dissenting:
I dissent. In this case there was no physical evidence and, therefore, the case turned on the credibility of the various witnesses. Certainly, as in most trials, inconsistencies were revealed through cross-examination. However, it is well settled that it is the function of the trier of fact to weigh the credibility of the witnesses and to resolve conflicts or inconsistencies in the testimony. (People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268, 276.) The jury did that in this case, and, based on all of the evidence, convicted the defendant.
The jury heard the testimony of the victim, Kelley Gott, Elsie Buhs, Detective Schmidt, and the victim’s mother and chose to believe their evidence. I conclude that the evidence withstands the scrutiny of the standard established in People v. Collins and that a rational trier of fact could have found the essential elements of this crime beyond a reasonable doubt.
I likewise conclude that the evidence most damaging to the defendant was properly admitted. The defendant contends that his constitutional rights were violated by the application of section 115—10 (Ill. Rev. Stat. 1989, ch. 38, par. 115—10). Specifically, the defendant contends that section 115—10 violates due process by allowing several witnesses’ detailed hearsay statements to be heard by the trier of fact. The defendant also alleges that as section 115—10 is applicable only to defendants accused of committing sex offenses against children under age 13, it creates a class of defendants who are not protected by law equally vis-a-vis defendants charged with other types of crimes.
Section 115 — 10 provides:
“115 — 10. Sexual acts on child under 13 — Hearsay exception
§115 — 10. (a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(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.
(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
(d) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” Ill. Rev. Stat. 1989, ch. 38, par. 115—10.
The defendant’s cited cases of People v. Morton (1989), 188 Ill. App. 3d 95, 543 N.E.2d 1366, and People v. Fisher (1988), 169 Ill. App. 3d 785, 523 N.E.2d 368, do not support his argument. In In re R.D. (1985), 131 Ill. App. 3d 612, 615, 476 N.E.2d 62, 64, the appellate court rejected a due process attack on section 115—10 and cited People v. Fuelner (1982), 104 Ill. App. 3d 340, 432 N.E.2d 986, for the following explanation of the basis for the exception:
“The basis for the corroborative statement exception is that it is entirely natural that a rape victim would have spoken out regarding the rape, and the fact that she did not do so would be evidence of the fact that nothing occurred. [Citation.] Consequently, if proof of a complaint was not permitted, the trier of fact might assume that no complaint was made. To forestall this assumption, the prosecution is allowed to show that the alleged victim was not silent but made a complaint. [Citation.]” 104 Ill. App. 3d at 349-50, 432 N.E.2d at 993-94.
The defendant’s argument concerning the “cumulative effect” of multiple witnesses has been addressed and rejected. In People v. Branch (1987), 158 Ill. App. 3d 338, 511 N.E.2d 872, the court stated:
“The legislature by enacting section 115 — 10 obviously determined that a corroborative complaint is sufficiently reliable to enjoy an exemption from the rule against hearsay evidence. [Citation.] A second or third complaint is no less reliable or credible. True, there is opportunity for exaggeration or embellishment the longer the time between the incident and each successive complaint. This factor is remedied though through cross-examination (and possible impeachment of the victim from prior inconsistent statements). [Citations.] Once the victim testifies and is subject to cross-examination, the rationale for the rule against hearsay evidence virtually disappears. [Citations.]
Youthful victims often suffer an inability to articulate on the witness stand or lack credibility in general. Their complaints obviously become more credible, reliable and understandable when supported by corroborative complaint testimony from adults. Those who are close to the victim or who have interviewed the victim and investigated the alleged incident should not be curtailed from testifying and aiding the victim merely because of their numbers or order of talking with the victim.” 158 Ill. App. 3d at 340-41, 511 N.E.2d at 873-74.
As to the defendant’s equal protection attack, it is beyond dispute that the prosecution of sex offense cases where children are victims present special problems of proof that make their prosecution especially difficult. (See, e.g., People v. Rocha (1989), 191 Ill. App. 3d 529, 547 N.E.2d 1335.) Since there exists a rational classification for allowing this hearsay exception, the defendant’s equal protection argument must fail.
The defendant next makes a two-pronged argument that the trial court erred in allowing the victim to testify. First, the defendant argues that allowing a child of tender years to testify under section 115—14 (Ill. Rev. Stat. 1989, ch. 38, par. 115—14) violated his right to due process. Second, the defendant argues that in this specific case the court erred in finding the five-year-old victim competent and allowing him to testify.
The defendant’s first argument contends that the victim may have been told by an adult that these events occurred, that perhaps an adult told him that he should remember the events and that perhaps he went along with the story because he was directed to by an adult. I find this argument to be totally speculative. Certainly, the possibility exists that the victim was told what to say, but that is true of any child victim’s testimony. It is the function of the trier of fact to evaluate the testimony based on the witness’ demeanor and the inconsistencies in that testimony as highlighted by defense counsel.
' The defendant’s cited case of People v. Fisher (1988), 169 Ill. App. 3d 785, 523 N.E.2d 368, does nothing to support his argument. Contrary to defendant’s assertion, the court in Fisher did not prevent the testimony of a victim of tender years. The victim in Fisher was less than three years old, neither side sought to present her as a witness, and her competency to testify as a witness under section 115—14 was not an issue for the reviewing court.
The defendant’s second argument is in regard to the trial court’s determination that the victim was competent to testify. Our supreme court has commented that “[i]t is the degree of a child’s intelligence, rather than mere chronological age, that determines a child’s competence, and ‘[i]f the witness was sufficiently mature to receive correct impressions by her senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth, she was competent.’ [Citations.]” (People v. Garcia (1983), 97 Ill. 2d 58, 75, 454 N.E.2d 274, 280.) In Garcia the court further commented that there is no rigid formula which is applicable to a determination of competency and “[decisions as to the competency of a witness are reviewable, but in light of the trial court’s opportunity to take into account the demeanor of the witness, this court has held that such determinations will be overturned only when it appears that the trial judge has abused his discretion.” Garcia, 97 Ill. 2d at 75, 454 N.E.2d at 280.
The defendant claims that the trial court abandoned its duty of determining the victim’s competence. This is not supported by the record. The record unequivocally demonstrates that the trial court was aware of the standard under section 115 — 14 and made findings with respect to that standard.
The defendant points to the fact that during voir dire of the victim he told the court that he had not told any doctor about the incident. This is contradicted by Dr. Knochel’s report and subsequent testimony. Additionally, the defendant points out that the victim had trouble reciting his last name, and the victim’s assertion that he could remember every event in his life back to the age of two. Most importantly, the defendant points to the victim’s responses to questions about telling the truth as proof that he was not competent to testify:
“Q. [Prosecutor:] Okay. [Name omitted], do you know what the truth is?
A. Yes.
Q. What’s the truth? Can you give me an example?
A. Tell the truth.
Q. Okay. Do you know what a lie is?
A. You’re not telling a lie.
Q. Not telling a lie?
A. You’re telling a lie.
Q. Okay. And can you give me an example of what that is?
A. I don’t know. I don’t know.
Q. Okay. When she just told you you raised your right hand and you swore to tell the truth. Can you do that?
A. Yeah.
Q. Can you tell me what that means to tell the truth?
(Pause.)
A. (No response.)”
And later, during cross-examination:
“Q. [Defense Attorney:] [Name omitted], now you said you know what the truth is.
A. Yeah.
Q. Okay. And do you know what your last name is?
A. Yes.
Q. What’s that?
A. Karmenzind.
Q. Okay. And have you ever told a lie?
A. No.
Q. Okay. Never told a lie?
A. Huh-uh.
Q. Okay. Have you ever just told parts of the truth and not part of the truth?
A. I told a whole truth.
Q. You always tell the whole truth?
A. Yes.
Q. Okay. And you know if you only tell half the truth then could be a lie by just telling half the truth?
A. I don’t half the truth, I tell the whole truth.
Q. Okay. And have you ever been spanked for telling a lie?
A. No.
Q. Okay. You ever make up stories or anything like that that are not the truth?
A. No.”
In People v. Lawler (1989), 181 Ill. App. 3d 464, 536 N.E.2d 1283, a 13-year-old mildly mentally retarded girl was found competent to testify even though she said she did not know the difference between when somebody tells the truth and somebody tells a lie. The court stated: “[T]he witness may well have given ambivalent answers as to knowledge of truth and falsehood. However, the record reflects she did respond she would tell the truth, the truth being to tell what happened, when asked in an understandable manner.” Lawler, 181 Ill. App. 3d at 469-70, 536 N.E.2d at 1287.
The focus is not on one aspect of the examination but on the examination as a whole. The victim knew that he was five years old, provided the names of the school he attended and his teacher, recited the numbers 1 through 10, and the Pledge of Allegiance and stated that he tells the truth and does not lie. Although he had trouble articulating what is the truth and what is a lie, he did indicate that he understood that it was important to tell the whole truth rather than a “half” truth. I cannot say that the trial court abused its discretion in allowing the victim to testify.
The last issue I address is whether the trial court abused its discretion in denying the defendant’s motion for a bill of particulars.
The indictment in the instant case, returned October 3, 1989, charged that the offense occurred between December 1, 1987, and July 4, 1989. The State need only establish that the offense charged was committed within the statute of limitations and prior to the return of the indictment. (People v. Barlow (1989), 188 Ill. App. 3d 393, 544 N.E.2d 947.) This the State did, and thus, it was not an abuse of discretion to refuse the defendant’s motion for a bill of particulars.
For the reasons listed above, I would affirm the defendant’s conviction and sentence. Accordingly, I dissent.