NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2026 IL App (3d) 250056-U
Order filed March 9, 2026 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-25-0056 v. ) Circuit No. 24-CF-127 ) MARQUAN IVY, ) Honorable ) Kathy Bradshaw-Elliott Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court. Justices Peterson and Bertani concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The court erred when it admitted evidence of other crimes through a recorded interview. However, the error was harmless. The statute permitting minors to testify via closed circuit television is not facially unconstitutional.
¶2 The defendant, Marquan Ivy, appeals his convictions of two counts of predatory criminal
sexual assault of a child and one count of aggravated criminal sexual abuse. He argues (1) the court
improperly admitted evidence of other crimes by allowing the State to publish to the jury
allegations of crimes other than the ones with which he was charged through a recorded interview, and (2) the statute permitting the victim to testify via closed circuit television is facially
unconstitutional.
¶3 I. BACKGROUND
¶4 The defendant was charged by indictment with four counts of predatory criminal sexual
assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2022)) and one count of aggravated criminal
sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2022)). The State alleged that on May 19, 2023,
the defendant placed his penis in the vagina of C.D.P. It further alleged that in June of 2023, the
defendant again placed his penis in the vagina of C.D.P., placed his penis in the mouth of C.D.P.,
and touched the breast of C.D.P. for the purposes of sexual arousal or gratification. The defendant
denied these allegations.
¶5 Prior to trial, the State filed three motions in limine. The first was a motion requesting to
admit statements made by C.D.P. to her mother and an interview recorded at the Child Advocacy
Center (CAC) pursuant to a statutory exception to the hearsay rule. 725 ILCS 5/115-10 (West
2022). The second was a motion to allow the victim to testify by closed-circuit television (CCTV)
pursuant to 725 ILCS 5/106B-5 (West 2022). The third was a motion requesting permission to
present evidence of “other sexual acts by the defendant against the victim” through the recorded
CAC interview. The court held hearings on each motion and granted each motion in turn.
¶6 At trial, the victim’s mother, Sarah Whitaker, testified that she and her daughter, C.D.P.,
moved into an apartment in 2022. At that time, C.D.P. was nine years old, and C.D.P.’s younger
brother also lived with them. About one week later, C.D.P.’s older brother, the defendant, moved
in with them. The defendant was eighteen at the time. He initially slept in the living room, but
eventually he moved into C.D.P.’s room because there were two beds in that room. The
2 defendant’s girlfriend also lived in the apartment and shared the same bedroom. The defendant
moved out of the apartment in early February 2024.
¶7 Whitaker stated that on February 20, 2024, she was picking up food with C.D.P., and she
did not seem like herself. When Whitaker inquired, C.D.P. stated that she was being sexually
assaulted. Whitaker took her to the hospital and arranged for C.D.P. to be interviewed by the CAC.
¶8 The State called C.D.P. to testify. She testified via CCTV in a room next to the court room,
and she was joined in that room by the judge, defense counsel, the prosecutor, and a court reporter.
The jury and the defendant remained outside the room while C.D.P. testified. She stated that she
shared a bedroom with the defendant and his girlfriend. On May 19, 2023, she was at home with
her younger brother and the defendant, and the defendant came into C.D.P.’s room, took off
C.D.P.’s clothes, and started touching her breasts. She told him to stop, but he continued. He then
put his penis in her vagina. She testified that she was afraid.
¶9 C.D.P. also stated that in June of 2023, the defendant started touching her breasts in the
bathroom. Again, she told him to stop, but he continued. Again, he removed her clothes and put
his penis in her vagina. She stated that she was scared and nervous.
¶ 10 C.D.P. was interviewed at the Child Advocacy Center by Ericka Erickson. Erickson
testified that she interviewed C.D.P. on February 22, 2024, and the interview was recorded. When
the State announced its intention to publish the recorded interview, the defense filed a written
motion requesting to limit the publication of the video to statements concerning the events of May
19, 2023, and June of 2023, and specifically to exclude portions of the recording that described
other instances of sexual abuse. The motion focused on the prejudicial nature of other crimes
evidence and stated that “[t]he purpose of a video brought in as a hearsay exception pursuant to
725 ILCS 5/115-1[0] is to assist in corroborating the claim made by the victim. In our case, there
3 is nothing to corroborate as C.D.P. only testified to two instances [of abuse].” The court denied
the motion, and the CAC interview was admitted and published in its entirety.
¶ 11 During the recorded interview, C.D.P. told Erickson that she had been sexually abused by
the defendant beginning in 2020. She stated that the defendant would take her clothes off, squeeze
her “boobs” and “butt” with open hands, massage her “hoo-ha,” and place his “p-word” in her
“hoo-ha.” She used anatomical diagrams to clarify that the words “hoo-ha” and “p-word” referred
to female and male genitalia, respectively. The recorded interview contained a description of the
events of May 19, 2023, wherein C.D.P. told Erickson that the defendant touched her breasts with
his hands and placed his “p-word” in her “hoo-ha.” She stated that the defendant “molested” her
“repeatedly” until he moved out of the apartment with his girlfriend. He continued to abuse her
“every month,” including in June of 2023, which was the first time the defendant made her suck
his “p-word.” She told Erickson that the last time the defendant abused her was on January 7 or
January 8, 2024, and that he had placed his “p-word” in her “hoo-ha,” and touched her “boobs”
with his hands until “white stuff” came out of his “p-word.”
¶ 12 The defendant testified. He denied sexually abusing C.D.P., and he stated that while he
lived with his mother and C.D.P. there was always another adult at home with the younger children.
At least two other adult men lived at that apartment at different times, the defendant’s girlfriend
was also present at the apartment while the defendant was living there in 2023 and 2024, and a
fourth person lived in the apartment in early May of 2023. The defendant testified he was never at
home alone with C.D.P., and he specifically denied undressing her, grabbing her breasts, grabbing
her buttocks, placing his penis in her mouth, and placing his penis in her vagina.
¶ 13 The jury found the defendant guilty of two counts of predatory criminal sexual assault for
placing his penis in C.D.P.’s vagina on May 19, 2023, and placing his penis in C.D.P.’s mouth in
4 June of 2023, and one count of criminal sexual abuse for knowingly touching the breast of C.D.P.
for sexual gratification in June of 2023. The defendant was sentenced to a total of 29 years’
imprisonment on January 30, 2025, and the defendant filed a notice of appeal the same day.
¶ 14 II. ANALYSIS
¶ 15 The defendant challenges (1) the court’s decision to allow the State to present evidence of
other crimes through a recorded statement pursuant to section 115-10 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2024)), and (2) the constitutionality of the
statute permitting victims to testify using CCTV. We review the circuit court’s decision to admit
evidence of prior misconduct for an abuse of the court’s discretion. People v. Smith, 2022 IL
127946, ¶ 25. We review the constitutionality of statutes de novo. People v. Aguilar, 2013 IL
112116, ¶ 15.
¶ 16 A. Other Crimes Evidence
¶ 17 The defendant’s first contention is that the court erred when it permitted the State to
introduce evidence of other crimes using the victim’s recorded CAC interview. The State contends
the defendant forfeited this claim by failing to object to the admission of the challenged statements
on hearsay grounds. However, the State concedes the defendant filed a written objection through
a motion in limine, which stated, in relevant part, that “[t]he purpose of a video brought in as a
hearsay exception pursuant to 725 ILCS 5/115-1[0] is to assist in corroborating the claim made by
the victim. In our case, there is nothing to corroborate as C.D.P. only testified to two instances [of
abuse].” While the majority of the defendant’s written objection focused on the prejudicial nature
of the evidence, we find the issue was properly preserved when the defendant objected to the
admission of such statements prior to trial and brought concerns about the same statements to the
court’s attention during the trial through a written motion. While “[w]e require parties to preserve
5 issues or claims for appeal; we do not require them to limit their arguments here to the same
arguments that were made below.” Brunton v. Kruger, 2015 IL 117663, ¶ 76. We will therefore
address the merits of the defendant’s argument.
¶ 18 Hearsay is generally inadmissible. However, section 115-10 of the Code provides that
“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” shall be admitted as an exception to
the hearsay rule if three criteria are met. 725 ILCS 5/115-10(a)(2) (West 2024). Those criteria are:
(1) the court finds that the time, content, and circumstances of the statement provide sufficient
safeguards of reliability, (2) the victim either testifies at the proceeding or is unavailable as a
witness and there is corroborative evidence of the act which is the subject of the statement, and (3)
if the victim is under the age of 13, the statement was made before the victim attained 13 years of
age or within 3 months after the commission of the offense, whichever occurs later. 725 ILCS
5/115-10(b)(1), (b)(2), (b)(3) (West 2024).
¶ 19 Evidence of other crimes is inadmissible to prove the defendant’s propensity to commit a
crime. People v. Bean, 137 Ill. 2d 65, 107 (1990). However, section 115-7.3 of the Code (725
ILCS 5/115-7.3 (West 2024)) offers an exception to the common law prohibition on the use of
other crimes evidence. People v. Ward, 2011 IL 108690, ¶ 25. When a defendant is tried for one
of several enumerated sex offenses, section 115-7.3(b) of the Code allows the State to introduce
evidence that the defendant also committed another of the specified offenses as evidence of the
defendant’s propensity to commit specified offenses. People v. Boyd, 366 Ill. App. 3d 84, 90
(2006). To qualify as admissible, the uncharged sex offense must be (1) otherwise admissible
under the rules of evidence, (2) of greater probative value than the associated prejudice,
6 considering factors such as proximity in time and factual similarity to the charged offense, and (3)
disclosed at a reasonable time prior to trial. Ward, 2011 IL 108690, ¶ 25. Our supreme court has
cautioned trial judges to be cautious in the admission of other-crimes evidence for the purposes of
demonstrating propensity, advising courts to engage in a “meaningful assessment of the probative
value versus the prejudicial impact of the evidence.” People v. Donoho, 204 Ill. 2d 159, 186 (2003).
¶ 20 The defendant observes that although the court in this case deemed the evidence of other
crimes admissible under section 115-7.3 of the Code, the evidence offered was not “otherwise
admissible under the rules of evidence” because the State provided the evidence solely through a
CAC interview, which was admitted pursuant to section 115-10 of the Code. Although section
115-10 is a hearsay exception, it refers specifically to acts which are “the subject of a prosecution.”
725 ILCS 5/115-10 (West 2024). Citing People v. Anderson, 225 Ill. App. 3d 636, 650-51 (1992),
the defendant contends it was error to admit statements describing uncharged offenses (offenses
that were not the subject of prosecution) through section 115-10.
¶ 21 In Anderson, the defendant was charged with abusing his adopted son, J.A., twice, in April
of 1990. At trial, J.A. testified. The State also introduced statements made by J.A. to three different
investigators. Through those witnesses, the State elicited statements regarding numerous incidents
of repeated abuse, including that the victim had been abused almost every Friday night for years.
Reviewing their testimony, we concluded it was error for the court to have admitted their
statements because “[t]he plain language of the statute limits the exception to complaints of, or
details about, sexual acts which are the subject of a prosecution.” Id. at 651.
¶ 22 The State acknowledges Anderson but contends that other cases have engaged in a “less
restrictive” reading of section 115-10. The State cites People v. Boling, 2014 IL App (4th) 120634.
In Boling, the defendant was charged with acts of sexual penetration involving his girlfriend’s
7 daughter, K.A. The State alleged that between August 2010 and May 2011, the defendant
repeatedly placed (1) his penis in her sex organ, (2) his penis in her anus, and (3) his mouth on her
sex organ. The State moved to admit statements made by K.A. to her mother and others. Following
a hearing, the court admitted those statements, which also included allegations of other crimes that
took place between 2010 and 2011. K.A. alleged the defendant had kissed her breasts and neck,
made threats against her dog and guinea pigs, and appeared to have abused her cousin during a
game of hide-and-seek. The appellate court sanctioned the use of those statements because it
deemed those facts relevant to explain the context within which the alleged charge occurred.
¶ 23 We do not find Anderson and Boling incompatible. In Boling, the State alleged abuse
spanning approximately two years, and the evidence of other crimes introduced in Boling was
contemporaneous with the charged offenses. Thus, the court was correct to consider the other
crimes evidence details “pertaining to any act which is an element of an offense which is the
subject of a prosecution.” 725 ILCS 5/115-10(a)(2) (West 2024). Conversely, the defendant in
Anderson was charged with committing abuse within a much more limited time frame.
Specifically, the State charged the defendant with committing abuse in April of 1990. The other
crimes described in Anderson predated the charged offenses by at least two years. Thus, we
observe that when the State charges specific instances of abuse within a particular time frame, it
is error to introduce hearsay statements through section 115-10 of the Code about other, uncharged
incidents that are not contemporaneous with the charged offenses. See, e.g., People v. Kinnett,
287, Ill. App. 3d 709, 716-17 (1997) (the court excluded hearsay statements about abuse that
occurred involving the same defendant but on other dates and at different locations).
¶ 24 Here, the State alleged two specific instances of abuse: one that occurred on May 19, 2023,
and one that occurred in June of 2023. The facts in this case most closely mirror those in Anderson.
8 Section 115-10 permits the introduction of evidence of offenses that are the subject of prosecution,
or details thereof. The uncharged offenses in this case occurred in 2020 and 2024 and were not
contemporaneous with the charged offenses. Thus, they were not, as the statute requires, “the
subject of prosecution.” See 725 ILCS 5/115-10(a)(2) (West 2024). It was therefore error for the
court to admit those hearsay statements under section 115-10 of the Code.
¶ 25 Nonetheless, the State contends that any error in admitting these statements is subject to
harmless error analysis. “A nonconstitutional evidentiary error is harmless if there is no reasonable
probability that the jury would have acquitted the defendant absent the error.” People v. Forrest,
2015 IL App (4th) 130621, ¶ 57. After thoroughly reviewing the evidence, we find that any error
in introducing uncharged offenses through the victim’s CAC interview was harmless beyond a
reasonable doubt. The testimony of C.D.P. was clear, detailed, and consistent with the statements
she made to her mother and to Erickson at the CAC.
¶ 26 Moreover, “the danger of undue prejudice in a section 115-7.3 case is ‘less pronounced’
than in other common-law other-crimes cases” because in those cases the legislature’s enactment
of section 115-7.3 cuts against the general rule that other-crimes evidence is per se unduly
prejudicial. People v. Adams, 2023 IL App (2d) 220061, ¶ 68. Indeed, evidence of other offenses
would have been admissible in this case had the victim herself testified to the acts. See Anderson,
225 Ill. App. 3d at 647-48. The court’s decision to admit the evidence under section 115-10 was
error; nonetheless, given the strength of the State’s case and the general admissibility of other sex
offenses in cases listed under section 115-7.3, the error was harmless beyond a reasonable doubt.
¶ 27 B. Constitutionality of Section 106B-5
¶ 28 We must note at the outset that the defendant’s framing of this issue on appeal is slightly
confusing. In the title of his brief (and at certain points during oral argument), he describes his
9 challenge to the use of CCTV as error on the part of the circuit court in this case. That is, he appears
to be claiming there was a constitutional error “as applied” to the facts of his case. Yet the
arguments contained in his brief exclusively address the facial unconstitutionality of the statute
and do not address the circuit court’s actions in this case. Facial and as-applied constitutional
challenges are not interchangeable. People v. Thomson, 2015 IL 118151, ¶ 36. As-applied
challenges require showing the statute violates the constitution “as it applies to the facts and
circumstances of the challenging party. In contrast, a facial challenge requires showing that the
statute is unconstitutional under any set of facts, i.e., the specific facts related to the challenging
party are irrelevant.” Id. When asked at oral argument to clarify what type of challenge the
defendant was raising, counsel for the defendant insisted the appeal was exclusively a facial
constitutional challenge to the statute and not an as-applied challenge. Therefore, we address only
the facial constitutionality of the statute and pass no judgment on whether it was unconstitutionally
applied in this case.
¶ 29 Statutes are presumed to be constitutional, and the party challenging the constitutionality
of a statute “bears the burden of rebutting this presumption and clearly establishing a constitutional
violation.” People v. Funches, 212 Ill. 2d 334, 339 (2004). A statute is only facially
unconstitutional if there are no circumstances under which the statute may be constitutionally
applied. United States v. Rahimi, 602 U.S. 680, 693 (2024). To prevail, the State must only
establish that the statute is constitutional in some of its applications. Id. For this reason, a facial
constitutional challenge is the “most difficult challenge to mount successfully.” United States v.
Salerno, 481 U.S. 739, 745 (1987). Additionally, statutes carry a strong presumption of
constitutionality, and courts are bound to interpret them so as to uphold their constitutionality if
reasonably possible. Hill v. Cowan, 202 Ill. 2d 151, 157 (2002).
10 ¶ 30 The defendant cites two reasons we should hold section 106B-5 unconstitutional. The first
is that it conflicts with the interpretation of the confrontation clause described in Crawford v.
Washington, 541 U.S. 36 (2004), and the second is that it contains an “unconstitutional legislative
presumption,” requiring the court to presume that a victim under the age of 13 “shall testify outside
the courtroom and the child’s testimony shall be shown in the courtroom by means of a closed
circuit television.” 725 ILCS 5/106B-5(f-5) (West 2024). We address each argument in turn.
¶ 31 In Crawford, the United States Supreme Court held that when the government seeks to
introduce an out-of-court statement at trial, the “reliability” test articulated in Ohio v. Roberts, 448
U.S. 56, 66 (1980) and Idaho v. Wright, 497 U.S. 805, 816 (1990) is not a suitable substitute for a
defendant’s right under the sixth amendment to confront and cross-examine a witness. Crawford
v. Washington, 541 U.S. at 68. There, the prosecution introduced a tape-recorded statement made
by the defendant’s wife to police officers, and the trial court permitted its admission despite the
fact that the defendant’s wife did not testify because it found the statement to bore “adequate
indicia of reliability.” Id. at 36, quoting Roberts, 488 U.S. at 66.
¶ 32 Crawford, authored by Justice Scalia, stands for the proposition that a judicial
determination of reliability is not a suitable substitute for an accused’s right to confront witnesses.
The defendant argues it also implicitly altered the holding in Maryland v. Craig, 497 U.S. 836
(1990). In Craig, the Court held that under certain circumstances a defendant’s right to
confrontation may be satisfied despite the absence of a face-to-face cross examination of the
witness. Craig, 497 U.S. at 855. Justice Scalia dissented in Craig, arguing that policy interests
should not take precedent over the rights of defendants to face their accusers. Craig, 497 U.S. at
861 (Scalia, J., dissenting). Despite this, Crawford makes no mention of Craig, and Craig has been
11 favorably cited since Crawford’s publication by the Illinois Supreme Court. See People v.
Cuadrado, 214 Ill. 2d 79, 89 (2005).
¶ 33 Other reviewing courts have commented on the apparent “tension” between Craig and
Crawford. See People v. Pope, 2020 IL App (4th) 180773, ¶ 45. Nonetheless, the two cases deal
with different aspects of the confrontation clause. See People v. Franklin, 2023 IL App (1st)
200996, ¶¶ 80-81. Crawford concerns the constitutionality of out-of-court statements made by
witnesses who do not testify, whereas the central question in Craig is whether and how the
confrontation clause may be satisfied in the absence of face-to-face confrontation between the
defendant and a witness. Thus, Craig is implicated in cases where a witness testifies, but face-to-
face confrontation is curtailed, altered, or denied, and Crawford is implicated in cases where a
statement is introduced, but a witness does not testify. Craig contemplates, as does section 106B-
5, situations in which the confrontation clause’s requirements may be met even in the absence of
face-to-face confrontation. Because Crawford neither discusses nor alters the holding in Craig,
Craig remains binding on this court, and we are required to follow it. Id. ¶ 82. We therefore decline
to find section 106B-5 unconstitutional on the basis that it conflicts with Crawford.
¶ 34 The defendant next argues that section 106B-5 contains an impermissible presumption.
Section 106B-5(f-5) creates a “rebuttable presumption” that a child under 13 years of age “shall
testify outside the courtroom and the child’s testimony shall be shown in the courtroom by means
of a [CCTV].” 725 ILCS 5/106B-5(f-5) (West 2024). The presumption can only be overcome if
the defendant is able to prove “by clear and convincing evidence that the child victim will not
suffer severe emotional distress.” Id. The defendant notes the Supreme Court’s decision in Coy v.
Iowa, 487 U.S. 1012 (1988), wherein the Court found that the placement of a screen between the
defendant and a child victim violated the defendant’s right to confront the witness. Coy, 487 U.S.
12 at 1021. The Court in Coy observed that eliminating face-to-face confrontation requires the court
to make individualized findings that a particular witness requires special protection. Id. The
defendant argues that section 106B-5(f-5) is “similar to the presumption in [the Iowa statute],
which Coy rejected.”
¶ 35 However, the defendant misapprehends the significance of Coy. The Court in Coy did not
“reject” the Iowa statute at issue. Instead, the Court found a constitutional violation based on how
the statute was applied to a particular defendant, i.e., the court found an as-applied constitutional
violation. Specifically, the court found that the defendant’s right to face-to-face confrontation was
denied without the court having made any individualized findings. Coy, 487 U.S. at 1021. The
facial challenge brought by the defendant requires the defendant to establish that section 106B-5
is unconstitutional in all applications. Rahimi, 602 U.S. at 693.
¶ 36 To the extent Coy has any bearing on the question of whether section 106B-5 is facially
unconstitutional, it suggests that courts must make individualized findings to justify the denial of
traditional face-to-face confrontation between defendants and witnesses. See Coy, 487 U.S. at
1021. Although subsection (f-5) requires the court to presume that a victim under the age of 13
requires the use of a CCTV to testify, that presumption, by the statute’s own terms, is rebuttable.
Because the statute permits the court to make the required individualized findings, it may be
constitutionally applied and does not offend Coy or any other precedent. We therefore find that
section 106B-5 is not facially unconstitutional.
¶ 37 III. CONCLUSION
¶ 38 For the reasons stated, we affirm the judgment of the circuit court of Kankakee County.
¶ 39 Affirmed.