R.K. be performed. Glaub testified

protocols for the Child Advocacy Center call for other family

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members to be interviewed, with special importance placed on

parents and caretakers. He stated he spoke to R.K.'s father, Tim

K. Tim K. had no knowledge about the substance of R.K.'s allega-

tions against defendant. Glaub testified he did not ask Tim K.

about his relationship with defendant. Glaub observed Luckey's

interview of R.K. Glaub testified there was no indication R.K.

had been coached. In fact, Glaub stated R.K. said no one told

her what to say.

The jury found defendant guilty of predatory criminal

sexual assault. In October 2008, the trial court sentenced

defendant to 12 years' imprisonment. In December 2008, the trial

court denied defendant's posttrial motion, which alleged the

trial court erred in admitting R.K.'s videotaped statement.

This appeal followed.

II. ANALYSIS

A. Constitutionality of Section 115-10 of the Code

Defendant argues section 115-10 of the Code (725 ILCS

5/115-10 (West 2006)) is unconstitutional because it "fails to

incorporate a blanket prohibition of testimonial statements where

the defense has no opportunity to cross-examine the declarant,"

and it "improperly incorporates an evidentiary standard which has

been specifically rejected by the United States Supreme Court" in

Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S.

Ct. 1354 (2004). These are facial challenges to the constitu-

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tionality of section 115-10 of the Code (725 ILCS 5/115-10 (West

2006)).

When determining the constitutionality of a statute,

courts presume the statute is constitutional. People v. Reed,

361 Ill. App. 3d 995, 1000, 838 N.E.2d 328, 333 (2005). A court

must interpret a statute so as to uphold its constitutionality if

reasonably possible. Reed, 361 Ill. App. 3d at 1000, 838 N.E.2d

at 333. "'A statute is facially unconstitutional (in contrast to

unconstitutional as applied to [a] defendant) only if one can

think of no circumstance in which the statute would be constitu-

tional.'" People v. Kitch, 392 Ill. App. 3d 108, 114, 915 N.E.2d

29, 34 (2009), appeal allowed, 233 Ill. 2d 581, 919 N.E.2d 360

(2009), quoting Reed, 361 Ill. App. 3d at 1000, 838 N.E.2d at

333.

In Kitch, this court recently adhered to its previous

ruling in Reed and rejected the defendant's contention section

115-10 is facially unconstitutional. Kitch, 392 Ill. App. 3d at

115, 915 N.E.2d at 35. We continue to adhere to this court's

prior precedent and find section 115-10 of the Code (725 ILCS

5/115-10 (West 2006)) facially constitutional.

Defendant points out this court recently interpreted

section 115-10 of the Code (725 ILCS 5/115-10 (West 2006)) to

allow for the introduction of prior out-of-court statements when

a witness takes the stand and answers no meaningful question on

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cross-examination. See People v. Sharp, 391 Ill. App. 3d 947,

909 N.E.2d 971 (2009); People v. Bryant, 391 Ill. App. 3d 1072,

909 N.E.2d 391 (2009). Defendant argues this could not have been

the legislature's intent when it provided a witness must testify

at the proceedings for the prior statement to be admissible.

We need not address this hypothetical argument because

it is not applicable to the facts of this case. The victim in

this case, R.K., took the stand and offered meaningful testimony.

Further, defendant had the opportunity to cross-examine her.

R.K. answered all of defense counsel's questions. Defendant

cannot challenge the statute on a basis that it could conceivably

be applied unconstitutionally to another defendant. See People

v. Wisslead, 108 Ill. 2d 389, 397, 484 N.E.2d 1081, 1084 (1985).

In addition, as the State points out in its brief, the

confrontation clause only guarantees an opportunity for effective

cross-examination; it does not guarantee effective cross-examina-

tion. Bryant, 391 Ill. App. 3d at 1081, 909 N.E.2d at 400.

Defendant had the opportunity to cross-examine the victim in this

case, and she answered all of his questions. It appears, as a

matter of trial strategy, defense counsel chose not to cross-

examine R.K. about the charge alleged in the indictment, nor did

he question her about her statement to Officer Luckey. That

defense counsel chose not to cross-examine R.K. on these issues

does not translate to a lack of opportunity to do so.

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 B. Admission of Videotaped Statement

Defendant also argues the trial court abused its

discretion by allowing R.K.'s videotaped statement to be shown to

the jury. Because the State is the proponent of the out-of-court

statement sought to be admitted pursuant to section 115-10 of the

Code (725 ILCS 5/115-10 (West 2006)), the State bore the burden

of establishing the statement was "reliable and not the result of

adult prompting or manipulation." Sharp, 391 Ill. App. 3d at

955, 909 N.E.2d at 978.

We will overturn a trial court's decision to allow the

admission of evidence only when the record clearly demonstrates

the decision was an abuse of discretion. People v. Cookson, 215

Ill. 2d 194, 204, 830 N.E.2d 484, 490 (2005). "'An abuse of

discretion occurs when the [court's] ruling is arbitrary, fanci-

ful, or unreasonable, or when no reasonable person would take the

same view.'" Sharp, 391 Ill. App. 3d at 955, 909 N.E.2d at 978,

quoting People v. Robertson, 312 Ill. App. 3d 467, 469, 727

N.E.2d 404, 406 (2000). We find the trial court did not abuse

its discretion in admitting this evidence.

When conducting a section 115-10 hearing, the court

examines the totality of the circumstances surrounding the

hearsay statements, including the following: "'(1) the child's

spontaneity and consistent repetition of the incident, (2) the

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

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

Sharp, 391 Ill. App. 3d at 955, 909 N.E.2d at 978, quoting People

v. Cookson, 335 Ill. App. 3d 786, 791, 780 N.E.2d 807, 811

(2002), aff'd, 215 Ill. 2d 194, 830 N.E.2d 484 (2005). Defendant

suggests R.K.'s inability to pinpoint when the sex act occurred

and certain inconsistencies rendered her statement unreliable.

After viewing the videotape, we do not find the trial

court abused its discretion in finding "the time, content, and

circumstances of the statement provide sufficient safeguards of

reliability" (725 ILCS 5/115-10(b)(1) (West 2006)). Officer

Luckey did not direct R.K.'s answers in the interview. He asked

open-ended questions, which R.K. answered. R.K. described

conduct with which a typical four- or five-year-old child would

not and should not be familiar. Not only did R.K. describe what

defendant did, she also described how it felt. R.K. told Luckey

defendant's facial jewelry hurt her "pee-pee" when he was per-

forming oral sex on her. As she described it, it felt like he

was stabbing her with his lip rings. In addition, the record

contains no possible motive for R.K. to fabricate these allega-

tions. R.K.'s mother testified she still loved defendant and

defendant and R.K. got along well together. Further, Luckey

testified he did not believe R.K. had been coached. As a result,

we will not say the trial court's pretrial ruling was fanciful,

arbitrary, or unreasonable.

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 Defendant also argues the trial court should have

reversed its pretrial ruling after R.K. testified at the trial

because the contradictions between her testimony and her recorded

interview rendered the interview unreliable. Defendant points to

the fact R.K. never stated at trial defendant had penetrated her

with his tongue. When asked by the State if defendant had

"touched" her with any part of his body beside his hand, R.K.

answered, "No." However, a five-year-old child most likely would

not equate oral sex with touching. Touching for a five-year-old

is done with fingers and hands. Neither the State nor defendant

specifically asked R.K. whether defendant put his mouth or tongue

on her vagina.

In this case, R.K.'s testimony at trial was not so much

inconsistent with the videotaped statement as it was less

complete than the previous statement. This is understandable in

light of her tender years and the passage of time. Determina-

tions of the credibility of witnesses, the weight to be given

their testimony, and reasonable inferences to be drawn from the

evidence lie in the province of the trier of fact, here--the

jury. People v. Curtis, 296 Ill. App. 3d 991, 999, 696 N.E.2d

372, 378 (1998).

The jury could have found R.K.'s videotaped statement

more complete and trustworthy than her trial testimony, given its

proximity in time to the incident. The jury was able to assess

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R.K.'s credibility because it was able to observe her demeanor in

the video and on the witness stand and could consider any con-

flicts or inconsistencies in her testimony. Nothing about her

trial testimony rendered her prior statement unreliable. Thus,

the trial court did not err in denying defendant's motion to

reconsider its earlier ruling to admit the recorded interview.

Any inconsistencies between R.K.'s trial testimony and her

recorded interview affect only the weight and not the admissibil-

ity of the recorded interview. Defendant was free to, and did,

argue these inconsistencies to the jury.

C. Sufficiency of the Evidence

We next address defendant's argument the State failed

to establish his guilt beyond a reasonable doubt. When reviewing

a challenge to the sufficiency of the State's evidence, we view

the evidence presented in a light most favorable to the prosecu-

tion and determine whether any rational trier of fact could have

found the State proved the elements of the offense beyond a

reasonable doubt. People v. Schmalz, 194 Ill. 2d 75, 80, 740

N.E.2d 775, 778 (2000).

The grand jury indicted defendant on the charge of

predatory criminal sexual assault of a child. 720 ILCS 5/12-

14.1(a)(1) (West 2006). Section 12-14.1(a)(1) of the Code states

a defendant "commits predatory criminal sexual assault of a child

if *** the accused was 17 years of age or over and commits an act

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of sexual penetration with a victim who was under 13 years of age

when the act was committed." 720 ILCS 5/12-14.1(a)(1) (West

2006). Section 12-12(f) of the Code defines "sexual penetration"

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, or any intrusion, however slight, of any part of the body

of one person or of any animal or object into the sex organ or

anus of another person, including but not limited to cunnilingus,

fellatio or anal penetration." 720 ILCS 5/12-12(f) (West 2006).

The indictment alleged defendant placed his mouth on R.K.'s

vagina.

Defendant is correct that R.K.'s trial testimony alone

was not sufficient to establish defendant placed his mouth on her

vagina. However, the State also introduced R.K.'s recorded

interview and the recorded interview was admitted as substantive

evidence. In the recorded interview, R.K. stated defendant

placed his mouth on her sex organ and licked inside her "pee

pee." A reasonable jury could properly have found R.K.'s state-

ment credible.

Defendant argues R.K.'s recorded statement contains

inconsistencies, contradictions, and most of the detail in the

interview came after prodding by Officer Luckey. We disagree

with defendant's characterization of Officer Luckey's interview

technique. As we stated earlier, Luckey asked open-ended ques-

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tions, to which R.K. responded. As for the alleged inconsisten-

cies and contradictions, the jury obviously found her statements

regarding the alleged conduct credible. It is not the function

of this court to second-guess the credibility determinations of

the trier of fact unless we determine no reasonable jury could

have come to that same conclusion. As our supreme court has

stated, "it is for the fact finder to judge how flaws in part of

the testimony affect the credibility of the whole" as long as its

judgment is reasonable in light of the record. People v.

Cunningham, 212 Ill. 2d 274, 283, 818 N.E.2d 304, 310 (2004). In

this case, we find the jury's decision to believe R.K.'s state-

ment regarding defendant licking her "pee pee" was reasonable.

Defendant's argument on this issue succeeds only if the

trial court erred in admitting the videotaped statement. We have

found no error in admitting the statement. Thus, the video and

trial testimony both constitute substantive evidence and support

defendant's conviction.

D. Ineffectiveness of Trial Counsel

Defendant argues his trial counsel was ineffective

because he did not argue R.K. was unavailable as a witness and

her videotaped statement was therefore inadmissible. To estab-

lish ineffective assistance of counsel, defendant must establish

(1) his counsel's performance was so deficient the attorney was

not functioning as counsel guaranteed by the sixth amendment to

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the United States Constitution, and (2) he was prejudiced by the

deficient performance. Strickland v. Washington, 466 U.S. 668,

80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). "An attorney's perfor-

mance must be evaluated from counsel's perspective at the time

the contested action was taken and will be considered constitu-

tionally deficient only if it is objectively unreasonable under

prevailing professional norms." People v. Bailey, 232 Ill. 2d

285, 289, 903 N.E.2d 409, 412 (2009).

Although R.K. took the stand in this case and answered

all of defense counsel's questions on cross-examination, defen-

dant argues R.K.'s trial testimony created a dilemma for his

trial counsel. According to defendant, R.K. testified defendant

did not engage in the activity described in her recorded inter-

view. By denying the allegations at issue in the indictment,

defendant argues R.K. created a situation where defendant could

not effectively cross-examine her. Defendant contends his

counsel would have had to ask her to admit she made the statement

to Officer Luckey, thereby implicating defendant. As a result,

defendant argues R.K. was unavailable as a witness. (As we noted

above, R.K. did not deny the allegations in the indictment. No

one at trial asked her directly if defendant licked her "pee

pee.")

Defendant's argument his trial counsel should have

argued R.K. was unavailable fails here because it is clear R.K.

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was available. This court has previously stated a defendant's

confrontation rights are not violated simply because he was

unable to cross-examine a witness to the extent he wished. See

Bryant, 391 Ill. App. 3d at 1094, 909 N.E.2d at 409-10.

In In re Rolandis G., 232 Ill. 2d 13, 32-33, 902 N.E.2d

600, 611 (2008), our supreme court ruled a videotaped statement

made by a child to a child advocate was testimonial in nature.

Because the court found the child did not testify at trial and

defendant had no prior opportunity for cross-examination, our

supreme court held admission of the videotaped statement violated

defendant's right to confront his accuser. Rolandis G., 232 Ill.

2d at 33, 902 N.E.2d at 611. However, our supreme court has also

stated, "[t]he confrontation clause is not violated by admitting

a declarant's out-of-court statements, as long as the declarant

is testifying as a witness and subject to full and effective

cross-examination." People v. Flores, 128 Ill. 2d 66, 88, 538

N.E.2d 481, 489 (1989). R.K. was available as a witness and

answered all of defendant's questions on cross-examination.

Defendant's argument is similar to an argument made by

the defendant in People v. Garcia-Cordova, 392 Ill. App. 3d 468,

912 N.E.2d 280 (2009). In Garcia-Cordova, the question was

whether the child was available for cross-examination during

defendant's trial. Garcia-Cordova, 392 Ill. App. 3d at 480, 912

N.E.2d at 291. Even though the child was physically present and

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answered some preliminary questions, the defendant argued the

child was unavailable because she denied remembering, among other

things, defendant doing anything to her on the couch or bed, why

she spoke with an investigator from DCFS, and whether other

people should not touch certain parts of her body. Garcia-

Cordova, 392 Ill. App. 3d at 480, 912 N.E.2d at 291. Defendant

argued the child was unavailable for cross-examination regarding

her statements to the DCFS investigator because defendant "would

have been forced to first elicit the damaging testimony from [the

child] and then attempt to refute it." Garcia-Cordova, 392 Ill.

App. 3d at 480, 912 N.E.2d at 291.

The Second District found the child was available for

cross-examination. The child appeared at trial, testified under

oath, made an in-court identification of the defendant, and

recalled speaking with the DCFS investigator. Garcia-Cordova,

392 Ill. App. 3d at 483, 912 N.E.2d at 294. The child testified

she made several drawings during her meetings with the DCFS

investigator, some of which she identified during her testimony.

She also testified who was depicted in the drawings she was able

to identify. Garcia-Cordova, 392 Ill. App. 3d at 483-84, 912

N.E.2d at 294.

"Although [the child] testified that she was

unable to recall what she spoke with [the

DCFS investigator] about, what the activities

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 depicted in the drawings were, and whether

anything had happened to her on the couch or

in the bed, and although she did not know the

context of some of the drawings or why she

drew them, she did answer all of the ques-

tions put to her on those subjects. She did

not refuse, like the child witness in

Rolandis G. did, to answer the questions;

rather, she simply testified she could not

remember or did not know." Garcia-Cordova,

392 Ill. App. 3d at 484, 912 N.E.2d at 294.

The court noted defendant could have cross-examined the child on

her descriptions of the drawings she made, her inability to

remember her conversation with the DCFS investigator or the

alleged incidents of abuse, and her claimed lack of knowledge

regarding some of the pictures. Garcia-Cordova, 392 Ill. App. 3d

at 484, 912 N.E.2d at 294. The court stated cross-examination on

these topics could be considered "'friendly' cross-examination."

Garcia-Cordova, 392 Ill. App. 3d at 484, 912 N.E.2d at 294. The

court also stated defendant could have emphasized the issue of

the child's credibility to the jury. Garcia-Cordova, 392 Ill.

App. 3d at 484, 912 N.E.2d at 294.

In the case at bar, defendant was not deprived of an

opportunity to cross-examine R.K. She answered all of defen-

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dant's questions on cross-examination. Defense counsel at both

trial and on appeal provide a somewhat misleading representation

of R.K.'s testimony. R.K. never specifically denied defendant

placed his tongue or mouth on her vagina. She was never asked

this specific question by either the State or defendant. The

State only asked R.K. if defendant had touched her with anything

beside his hand. As we stated earlier, it is easy to see how

R.K. would not equate oral sex with touching. There is no reason

to believe R.K. would have refused to answer a question from

defense counsel as to whether defendant put his mouth or tongue

on her vagina.

Defendant does not argue his trial counsel was ineffec-

tive for failing to ask R.K. whether defendant put his mouth or

tongue on her vagina. It appears this was a matter of strategy

on the part of defense counsel. Defense counsel argued to the

jury the State failed to prove its case beyond a reasonable doubt

because R.K. testified defendant had never touched her with

anything beside his hand. Defense counsel made the following

argument to the jury:

"Now, ladies and gentleman, you've heard

a lot of testimony about [defendant] alleg-

edly touching [R.K.'s] butt, putting his hand

on her butt. That's not the charge here.

He's not charged with touching her butt. As

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far as whether he's guilty or not guilty,

that isn't the ultimate question. What you

have to find is that [the State] has proved

beyond a reasonable doubt that he put his

mouth on her vagina. [R.K.] did not tell you

that today. As she sat here in open court

having to face everyone in the courtroom she

did not tell you that happened once. In

fact, she told you that didn't happen.

Ladies and gentleman, it comes down to

the believability of witnesses and you be-

lieve what happened on a tape when she didn't

have to face everyone, when she's in a pri-

vate room with the detective who is just

gathering information and not asking ques-

tion, or you believe what happened in court,

or do you believe that you just can't possi-

bly know. Is there so much of a difference

that it's impossible to know exactly what

happened? Because if that comes into your

mind, that's reasonable doubt. When you call

that kind of evidence into question, that's

reasonable doubt. Like I said, ladies and

gentleman, this case is riddled with it."

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 In a situation such as this, defense counsel is placed

in a precarious position. In general, during any trial, an

attorney does not want to ask a question if he does not know how

the witness will answer. Further, an attorney surely does not

want to elicit an answer that will implicate his client. How-

ever, strategic considerations such as these do not make the

witness unavailable for cross-examination. In this case, R.K.

was present, she answered all of the questions posed by defense

counsel, and nothing in the record indicates she would not have

answered any other questions defense counsel could have asked.

Since we find R.K. was available for cross-examination, trial

counsel's performance was not deficient. An attorney is not

required to, and indeed should not, make an argument not well-

grounded in fact or law.

III. CONCLUSION

For the reasons stated, we affirm defendant's convic-

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

statutory assessment against defendant as costs of this appeal.

Affirmed.

MYERSCOUGH, P.J., and TURNER, J., concur.

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