dissenting:
While I believe that the majority’s interpretation of section 115—10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 115—10) is what the law ought to be, I respectfully dissent because I do not believe that it accurately reflects what the law is.
Section 115 — 10 provides in pertinent part as follows:
"(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, *** 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 *** 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.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 115—10.
Relying upon People v. Bridgewater (1994), 259 Ill. App. 3d 344, 631 N.E.2d 779, the defendant asserts, and the majority agrees, that although the assault in issue occurred when C.H. was 11 years old, testimony of her out-of-court statements did not fall within the exception to the hearsay rule created by section 115—10(a)(2) because she did not make the statements prior to attaining age 13. I disagree.
Statutory language is to be given its plain and ordinary meaning, and when the language of statute is unambiguous, the court should look no further than the language used to ascertain the intent of the legislature. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076.) As the majority correctly observes, the determination of whether a statute is ambiguous is made by considering the statute as a whole (La Salle Partners, 269 Ill. App. 3d 621, 646 N.E.2d 935), not merely by focusing upon isolated provisions. I believe that in concluding that the statute in issue is ambiguous, the majority has neglected to analyze the enactment as a whole, but rather has focused only upon the language of subsection (a)(2).
Section 115—10 neither expressly nor implicitly restricts admissibility based upon the age of the child at the time the statement is made; rather, the threshold requirement for admissibility is merely that the prosecution be one for a sexual act perpetrated upon a child under the age of 13. (Ill. Rev. Stat. 1991, ch. 38, par. 115—10(a).) Section 115—10(b) encompasses safeguards of reliability by precluding admission without a hearing out of the presence of the jury to evaluate the time, content, and circumstances of the statement. (Ill. Rev. Stat. 1991, ch. 38, par. 115—10(b).) I believe that the construction placed upon this statute by the court in Bridgewater and the majority in this case is contrary to the plain language of the statute and an unfounded restriction on the trial court’s discretion in evaluating any such statement in light of the totality of the circumstances (see Idaho v. Wright (1990), 497 U.S. 805, 822, 111 L. Ed. 2d 638, 656-57, 110 S. Ct. 3139, 3150), including the time at which the statement was made.
The majority interprets the phrase "such child” in section 115—10(a)(2) to mean a child under age 13. But the legislature used the same phrase in section 115—10(a)(1). If the phrase "such child” in section 115—10(a)(2) is interpreted to mean a child under age 13 as the majority holds, then presumptively the legislature intended the phrase to have the same meaning in section 115—10(a)(1). The result is anomalous at best. Under such an interpretation, the testimony by a victim of her own out-of-court statement would only be admissible as an exception to the hearsay rule under section 115—10(a)(1) if she both made the statement prior to attaining age 13 and testified to it prior to reaching 13. Whereas, under section 115—10(a)(2), a third person could testify to the victim’s out-of-court statements so long as the victim was under age 13 when the statements were made, but without regard to the age of the victim at the time that the testimony is given.
Contrary to the majority, I believe that the only reasonable interpretation of the phrase "such child” as used in this statute is one which refers to a child who was the victim of a sexual assault prior to attaining age 13, without regard to the age of that child either at the time that the statement was made or the time the testimony is given. Such an interpretation allows for a consistent meaning of the phrase throughout the statute, and it leaves the question of ultimate admissibility to the trial court after it has conducted a hearing to ensure reliability.
For these reasons, I disagree with the interpretation placed upon section 115—10(a)(2) by the majority and dissent from the result reached in this case. I would merely amend the mittimus to reflect that the defendant was convicted of simple sexual assault rather than aggravated sexual assault, a point conceded by the State, and affirm the defendant’s conviction, as I find his other arguments on appeal to be without merit.