2016 IL App (4th) 150004 FILED
April 25, 2016
Carla Bender
NO. 4-15-0004
4th District Appellate
Court, IL
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
JASON C. JOHNSON, ) No. 13CF163
Defendant-Appellant. )
) Honorable
) Charles M. Feeney,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justice Holder White concurred in the judgment and opinion.
Justice Turner specially concurred.
OPINION
¶1 In January 2014, defendant, Jason C. Johnson, was indicted on two counts of
predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)), alleging
that he committed acts of sexual penetration with M.B., who was less than 13 years of age.
¶2 Prior to trial, the State filed a motion in limine, seeking to introduce evidence un-
der the hearsay exception of section 115-10 of the Code of Criminal Procedure of 1963 (Code)
(725 ILCS 5/115-10 (West 2012)). Specifically, the State sought to introduce (1) a digital video-
and audio-recording of M.B.'s interview with a child-advocacy counselor, conducted when M.B.
was seven years old, in which M.B. described the alleged assaults; and (2) testimony from M.B.'s
mother, Shelly, about statements M.B. made to her when M.B. was six years old, describing the
alleged assaults. The trial court granted the motion in a written order.
¶3 During defendant's May 2014 jury trial, the State introduced the hearsay evidence
described above. The jury found defendant guilty on both counts. The trial court sentenced de-
fendant to two terms of 20 years in prison, to be served consecutively.
¶4 Defendant appeals, raising several arguments: (1) the evidence was insufficient to
prove him guilty beyond a reasonable doubt; (2) the trial court abused its discretion by admitting
hearsay evidence under section 115-10 of the Code; (3) the court erred by entering an insuffi-
ciently detailed order when admitting the hearsay statements under section 115-10; (4) the court
abused its discretion by admitting the recording as substantive evidence without laying a proper
foundation; (5) trial counsel was ineffective for failing to object to (a) the court's insufficiently
detailed order admitting evidence under section 115-10, (b) testimony that was not presented at
the section 115-10 hearing, and (c) the admission of the recording as substantive evidence or to
request a jury instruction prohibiting its use as substantive evidence; and (6) the court imposed
an excessive sentence. We affirm.
¶5 I. BACKGROUND
¶6 In January 2014, the State charged defendant with two counts of predatory crimi-
nal sexual assault of a child. The charges alleged that between December 2011 and November
2013, defendant twice committed an act of sexual penetration with M.B.—once with his finger
and once with his penis—while M.B. was less than 13 years of age and defendant was 17 years
of age or older.
¶7 A. The State's Motions To Admit Hearsay Under
Section 115-10 of the Code
¶8 In February 2014, the State filed two motions to admit hearsay statements pursu-
ant to section 115-10 of the Code (id.). The first motion sought to admit recorded statements
made by M.B. during an interview with a victims' advocate, Tara Crady. The second motion
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sought to admit testimony by M.B.'s mother, Shelly, as to statements M.B. made to Shelly.
¶9 Later that month, the trial court held a hearing on the motions. Crady and Shelly
testified at the hearing. In March 2014, the court filed a written order granting the State's mo-
tions. The court found that the statements at issue contained sufficient safeguards of reliability.
¶ 10 B. The Evidence Presented at Trial
¶ 11 1. The State's Evidence
¶ 12 At the May 2014 jury trial, Shelly testified that she lived with her boyfriend, Lar-
ry, and her daughter, M.B., who was born in 2006. Defendant was M.B.'s father. M.B. visited
him every other weekend. In November 2013, when M.B. was six years old, M.B. told Shelly
that "[D]addy likes to make sure my special spot is clean." When Shelly asked what M.B. meant
by that statement, M.B. said that defendant took off her pajamas and underwear and stuck his
fingers in her "special spot." Shelly asked if defendant ever made M.B. touch his "private area,"
and M.B. responded, "No" but said that "he would wet it and stick it on her private area."
¶ 13 Shelly immediately called her friend, whose husband was a police officer. Based
on the officer's advice, Shelly took M.B. to the emergency room that night. Approximately one
week later, in December 2013, Shelly took M.B. to the Illinois Children's Advocacy Center,
where an examiner conducted a forensic recorded interview with M.B.
¶ 14 M.B., who was seven years old at the time of the trial, testified that defendant
"licked his finger and put it in my private" while M.B. was visiting his house. M.B. was alone in
her bedroom, asleep, when defendant entered and woke her up. He put his hand under the blan-
ket that was covering M.B., and M.B. felt his finger move inside her "private." M.B. testified
further that defendant touched her in a similar way on "a lot" of occasions, but he never touched
"his privates" against M.B.'s "privates." M.B. told her mom about the touching while they were
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in the car.
¶ 15 Maureen Hofmann testified that she was employed as an advanced-practice nurse
at the Pediatric Resource Center at the University of Illinois College of Medicine in Peoria. The
trial court granted the State's request to have her tendered as an expert in the examination of
children alleged to have been sexually abused. On December 4, 2013, Hofmann examined M.B.
Hofmann testified that she conducted an external examination of M.B.'s genitals using a
colposcope. The examination did not reveal any evidence of the abuse reported by M.B. Hof-
mann clarified that the results of the examination did not rule out the abuse reported by M.B.,
because in 95% of cases in which children report sexual abuse, their examinations do not reveal
physical evidence of abuse.
¶ 16 Tara Crady testified that she worked for the Tazewell County Children's Advoca-
cy Center. On December 3, 2013, when M.B. was seven years old, Crady interviewed M.B.
about her complaints that defendant committed sexual assault. A recording of that interview was
played for the jury. The State rested.
¶ 17 Defendant moved for a directed verdict, arguing that the evidence was insuffi-
cient, because it showed inconsistencies in M.B.'s statement. The trial court denied the motion.
¶ 18 2. Defendant's Evidence
¶ 19 Kara E. testified that she was defendant's sister. Kara had a six-year-old child,
H.E., with whom she had visitation every other weekend. When Kara had visitation with H.E.,
she would arrange to meet up with defendant and M.B. Kara testified that M.B. had a normal
interaction with defendant and seemed happy with him. On November 3, 2013, Kara, H.E., de-
fendant, and M.B. were all visiting at Kara's and defendant's parents' house. H.E. and M.B. were
playing in H.E.'s bedroom. When Kara went to check on them, she found them both lying in bed
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together naked. Kara noticed that H.E.'s "little pee pee was hard." H.E. and M.B. told Kara that
they were "just hugging and kissing."
¶ 20 Ketra Eichelkraut testified that she was defendant's live-in girlfriend for 2 1/2
years. She described defendant as a "loving father." On November 3, 2013, she and defendant
visited defendant's parents' house, along with M.B., Kara, and H.E. Ketra left the house for a
while and received a phone call from defendant telling her that "something had happened with
[H.E.] and [M.B.]" When Ketra returned to defendant's parents' house, defendant was talking to
M.B. "about the incident what had happened, why we don't do those things, and good touch, bad
touch, things like that." Ketra testified further that she had also talked to M.B. previously about
"good touching, bad touching."
¶ 21 Defendant testified that prior to the allegations in this case, he had visitation with
his daughter every other weekend. In October or November 2013, defendant and Shelly got into
an argument about visitation for M.B. Shelly was planning to move to an area that was farther
away from defendant and wanted defendant to meet her halfway when transporting M.B. from
visitation.
¶ 22 Defendant testified further that he never touched his daughter in a sexual way, nor
did he place his finger or penis on or in her genitals. He stated that he had very little alone time
with M.B. because Ketra or defendant's son were usually around.
¶ 23 The jury found defendant guilty on both counts. After an August 2014 sentencing
hearing, the trial court sentenced defendant to consecutive terms of 20 years in prison.
¶ 24 II. ANALYSIS
¶ 25 Defendant argues that (1) the evidence was insufficient to prove him guilty be-
yond a reasonable doubt; (2) the court abused its discretion by admitting hearsay evidence under
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section 115-10 of the Code (725 ILCS 5/115-10 (West 2014)); (3) the court erred by entering an
insufficiently detailed order when admitting the hearsay statements under section 115-10; (4) the
court abused its discretion by admitting the recording as substantive evidence; (5) trial counsel
was ineffective for failing to object to (a) the court's insufficiently detailed order admitting evi-
dence under section 115-10, (b) testimony that was not presented at the section 115-10 hearing,
and (c) the admission of the recording as substantive evidence or to request a jury instruction
prohibiting its use as substantive evidence; and (6) the court imposed an excessive sentence.
¶ 26 A. Sufficiency of the Evidence
¶ 27 Defendant argues that the evidence was insufficient to prove him guilty beyond a
reasonable doubt. Specifically, he argues that the evidence was insufficient to prove that he
committed acts of sexual penetration. We disagree.
¶ 28 "We will reject a challenge to the sufficiency of the evidence if any rational trier
of fact could have found the essential elements of the charged offense beyond a reasonable
doubt." In re Raheem M., 2013 IL App (4th) 130585, ¶ 32, 1 N.E.3d 86. "An appellate court
will not retry a defendant when considering a challenge to the sufficiency of the evidence." Id.
"The State is given the benefit of all reasonable inferences, and the evidence is considered in the
light most favorable to the prosecution." Id. "The trier of fact is best equipped to judge the cred-
ibility of witnesses, and due consideration must be given to the fact that it was the trial court and
jury that saw and heard the witnesses." People v. Wheeler, 226 Ill. 2d 92, 114-15, 871 N.E.2d
728, 740 (2007). "[A] conviction will be reversed where the evidence is so unreasonable, im-
probable, or unsatisfactory that it justifies a reasonable doubt of defendant's guilt." Id. at 115,
871 N.E.2d at 740.
¶ 29 Defendant was found guilty of two counts of predatory criminal sexual assault of
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a child (720 ILCS 5/11-1.40(a)(1) (West 2012)). A person commits predatory criminal sexual
assault of a child if:
"that person commits an act of sexual penetration, is 17 years of
age or older, and:
(1) the victim is under 13 years of age[.]" Id.
"Sexual penetration" is defined, in relevant part, as follows:
"[A]ny contact, however slight, between the sex organ or anus of
one person and an object or the sex organ, mouth, or anus of an-
other person, or any intrusion, however slight, of any part of the
body of one person *** into the sex organ or anus of another per-
son ***." 720 ILCS 5/11-0.1 (West 2012).
¶ 30 In this case, the State alleged that defendant committed acts of penetration by (1)
placing his penis in the vagina of M.B. and (2) placing his finger within the vagina of M.B.
¶ 31 Shelly testified that M.B. told her that defendant put his fingers in her "special
spot" and that he put his "private area" "on her private area." M.B. testified that defendant
"licked his finger and put it in my private." However, M.B. testified that defendant did not touch
"his privates" against M.B.'s "privates." On the recording of M.B.'s interview with Crady, M.B.
stated that defendant licked his "private part" and put it in M.B.'s "private part" and that he
"pushed it in kind of hard." Also on the recording, M.B. used a body chart to identify the female
"private part" as the female vaginal area and the male "private part" as the male penis.
¶ 32 In People v. Boling, 2014 IL App (4th) 120634, ¶ 83, 8 N.E.3d 65, we wrote the
following:
"The General Assembly enacted section 115-10 of the
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Code to allow admission of 'detailed corroborative evidence of the
child's complaint about the incident to another individual' out of a
concern that 'child witnesses, especially the very young, often lack
the cognitive or language skills to effectively communicate in-
stances of abuse at trial [citation], or may be impeded psychologi-
cally in their efforts to do so.' " Id. (quoting People v. Bowen, 183
Ill. 2d 103, 115, 699 N.E.2d 577, 584 (1998)).
Considering those concerns, we conclude that the jury had the authority to determine how to
weigh M.B.'s in-court testimony that defendant did not touch his penis on M.B.'s vagina against
Shelly's testimony and M.B.'s recorded statement that he had. The jury determined that M.B.'s
out-of-court statements were more credible. That conclusion is not so unreasonable, improbable,
or unsatisfactory as to justify overturning defendant's conviction. We conclude that the evidence
was sufficient to prove defendant guilty beyond a reasonable doubt.
¶ 33 B. Hearsay Evidence Admitted Under Section 115-10
¶ 34 1. Statutory Language and the Standard of Review
¶ 35 In a prosecution for a physical or sexual act committed against a child under the
age of 13—including a prosecution for predatory criminal sexual assault of a child, as in this
case—section 115-10 of the Code allows the following evidence to 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." 725 ILCS 5/115-10(a) (West 2014).
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¶ 36 Section 115-10 allows the introduction of the above hearsay statements only if (1)
"[t]he 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"; (2) the child ei-
ther (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"; and (3) "the out of court statement was
made before the victim attained 13 years of age or within 3 months after the commission of the
offense, whichever occurs later." 725 ILCS 5/115-10(b) (West 2014).
¶ 37 In determining whether statements offered under section 115-10 are sufficiently
reliable, the trial court should consider the following list of nonexclusive factors:
"(1) the spontaneity and consistent repetition of the statement; (2)
the mental state of the child in giving the statement; (3) the use of
terminology not expected in a child of comparable age; and (4) the
lack of a motive to fabricate." Bowen, 183 Ill. 2d at 120, 699
N.E.2d at 586.
¶ 38 "The State, as the proponent of the out-of-court statements sought to be admitted
pursuant to section 115-10 of the Code, bears the burden of establishing that the statements were
reliable and not the result of adult prompting or manipulation." People v. Sharp, 391 Ill. App. 3d
947, 955, 909 N.E.2d 971, 978 (2009). "A reviewing court will reverse a trial court's determina-
tion pursuant to section 115-10 of the Code only when the record demonstrates that the court
abused its discretion." Id. " '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.' " Id. (quot-
ing People v. Robertson, 312 Ill. App. 3d 467, 469, 727 N.E.2d 404, 406 (2000)).
¶ 39 2. Defendant's Argument That Section 115-10 Be "Narrowly Construed"
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¶ 40 Defendant, quoting People v. Bridgewater, 259 Ill. App. 3d 344, 349, 631 N.E.2d
779, 782 (1994), argues that the hearsay exception of section 115-10 of the Code should be "nar-
rowly construed." We reject that contention.
¶ 41 In Bridgewater, this court considered whether a hearsay statement made by a
child older than 13 describing abuse that occurred while the child was younger than 13 could be
admitted under section 115-10. Id. at 348, 631 N.E.2d at 782. The Bridgewater court, citing
Idaho v. Wright, 497 U.S. 805, 820-21 (1990), noted that the hearsay exception established by
section 115-10 was not "firmly rooted," and therefore, evidence admitted under it needed to
show "a particularized guarantee of trustworthiness." (Internal quotation marks omitted.)
Bridgewater, 259 Ill. App. 3d at 348, 631 N.E.2d at 782. In addition, the court explained that the
admission of any hearsay statement infringes on a defendant's sixth amendment right to confront
witnesses against him. Id. (citing U.S. Const., amend. VI). In light of those two principles, the
Bridgewater court held that section 115-10 should be "narrowly construed." Id. at 349, 631
N.E.2d at 782. The court then concluded that under a narrow construction, section 115-10 re-
quired that a hearsay statement made by a child victim must be made when that victim was
younger than 13.
¶ 42 We reject the Bridgewater court's conclusion that section 115-10 should be nar-
rowly construed. In reaching its conclusion, the Bridgewater court relied on Wright, which in
turn relied on Ohio v. Roberts, 448 U.S. 56 (1980). Notably, Roberts was abrogated by Craw-
ford v. Washington, 541 U.S. 36 (2004). The holding of Crawford does not support the Bridge-
water court's contention that section 115-10 should be narrowly construed.
¶ 43 In Roberts, the Supreme Court held that the confrontation clause bars the admis-
sion of a hearsay statement unless both (1) the declarant of the statement is unavailable and (2)
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the statement bears adequate "indicia of reliability." (Internal quotation marks omitted.) Rob-
erts, 448 U.S. at 65-66. The Court held further that reliability can be inferred when the statement
falls with a "firmly rooted" hearsay exception. Id. at 66. Evidence introduced under a hearsay
exception that was not "firmly rooted" needed to exhibit reliability through "particularized guar-
antees of trustworthiness." Id.
¶ 44 In Crawford, the Court dispensed with the "amorphous notions of 'reliability' "
that governed the Roberts Court's confrontation clause analysis. Crawford, 541 U.S. at 61. In-
stead, the Court held that, regardless of a statement's reliability, the confrontation clause bars the
admission of any out-of-court statement that is "testimonial," unless (1) the statement's declarant
is unavailable and (2) the defendant was afforded a prior opportunity for cross-examination. Id.
at 68.
¶ 45 In light of the Court's decision in Crawford, we reject Bridgewater's holding that
section 115-10 must be narrowly construed, because that holding relied on the notions of reliabil-
ity overruled by Crawford. We note that we explicitly rejected Bridgewater's holding in People
v. Peck, 285 Ill. App. 3d 14, 20, 674 N.E.2d 440, 445 (1996). To the extent that the holding of
Bridgewater was ever valid, it was tethered to the now discredited holdings of Wright and Rob-
erts. Now Crawford controls. We reject any notion that Crawford requires section 115-10 to be
"narrowly construed."
¶ 46 3. Findings Required by Section 115-10
¶ 47 Defendant argues that the trial court failed to file a sufficiently detailed order
when it granted the State's motion to admit hearsay statements under section 115-10. We explic-
itly reject this claim.
¶ 48 Section 115-10 allows the introduction of a hearsay statement if, among other
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things, the trial court "finds in a hearing" that "the time, content, and circumstances of the state-
ment provide sufficient safeguards of reliability." 725 ILCS 5/115-10(b)(1) (West 2014). De-
fendant relies on People v. Coleman, 205 Ill. App. 3d 567, 563 N.E.2d 1010 (1990), and People
v. Carter, 244 Ill. App. 3d 792, 614 N.E.2d 452 (1993), for the proposition that section 115-10
requires a trial court to make explicit, detailed findings supporting its conclusion that the time,
content, and circumstances of the statement provide sufficient safeguards of reliability.
¶ 49 a. Coleman and Carter
¶ 50 In Coleman, this court held that the " 'safeguards of reliability' " required by sec-
tion 115-10 were necessary to comply with "the confrontation clause's required showing of par-
ticular guarantees of trustworthiness." Coleman, 205 Ill. App. 3d at 584, 563 N.E.2d at 1020
(quoting Ill. Rev. Stat. 1989, ch. 38, ¶ 115-10(b)(1)). We determined further that the Supreme
Court's then recent holding in Wright had given "greater definition to the required hearing and
the finding necessary to allow admission" of hearsay evidence under section 115-10. Id. As a
result, it became "necessary to construe the general language of section 115-10(b)(1) to be in line
with the more particular language of Wright." Id. at 584, 563 N.E.2d at 1020-21. Based on the
language of Wright, we held that a trial court does not make specific enough findings when it
merely recites the statutory language of section 115-10. Id. at 584, 563 N.E.2d at 1021.
¶ 51 In Carter, the First District Appellate Court cited Coleman for the proposition that
Wright required trial courts to make more specific and explicit findings than those listed in sec-
tion 115-10. Carter, 244 Ill. App. 3d at 800-01, 614 N.E.2d at 457-58. Specifically, the Carter
court held that the trial court's findings should "reflect the reasoning of the trial judge as to the
reliability of the corroborative testimony." Id. at 801, 614 N.E.2d at 458.
¶ 52 As stated earlier in this opinion, Crawford abrogated the holdings of Wright and
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Roberts that the confrontation clause requires that hearsay statements exhibit indicia of reliability
before they can be admissible. Crawford, 541 U.S. at 61. Both Coleman and Carter rely on the
discredited holding of Wright in reaching the conclusion that the confrontation clause requires
more specific findings than the statutory language of section 115-10 would suggest. As a result,
we decline to follow the holdings of Coleman and Carter.
¶ 53 b. Statutory Requirements of Section 115-10
¶ 54 Section 115-10 requires the trial court to "find[]" that "the time, content, and cir-
cumstances of the statement provide sufficient safeguards of reliability." 725 ILCS 5/115-
10(b)(1) (West 2014). The statute does not require that those findings be made in writing, nor
does it require those findings to contain the level of detail promoted by defendant. "Where a
statutory enactment is clear and unambiguous, a court is not at liberty to depart from the plain
language and meaning of the statute by reading into it exceptions, limitations or conditions that
the legislature did not express." Relf v. Shatayeva, 2013 IL 114925, ¶ 29, 998 N.E.2d 18.
¶ 55 In this case, the trial court made the following explicit, written findings:
"[B]ased on the interviewing techniques used by [The Children's
Advocacy Center,] the time, content and circumstances of the
statements made to Tara Crady provide sufficient safeguards of re-
liability.
Further[,] the time, content and circumstances of the state-
ments made to Shelly provide sufficient safeguards of reliability."
The court's findings here complied with the requirements of the statute.
¶ 56 4. The Trial Court's Decision To Admit Hearsay Evidence
¶ 57 In this case, the trial court found that both the recording of M.B.'s interview and
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Shelly's testimony about M.B.'s complaints were sufficiently reliable and therefore admissible
under section 115-10. M.B.'s statements to Shelly were made spontaneously and were repeated
to Crady. Nothing about M.B.'s mental state suggested that those statements were unreliable.
M.B. used language, such as "special spot" and "my private," that would be expected of a child
of her age. Defendant's contention that M.B. had a motive to fabricate because Shelly did not
want to drive a longer distance to transport M.B. to and from visitations is not persuasive. Under
these circumstances, the trial court did not abuse its discretion by finding that M.B.'s statements
were sufficiently reliable.
¶ 58 C. Admission of the Recorded Interview as Substantive Evidence
¶ 59 Defendant argues that the trial court abused its discretion by admitting the video-
and audio-recording of M.B.'s interview with Crady as substantive evidence because the State
failed to establish a sufficient foundation that the recording was unaltered. Crady testified that
she reviewed the video- and audio-recording of her interview of M.B. and it fairly and accurately
recorded their conversation. It was then admitted without objection. Nonetheless, defendant ar-
gues that the State was required to lay a foundation as to (1) the copying procedure used to make
the exhibit and (2) the chain of custody of the exhibit. We strongly disagree.
¶ 60 1. Standard of Review
¶ 61 The admission of a video recording is within the sound discretion of the trial court
and will not be reversed absent an abuse of that discretion. People v. Taylor, 2011 IL 110067,
¶ 27, 956 N.E.2d 431. A court abuses its discretion when its decision is "fanciful, unreasonable
or when no reasonable person would adopt the trial court's view." Id.
¶ 62 2. Applicable Law
¶ 63 A recording containing both audio and video is admissible if the State presents the
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foundation necessary to admit both the video and audio. People v. Smith, 321 Ill. App. 3d 669,
674, 749 N.E.2d 986, 991 (2001). "[V]ideotapes are admissible on the same basis as photo-
graphs." Taylor, 2011 IL 110067, ¶ 27, 956 N.E.2d 431. "Photographs, like any evidence, may
be admitted into evidence when authenticated and relevant either to illustrate or corroborate the
testimony of a witness, or to act as probative or real evidence of what the photograph depicts."
People v. Smith, 152 Ill. 2d 229, 263, 604 N.E.2d 858, 872 (1992). "[S]ufficient foundation for
the admission of a videotape is laid when a witness with personal knowledge of the filmed object
testifies that the film is an accurate portrayal of what it purports to show." People v. Vaden, 336
Ill. App. 3d 893, 899, 784 N.E.2d 410, 415 (2003).
¶ 64 Defendant argues that the foundational requirements for video evidence are
heightened when the recording is admitted for "substantive" rather than "demonstrative" purpos-
es. In support, he quotes People v. Flores, 406 Ill. App. 3d 566, 941 N.E.2d 375 (2010), for the
proposition that "visual recordings, when treated substantively, are real evidence requiring a
proper foundation, including evidence that the proposed exhibit is substantially unaltered." Id. at
572, 941 N.E.2d at 381. The Second District Appellate Court in Flores determined that a wit-
ness's testimony that the video in question is an accurate portrayal is insufficient foundation to
admit the recording as substantive evidence. The court explained that "the risk of modification,
manipulation, and fabrication of images is present even when a live witness is available to testify
to the condition of the item." Id. at 575, 941 N.E.2d at 384. The Flores court held that to admit
a video-recording as substantive evidence, the following must be shown:
"[A]n adequate foundation must show that the original has been
preserved without change, addition, or deletion and that, if a copy
is introduced into evidence, there must be a cogent explanation of
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any copying such that the court is satisfied that during the copying
process there were no changes, additions, or deletions."
Id. at 577, 941 N.E.2d at 385.
We decline to follow Flores, finding it both distinguishable and unhelpful.
¶ 65 First, Flores is distinguishable because the testimony in that case raised serious
questions as to whether the video had been altered in some fashion, especially given that the per-
son who filmed the incident in question admitted having erased the original tape. Id. at 569, 941
N.E.2d at 379. The record before us in this appeal is utterly devoid of any suggestion that the
recording at issue was altered in any way.
¶ 66 Second, Flores is unhelpful because the key authority the Second District cited in
support was its earlier decision in People v. Taylor, 398 Ill. App. 3d 74, 922 N.E.2d 1235 (2010),
which the Illinois Supreme Court subsequently reversed. See Taylor, 2011 IL 110067, ¶ 1, 956
N.E.2d 431. In so doing, the supreme court noted that "[t]he principal issue presented in this
case is whether under the so-called 'silent witness' theory, a videotape recording was properly
admitted at defendant's trial." Id. The supreme court explained that under that doctrine, "a wit-
ness need not testify to the accuracy of the image depicted in the photographic or videotape evi-
dence if the accuracy of the process that produced the evidence is established with an adequate
foundation." Id. ¶ 32. However, the case before us does not involve the "silent witness" doctrine
because Crady testified that the video recording in question was a true and accurate copy of the
interview she conducted with M.B. Clearly, Crady had personal knowledge of the conversation
portrayed in the video, and her testimony that it fairly and accurately portrayed that conversation
constituted the only evidence necessary as foundation for the admissibility of the video record-
ing.
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¶ 67 We also view the Second District's discussion in Flores regarding the distinction
between demonstrative evidence on the one hand and substantive evidence on the other to be
outmoded and unhelpful, given the supreme court's discussion in Taylor regarding this distinc-
tion. In reversing the Second District in Taylor, the Supreme Court of Illinois wrote the follow-
ing: "Historically, photographic evidence was admitted as demonstrative evidence. [Citation.]
Such evidence had no significance apart from the ability to illustrate something testified to by a
witness. [Citation.] Most jurisdictions now allow photographs and videotapes to be introduced
as substantive evidence so long as a proper foundation is laid." Id. As we quoted earlier, the su-
preme court in Taylor explicitly stated that "videotapes are admissible on the same basis as pho-
tographs." Id. ¶ 27. That means, as the Third District Appellate Court explained in Vaden, "Suf-
ficient foundation for the admission of a videotape is laid when a witness with personal
knowledge of the filmed object testifies that the film is an accurate portrayal of what it purports
to show." Vaden, 336 Ill. App. 3d at 899, 784 N.E.2d at 415. Accordingly, once the foundation
meeting these standards has been shown, the video recording in question is admissible substan-
tively, and no further foundational evidence is required.
¶ 68 3. This Case
¶ 69 In this case, the State provided sufficient foundation through Crady's testimony
that she had viewed the recording and it was a fair and accurate record of the conversation that
occurred between Crady and M.B. This foundational testimony was all the State needed to pre-
sent for the recording to be admissible.
¶ 70 Although not necessary to our resolution of this issue, we note that defendant
made no objection when the recording was admitted at trial. Defendant has therefore forfeited
his claim that the recording should not have been admitted into evidence. People v. Woods, 214
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Ill. 2d 455, 470, 828 N.E.2d 247, 256-57 (2005) ("[A] defendant must both specifically object at
trial and raise the specific issue again in a posttrial motion to preserve any alleged error for re-
view."). The forfeiture rule is "particularly appropriate" when a defendant claims that the State
failed to lay a proper foundation. Id. at 470, 828 N.E.2d at 257. In that circumstance, "a defend-
ant's lack of a timely and specific objection deprives the State of the opportunity to correct any
deficiency in the foundational proof at the trial level." Id.
¶ 71 In this case, had defendant objected, he could have then raised any potential mis-
givings about the integrity of the recording. If defendant had raised any meritorious concerns
with the recording's integrity—which he did not in this case—the trial court could have allowed
the State to elicit additional foundational evidence to address those concerns.
¶ 72 D. Ineffective Assistance of Counsel
¶ 73 Defendant argues that his trial counsel was ineffective for failing to object to (1)
the court's insufficiently detailed order admitting evidence under section 115-10, (2) testimony
that was not presented at the section 115-10 hearing, and (3) the admission of the recording as
substantive evidence or to request a jury instruction prohibiting its use as substantive evidence.
We address and reject these arguments in turn.
¶ 74 1. Ineffective-Assistance Standard
¶ 75 Claims of ineffective assistance of counsel are judged pursuant to the standard
established by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668
(1984). The Strickland standard requires a defendant to demonstrate that (1) defense counsel's
performance was so deficient that "counsel was not functioning as the 'counsel' guaranteed the
defendant by the [s]ixth [a]mendment" and (2) "but for defense counsel's unprofessional errors,
the result of the proceeding would have been different." Id. at 687, 694. To prove that counsel's
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performance was deficient, a defendant must overcome the strong presumption that the chal-
lenged action or inaction was the product of sound trial strategy. Id. at 689.
¶ 76 2. People v. Veach
¶ 77 This court recently explained the three different categories of cases in which a
defendant raises ineffective assistance of counsel on direct appeal. See People v. Veach, 2016 IL
App (4th) 130888, ¶¶ 71-90. Those categories are the following: Category A cases, which are
direct appeals raising ineffective assistance of counsel that the appellate court should decline to
address; Category B cases, which are direct appeals raising ineffective assistance of counsel that
the appellate court may address because they are clearly groundless; and Category C cases,
which are direct appeals raising ineffective assistance of counsel that an appellate court may ad-
dress because trial counsel's errors were so egregious.
¶ 78 This case falls within Category B, one of the rare occasions on which an appellate
court can reject a defendant's claims of ineffective assistance without awaiting the defendant's
filing of a postconviction petition and the creation of a more complete record at a later hearing
upon that petition. We may take this action because the record now before us shows defendant's
ineffective-assistance arguments to be clearly groundless.
¶ 79 3. This Case
¶ 80 We first address defendant's claims that counsel was ineffective for failing to ob-
ject to (1) the lack of specific findings in the trial court's order admitting hearsay evidence under
section 115-10 (725 ILCS 5/115-10 (West 2014)) and (2) the admission of the recording as sub-
stantive evidence or to request a jury instruction prohibiting its use as substantive evidence. As
previously explained, the court's order was sufficiently detailed, and the recording was properly
admitted as substantive evidence. Therefore, counsel clearly was not deficient for failing to ob-
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ject to the court's valid actions or to request an inapplicable jury instruction.
¶ 81 Next, we address defendant's claim that counsel was ineffective for failing to ob-
ject to testimony that was not presented at the section 115-10 hearing. Specifically, defendant
argues that counsel should have objected when Shelly testified that, after hearing M.B.'s allega-
tions, she called her friend, whose husband was a police officer, and the officer told her to call
the police. Defendant argues that counsel should have objected to that testimony because it was
not presented at the hearing on the State's motion in limine to allow Shelly's testimony about
M.B.'s statement. We conclude that counsel clearly did not err by failing to object, and defend-
ant's contention otherwise is completely without merit. The purpose of the motion in limine was
to determine whether Shelly's hearsay testimony about M.B.'s complaints of sexual assault was
admissible. Testimony about Shelly's reaction to M.B.'s complaints was not the subject of the
motion in limine and, therefore, the State did not need to offer that testimony at the section 115-
10 hearing. We further note that, although this testimony may have had minimal probative val-
ue, it had absolutely no prejudicial effect.
¶ 82 E. Excessive Sentence
¶ 83 Last, defendant argues that the trial court imposed an excessive sentence. Specif-
ically, defendant argues that the trial court failed to consider the following mandatory mitigating
factor when sentencing defendant: "The character and attitudes of the defendant indicate that he
is unlikely to commit another crime." 730 ILCS 5/5-5-3.1(a)(9) (West 2012). We disagree.
¶ 84 " 'A trial court is given great deference when making sentencing decisions, and if
a sentence falls within the statutory guidelines, it will not be disturbed on review unless the court
abused its discretion and the sentence is manifestly disproportionate to the nature of the case.' "
People v. Stutzman, 2015 IL App (4th) 130889, ¶ 44, 38 N.E.3d 544 (quoting People v. Grace,
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365 Ill. App. 3d 508, 512, 849 N.E.2d 1090, 1093-94 (2006)). "Absent an abuse of discretion, a
trial court's sentence will not be disturbed on appeal merely because this court might have
weighed the mitigating and aggravating factors differently." Id.
¶ 85 Section 5-5-3.1(a)(9) dictates that the following ground "shall be accorded weight
in favor of withholding or minimizing a sentence of imprisonment": "The character and attitudes
of the defendant indicate that he is unlikely to commit another crime." 730 ILCS 5/5-5-3.1(a)(9)
(West 2012). We presume that the trial court considered the mitigating evidence before it, ab-
sent explicit evidence to the contrary. People v. Halerewicz, 2013 IL App (4th) 120388, ¶¶ 42-
43, 2 N.E.3d 333. The court is not required to expressly indicate its consideration of all mitigat-
ing factors and the weight they should be assigned. Id. ¶ 43.
¶ 86 In fashioning its sentence in this case, the trial court stated that it found the fol-
lowing mitigating factor: that "there's no evidence that the defendant's criminal conduct caused
*** serious physical harm to another." The court did not mention the presence of any other mit-
igating factors. The court then went on to name several factors in aggravation.
¶ 87 We presume that the trial court considered all mitigating factors and that the court
did not find that defendant was "unlikely to commit another crime." 730 ILCS 5/5-5-3.1(a)(9)
(West 2012). Defendant's lack of prior felony convictions does not require the court to find that
defendant was unlikely to commit another crime. The court's determination about mitigating
factors was not an abuse of discretion.
¶ 88 III. CONCLUSION
¶ 89 For the foregoing reasons, 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 ap-
peal.
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¶ 90 Affirmed.
¶ 91 JUSTICE TURNER, specially concurring.
¶ 92 I concur in the result reached by the majority. I write separately to take exception
to the majority's rejection of Bridgewater. First, despite defendant raising the assertion in sup-
port of his lack of trustworthiness and lack of specific findings arguments, the Bridgewater dis-
cussion is actually unnecessary to the court's decision in this case. Second, while Crawford dis-
pensed with considering a statement's reliability in determining whether a statement is admissi-
ble under the confrontation clause (supra ¶ 44), Crawford did not alter Wright's analysis that
statutory hearsay exceptions such as section 115-10 are not firmly rooted hearsay exceptions.
See Wright, 497 U.S. at 817. Such statements are presumptively barred by both the confronta-
tion clause and the hearsay rule. Wright, 497 U.S. at 816. It is that general barring of such
statements that warrants a narrow construction of section 115-10. Moreover, even if the crux of
Bridgewater's reasoning for requiring a narrow construction was the reliability determination
overturned by Crawford, section 115-10 itself requires trial courts to find sufficient safeguards of
reliability before the statements contemplated under that section are admissible.
¶ 93 Additionally, contrary to the majority's assertion (supra ¶ 45), our decision in
Peck did not explicitly reject Bridgewater's holding. We simply set forth the rules of statutory
construction, as follows:
"Although this court in People v. Bridgewater, 259 Ill.
App. 3d 344, 349, 631 N.E.2d 779, 782 (1994), wrote that
'[i]n light of the principles surrounding the admission of a
statement as an exception to the hearsay rule, section 115-
10 of the Code should be narrowly construed,' a statute
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should nonetheless be read as a whole and its language giv-
en its plain meaning [citation]. A court also must consider
the reason and necessity for the law, as well as its objec-
tive. [Citation.] In addition, a court should give a statute
capable of two interpretations the one that is reasonable and
that will not produce absurd, unjust, unreasonable, or in-
convenient results the legislature could not have intended.
[Citation.]" Peck, 285 Ill. App. 3d at 20, 674 N.E.2d at
445.
¶ 94 Last, I note another reason for narrowly construing section 115-10 is that the pro-
vision allows for the admission of prior consistent statements. Generally, a witness cannot be
corroborated on direct examination by the admission of a prior statement by the witness which is
consistent with the witness's trial testimony. People v. Ruback, 2013 IL App (3d) 110256, ¶ 26,
988 N.E.2d 745. Absent section 115-10, such statements would constitute inadmissible hearsay
and could not be used to bolster a witness's testimony. Ruback, 2013 IL App (3d) 110256, ¶ 26,
988 N.E.2d 745.
¶ 95 Hence, I see no reason to abandon Bridgewater's holding the statute should be
narrowly construed.
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People v. Johnson
Court: Appellate Court of Illinois
Date filed: 2016-04-26
Citations: 2016 IL App (4th) 150004
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