dissenting:
I do not agree with the majority that the testimony of Marcia Rexroat was sufficient to support a finding that T.W. would suffer severe emotional distress that is likely to cause her to suffer severe adverse effects if she testified in front of the defendant. The only logical inference that can be gleaned from Rexroat’s testimony is that any possible effects on T.W. would be minimal. The majority characterizes Rexroat’s testimony as “Rexroat stated that, at a minimum, an increase in T.W.’s many symptoms could be expected and that more serious adverse effects were also possible.” (243 Ill. App. 3d at 726.) Rexroat’s testimony was actually as follows:
“Q. Can you anticipate at all the degree of injury that could occur?
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A. I guess minimally an increase in the symptoms that I have listed, the symptoms that she’s already displaying. And, that everyone has worked hard at remedying without lots of success. I would say that minimally those symptoms may increase.”
I have been unable to locate in the record where Rexroat stated that more serious adverse effects were also possible. Also, it must be noted that Rexroat stated that her testimony would be the same for any victim of sexual abuse under the age of 12.
The statute in this case seeks to limit a defendant’s constitutional right of confrontation, and therefore I believe its terms should be strictly construed. The statute clearly requires a finding that the victim will suffer severe emotional distress that is likely to cause her to suffer severe adverse effects. I fail to understand how the majority equates the above testimony with the finding required by the statute.
The majority states that the “obvious import of Rexroat’s testimony is that serious adverse effects were likely if T.W. testified in the presence of the defendant.” (243 Ill. App. 3d at 726.) This assertion by the majority eviscerates the finding required by the statute. As the defendant correctly notes, the finding that the victim will suffer severe emotional distress is a prerequisite to finding that she is likely to suffer severe adverse effects. The majority’s response to this argument by the defendant is ineffectual at best because the majority only considers the latter part of the necessary finding. The majority is correct that the “severe adverse effects” need only be “likely,” but a finding that the victim will suffer severe emotional distress is necessary first.
Criminal statutes must be strictly construed in favor of the accused and nothing should be taken by intendment or implication beyond the obvious or literal meaning of the statute. (People v. Shinkle (1989), 128 Ill. 2d 480, 539 N.E.2d 1238.) The language of the statute must be given its plain and ordinary meaning (People v. Sangster (1982), 91 Ill. 2d 260, 437 N.E.2d 625), and the court may not, by subtle construction, alter the plain meaning of the words employed. (People v. Goldstein (1990), 204 Ill. App. 3d 1041, 562 N.E.2d 1183.) It is clearly improper for the majority to take the term “likely” from the latter part of the clause in question and apply it to the earlier part where the statute plainly uses the term “will.” The majority has, by subtle construction, altered the plain meaning of the statute. Rexroat’s testimony, when construed in the manner required by the statute, was insufficient for the court to find that T.W. would suffer severe emotional distress likely to cause severe adverse effects.
The majority also states that “Rexroat further testified she was concerned about the possibility of depression, which could lead T.W. to suicidal ideation and self-mutilation.” (243 Ill. App. 3d at 726.) What Rexroat actually said was that suicidal ideation and self-mutilation are symptoms that sometimes occur following childhood depression. Rexroat admitted that T.W. had not exhibited any such symptoms. The statute in question plainly requires a finding that the particular victim in a specific case will suffer severe emotional distress likely to cause severe adverse effects. It is clearly erroneous for the majority to suggest that testimony regarding the symptoms experienced by depressed children in general can be used to support the individualized finding required by section 106B — 1. In fact, if such testimony regarding depressed children in general could be used to supply the necessary finding, then the statute has been rendered meaningless because such testimony would justify the limitation on confrontation in any case.
Further, Rexroat’s testimony that T.W. feared the defendant was insufficient to supply the necessary findings. In any child sexual abuse case the victim would probably fear the defendant. That is not the proper inquiry. The proper inquiry concerns what effect testifying in the presence of the defendant will have on the victim. In response to that question, Rexroat testified that minimally T.W.’s symptoms may increase. The majority cites a New Jersey case, State v. Crandall (1990), 120 N.J. 649, 577 A.2d 483, for the proposition that testimony that the victim feared the defendant was sufficient for a finding that the closed circuit television procedure should be used. The majority’s reliance on this case in support of its position is misleading. First of all, the issue is whether the Illinois statute was correctly applied to the facts of this case. Clearly, any decision by the New Jersey Supreme Court cannot be relevant on this matter, particularly when the New Jersey statutory scheme is not even discussed. Further, the decision in Crandall was based on the testimony that, if forced to face the defendant in the courtroom, the victim would “clam up and say nothing.” (Crandall, 120 N.J. at 656, 577 A.2d at 486.) The discussion regarding the victim’s fear of the defendant concerned whether the requirements established by the Supreme Court’s decision in Craig had been met, and had nothing to do with a finding of severe emotional distress.
Because there was no evidence introduced in this case that the victim would suffer severe emotional distress likely to cause severe adverse effects if required to testify in the presence of the defendant, I would reverse and remand the cause for a new trial. Use of the closed-circuit television procedure under the facts of this case violated the defendant’s sixth amendment right to be confronted with the witnesses against him. The majority has seriously undercut the statute by holding that the necessary findings were supported by the speculative testimony in this case.
Accordingly, I dissent.