People v. Ciancia-Fuchs

2026 IL App (4th) 250056-U

• Court: Appellate Court of Illinois
• Decided: March 12, 2026
• Docket: 4-25-0056
• Status: Unpublished

Opinion

NOTICE 2026 IL App (4th) 250056-U This Order was filed under FILED Supreme Court Rule 23 and is March 12, 2026 NO. 4-25-0056 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County JOSEPH CIANCIO-FUCHS, ) No. 23CF1960 Defendant-Appellant. ) ) Honorable ) Brendan A. Maher, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Knecht and DeArmond concurred in the judgment.

ORDER

¶1 Held: In his claim that he received ineffective assistance from defense counsel, defendant failed to show that the allegedly deficient performance caused prejudice to the defense, and without a showing of prejudice, the claim fails.

¶2 At the conclusion of a bench trial, the circuit court of Winnebago County found

defendant, Joseph Ciancio-Fuchs, guilty of three counts of predatory criminal sexual assault of a

child (720 ILCS 5/11-1.40(a)(1) (West 2020)). For those offenses, the court sentenced him to

three terms of natural life imprisonment.

¶3 Defendant appeals. The grounds of his appeal can be boiled down to a contention

that defense counsel rendered ineffective assistance at trial, mainly by failing to make hearsay

objections to out-of-court statements by the two victims, A.L.O. and A.M.O. (whom we will call,

collectively, the children). We are unconvinced that the lack of hearsay objections at trial caused

prejudice to the defense. Therefore, we affirm the circuit court’s judgment. ¶4 I. BACKGROUND

¶5 A. The Charges

¶6 The indictment alleged that, in Winnebago County, during the period of October

1, 2020, to December 31, 2021, defendant committed three offenses of predatory criminal sexual

assault of a child (id.). At the time of those offenses, defendant was 17 years of age or older,

according to the indictment, and his touching of the children was “for purposes of sexual

gratification or arousal of the victim or the accused.”

¶7 Count I alleged that, with his hand, defendant touched the sex organ of A.M.O,

who was born in November 2013.

¶8 Count II alleged contact between defendant’s mouth and A.M.O.’s sex organ.

¶9 Count III alleged that, with his hand, defendant touched the sex organ of A.L.O.,

who was born in July 2015.

¶ 10 B. The Proceedings Under Section 115-10

¶ 11 1. The State’s Notice of Intent to Offer Prior Statements

¶ 12 Pursuant to section 115-10(d) of the Code of Criminal Procedure of 1963 (Code)

(725 ILCS 5/115-10(d) (West 2024)), the State filed a notice that it intended to offer into

evidence, at trial, some out-of-court statements the children had made regarding sexual acts

perpetrated upon them by defendant. The State proposed that, at trial, it would introduce those

statements through the testimony of a forensic interviewer, Joanna Deuth; a nurse practitioner,

Heather Sharp; and the children’s mother, Andria O.

¶ 13 2. Testimony at the Hearing Pursuant to Section 115-10(b)(1)

¶ 14 On July 1, 2024, the circuit court held a pretrial hearing pursuant to section

115-10(b)(1) of the Code (id. § 115-10(b)(1)) to determine, in the words of the statute, whether

-2- “the time, content, and circumstances of” the children’s out-of-court statements “provide[d]

sufficient safeguards of reliability.”

¶ 15 At the hearing, the State first called Deuth, who testified that she was a forensic

interviewer at the Carrie Lynn Children’s Center in Rockford, Illinois, and that on May 1, 2023,

she interviewed the children. The prosecutor showed Deuth People’s exhibit No. 1, a thumb

drive on which videos had been downloaded. Deuth’s interviews of the children were not the

only videos in People’s exhibit No. 1. This exhibit also contained forensic interviews of the

children by Emma Busken in DeKalb, Illinois, on February 2, 2022; interviews of Andria and her

boyfriend, Tony Lagambina, by the DeKalb police on February 3, 2022; and an interview of

Andria by Detective Rebecca Anderson of the Rockford Police Department on May 1, 2023.

After Deuth authenticated the two videos in People’s exhibit No. 1 that were of her interviewing

the children, the prosecutor requested the admission of that exhibit. Defense counsel stated he

had no objection. Therefore, the circuit court admitted People’s exhibit No. 1 and ruled that it

might be published.

¶ 16 The State next called Sharp, who testified she was a pediatric nurse practitioner

and that on March 14, 2022, she performed head-to-toe physical examinations of the children,

who had been “referred for suspected sexual abuse”. As Sharp was physically examining

A.M.O., she told Sharp that, at night, while her mother was sleeping, “[defendant] *** touched

her private part and that it hurt” afterward when she went to the bathroom. A.M.O. further said

she had seen defendant touch her sister, A.L.O. Likewise, when Sharp was physically examining

A.L.O., she told Sharp that, at night, “once he knew mom was snoring,” “[defendant] ***

touched her private part,” “the part she pees from.” He did this touching “with his hand,” and

A.L.O. had seen him touch A.M.O., too.

-3- ¶ 17 The final witness the State called at the pretrial hearing was Andria, who testified

substantially as follows. On December 23, 2021, she and the children were living at her mother’s

house in Sycamore, Illinois. From 2019 to 2021, they lived with defendant, but less than two

weeks before December 23, 2021, they stopped living with him and moved in with Andria’s

mother. The morning of December 23, 2021, while they were staying at the Sycamore residence,

A.M.O. revealed to Andria that defendant had “touched her inappropriately.” Specifically, “[s]he

said that he would *** put his fingers and insert them in her when [Andria] was sleeping,

sometimes before work, sometimes in the middle of the night.” A.M.O. made this revelation to

Andria in the children’s bedroom, in the presence of A.L.O. The prosecutor and Andria had the

following further discussion about the touching as A.M.O. had described it to Andria:

“Q. Did she tell you where he would insert his fingers?

A. Yes, in her vagina.

Q. Did she use the word ‘vagina,’ or did she use a different word?

A. Yes. I—yeah.

Q. And did she say what it felt like when that happened?

A. Yes, she said it hurt.”

A.M.O. told Andria it had happened “over 30 times.” Nevertheless, Andria had seen no signs of

abuse, although the children “did get [urinary tract infections] a lot *** within that time frame.”

A.M.O. was unable to tell Andria the years when the abuse happened, but she could recall the

locations where it had happened. It had happened in the places where Andria and the children

lived with defendant from 2019 to 2021: in DeKalb, on 7th Avenue in Rockford, and on Indiana

Avenue in Rockford. Upon learning of the sexual abuse, Andria telephoned the police in

Sycamore. The police in Sycamore, however, told her to go to the police station in DeKalb and

-4- make a report there “because it started in DeKalb.” Accordingly, Andria took the children to the

DeKalb Police Department that same day, and A.M.O. “disclosed more when [they] got there.”

¶ 18 On cross-examination, defense counsel explored with Andria the question of

whom A.M.O. told first:

“Q. *** [W]hen your daughters first disclosed, they didn’t disclose to you

first; is that correct?

A. Correct. Well, they told me, yeah.

Q. Okay, but—in reference to the girls disclosing, at the time you were

dating a ‘Tony’; is that correct.

A. Uh-huh (affirmative), he was my friend at the time, yes.

Q. Your friend. What was your friend’s last name?

A. Lagambina.

***

Q. And it’s correct that when you spoke to police, you indicated that

Tony—they told Tony first; is that correct, and then Tony told you?

A. No, that’s not how it happened.”

¶ 19 3. The Interviews in People’s Exhibit No. 1

¶ 20 a. Forensic Interviews of the Children by Busken in DeKalb

¶ 21 i. Busken’s Interview of A.L.O.

¶ 22 On February 1, 2022, in DeKalb, Busken interviewed A.L.O. In this interview,

A.L.O. told Busken that, at night, defendant had done “bad stuff with his mouth,” “touch[ing]

something in front.” Defendant, however, no longer lived with A.M.O. and her mother and sister.

A man named Tony lived with them now, and Tony was “really nice” and “doesn’t do anything

-5- bad.” “Mom thought [defendant] was a good guy,” A.L.O. remarked, “but he isn’t.” A.L.O. told

Busken that, at first, she said that defendant had touched her three times in this bad way, but that,

later, she revised her estimate to six times. This touching of her private parts by defendant

happened in the living room in Rockford, while her mother and sister were sleeping, but it did

not always happen in the living room. A.L.O. said he also touched her with his fingers when her

mother and sister were in the room, sleeping, and that his finger went inside her body. Busken

asked A.L.O. how that touching made her feel. She answered that it hurt and made her angry.

When Busken asked her to tell how it hurt, she answered, “Mommy told me ’cause we had too

much UTI from him.” “What does that mean?” Busken asked. “He’s been going too far,” A.L.O.

answered. “Tell me about going too far,” Busken asked. A.L.O. shrugged. Busken asked if

A.L.O. had told anyone other than her mother. She answered that she also had told Tony at her

grandmother’s house in Sycamore, where they moved after they stopped living with defendant.

She had never told anyone at school.

¶ 23 A.L.O. remarked that defendant had “lied to Mom.” “He lied to Mom about

what?” Busken asked. A.L.O. answered, “ ‘What are they learning in school?’ That’s what he

said.” She recounted, “Mom was talking to Tony, and I heard, and [defendant] has probably six

sisters, and he did that which he just did to me.”

¶ 24 ii. Busken’s Interview of A.M.O.

¶ 25 Busken also interviewed A.M.O. on February 1, 2022. When asked why she was

there, A.M.O. answered that she did not know. All she knew was that her mother had told her

she had an appointment; she did not know what the appointment was for. A.M.O. now lived with

her mother, her sister, Tony, and a cat, and she felt happy and safe at home. Someone whom her

mother knew, defendant, had been “doing bad things to us,” A.M.O. said, and by “us,” she meant

-6- herself and her sister. When they lived with defendant at Husky Ridge Apartments in DeKalb,

defendant touched her private parts at night, both over her clothes and under her clothes, causing

her to feel scared. Nobody else was in the room when he touched her. “He did that when we

were sleeping,” A.M.O. said, “and then that woke us up. That’s how we know. It woke us up.”

“What did you know?” Busken asked. “We didn’t know what he was doing to us,” A.M.O.

answered, “but we knew because we saw.” He touched her “a lot” that way: “this many,” A.M.O.

said, spreading her arms wide—“I think 100.” He always used his hand, going “inside,” and it

hurt. She had told only her mother about this touching, not Tony.

¶ 26 b. The Interview of Andria by the DeKalb Police

¶ 27 On February 3, 2022, an officer with the DeKalb Police Department interviewed

Andria. She remarked, at the beginning of the interview, “It just hurts me that they didn’t tell

me.” The officer asked, “When did you first find out about this?” She replied that she first found

out on December 23, 2021, the same day she went to the police. The children revealed the sexual

abuse to her boyfriend, Lagambina, at 7 a.m. that day. He was the first person whom they told.

Andria woke up and noticed that the children were already awake and out of bed. Lagambina

looked upset. He pulled Andria aside and told her, “ ‘I need to talk to you about what the girls

just told me.’ ” After hearing from Lagambina, Andria went to the children and asked them,

“ ‘Can you guys talk with me and tell me about what you and Tony just talked about?’ ” They

asked, “ ‘Why did he tell you?’ ” Andria assured them she would not be upset and she only

wanted to know if anyone had been hurting them. They then told her what defendant had done to

them.

¶ 28 Specifically, the children told Andria that in Rockford, when Andria was

“sleeping and snoring” and the children were cuddling together in the same bed in one of their

-7- bedrooms, as they often did (although the children had separate bedrooms), defendant would

enter the bedroom and lick his finger or have someone lick it for him and would touch them

“down there,” “on the inside.” The children were “pretty vague,” and, wary of influencing what

they had to say, Andria did not want to “force anything out of them.”

¶ 29 Andria had never noticed any injuries or bruises on the children. But they had

kept getting urinary tract infections, for which she had taken them to the doctor some six times

and had directed them to drink more water, which had not helped. Also, she had noticed changes

in the children’s behavior. They no longer wanted to hug defendant at night, and they began

locking the bathroom door and expressing apprehension when they heard him coming upstairs as

they were bathing.

¶ 30 Another troubling sign that Andria now recognized in retrospect was that when

the children slept with her and defendant in the same bed, he “would sometimes insist on them

sleeping in the middle”—“and now that sounds disgusting,” Andria remarked.

¶ 31 Although defendant had not been informed specifically what the children had said

about him, he knew he was suspected of sexually abusing them, for, the day when Andria found

out, she “went crazy” and telephoned not only the police but also him. He responded to her, on

the phone, “ ‘These are my babies. Why would you think I touched my kids?’ ” Andria surmised,

“I’m sure he’s scared because he touched his sisters, too.” Andria told the officer that defendant

had 12 siblings and that none of them would speak with defendant.

¶ 32 When Andria and the children lived with defendant (she continued in the

interview), he installed surveillance cameras throughout the house, including in A.L.O.’s

bedroom, but not in A.M.O.’s bedroom. The purpose of having a camera in A.L.O.’s bedroom

was that, in a period when the children’s behavior was bad, he could banish them to that

-8- bedroom and make sure they stayed there and behaved. Andria noticed, however, that the cord to

the camera in A.L.O.’s bedroom had been disconnected and was missing. When she asked

defendant what had happened to the cord, he answered that he did not know. This was a bedroom

where, A.L.O. subsequently told Andria, some of the sexual abuse had occurred. Whenever

Andria and defendant got into an argument and she threatened to call the police, “he would get

that big box thing that all the cameras connected to and hide it.”

¶ 33 c. The Interview of Lagambina by the DeKalb Police

¶ 34 After interviewing Andria, the DeKalb police officer interviewed Lagambina. He

said that, on December 23, 2021, while Andria was still asleep and he was getting the children up

and ready, he had a conversation with them to the effect that they should be careful “not to get

themselves in a bad situation.” One of the children responded, “ ‘Yeah, that’s what [defendant]

used to do to us. He used to put his finger in his mouth.’ ” Lagambina asked them where Joe had

put his finger. “ ‘In our private area,’ ” they answered, “ ‘down there.’ ” They said that when

defendant touched them that way, it was always while their mother was snoring.

¶ 35 Later, when Lagambina and Andria were discussing what the children had

disclosed, Andria recounted to him that defendant used to tell her he was unable to get to sleep

until he heard her snoring. Given that recollection, Lagambina and Andria “put two and two

together.”

¶ 36 d. Subsequent Forensic Interviews of the Children by Deuth in Rockford

¶ 37 i. Deuth’s Interview of A.L.O.

¶ 38 On May 1, 2023, in Rockford, Deuth interviewed A.L.O., who stated essentially

as follows in answer to Deuth’s questions.

-9- ¶ 39 A.L.O. was seven years old and in second grade. When asked what she had come

to talk about, she answered, “The thing with [defendant].” Defendant was, A.L.O. explained, her

mother’s boyfriend and “was our dad once,” and they used to live with him. Now A.L.O. lived

with her mother, grandmother, and sister.

¶ 40 Deuth and A.L.O. had the following conversation about why they were there and

whether A.L.O. had been instructed to say anything:

“Q. What did Mom say about coming here to talk with me?

A. I can’t remember.

Q. Did Mom tell you what you were supposed to talk about?

A. Yeah, what he did to us.

Q. Okay. What did she say?

A. I don’t remember. We were in a different town, and we had come here.

We were in the car talking about it, and now I forgot. I forget very easily.

Q. Did your mom tell you what you were supposed to tell me?

A. Well, yeah, but then I forgot.

Q. What did she tell you that you were supposed to tell me?

A. She asked me to tell you that maybe he put something in, um, Mom,

make, he gave Mom something to make her sleep.

Q. Okay. How do you know that—that he gave Mom something to help

her sleep?

A. Well, I think.

Q. How do you know that?

- 10 - A. ‘Cause every time we were sleeping, our mom was snoring really

heavy and she was a heavy sleeper that day and I was trying to yell for Mom, but

she couldn’t hear me because he was covering my mouth.”

¶ 41 When Deuth asked A.L.O. to tell her more about that, she stated, “He always puts

his finger in my private parts.” She continued, “And he always makes sure that Mom is sleeping,

and sometimes when he thinks she is about to wake up, he goes back to bed.” This happened

more than one time; it happened “a lot.”

¶ 42 Deuth asked A.L.O. where the private parts were. A.L.O. pointed to her crotch.

When Deuth asked her what girls used their private parts for, A.L.O. answered that they used

them to go to the bathroom and wipe. This was the part of her body that defendant had touched,

and he had done so only with his hand, according to A.L.O., not with anything else. He “put it up

in my clothes,” she said, and it “hurt”—“he went up too far.”

¶ 43 A.L.O. thought that this touching happened in Rockford or DeKalb—she could

not remember where. Later in the interview, however, she said it happened every day and “in

every single house we moved in with him”. A.L.O. was four or five when the touching began

and six when the last touch happened.

¶ 44 A.L.O. recounted that defendant touched her when she was sleeping in bed by

herself, when she was sleeping in the same bed as A.M.O., and when she and A.M.O. were

sleeping in the same bed as defendant and her mother. “He probably gave Mom something to not

make her wake up,” A.L.O. explained. Deuth asked her, “You said your Mom told you that?”

“Uh-huh,” A.L.O. answered. A.L.O. saw defendant touch her sister in the same way. She said,

“When me and my sister were in bed together” (A.L.O. sometimes slept with her sister when

A.L.O. was scared), “and then he would get out of his bed and then get into our bed and my

- 11 - sister’s bed and did that to her and did that to me.” “The same time?” Deuth asked. “Uh-huh,”

A.L.O. answered. “And I think he would only lick his hand after that,” A.L.O. added.

¶ 45 Deuth asked, “Did you ever tell your mom?” “I don’t think so,” A.L.O. answered,

“but I was trying to wait for the good moment, but I guess that moment was, like, never

happened.” Eventually, though, “a long time ago,” A.L.O. told her mother.

¶ 46 Defendant was not there when A.L.O. told her mother. Defendant and her mother

“got into a lot of fights,” A.L.O. recounted, and her mother “was done with him.” The fights

“were always different,” and in one of the fights, A.L.O. was playing with her favorite toy, and

defendant threw it. Because A.L.O. did not know where the toy went, she had felt sad and cried.

A.L.O. never got hurt in any of the fights.

¶ 47 A.L.O. could not remember if anyone got hurt in the fights, but “they were really

bad fights.” She remembered:

“One time, Mom tried to drive away to calm down, but he jumped in front of the

car, and it seemed like she was about to run him over. But she actually wasn’t,

and she said to move out of the way, but he didn’t, so she just stayed there. She

had to.”

A.L.O. and her sister were in the car at the time with their mother.

¶ 48 ii. Deuth’s Interview of A.M.O.

¶ 49 Deuth also interviewed A.M.O. on May 1, 2023. Here, essentially, is what she

told Deuth.

¶ 50 A.M.O. was nine years old and in third grade. She lived with her grandmother,

mother, seven-year-old sister, and six-month-old sister and did not know where her father lived

or whether she had ever had any contact with him.

- 12 - ¶ 51 As with A.L.O., Deuth sought to find out whether A.M.O. knew why she was

there to speak with Deuth:

“Q. Well, so what did you come to talk to me about today?

A. Um, I need my mom to help. I don’t really know.

Q. Well, what did Mom tell you about coming here today?

A. About [defendant].

Q. About [defendant]. Okay, and who is [defendant]?

A. He’s my mom’s ex-husband.

Q. And what did you come here to talk about [defendant] about?

A. He was touching us.

Q. He was touching you. And when you say ‘us,’ who was that?

A. My sister and me.

Q. What I would like you to do is tell me all about what happened to you.”

¶ 52 The touching “hurt”, A.M.O. recalled, and it happened both in her bed and in

defendant and her mother’s bed when A.M.O. and her sister slept with them. Deuth asked

A.M.O. to talk about when it happened in her own bed. There were “cameras everywhere,”

A.M.O. said, and defendant turned them off at night when he “[came] in our bed” and then

turned them back on in the morning. He touched “my private part,” A.M.O. told Deuth. When

Deuth asked her where on her body her “private part” was or if she had a name for that part,

A.M.O. began weeping and answered, “Yeah, but I don’t want to say it.”

¶ 53 Before steering the conversation back to the subject of the touching, Deuth talked

with A.M.O. about what her mother had asked her to tell Deuth:

- 13 - “A. It was, like, well, my mom said to tell you that he put, like, something

in her mouth to be sleeping.

Q. What do you mean? Tell me more about that.

A. I just don’t know what it’s called.

Q. What did it feel like?

A. It just felt bad.

Q. I just want to make sure I understand. What went in your mouth?

A. In my mom’s mouth to keep her sleeping. So, she’s a heavy sleeper

when something’s in her mouth. I just don’t know...

Q. So, I just want to make sure I understand. Would Dad put something in

your mom’s mouth to keep her sleeping?

A. [Nods.]

Q. Would he put something in your mouth to keep you sleeping?

A. Our mom’s.

Q. Just your mom’s. And you know that because your mother told you?

Q. Did you ever see that happen?

A. [Shakes her head.]”

¶ 54 Then the conversation returned to the subject of the nighttime touching:

“A. I was sleeping, and he woke me up.

Q. How would he wake you up?

A. He would just wake me up and start doing this stuff.

Q. What would he do first after he woke you up?

- 14 - A. He went too far.

Q. Tell me about that.

A. Every time we move, he always does stuff like this, and it hurts so bad.

Q. Where in your body would it hurt?

A. In my front.

Q. And what do you use that part for, just to make sure I understand? I

don’t want to assume I understand what you’re talking about.

A. To pee.”

According to A.M.O., defendant not only used his index finger to touch the part that she peed

from, but he “put his tongue in it,” and her “mom didn’t even know ’cause she was asleep—she

was snoring.”

¶ 55 Deuth and A.M.O. then had the following dialogue:

“Q. Was Mom sleeping in the same room you were in?

A. [Nods.] She didn’t know.

Q. She didn’t know, OK. Who else slept in that room?

A. Ex-husband.

Q. And then where would you sleep?

A. I used to sleep in our room, and then I slept in Mom’s room, and this all

happened.”

¶ 56 The touching happened only in Rockford, A.M.O. said, and she probably was in

first grade at that time. The part where she peed was the only part of her body that defendant

touched, and he did not make her do anything with his body. “All he did,” she said, was “put his

finger up in it” after taking her pants and underwear off.

- 15 - ¶ 57 In response to the question of “Then what happened?” A.M.O. said, “I told Mom

after we moved, and then we started talking about this to Mom.” On the question of whether the

touching had happened to anyone else, Deuth and A.M.O. had the following discussion:

“Q. Do you know if that happened to anybody else?

A. [Defendant’s] sister.

Q. Who’s [defendant’s] sister?

A. They left in a fire, and they got all burnt.

Q. How do you know it happened to [defendant’s] sister?

A. Because my mom told me.”

A.M.O. had not seen defendant touching A.L.O. because A.M.O. was asleep when he did so.

Nevertheless, “I know he touched her because she told me,” A.M.O. said, “and he covered her

mouth when she was crying.” This touching also happened in their bedrooms: “He just did that

same pattern again,” as A.M.O. put it.

¶ 58 A.M.O. said that their mother was unaware of the touching because she was

sleeping whenever it happened. The conversation returned to the subject of something having

been put in her mother’s mouth:

“Q. What was it that went in [your Mom’s] mouth?

A. It was, like, I just don’t know, but my mom told me it was, like, the

sleeping pill.”

Her mother had “said tell them about that.”

¶ 59 Deuth and A.M.O. then had a discussion about whether there was anything else

that A.M.O.’s mother had asked her to tell Deuth:

“Q. Did she tell you that there was anything else you should tell me today?

- 16 - A. Tell you about everything that happened.

Q. Did she tell you what you should say?

Q. Tell me more about that.

A. It happened in Rockford, and it happened every place we went.

Q. So, everything we talked about today, are they things you remember?

A. [Nods.]”

¶ 60 Toward the end of the interview, Deuth asked A.M.O. if she had any questions for

her. A.M.O. answered, “I’m trying to think ’cause my mom wants me to tell you everything that

just happened so that you can detract [sic] him.” (We are unsure, but it sounded as if A.M.O. said

“detract.”) The mother had told A.M.O. that “ ‘they’re only here to help us.’ ”

¶ 61 Deuth stepped out of the interview room to find out from her colleagues if they

could think of anything else she should ask (as she explained to A.M.O. upon leaving the room).

A.M.O. remained in the room, playing with toys, and the camera remained on. When Deuth

returned, A.M.O. recounted a domestic disturbance. On one occasion, when they lived with

defendant in a house, he began yelling at her mother (who did not yell back), and he threw

everything, including A.L.O.’s yo-yo, into the backyard. Lots of police officers arrived—merely

because of defendant’s yelling, not because anyone had gotten hurt. Although A.M.O. and her

sister were asked to sit in the squad car for a while, no one had to leave the home on that

occasion. But A.M.O. and her sister wanted to leave “because of how he was treating us, how he

was touching us.”

¶ 62 Then Deuth and A.M.O. had this final exchange about what her mother had

known and what defendant had said:

- 17 - “Q. Did Mom know about the touches when that happened?

A. [Shakes her head.] When he was at work, I was scared she was going to

believe [defendant].

Q. What did [defendant] say about it?

A. We were making something at the same house. He said, ‘What do these

kids even learn there?’ Because he was trying to lie.

Q. Did [defendant] ever tell you anything about telling? About telling

about the touches?

A. He said, ‘Do not tell your mom’—and I did.

Q. Did he say what would happen if you told your mom?

A. [Shrugs.] I don’t think so.”

¶ 63 e. The Interview of Andria by Anderson in Rockford

¶ 64 On April 4, 2023, Detective Anderson of the Rockford Police Department was

assigned to this case after the DeKalb Police Department uncovered information about crimes

that might have been committed in Rockford. On May 1, 2023, Anderson interviewed Andria,

asking her, first, to clarify the different places where she had lived with defendant.

¶ 65 Andria said that, initially, she had her own apartment at Gideon Court in DeKalb.

She and defendant decided to move elsewhere, however, because the rules of the apartment

building permitted him to stay with her as a guest for only a few days at a time and “jumping

around” became a hassle.

¶ 66 So, they moved into the basement of defendant’s parents’ house in Poplar Grove,

Illinois, and lived there for a few months.

- 18 - ¶ 67 Next, they moved into Husky Ridge Apartments in DeKalb, where the children

had their own bedroom, with a bunk bed, and defendant and Andria had their own bedroom.

Because defendant and Andria had brought along all their belongings, however—the contents of

two households—there was hardly enough space in the apartment, and they used their bedroom

as a storage room and slept on a futon in the living room. Sometimes the children slept on the

futon with them. It had never occurred to Andria that defendant might have been doing anything

to the children.

¶ 68 Nevertheless, it seemed to Andria at the time that something strange was

happening to her at Husky Ridge Apartments, and she could not determine the cause. She had

always been a light sleeper and would be awakened by the creaking of a floorboard. At Husky

Ridge Apartments, though, she began sinking into a deep sleep on the futon, and when she

awakened, she felt lethargic and groggy, as if she had taken a sleeping pill. She felt sluggish and

unrefreshed by sleep, and she could not figure out whether it was because she was dehydrated or

perhaps anemic or whether it was because she was putting on weight. Even when she began

exercising more, however, and eating better, the feeling of lethargy persisted.

¶ 69 About a year later, in October 2020, they moved from Husky Ridge Apartments

in DeKalb to 7th Street in Rockford and lived on the second floor of a house converted into

apartments. Their apartment had two bedrooms. The children shared a bedroom, and because

parts to the bunk beds had been lost during the move, the bunk beds were converted into two

separate beds for the children. Defendant and Andria had their own bedroom. They still had the

futon, which they put in the living room.

¶ 70 In March 2021, they moved from 7th Avenue into a three-bedroom house on

Indiana Avenue in Rockford. It was there that Andria began noticing “weird things going on

- 19 - with” defendant. He installed surveillance cameras not only outside the house but also

throughout the interior of the house. The cameras, which were activated by movement,

communicated with an app on his and Andria’s phones. What seemed to Andria, in retrospect, a

“red flag” was that the cord to the camera in her youngest daughter’s bedroom was missing.

Also, she found it somewhat unnerving that, when she awoke in the morning, the green light of

the camera in her and defendant’s bedroom was on, indicating that while defendant was at work,

he was watching her as she slept.

¶ 71 Andria described defendant as a “hacker,” as technologically adept. He could

remotely power off Andria’s phone. Once, when she attempted to leave him, he powered off her

phone, and she could not power it back on. Consequently, she was unable to use GPS to travel

through Rockford and to her mother’s house, and she had to return. Also, when she threatened to

leave, he would smash her phone.

¶ 72 Eventually, Andria and the children were able to leave. They got in one of their

two vehicles. Defendant positioned himself in front of the vehicle and clung to it, urging her not

to go. She left him, telling him, “[W]e could not work it out,” and she divorced him.

¶ 73 The house on Indiana Avenue in Rockford was the last place where Andria and

the children lived with defendant. She and the children moved out of the Indiana Avenue house

and into her mother’s house, where the children disclosed the sexual abuse.

¶ 74 Andria learned from one of defendant’s relatives, a woman named Elizabeth, that

defendant “had touched on her little sister.” Andria was going to meet with defendant’s relatives

to discuss these allegations of prior sexual abuse. The relatives got sick, however. Then, after

they recovered from the sickness, they all died in a house fire, which was determined to be

- 20 - accidental (although, by that time, defendant was aware of the children’s allegations against him

and Andria suspected him of having set the fire).

¶ 75 4. Arguments and the Ruling

¶ 76 At the conclusion of the pretrial hearing pursuant to section 115-10(b)(1), the

prosecutor requested an order allowing the State to introduce the children’s statements to which

Deuth, Sharp, and Andria had testified, for the statements, he argued, had “sufficient indicia of

reliability.” Deuth was a forensic interviewer trained to ask children open-ended questions

instead of leading questions. The children’s statements to Sharp “were made in the course of

medical treatment” and “were specific.” He also argued, “And in the case of the mother, this was

the initial outcry on that date in December of 2021. The conversation with the mother was short,

as she testified to, and then she went to the police station.” Therefore, the prosecutor concluded,

“all these statements are sufficiently reliable.”

¶ 77 Defense counsel, on the other hand, objected to the proposed “admission of these

hearsay statements.” For three reasons, he disputed that the statements had sufficient indicia of

reliability. First, he pointed out that A.M.O.’s disclosure to Andria “took place in both girls’

bedroom,” with A.L.O. listening. Second, neither of the children appeared to be upset when they

made their statements to Sharp, even though, “this being of such a nature to be traumatizing, the

girls should be upset.” Third, defense counsel claimed that, when interviewing A.L.O., Deuth

sometimes asked her leading questions.

¶ 78 After the attorneys made their arguments, the circuit court remarked that Deuth

was a certified and qualified interviewer of children who was trained to ask nonleading questions

and that the court had no reason to suppose she was biased or that she had testified untruthfully.

The court likewise found that Sharp was a qualified nurse practitioner and that she was “the type

- 21 - of witness [who would have] no particular bias.” The court understood defense counsel’s point

“about the possibility of a different man living in the same home” and “the reason for raising that

as a *** second potential perpetrator in the case.” Andria, however, “had a conversation with the

minor children on [December 23, 2021,] and then took them directly to the DeKalb County

police station,” and “she was doing the best she could at that point in time *** to protect her

children.” Therefore, the court granted the State’s section 115-10 motion, ruling that if “both

A.L.O. and A.M.O. are called to testify at trial, Joanna Deuth, Heather Sharp, and [Andria] can

all be presented as witnesses.”

¶ 79 Defense counsel then pointed out to the circuit court that, before Deuth

interviewed the children in Winnebago County, another forensic interviewer, Busken,

interviewed them in DeKalb County and that there will “be some issues related to that prior

interview of these children.” Then there was the following dialogue between the court and

defense counsel:

“THE COURT: Has [defendant] gone to trial in DeKalb County yet?

MR. GRANGER: Your Honor, that is done and over with, is resolved.

THE COURT: How was it resolved?

MR. GRANGER: There is not any charges any longer.”

¶ 80 C. The Bench Trial

¶ 81 1. The State’s Case-in-Chief

¶ 82 A bench trial took place on September 24, 2024. In its case-in-chief, the State

called six witnesses: Anderson, Andria, A.L.O., A.M.O., Sharp, and Deuth.

¶ 83 a. Anderson

- 22 - ¶ 84 Anderson testified she was a detective with the Rockford Police Department, had

been employed there for 22 years, and, for the previous 10 years, had been assigned to the

sensitive crimes unit, which investigated sexual assaults and crimes against minors. Since April

4, 2023, she had been assigned to this matter, which originated in DeKalb after the police there

“uncovered some information that things had happened in Rockford.”

¶ 85 Anderson had spoken with Detective Aaron Gates of the DeKalb Police

Department and had reviewed the interviews of the children that took place in February 2022 in

DeKalb. Nevertheless, after consulting with her multidisciplinary team, she had decided it would

be “a good idea to do another follow-up interview” of the children. The purpose of further

victim-sensitive interviews would be to “focus[ ] on incidents that occurred in Rockford,”

whereas the interviews in DeKalb had focused on incidents that had occurred in DeKalb.

Accordingly, in May 2023, Deuth interviewed the children at the Carrie Lynn Children’s Center

in Rockford.

¶ 86 b. Andria

¶ 87 Andria testified that she had three children: A.M.O., born in November 2013;

A.L.O., born in July 2015; and a baby. From 2019 to 2022, she was married to defendant and

lived with him first in DeKalb and then, from 2020 until December 3, 2021, in Rockford. The

children also lived with them during that time, and the baby was born after the events in this

case. On December 3, 2021, Andria and the children moved out of Rockford, away from

defendant, and into Andria’s mother’s house in Sycamore.

¶ 88 The direct examination returned to the subject of where Andria and the children

resided when they lived with defendant. They first occupied an apartment on 7th Avenue in

- 23 - Rockford. It was a two-bedroom apartment on the upper floor of a house. The children shared

one of the bedrooms, and Andria and defendant shared the other bedroom.

¶ 89 In early 2021, Andria, the children, and defendant moved from the 7th Avenue

apartment into a house on Indiana Avenue in Rockford. In that house, the children each had their

own bedroom, and Andria and defendant shared the third bedroom. Defendant installed video

cameras not only outside the house but also inside: in the living room, dining room, the

children’s “room,” and Andria and defendant’s bedroom. “[W]e could watch things on our

phone,” Andria testified. She noticed that sometimes the cameras were disabled or unplugged.

¶ 90 The prosecutor had the following dialogue with Andria regarding an unplugged

camera:

“Q. Tell us about that. Was that frequent or—

A. Yes, it was pretty often. I would ask the [children], and they—they

didn’t know where the cord was that would go into the wall.

Q. So, would you ask them about the cord because the cord was missing,

or—

A. Yes, it was like a two-piece cord. It plugged in in the middle and then

connected to the wall.

Q. Okay.

A. And like the camera was there, but the cord was frequently missing.

Q. Okay. Did you ever unplug them?

A. No.

Q. Did the [children] ever unplug them?

A. No.”

- 24 - ¶ 91 On December 8, 2021, Andria and the children left the house on Indiana Avenue

and moved to Sycamore, without defendant. Several weeks later, that same month, A.M.O. told

Andria “something unexpected.” The prosecutor and Andria had the following exchange about

how A.M.O. made this disclosure:

“Q. Where were you when she told you something unexpected?

A. I was in my room, but I went in her room to talk because it sounded

serious.

Q. So, how is it that you first heard of something in order to think it was

serious and to go to her room?

A. Just her body language.

Q. Okay. Where were you when you decided to go to her room?

Q. Right by my door.”

¶ 92 At the time of A.M.O.’s disclosure, Lagambina was at Andria’s mother’s house,

visiting, and he, Andria, and A.L.O. were in A.M.O.’s bedroom. A.M.O. told Andria that

defendant “did something to them, and she said that he had touched them inappropriately, and

they said that he had touched them down there.” Andria testified, “[T]hey didn’t tell me too

much before I decided to go to the police department,” but, in that initial conversation, A.M.O.

told her that the touching happened in “every place [they] had lived at with [defendant]” and that

“it happened a lot,” “in the middle of the night,” while Andria “was sleeping”. A.M.O. related

that, in this inappropriate touching, defendant “used his fingers” and “his tongue” and that “it

hurt.” He was “30 or older,” Andria testified.

¶ 93 On cross-examination, Andria denied that the children disclosed the sexual abuse

to Lagambina first and that he in turn told her. She admitted, however, that, during the

- 25 - approximately two years she was married to defendant, no sexual abuse was reported, even

though she interacted with him and the children every day. She also agreed that, around

December 2021, her relationship with defendant was deteriorating and they “were headed

towards divorce” by then. She told the police in DeKalb, however, that she “had no sign or idea

that any sexual abuse was going on.” During their seven months of dating and two years of

marriage, Andria never saw defendant behaving sexually toward the children. In fact, defense

counsel asked Andria, “[A]t times, the [children] would share a bed with you and [defendant]; is

that correct?” Andria answered, “It was rarely. It didn’t happen all the time.”

¶ 94 On redirect examination, the prosecutor asked Andria, “[W]hen the [children]

would be sleeping in your bed, would you consider yourself a heavy sleeper or a light sleeper?”

She answered, “A heavy sleeper.” She denied that she always had been a heavy sleeper, but she

testified that she was a heavy sleeper in Rockford—she did not know why.

¶ 95 c. A.L.O.

¶ 96 The State next called A.L.O., who testified that she was nine years old and in

fourth grade. She lived in Sycamore but used to live in Rockford with her mother, A.M.O., and

defendant. When asked, “Do you see [defendant] here today?” A.L.O. answered, “I don’t know.

I don’t know,” and, “I forgot what he looks like.” She remembered talking with a woman at the

Carrie Lynn Children’s Center about things that happened when she lived in Rockford, but she

could not remember what they had talked about. A.L.O. did not know if defendant moved with

her and her family when they moved out of Rockford.

¶ 97 d. A.M.O.

¶ 98 A.M.O. was the next witness for the State. She testified that she was 10 years old

and in fifth grade. She presently lived in Sycamore, but she used to live in Rockford with her

- 26 - mother, her sister A.L.O., and defendant, to whom she referred as Joe. In court, she identified Joe

as defendant, pointing him out. She remembered living in two different places in Rockford: in an

apartment on 7th Avenue and in a white house on a street, the name of which she could not

recall. In the 7th Avenue apartment, she shared a bedroom with her sister A.L.O., but in the

white house, where she lived when she was in first grade, she had a bedroom of her own.

¶ 99 A.M.O. remembered telling her mother, after they moved from Rockford, about

things that happened while they lived in Rockford. Specifically, she told her mother that

defendant had been touching her “private,” the part of her body for “[g]oing to the bathroom.”

“In [the] nighttime,” in A.M.O.’s bedroom, he would touch her that way with “[h]is pointer

finger and his tongue.” None of the touching happened, however, in the 7th Avenue apartment,

where A.M.O. shared a bedroom with A.L.O. Rather, the touching happened, “[m]ore than

once,” only in the other residence in Rockford. Defendant would take A.M.O.’s clothes off when

he touched her, she testified.

¶ 100 On cross-examination, A.M.O. testified that, in the house in Rockford—as

distinct from the 7th Avenue apartment—she would sometimes sleep in a bedroom with A.L.O.

and that, “[q]uite a bit of time,” she would share a bed with her mother, A.L.O., and defendant.

She agreed that the 7th Avenue residence had cameras in all the rooms and the family dog liked

to chew on cords. She did not know if she had told Tony about the touching, but Tony was

present when she told her mother.

¶ 101 On redirect examination, the prosecutor asked A.M.O., “How come you didn’t tell

your mom about it while you were living with [defendant]?” “I don’t know,” she answered.

¶ 102 e. Sharp

- 27 - ¶ 103 Sharp testified that she was a pediatric nurse practitioner and that on March 14,

2022, she performed physical examinations of the children because it was suspected that they

had been sexually abused.

¶ 104 In her physical examinations, Sharp found no abnormalities. Even so, Sharp

explained, the absence of physical abnormalities was not necessarily inconsistent with the

allegations of sexual abuse or the experience of pain when the abuse happened. The area of the

vagina was pliable and, after being stretched, could return to normal without injury. In

prepubescent girls, the area just inside the labia majora would be painful to the touch, and a

penetration would not “necessarily have to cross through the hymen into the vaginal opening to

cause that pain.” Because the sexual abuse allegedly happened in the time frame of April 2019 to

December 2021, when defendant lived with Andria and the children, Sharp would have

“expect[ed] a normal exam” in March 2022, “based on the just female anatomy in general.”

¶ 105 As Sharp was physically examining the children, they described to her the sexual

abuse perpetrated upon them by defendant. The prosecutor and Sharp first discussed what

A.M.O. had told her:

“Q. *** During your examination with [A.M.O.], did she disclose

anything to you about sexual abuse?

A. Yes. [A.M.O.] had disclosed that [defendant] had touched her private

part and it was painful, and she did have trouble going to bathroom afterwards.

She explained this would happen at night once mom was sleeping.

Q. Did she identify her private part to you? Were you able to get more

information about that?

- 28 - A. She did. She identified her private part as the front part, and I had asked

her if that was her vaginal area, and she said, yes, by pointing and nodding.”

¶ 106 The prosecutor and Sharp also discussed what A.L.O. had told her:

“Q. And let’s talk about [A.L.O.] When you were examining her, did

[A.L.O.] disclose anything to you about sexual abuse?

A. Yes, [A.L.O.] had disclosed that [defendant] had touched her private

part as well. It was during the night when mom was sleeping, and she would

explain that he would wait until mom was snoring to touch her.

Q. Did she tell you where on her body that he would touch her?

A. She had identified her private part; what she said is the area she pees

from.

Q. All right. And did she indicate whether or not she had seen [defendant]

touch anyone else?

A. She had said that she had seen [defendant] touch [A.M.O.] as well.”

¶ 107 On cross-examination, Sharp testified that, in A.M.O.’s account to her, “[t]here

was no mention of licking her vagina or anything like that.” Also, Sharp testified that, in her

examination of A.M.O., she noted a prior history of sexual abuse. She specified, “My

understanding was that *** there was a concern that [A.L.O.’s] father had sexually abused

[A.M.O.]”

¶ 108 f. Deuth

¶ 109 The State’s final witness in the bench trial was Deuth. She described her training

as a forensic interviewer of minors and how she went about interviewing minors who might have

been sexually abused: she asked them nonleading questions and let them use their own words.

- 29 - She identified, in People’s exhibit No. 1, the videos of her interviews of the children that took

place on May 1, 2023. People’s exhibit No. 1 was admitted without objection. The State rested.

¶ 110 2. Defendant’s Case

¶ 111 After conferring with defense counsel and after the circuit court admonished him

that he did not have to testify but that he was permitted to do so if he wished, defendant elected

to testify. His testimony was substantially as follows.

¶ 112 Prior to 2019, he and Andria were dating, and in 2019, they lived in DeKalb.

Even as early as 2019, in DeKalb, they got into arguments, and “the police were involved several

times.” By 2020, when they moved from DeKalb to Rockford, “[i]t was getting rougher,” they

“started arguing more,” and “[e]verything started falling apart.” Andria “constantly *** accused

[him] of cheating at work,” although he did not cheat on her, and he had “questions about her

fidelity at the time”—but, unlike her, he did not give voice to his suspicions.

¶ 113 He worked 10-hour days at Rockford Processing Control, putting in overtime.

Andria was not employed and stayed home and raised the children. When he came home from

work and tried to relax, Andria would argue with him and get him “rile[d] up enough to where

[he] would be yelling, and she would call the police.” Whenever they argued, Andria would

accuse him of sexually abusing the children. She made this accusation to him “because she knew

it got underneath [his] skin.” He testified, “Every time the police were involved”—which was

some “two or three” times—the Illinois Department of Children and Family Services (DCFS)

would arrive, and Andria, A.M.O., A.L.O., and defendant would each speak with DCFS.

¶ 114 Around 2020, as their relationship became more acrimonious, Andria threatened

defendant that she would report to the authorities that he had been sexually abusing the children.

On that subject, defense counsel and defendant had the following dialogue:

- 30 - “Q. And with the decline of your relationship with the fights, were threats

made by [Andria]?

A. Yes.

Q. Okay. And is it fair to say that the threats were allegations of this

nature?

Q. And how many times do you think she would threaten you?

A. About every time we argued, about two or three times a month.

Q. In spite of the fact that she would make those threats, it’s correct that

during the course of your relationship while you were living together, it was never

stated to the police; is that correct?

A. Yes.”

¶ 115 Although the four of them—Andria, defendant, and the children—“shared a bed”

with “[m]oderate frequen[cy],” defendant denied ever touching the children or unclothing them.

He characterized Andria as “a pretty light sleeper,” and he had rarely been alone with the

children.

¶ 116 It was defendant who finally ended his and Andria’s relationship. He had the

police remove her from the residence, and because she was so argumentative, he would not allow

her back into the residence, not even to pick up her belongings.

¶ 117 At the conclusion of the bench trial, the circuit court found defendant guilty of

three counts of predatory criminal sexual assault of a child and sentenced him to three terms of

natural life imprisonment.

- 31 - ¶ 118 This appeal followed.

¶ 119 II. ANALYSIS

¶ 120 A. Forfeiture of the Hearsay Issue

¶ 121 Except insomuch as a statute or a rule of the supreme court provides otherwise,

hearsay is inadmissible. Ill. R. Evid. 802 (eff. Jan. 1, 2011). “ ‘Hearsay’ is a statement, other than

one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Ill. R. Evid. 801(c) (eff. Oct. 15, 2015). In that definition of

hearsay, the term “ ‘statement’ ” means an “assertion”—either oral, written, or intentionally

implied by conduct (Ill. R. Evid. 801(a) (eff. Oct. 15, 2015))—and the term “ ‘declarant’ ” means

the person who made the statement (Ill. R. Evid. 801(b) (eff. Oct. 15, 2015)). Thus, if, other than

while testifying at the trial or hearing, A stated, “B abused me,” the statement would be hearsay

if, at the trial or hearing, the statement were offered in evidence to prove that B abused A. See Ill.

R. Evid. 801(c) (eff. Oct. 15, 2015). As hearsay, the statement would be inadmissible unless a

rule of the supreme court or a statute made the statement admissible. See Ill. R. Evid. 802 (eff.

Jan. 1, 2011).

¶ 122 Section 115-10 of the Code (725 ILCS 5/115-10 (West 2024)) creates exceptions

to the ban on hearsay evidence. One of the exceptions applies to “a prosecution for a *** sexual

act perpetrated upon or against a child under the age of 13.” Id. § 115-10(a). Subsections (a)(1)

and (2) of section 115-10 provide that two kinds of “testimony,” though hearsay, “shall be

admitted” under this exception:

“(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

- 32 - (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.” Id. § 115-10(a)(1)-(2).

So, if A testifies, “I told C, ‘B abused me,’ ” A’s testimony would potentially be admissible even

if its purpose were to prove the truth of the out-of-court statement it recounts (that B abused A),

making the statement hearsay. See id. § 115-10(a)(1). Likewise, if C testifies, “A told me, ‘B

abused me,’ ” C’s testimony would potentially be admissible even if its purpose were to prove

the truth of the out-of-court statement it recounts (that B abused A), making the statement

hearsay. See id. § 115-10(a)(2).

¶ 123 We say “potentially” because subsection (b) imposes conditions for the admission

of such testimony containing hearsay:

“(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; and

(3) In a case involving an offense perpetrated against a child under

the age of 13, the out of court statement was made before the victim

attained 13 years of age or within 3 months after the commission of the

- 33 - offense, whichever occurs later, but the statement may be admitted

regardless of the age of the victim at the time of the proceeding.” Id.

§ 115-10(b).

¶ 124 Defendant notes, “The [circuit] court allowed the state to admit [at trial] three

purported statements of both [A.M.O.] and [A.L.O.] [Citation.] The statements were purportedly

made to their mother, a nurse [(Sharp)], and a forensic interviewer [(Deuth)].” In their

out-of-court statements, the children asserted that defendant had touched them sexually. The

State’s purpose in offering the children’s out-of-court statements at trial, via the testimony of the

mother, Sharp, and Deuth, was to prove the truth of what the statements asserted: that defendant

had touched the children sexually. Therefore, the out-of-court statements by the children were

hearsay. See Ill. R. Evid. 801(c) (eff. Oct. 15, 2015); 725 ILCS 5/115-10(a)(1), (2) (West 2024).

Defendant contends that a statutory condition for the admission of this hearsay was unfulfilled,

namely, that “the time, content, and circumstances of the statement[s] provide[d] sufficient

safeguards of reliability.” 725 ILCS 5/115-10(b)(1) (West 2024).

¶ 125 Defendant “acknowledges,” however, “that counsel failed to object to the

admission of the hearsay statements at trial and therefore forfeited the issue on appeal.” In its

brief, the State agrees with defendant’s acknowledgment of forfeiture.

¶ 126 In conceding the procedural forfeiture, defendant is correct. To preserve for

appeal the issue of whether the circuit court erred by admitting hearsay, defendant not only had

to make a hearsay objection at trial, but he had to assert, in a posttrial motion, that the court had

erred by overruling the hearsay objection. See People v. Enoch, 122 Ill. 2d 176, 186 (1988);

People v. Walker, 255 Ill. App. 3d 10, 19-20 (1993). Although, at the pretrial hearing that the

court held pursuant to section 115-10(b)(1), defense counsel objected to the children’s hearsay

- 34 - statements, he did not make hearsay objections to the statements when the State offered them in

evidence at trial, nor did he claim, in the posttrial motion, that the statements were inadmissible

hearsay. Because defendant (through his defense counsel) failed to take the preservative

measures that Enoch requires, the issue of whether the children’s out-of-court statements were

inadmissible hearsay is forfeited. See Enoch, 122 Ill. 2d at 186; Walker, 255 Ill. App. 3d at 19-

20.

¶ 127 B. Purported Ineffective Assistance by Causing the Forfeiture

¶ 128 Even though the issue of whether the children’s out-of-court statements were

inadmissible hearsay is forfeited, defendant has not forfeited a claim that defense counsel

rendered ineffective assistance by causing the forfeiture—and defendant now makes that claim,

on appeal. See People v. Jefferson, 2021 IL App (2d) 190179, ¶ 26 (“The ineffectiveness of trial

counsel may properly be raised for the first time on appeal.”); People v. Watson, 2012 IL App

(2d) 091328, ¶ 21 (“A defendant may raise an ineffective-assistance claim on direct appeal when

the basis of the claim can be ascertained from the record.”).

¶ 129 Under the sixth amendment to the United States Constitution (U.S. Const., amend.

VI), a criminal defendant has the right to counsel. This right to counsel includes the right to

effective—which is to say, adequate or competent—representation by counsel. Strickland v.

Washington, 466 U.S. 668, 686 (1984); People v. Boose, 2025 IL App (4th) 231467, ¶ 30;

People v. Olsen, 2023 IL App (4th) 220738-U, ¶ 32.

¶ 130 “The remedy for a valid claim of ineffective assistance of counsel should be

tailored to the injury from the constitutional violation and should not unnecessarily infringe on

competing interests.” People v. Patrick, 2011 IL 111666, ¶ 35. The remedy that defendant seeks

is a new trial, which is a recognized remedy for ineffective assistance (see id.).

- 35 - ¶ 131 To obtain that remedy, defendant must carry his burden of showing ineffective

assistance. See People v. Haynes, 2024 IL 129795, ¶ 37. We decide de novo whether he has

carried that burden. See Jefferson, 2021 IL App (2d) 190179, ¶ 26. (Necessarily, our standard of

review is de novo. It would be impossible to be deferential toward the circuit court’s decision on

the ineffectiveness claim, for there was no decision by the circuit court on the ineffectiveness

claim. Rather, defendant raises the claim, for the first time, on appeal.)

¶ 132 To carry his burden of showing he received ineffective assistance from defense

counsel, defendant must establish two propositions: first, “the identified acts or omissions” by

counsel “were outside the wide range of professionally competent assistance.” Strickland, 466

U.S. at 690. Second, the professionally unreasonable performance caused prejudice to the

defense (see id. at 693). Prejudice is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

¶ 133 Defendant argues that, for two reasons, no reasonable defense counsel would have

allowed the section 115-10 issue to be procedurally forfeited. First, according to defendant, the

children’s statements to Sharp and Deuth failed to satisfy the criteria of admissibility in section

115-10(b)(1) because “the state failed to present any facts about a prior forensic interview done

before those statements”—by which defendant means Busken’s interviews of the children on

February 1, 2022. Second, defendant contends that, regardless of Busken’s prior interviews of

the children, the out-of-court statements by the children “lacked sufficient safeguards of

reliability.” See 725 ILCS 5/115-10(b)(1) (West 2024) We will consider those two contentions

one at a time.

¶ 134 1. The Lack of Testimony Regarding Busken’s Interviews of the Children

- 36 - ¶ 135 On the authority of People v. Zwart, 151 Ill. 2d 37 (1992), and People v.

Simpkins, 297 Ill. App. 3d 669 (1998), defendant argues that because the State “failed to present

any information related to the substance” of the February 2022 interviews of the children by

Busken—“no testimony or exhibit describing what occurred during the February interview: no

information about the questions posed, the manner in which they were asked, or the children’s

responses”—the statements the children made after Busken’s interview of them lacked

“ ‘sufficient safeguards of reliability’ ” (quoting 725 ILCS 5/115-10(b)(1) (West 2024)).

¶ 136 That argument requires an understanding of Zwart and Simpkins. Therefore, we

proceed to a discussion of those two cases.

¶ 137 In Zwart, at a bench trial, the circuit court found the defendant guilty of

aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, ¶¶ 12-14) and sentenced him to

imprisonment. Zwart, 151 Ill. 2d at 38. On appeal, Zwart contended that, at a pretrial hearing

pursuant to section 115-10(b)(1), the court erred by overruling his attorney’s hearsay objection to

statements the three-year-old victim made to her mother on July 1 and 14, 1988. Id. at 43. The

supreme court agreed that the circuit court had abused its discretion by admitting the victim’s

hearsay statements to the mother. Id. at 44.

¶ 138 The victim’s delay in making her first statement to her mother—“approximately

five weeks after the abuse occurred”—and her initial denial of abuse were troubling to the

supreme court. Id. at 45. The supreme court noted, however, that, “as a general rule, delay in

reporting abuse or initial denials of abuse will not automatically render a victim’s statements

inadmissible under section 115-10.” Id. at 46.

¶ 139 The circumstances surrounding the victim’s statements to her mother were more

problematic to the supreme court. See id. at 44. On June 27 and 30, 1988 (id. at 40), before

- 37 - making her statements to her mother implicating the defendant, “the victim was interviewed by

at least three persons respecting the alleged sexual abuse (i.e., a Park Forest police officer, a

DCFS worker and a counselor at Mount Sinai Hospital),” and “[t]he State failed to introduce any

evidence regarding the substance of” those prior interviews (emphasis in original) (id. at 44). The

supreme court observed that, “[w]ithout such evidence, it was impossible for the trial court to

determine whether the victim was questioned in a suggestive manner or was encouraged to

accuse the defendant of sexual abuse.” Id. at 44-45. As the proponent of the victim’s statements

to her mother, the State had “the burden of establishing that the statements were reliable and not

the result of adult prompting or manipulation.” Id. at 45. “A trial court should not presume from

a silent record that suggestive interview techniques were not used.” Id. Absent evidence of the

substance of the interviews preceding the victim’s statements to her mother, “the State failed to

demonstrate that the circumstances surrounding the victim’s statements support the reliability of

those statements, as required by section 115-10” (id.), and the circuit court, therefore, abused its

discretion by admitting the statements under the hearsay exception in section 115-10 (id. at 44).

¶ 140 On the authority of Zwart, the Fourth District held, in Simpkins, 297 Ill. App. 3d

at 676, that the circuit court had erred by admitting a hearsay statement pursuant to section

115-10. In Simpkins, a child protective services investigator with DCFS, Mel Devall, interviewed

six-year-old K.S. at her grade school regarding allegations that the defendant had (1) physically

abused K.S. and her siblings and (2) sexually abused an older sibling, D.D. Id. at 671. In the

interview at the school, K.S. divulged to Devall that the defendant had touched her sexually. Id.

at 672.

- 38 - ¶ 141 This interview at the school, however, was not the first time Devall interviewed

K.S. See id. About a month earlier, he interviewed her regarding a report that a grandfather (as

distinct from the defendant) had sexually abused D.D. Id.

¶ 142 On the basis of the second interview, the interview at the school, the State charged

the defendant with aggravated criminal sexual assault of K.S. (see 720 ILCS 5/12-14(b)(1) (West

1992)). Simpkins, 297 Ill. App. 3d at 671-72. Pursuant to section 115-10, the State filed a notice

of intent to introduce into evidence at trial the statements K.S. made to Devall in that interview.

Id. at 671. At the section 115-10 hearing, Devall acknowledged he could not specifically recall

the questions he asked K.S. when he interviewed her a month before interviewing her at the

school. Id. at 672. Nevertheless, the circuit court determined that the statements that K.S. made

to Devall in the second interview were admissible under section 115-10. Id. at 673.

¶ 143 That determination was, the Fourth District held, an abuse of discretion (id. at

678-79) because, at the section 115-10 hearing, the State presented no evidence regarding the

substance of Devall’s first interview of K.S.—and, indeed, Devall acknowledged, at the hearing,

that he was unable to recall the questions he asked K.S. in the first interview (id. at 676). The

Fourth District reasoned as follows:

“Although the prior interview in this case dealt with allegations of sexual abuse of

a sibling by someone other than defendant, without any evidence of the substance

of that interview, it is impossible to determine to what extent Devall discussed the

alleged sexual abuse by the grandfather or whether Devall questioned K.S. in a

suggestive manner or somehow intimated that defendant was also a sexual abuser.

See Zwart, 151 Ill. 2d at 45 *** (‘A trial court should not presume from a silent

record that suggestive interview techniques were not used.’). Evidence as to what

- 39 - transpired during the prior interview was particularly important here because

K.S.’[s] age made her susceptible to suggestion from outsiders.” Id. at 677.

The Fourth District interpreted Zwart as teaching that if the child were interviewed shortly before

the interview that the State sought to have admitted under section 115-10, the State had to

“affirmatively establish the content of the previous interview and *** affirmatively demonstrate

that [the previous interview] did not compromise the reliability of the proffered statement.” Id. If

the State provided no evidence “regarding the substance and circumstances of the prior

interview, the proffered statement should not be admitted unless other factors strongly suggest

that the statement is reliable and not the result of suggestiveness by others.” Id.

¶ 144 The State argues that Zwart and Simpkins are distinguishable from the present

case because, “[a]s defendant concedes in his brief, the substance of the February 2022

interviews was admitted, without objection, at the pretrial hearing through People’s Exhibit 1.”

To quote defendant’s brief, People’s exhibit No. 1, “admitted at the pretrial hearing, contained a

flash drive with multiple videos,” including “copies of forensic interviews conducted in February

of 2022.” In short, then, Busken’s interviews of the children from February 2022 were video

recorded, and those interviews were on the flash drive, People’s exhibit No. 1, for the circuit

court to view, along with all the other videos.

¶ 145 In his reply brief, defendant maintains, however, that “the mere presence of an

interview on a flash drive does not establish the foundational facts required by section 115-10,

and without evidence concerning the interview’s substance and circumstances, the State failed to

meet its burden to show that the later hearsay statements were trustworthy.” The logic of this

response is difficult to follow. The circuit court could view the videos of Busken interviewing

the children, hear the questions she asked them, and thereby ascertain whether her questions

- 40 - were leading or suggestive. Defendant argues, “No witness explained what questions were asked,

whether the children were prompted, coached, or led, or whether the later statements to Sharp

and Deuth were influenced by that interview.” It is unclear, though, why such a witness would be

needed when the court could see and hear for itself, by viewing the February 2022 videos, what

questions were asked and whether the children were prompted, coached, or led. For that purpose,

the videos of Busken’s interviews surely were more reliable than a secondhand testimonial

description of the interviews would have been. Because the February 2022 videos were in

People’s exhibit No. 1 for the court to view for itself, it would have been within “the wide range

of reasonable professional assistance” for defense counsel to have regarded Zwart and Simpkins

as inapplicable. Strickland, 466 U.S. at 689.

¶ 146 Defendant complains, however, that no foundation was laid for the admission of

the February 2022 videos. The problem in Zwart, however, was not the lack of a foundation for

the admission of the prior interviews. Rather, the problem in Zwart was that “[t]he State failed to

introduce any evidence regarding the substance of” the prior interviews. (Emphasis in original.)

Zwart, 151 Ill. 2d at 44. Likewise, the problem in Simpkins was not a lack of a foundation for the

admission of the prior interview. Rather, the problem was the State’s failure to present “any

evidence of the substance of that interview.” Simpkins, 297 Ill. App. 3d at 677. That problem

does not exist in the present case. There could have been no better evidence of the substance of

the interviews than accurate videos of the interviews. Therefore, Zwart and Simpkins are

distinguishable.

¶ 147 Granted, as defendant points out, no foundation was laid in the pretrial hearing for

the admission of the February 2022 videos. The purpose of a foundation would have been to

prove that the videos were accurate portrayals of the interviews. See Ill. R. Evid. 901(b)(1), (9)

- 41 - (eff. Sept. 17, 2019); People v. Vaden, 336 Ill. App. 3d 893, 899 (2003). To prove prejudice,

however, from defense counsel’s allowing a foundational objection to be forfeited (see People v.

DeHart, 2025 IL App (4th) 231554-U, ¶ 103), defendant would have to show that, but for

defense counsel’s failure to make a foundational objection to the February 2022 videos, there

would have been a reasonable probability of a different outcome in this case. See Strickland, 466

U.S. at 694. Defendant has not made such a showing. Generally, “errors in laying a foundation

are easily cured” (internal quotation marks omitted) (People v. Korzenewski, 2012 IL App (4th)

101026, ¶ 7), and it seems likely that if defense counsel had insisted that the State lay a

foundation for the February 2022 videos, the State could have done so.

¶ 148 2. The Claim of Unreliability Apart From the Prior Interviews by Buskens

¶ 149 Defendant contends that, regardless of any concerns about the February 2022

interviews, the out-of-court statements by the children lacked “ ‘sufficient safeguards of

reliability’ ” (quoting 725 ILCS 5/115-10(b)(1) (West 2024)), and, therefore, defense counsel

rendered ineffective assistance at trial by failing to make hearsay objections to the statements.

¶ 150 Most likely, though, if, at trial, defense counsel had made hearsay objections to

the children’s out-of-court statements, the circuit court would have overruled the objections, as it

had done at the pretrial hearing. If history is a guide, the element of prejudice is problematic.

“Under Strickland, a defendant alleging that his counsel was ineffective has the burden of

showing both deficiency and prejudice.” People v. White, 2025 IL App (4th) 230700, ¶ 59.

Prejudice from the deficient performance is shown where there is “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

(Internal quotation marks omitted.) Id. Because deficient performance and resulting prejudice are

both essential elements of an ineffective assistance claim, we can bypass the question of whether

- 42 - defense counsel’s performance was deficient and proceed directly to the question of whether

defendant has shown that the defense suffered prejudice from the lack of hearsay objections at

trial. See id. ¶ 60.

¶ 151 The most reliable indication of how the circuit court would have ruled on hearsay

objections if defense counsel had made them at trial was how the court ruled when, at the

conclusion of the pretrial hearing, defense counsel made a hearsay objection to the children’s

out-of-court statements. At the hearing pursuant to section 115-10(b)(1), after admitting People’s

exhibit No. 1 and ruling that it could be published, the court overruled defense counsel’s hearsay

objection. There is no reasonable probability that the court would have ruled differently if, at

trial, defense counsel had made the same hearsay objection as before.

¶ 152 To be sure, the State, like defendant, “has no entitlement to the luck of a lawless

decisionmaker.” Strickland, 466 U.S. at 695. Rather, “[t]he assessment of prejudice should

proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially

applying the standards that govern the decision. It should not depend on the idiosyncrasies of the

particular decisionmaker, such as unusual propensities toward harshness or leniency.” Id.

Defendant contends that, for six reasons, it would not have been a reasonable application of

section 115-10(b)(1) to overrule hearsay objections to the children’s out-of-court statements if

defense counsel had made such hearsay objections at trial but that, rather, the overruling of such

objections would have been an abuse of discretion. See People v. Sharp, 391 Ill. App. 3d 947,

955 (2009) (“A reviewing court will reverse a trial court’s determination pursuant to section

115-10 of the Code only when the record demonstrates that the court abused its discretion.”).

¶ 153 First, according to defendant, “the record reflects direct evidence of coaching by

the children’s mother.” He describes this evidence as follows:

- 43 - “[A.L.O.] admitted during her forensic interview that her mother told her what to

say, but that she ‘forgot.’ [Citation.] [A.M.O.] likewise explained that her mother

told her to talk about ‘Joe’ and to say that he ‘put something in her mouth for

sleeping.’ [Citation.] [A.M.O.] told the interviewer, when asked why she was

there, ‘I don’t know, I need my mom to help me.’ [Citation.] Both children

described information they could only have learned from [Andria], such as claims

that [defendant] had abused his sisters or ‘went too far.’ [Citations.] [A.L.O.]

stated that she could not ‘remember what [her] mom said’ when asked why she

was at the advocacy center talking to the interviewer, and told Ms. Deuth that her

mom told her what to talk about, that they talked about it in the car, and that her

mom told her what to tell but she forgot. [Citation.] *** [A.L.O.] stated that there

were cameras in ‘each angle of the room,’ a turn of phrase different from the

language that she uses through the rest of the interview.”

Mostly what Andria had told the children to talk about, however, was speculation that seemed

calculated to put her in a better light—given the children’s own allegations that defendant had

sexually assaulted them, sometimes in her immediate presence. She wanted the children to

explain to Deuth that defendant must have put something in her mouth to cause her to sleep

heavily (and that this postulated drugging was why she had failed to protect the children from

their abuser). Granted, then, Andria coached the children in that respect, but she did not thereby

coach them to accuse defendant, in the first place, of sexually touching them while she was

scarcely an arm’s length away.

¶ 154 The danger in coaching children, or in suggesting to them what to say, is that the

“interviewer’s words or procedures” will “move the child to imagine some event or some of its

- 44 - details” and “the child will thereafter accept the fantasy as a memory.” John R. Christiansen, The

Testimony of Child Witnesses: Fact, Fantasy, and the Influence of Pretrial Interviews, 62 Wash.

L. Rev. 705, 710 (1987). In other words, children are “vulnerable to memory falsification

through *** commonplace forms of suggestion.” Id. A reasonable decision-maker could

conclude, in this case, that the children’s memories were uncorrupted. It could be argued that,

generally, in Deuth’s interviews of them, the children made clear distinctions between what they

had experienced themselves and what they had heard from their mother: it was their mother who

had said that defendant must have put something in her mouth, it was their mother who had said

that defendant had sexually abused his sister, and it was their mother who said that defendant had

given them urinary tract infections. The children were clear about that. Generally, in their

conversations with Deuth, the children drew distinctions between the information that had come

from their mother and the information that they themselves were providing, explicitly

differentiating between the two types of information. The circuit court could have reasonably

found that the children’s basic allegations that defendant had touched them in their private parts

with his finger and tongue were uncoached because Andria testified that, before the children

made these allegations, it never occurred to her that defendant might have been sexually

assaulting them. The court had the right to believe Andria in that respect and to disbelieve

defendant when he testified that, every time he and Andria argued, she accused him of sexually

abusing the children. See People v. Embry, 249 Ill. App. 3d 750, 766 (1993) (“A reviewing court

cannot substitute its judgment for that of the fact finder on questions involving the weight of the

evidence or the credibility of the witnesses.”). For those reasons, we are unconvinced that it

would be an abuse of discretion to find that the children’s memories of the sexual assaults were

unfalsified by coaching or suggestion by adults. See Sharp, 391 Ill. App. 3d at 955.

- 45 - ¶ 155 Second, defendant contends that “the circumstances of the disclosures contained

inconsistencies and contradictions that further undermined their trustworthiness.” On the one

hand, in her statement to the DeKalb police, Andria said that the children had disclosed the abuse

to Lagambina first and immediately afterward to her. On the other hand, in her testimony at the

pretrial hearing and at trial, Andria denied that the children had disclosed the abuse to

Lagambina first and insisted that, instead, they had disclosed it to her first. Likewise, A.M.O.’s

testimony at trial differed, in some details, from her earlier statements. On the one hand, when

Deuth was interviewing her, A.M.O. stated that the abuse “happened every place we went.” On

the other hand, in her testimony at trial, A.M.O. stated that the abuse happened only at the white

house in Rockford and not at the 7th Avenue apartment. Also, on the one hand, when Deuth was

interviewing her, A.M.O. stated that defendant abused her when she was sleeping in the same

bed with him, her mother, and her sister. On the other hand, in her testimony at trial, A.M.O.

stated that defendant abused her only in her bedroom and not in any other room of the house.

¶ 156 We agree with defendant that those are indeed discrepancies in the evidence. We

disagree, however, that in every reasonable mind those discrepancies would necessarily

undermine the trustworthiness of the earlier statements. A decision-maker could reasonably take

the view, instead, that the earlier statements were trustworthy because they were closer in time to

the events to which they related and that the discrepancies that emerged in the evidence at the

pretrial hearing or at trial resulted from the fading of memories over time. In other words, the

circuit court could have evaluated the trial testimony in the light of the earlier statements instead

of the earlier statements in the light of the trial testimony.

¶ 157 Third, defendant argues that both the children and Andria had a motive to

fabricate the allegations against him, considering that, on repeated occasions, he yelled at Andria

- 46 - alarmingly enough that she felt the need to call the police; he threw and lost A.L.O.’s favorite

toy, causing her to cry; and he stood in front of the vehicle and clung to it as Andria and the

children attempted to leave him. Defendant cites Simpkins, 297 Ill. App. 3d at 676, for the

proposition that a “[m]otive to fabricate, especially in custody or family-conflict settings, may

undermine the trustworthiness of a child’s hearsay.”

¶ 158 That is a fair interpretation of Simpkins, but the operative word is “may,” whereas

we are looking for an abuse of discretion. See Sharp, 391 Ill. App. 3d at 955. The appellate court

held, in Simpkins, that “the lack of motive to fabricate” was only one “factor[ ]” that was

“important in making the reliability determination” (Simpkins, 297 Ill. App. 3d at 676), not that

this factor was determinative or that the circuit court necessarily abused its discretion by finding

that the child’s statement was reliable despite the fact that the child and his or her parent had

other reasons to be disaffected against the defendant.

¶ 159 Fourth, defendant claims that “the level of detail and apparent language used in

the later statements raises additional concerns.” He points out that “[t]he use of terminology

beyond a child’s developmental level can suggest adult prompting.” One of the “factors” that are

“important in making the reliability determination” is “use of terminology unexpected of a child

of similar age.” Id. In this regard, defendant maintains, “[A.L.O.’s] and [A.M.O.’s] use of terms

like ‘went too far’ and their references to sleeping medication or that [defendant] ‘put something’

in their mother’s mouth mirrored adult phrasing and things said by their mother rather than the

natural vocabulary of six- and eight-year-olds.”

¶ 160 Not every reasonable mind would necessarily be convinced that the phrase “went

too far” is beyond the linguistic resources of a naturally speaking six- or eight-year-old. The

phrase is made up of simple, single-syllable words, and it is a phrase that a young girl might use.

- 47 - ¶ 161 Admittedly, sleeping pills would be outside the experience of most young

children, but A.M.O. told Deuth, “[M]y mom told me it was, like, the sleeping pill,” and again

A.M.O. told Deuth that her mother “said tell them about that.” (Emphases added.) A.M.O.’s

recounting to Deuth what her mother, Andria, said—and presenting it as something that Andria,

as distinct from A.M.O., said—was merely accurate reporting of the facts, not a falsification of

memory. It is not that, in this respect, A.M.O. presented her mother’s words as her own words.

¶ 162 We grant that “vagina” is probably not a word that typical six- or eight-year-olds

would use. Defendant argues that “[s]uch adult-influenced language further indicates

contamination.” But there could be an alternative explanation. It could be that, contrary to

Andria’s testimony at the pretrial hearing, the children never used the word “vagina,” and by the

time of the pretrial hearing, the passage of time had caused Andria to incorrectly remember the

precise language the children used when they disclosed the abuse to her years before. Neither in

Busken’s interviews nor in Deuth’s interviews did either of the children use the word “vagina.”

Therefore, arguably, it was unlikely they used that word when disclosing the abuse to their

mother.

¶ 163 Fifth, defendant argues “there was no detail as to the spontaneity of the statements

to Ms. Sharp,” and he observes that A.L.O. never told Sharp that defendant had touched her

private parts with his mouth. Among the factors a circuit court should consider when assessing

the reliability of a child’s out-of-court statement are “the child’s spontaneity and consistent

repetition of the incident.” Id. The factor of spontaneity, however, is inapplicable to the

children’s statements to Sharp. That factor is more relevant to their original disclosure to

Lambagina or their mother. Once they made their original disclosure, there inevitably would be,

afterward, some degree of prompting, implied or explicit, for them to discuss the sexual abuse

- 48 - further, and complete spontaneity would be gone. Sharp’s very act of examining the children’s

genital areas already presupposed that the children might have been subjected to bad touching.

Medical histories are typically not spontaneous. In examining the affected part, the doctor or

nurse practitioner asks what happened. It does not follow that medical histories are unreliable

due to a lack of spontaneity. Arguably, children, like adults, would understand that, for the nurse

to be able to help them, they must be truthful about what happened. A six- or eight-year-old child

probably would perceive that the nurse was trying to help her by looking for any injury—and

that, in this endeavor, the child needed to help the nurse help her.

¶ 164 We take defendant’s point that, in A.L.O.’s statement to Sharp, there was no

consistent repetition by A.L.O. of her allegation that defendant had touched her private parts

with his mouth. Even so, A.L.O. repeated other details: that defendant touched, with his fingers,

the area she peed from; that he did so at night, while her mother was snoring; and that A.L.O.

had seen defendant touch A.M.O., too. Therefore, we are unconvinced that, by finding that the

children’s statements to Sharp were sufficiently reliable, the circuit court abused its discretion.

See Sharp, 391 Ill. App. 3d at 955.

¶ 165 Sixth, defendant argues that “the amount of time between the alleged abuse

beginning and the disclosure indicates a lack of reliability.” The supreme court has held,

however, that, “as a general rule, delay in reporting abuse *** will not automatically render a

victim’s statements inadmissible under section 115-10.” Zwart, 151 Ill. 2d at 46. The circuit

court could have reasonably decided that the delay was outweighed by the repetition of details

from Busken’s interviews to Deuth’s interviews. See Simpkins, 297 Ill. App. 3d at 676.

¶ 166 In sum, then, we find that there would have been no reasonable probability of a

different outcome if, at trial, defense counsel had made hearsay objections to the children’s

- 49 - out-of-court statements. At the pretrial hearing pursuant to section 115-10(b)(1), the circuit court

had already ruled that the statements were admissible under the statutory exception to the

hearsay rule. The record appears to give no reason for supposing that the court would have ruled

differently at trial. The ruling of admissibility under section 115-10 was not, for the State, “the

luck of a lawless decisionmaker.” Strickland, 466 U.S. at 695. In other words, we are

unconvinced that the ruling was an abuse of discretion (see Sharp, 391 Ill. App. 3d at 955), or

that it was an arbitrary ruling or one with which no reasonable person could agree (see People v.

Cook, 2018 IL App (1st) 142134, ¶ 29).

¶ 167 III. CONCLUSION

¶ 168 For the reasons stated, we affirm the circuit court’s judgment.

¶ 169 Affirmed.

- 50 -