Filed 6/28/10 NO. 4-08-0983
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Woodford County ANTHONY LARA, ) No. 08CF55 Defendant-Appellant. ) ) Honorable ) John B. Huschen, ) Judge Presiding. _________________________________________________________________
JUSTICE POPE delivered the opinion of the court:
In September 2008, a jury found defendant guilty of
predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West
2006)). Defendant appeals, arguing (1) section 115-10 of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10
(West 2008)) is unconstitutional; (2) the trial court abused its
discretion by allowing the State to introduce R.K.'s videotaped
statement pursuant to section 115-10 of the Code (725 ILCS 5/115-
10 (West 2008)); (3) the State failed to establish defendant's
guilt beyond a reasonable doubt; and (4) defendant's trial
counsel was ineffective for failing to argue R.K.'s testimony at
trial made her unavailable as a witness and denied defendant his
right to confront witnesses against him. We affirm.
I. BACKGROUND
In June 2008, a grand jury indicted defendant, charging
him with predatory criminal sexual assault for committing an act of sexual penetration on R.K. between July 13, 2007, and May 7,
2008. At the time of the offense, R.K. was 5 years old (born
September 16, 2002) and defendant was 25 years old. The indict-
ment alleged defendant placed his mouth on R.K.'s vagina.
In June 2008, the State filed a notice of its intent to
use out-of-court statements made by R.K. to Officer Eric Luckey,
a Eureka police officer, on May 9, 2008, at the Child Advocacy
Center in Eureka, Illinois, pursuant to section 115-10(a) of the
Code (725 ILCS 5/115-10(a) (West 2006)).
In July 2008, a hearing was held on R.K.'s out-of-court
statement. At the hearing, Officer Luckey testified he had been
a police officer for 20 years. He testified he had received
special training on how to interview children who are victims of
sexual abuse or severe physical abuse. In April 2006, he at-
tended a 40-hour class geared toward preparing individuals to
interview children in situations such as this case. Luckey
testified he received additional training in April 2007 and May
2007.
Officer Luckey testified these training sessions taught
him the key to interviewing children is to ask open-ended, non-
leading questions in an environment that is comfortable for the
child. Luckey testified he typically does not know the alleged
facts of the case before interviewing a child so that he can
avoid leading the child. Luckey testified he wants a child he is
- 2 - interviewing to feel comfortable and not intimidated so the child
can tell him what happened.
According to Luckey, he had conducted between 30 and 50
interviews with children alleged to be victims of sexual or
physical abuse. Luckey testified individuals observing the
interview, who are not in the interview room, are able to commu-
nicate with him through a computer monitor mounted on the wall in
the interview room.
Luckey testified he interviewed R.K., who was five at
the time, at the Child Advocacy Center in Eureka in May 2008. He
was the only individual in the room with R.K., but the interview
was both audio- and video-recorded. The video of the interview
was admitted into evidence at the hearing as People's exhibit No.
1. Luckey testified he did not believe R.K. had been coached
prior to the interview.
In August 2008, the trial court granted the State's
motion to admit R.K.'s out-of-court statement, provided R.K.
testified at trial. The court found the interview contained
sufficient safeguards of reliability.
In September 2008, at defendant's jury trial, Kathleen
K. testified she is R.K.'s mother. She, R.K., and her son live
in a two-story house with a basement. R.K. had her own bedroom
on the first floor of the house. Kathleen's bedroom was on the
second floor.
- 3 - Kathleen testified she dated defendant between July
2007 and May 2008. She testified defendant stayed at her house
during that period. According to her testimony, defendant began
to stay at her house more frequently in January 2008, approxi-
mately five nights per week. She testified her children were
present in the home when defendant spent nights there.
According to her testimony, her roommate and babysit-
ter, Dustin Plitus, watched R.K. and her brother while Kathleen
was at work. She testified most of the time, she did not leave
the children alone with defendant. However, she testified he was
alone with the children once or twice for approximately two hours
when she went to the grocery store. Kathleen testified she left
for work at 4 a.m. Dustin and defendant would be sleeping on the
second floor when she left. She testified defendant had to leave
her house between 5:30 and 6 a.m. to get to work.
Kathleen also testified defendant had an eyebrow ring,
two lip rings, a labret piercing, and a tongue ring. She stated
defendant usually always wore his jewelry, even while sleeping,
unless he was going to church.
Kathleen testified R.K. told her about the allegations
against defendant in the car when she and R.K. were alone.
Kathleen said she and R.K. had never talked about any type of
sexual matters prior to this. Kathleen called the Child Advocacy
Center, which referred her to the Department of Children and
- 4 - Family Services (DCFS) and the police.
Kathleen testified she still loved defendant. She
testified R.K. and defendant got along well together and R.K.
considered defendant her friend. She said she had never seen
defendant do anything inappropriate to R.K.
The State called R.K. as a witness. R.K. testified
people are not supposed to touch certain parts of her body. When
asked which parts, R.K. pointed down. When asked what she called
the part to which she pointed, she said "[b]ottom body." R.K.
testified it was on the front of her body and that defendant had
touched her on that part of her body. When asked how many times
defendant had touched her "bottom body," she said "100."
When asked by the State, "Did he touch you with any-
thing else beside his hand," R.K. answered, "No." She said she
told defendant to "quit it" when he touched her. R.K. testified
defendant would stand and look at her when he was not touching
her. R.K. testified she told her mother, while riding in the car
with her, what defendant had done to R.K. When asked why she
told her mom, R.K. responded, "Because he was doing something
wrong."
R.K. said no one else had ever touched her "down
there." Besides her mom and the people in the courtroom, she
testified she had never told anyone else about what happened.
R.K. testified defendant's hands touched her below her clothes.
- 5 - She also testified his hands were outside her underwear. R.K.
stated defendant was not wearing facial jewelry when he touched
her "down there." She said defendant did not take off any of his
clothes when he touched her "down there," nor did he take off any
of her clothes.
R.K. testified she considered defendant her friend.
However, when the State asked R.K. if she liked defendant, she
said no because he did something wrong.
Defense counsel chose to limit his cross-examination of
R.K. Defense counsel did not ask her any questions about the
alleged incident or any other incidents of inappropriate contact.
After R.K. testified, the trial court heard arguments
outside the presence of the jury regarding R.K.'s videotaped
statement. Defense counsel argued R.K. did not testify to the
elements charged in this case. According to defense counsel,
R.K.'s testimony at trial was completely different from what she
told Luckey. As a result, defense counsel questioned the reli-
ability of the videotaped interview. However, as to R.K.'s
availability as a witness, the following exchange occurred:
"[TRIAL COURT]: Just so that I under-
stand clearly your argument, Mr. Neiner,
you're not arguing that her testimony was so
deficient as to make her not available?
[DEFENSE COUNSEL]: Well, she was avail-
- 6 - able. Just because she is testifying differ-
ently doesn't mean it's not available."
The court noted it had previously found the time, content, and
circumstances of R.K.'s recorded statement to be reliable. Based
on testimony the court had heard at the trial, it found R.K.'s
prior statements were still reliable, even if they were
inconsistent with her trial testimony. The trial then resumed.
Officer Luckey testified he was a police officer with
the City of Eureka and had been a police officer for 20 years.
Luckey testified he had received specialized training in inter-
viewing children alleged to be victims of sexual or physical
abuse. The videotaped interview and a transcript of the inter-
view were admitted into evidence. The jurors were each provided
a transcript of the videotaped statement while the videotape was
played for the jury.
During R.K.'s interview with Luckey, Luckey asked her
if there were places on her body other people should not touch.
She said, "They're not supposed to lick my pee pee." When asked
if anyone had ever licked her "pee pee," R.K. said, "[Defendant]
did." She said sometimes defendant spent the night at her house.
Luckey then asked her about what happens when defendant licks her
"pee pee."
"[LUCKEY:] Can you tell me what happens
when he does that?
- 7 - [R.K.:] When he hurts it he licks it.
[LUCKEY:] When he hurts it he licks it?
[R.K.:] Yeah. He's pretending he is
kissing it but he is licking it."
R.K. said this happens in the room where she sleeps. Luckey
later asked R.K. more questions about defendant licking her.
[LUCKEY:] When he is licking your pee
pee, does it happen in the daytime, night
time, or some other time?
[R.K.] Daytime.
[LUCKEY:] Daytime. And what are you
usually doing before this happens? Are you
in your, are you in your bedroom or are you
somewhere else?
[R.K.] When I was so tired I went to
sleep in the daytime. When he just pulled
down my pants and he licked my pee pee.
[LUCKEY:] He pulled down your pants and
licked your pee pee. Okay. Where did he
lick you when he was licking you [R.K.]?
[R.K.:] Inside my pee pee."
R.K. also stated defendant told her not to tell anybody about him
licking her "pee pee." R.K. said defendant licked her "pee pee"
more than one time. When asked how it felt, R.K. said:
- 8 - "[R.K.:] Feels like he is stabbing me
with his lip rings.
[LUCKEY:] It feels like he is stabbing
you with his lip rings.
[R.K.:] Yeah.
[LUCKEY:] Does he have rings in his
lips?
[R.K.:] Yeah. Right here and right here
and right here."
Following Officer Luckey's testimony, the State rested.
Defendant called Marshall Smith, a deputy with the
Woodford County sheriff's department. Deputy Smith testified he
was dispatched to Kathleen K.'s home on May 9, 2008, talked to
Kathleen, and took a report. He did not interview R.K. or anyone
else living at the residence. Deputy Smith testified he had no
further involvement with the investigation and this was normal
procedure once a case had been turned over to the detective
division of the department.
Terry Glaub testified he is a detective with the
Woodford County sheriff's office and a member of the Child
Advocacy Center in Woodford County. He was assigned to investi-
gate the allegations involving R.K. Glaub also testified he
requested a physical exam of R.K. be performed. Glaub testified
protocols for the Child Advocacy Center call for other family
- 9 - members to be interviewed, with special importance placed on
parents and caretakers. He stated he spoke to R.K.'s father, Tim
K. Tim K. had no knowledge about the substance of R.K.'s allega-
tions against defendant. Glaub testified he did not ask Tim K.
about his relationship with defendant. Glaub observed Luckey's
interview of R.K. Glaub testified there was no indication R.K.
had been coached. In fact, Glaub stated R.K. said no one told
her what to say.
The jury found defendant guilty of predatory criminal
sexual assault. In October 2008, the trial court sentenced
defendant to 12 years' imprisonment. In December 2008, the trial
court denied defendant's posttrial motion, which alleged the
trial court erred in admitting R.K.'s videotaped statement.
This appeal followed.
II. ANALYSIS
A. Constitutionality of Section 115-10 of the Code
Defendant argues section 115-10 of the Code (725 ILCS
5/115-10 (West 2006)) is unconstitutional because it "fails to
incorporate a blanket prohibition of testimonial statements where
the defense has no opportunity to cross-examine the declarant,"
and it "improperly incorporates an evidentiary standard which has
been specifically rejected by the United States Supreme Court" in
Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S.
Ct. 1354 (2004). These are facial challenges to the constitu-
- 10 - tionality of section 115-10 of the Code (725 ILCS 5/115-10 (West
2006)).
When determining the constitutionality of a statute,
courts presume the statute is constitutional. People v. Reed,
361 Ill. App. 3d 995, 1000, 838 N.E.2d 328, 333 (2005). A court
must interpret a statute so as to uphold its constitutionality if
reasonably possible. Reed, 361 Ill. App. 3d at 1000, 838 N.E.2d
at 333. "'A statute is facially unconstitutional (in contrast to
unconstitutional as applied to [a] defendant) only if one can
think of no circumstance in which the statute would be constitu-
tional.'" People v. Kitch, 392 Ill. App. 3d 108, 114, 915 N.E.2d
29, 34 (2009), appeal allowed, 233 Ill. 2d 581, 919 N.E.2d 360
(2009), quoting Reed, 361 Ill. App. 3d at 1000, 838 N.E.2d at
333.
In Kitch, this court recently adhered to its previous
ruling in Reed and rejected the defendant's contention section
115-10 is facially unconstitutional. Kitch, 392 Ill. App. 3d at
115, 915 N.E.2d at 35. We continue to adhere to this court's
prior precedent and find section 115-10 of the Code (725 ILCS
5/115-10 (West 2006)) facially constitutional.
Defendant points out this court recently interpreted
section 115-10 of the Code (725 ILCS 5/115-10 (West 2006)) to
allow for the introduction of prior out-of-court statements when
a witness takes the stand and answers no meaningful question on
- 11 - cross-examination. See People v. Sharp, 391 Ill. App. 3d 947,
909 N.E.2d 971 (2009); People v. Bryant, 391 Ill. App. 3d 1072,
909 N.E.2d 391 (2009). Defendant argues this could not have been
the legislature's intent when it provided a witness must testify
at the proceedings for the prior statement to be admissible.
We need not address this hypothetical argument because
it is not applicable to the facts of this case. The victim in
this case, R.K., took the stand and offered meaningful testimony.
Further, defendant had the opportunity to cross-examine her.
R.K. answered all of defense counsel's questions. Defendant
cannot challenge the statute on a basis that it could conceivably
be applied unconstitutionally to another defendant. See People
v. Wisslead, 108 Ill. 2d 389, 397, 484 N.E.2d 1081, 1084 (1985).
In addition, as the State points out in its brief, the
confrontation clause only guarantees an opportunity for effective
cross-examination; it does not guarantee effective cross-examina-
tion. Bryant, 391 Ill. App. 3d at 1081, 909 N.E.2d at 400.
Defendant had the opportunity to cross-examine the victim in this
case, and she answered all of his questions. It appears, as a
matter of trial strategy, defense counsel chose not to cross-
examine R.K. about the charge alleged in the indictment, nor did
he question her about her statement to Officer Luckey. That
defense counsel chose not to cross-examine R.K. on these issues
does not translate to a lack of opportunity to do so.
- 12 - B. Admission of Videotaped Statement
Defendant also argues the trial court abused its
discretion by allowing R.K.'s videotaped statement to be shown to
the jury. Because the State is the proponent of the out-of-court
statement sought to be admitted pursuant to section 115-10 of the
Code (725 ILCS 5/115-10 (West 2006)), the State bore the burden
of establishing the statement was "reliable and not the result of
adult prompting or manipulation." Sharp, 391 Ill. App. 3d at
955, 909 N.E.2d at 978.
We will overturn a trial court's decision to allow the
admission of evidence only when the record clearly demonstrates
the decision was an abuse of discretion. People v. Cookson, 215
Ill. 2d 194, 204, 830 N.E.2d 484, 490 (2005). "'An abuse of
discretion occurs when the [court's] ruling is arbitrary, fanci-
ful, or unreasonable, or when no reasonable person would take the
same view.'" Sharp, 391 Ill. App. 3d at 955, 909 N.E.2d at 978,
quoting People v. Robertson, 312 Ill. App. 3d 467, 469, 727
N.E.2d 404, 406 (2000). We find the trial court did not abuse
its discretion in admitting this evidence.
When conducting a section 115-10 hearing, the court
examines the totality of the circumstances surrounding the
hearsay statements, including the following: "'(1) the child's
spontaneity and consistent repetition of the incident, (2) the
child's mental state, (3) use of terminology unexpected of a
- 13 - child of similar age, and (4) the lack of motive to fabricate.'"
Sharp, 391 Ill. App. 3d at 955, 909 N.E.2d at 978, quoting People
v. Cookson, 335 Ill. App. 3d 786, 791, 780 N.E.2d 807, 811
(2002), aff'd, 215 Ill. 2d 194, 830 N.E.2d 484 (2005). Defendant
suggests R.K.'s inability to pinpoint when the sex act occurred
and certain inconsistencies rendered her statement unreliable.
After viewing the videotape, we do not find the trial
court abused its discretion in finding "the time, content, and
circumstances of the statement provide sufficient safeguards of
reliability" (725 ILCS 5/115-10(b)(1) (West 2006)). Officer
Luckey did not direct R.K.'s answers in the interview. He asked
open-ended questions, which R.K. answered. R.K. described
conduct with which a typical four- or five-year-old child would
not and should not be familiar. Not only did R.K. describe what
defendant did, she also described how it felt. R.K. told Luckey
defendant's facial jewelry hurt her "pee-pee" when he was per-
forming oral sex on her. As she described it, it felt like he
was stabbing her with his lip rings. In addition, the record
contains no possible motive for R.K. to fabricate these allega-
tions. R.K.'s mother testified she still loved defendant and
defendant and R.K. got along well together. Further, Luckey
testified he did not believe R.K. had been coached. As a result,
we will not say the trial court's pretrial ruling was fanciful,
arbitrary, or unreasonable.
- 14 - Defendant also argues the trial court should have
reversed its pretrial ruling after R.K. testified at the trial
because the contradictions between her testimony and her recorded
interview rendered the interview unreliable. Defendant points to
the fact R.K. never stated at trial defendant had penetrated her
with his tongue. When asked by the State if defendant had
"touched" her with any part of his body beside his hand, R.K.
answered, "No." However, a five-year-old child most likely would
not equate oral sex with touching. Touching for a five-year-old
is done with fingers and hands. Neither the State nor defendant
specifically asked R.K. whether defendant put his mouth or tongue
on her vagina.
In this case, R.K.'s testimony at trial was not so much
inconsistent with the videotaped statement as it was less
complete than the previous statement. This is understandable in
light of her tender years and the passage of time. Determina-
tions of the credibility of witnesses, the weight to be given
their testimony, and reasonable inferences to be drawn from the
evidence lie in the province of the trier of fact, here--the
jury. People v. Curtis, 296 Ill. App. 3d 991, 999, 696 N.E.2d
372, 378 (1998).
The jury could have found R.K.'s videotaped statement
more complete and trustworthy than her trial testimony, given its
proximity in time to the incident. The jury was able to assess
- 15 - R.K.'s credibility because it was able to observe her demeanor in
the video and on the witness stand and could consider any con-
flicts or inconsistencies in her testimony. Nothing about her
trial testimony rendered her prior statement unreliable. Thus,
the trial court did not err in denying defendant's motion to
reconsider its earlier ruling to admit the recorded interview.
Any inconsistencies between R.K.'s trial testimony and her
recorded interview affect only the weight and not the admissibil-
ity of the recorded interview. Defendant was free to, and did,
argue these inconsistencies to the jury.
C. Sufficiency of the Evidence
We next address defendant's argument the State failed
to establish his guilt beyond a reasonable doubt. When reviewing
a challenge to the sufficiency of the State's evidence, we view
the evidence presented in a light most favorable to the prosecu-
tion and determine whether any rational trier of fact could have
found the State proved the elements of the offense beyond a
reasonable doubt. People v. Schmalz, 194 Ill. 2d 75, 80, 740
N.E.2d 775, 778 (2000).
The grand jury indicted defendant on the charge of
predatory criminal sexual assault of a child. 720 ILCS 5/12-
14.1(a)(1) (West 2006). Section 12-14.1(a)(1) of the Code states
a defendant "commits predatory criminal sexual assault of a child
if *** the accused was 17 years of age or over and commits an act
- 16 - of sexual penetration with a victim who was under 13 years of age
when the act was committed." 720 ILCS 5/12-14.1(a)(1) (West
2006). Section 12-12(f) of the Code defines "sexual penetration"
as "any contact, however slight, between the sex organ or anus of
one person by an object, the sex organ, mouth, or anus of another
person, or any intrusion, however slight, of any part of the body
of one person or of any animal or object into the sex organ or
anus of another person, including but not limited to cunnilingus,
fellatio or anal penetration." 720 ILCS 5/12-12(f) (West 2006).
The indictment alleged defendant placed his mouth on R.K.'s
vagina.
Defendant is correct that R.K.'s trial testimony alone
was not sufficient to establish defendant placed his mouth on her
vagina. However, the State also introduced R.K.'s recorded
interview and the recorded interview was admitted as substantive
evidence. In the recorded interview, R.K. stated defendant
placed his mouth on her sex organ and licked inside her "pee
pee." A reasonable jury could properly have found R.K.'s state-
ment credible.
Defendant argues R.K.'s recorded statement contains
inconsistencies, contradictions, and most of the detail in the
interview came after prodding by Officer Luckey. We disagree
with defendant's characterization of Officer Luckey's interview
technique. As we stated earlier, Luckey asked open-ended ques-
- 17 - tions, to which R.K. responded. As for the alleged inconsisten-
cies and contradictions, the jury obviously found her statements
regarding the alleged conduct credible. It is not the function
of this court to second-guess the credibility determinations of
the trier of fact unless we determine no reasonable jury could
have come to that same conclusion. As our supreme court has
stated, "it is for the fact finder to judge how flaws in part of
the testimony affect the credibility of the whole" as long as its
judgment is reasonable in light of the record. People v.
Cunningham, 212 Ill. 2d 274, 283, 818 N.E.2d 304, 310 (2004). In
this case, we find the jury's decision to believe R.K.'s state-
ment regarding defendant licking her "pee pee" was reasonable.
Defendant's argument on this issue succeeds only if the
trial court erred in admitting the videotaped statement. We have
found no error in admitting the statement. Thus, the video and
trial testimony both constitute substantive evidence and support
defendant's conviction.
D. Ineffectiveness of Trial Counsel
Defendant argues his trial counsel was ineffective
because he did not argue R.K. was unavailable as a witness and
her videotaped statement was therefore inadmissible. To estab-
lish ineffective assistance of counsel, defendant must establish
(1) his counsel's performance was so deficient the attorney was
not functioning as counsel guaranteed by the sixth amendment to
- 18 - the United States Constitution, and (2) he was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668,
80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). "An attorney's perfor-
mance must be evaluated from counsel's perspective at the time
the contested action was taken and will be considered constitu-
tionally deficient only if it is objectively unreasonable under
prevailing professional norms." People v. Bailey, 232 Ill. 2d
285, 289, 903 N.E.2d 409, 412 (2009).
Although R.K. took the stand in this case and answered
all of defense counsel's questions on cross-examination, defen-
dant argues R.K.'s trial testimony created a dilemma for his
trial counsel. According to defendant, R.K. testified defendant
did not engage in the activity described in her recorded inter-
view. By denying the allegations at issue in the indictment,
defendant argues R.K. created a situation where defendant could
not effectively cross-examine her. Defendant contends his
counsel would have had to ask her to admit she made the statement
to Officer Luckey, thereby implicating defendant. As a result,
defendant argues R.K. was unavailable as a witness. (As we noted
above, R.K. did not deny the allegations in the indictment. No
one at trial asked her directly if defendant licked her "pee
pee.")
Defendant's argument his trial counsel should have
argued R.K. was unavailable fails here because it is clear R.K.
- 19 - was available. This court has previously stated a defendant's
confrontation rights are not violated simply because he was
unable to cross-examine a witness to the extent he wished. See
Bryant, 391 Ill. App. 3d at 1094, 909 N.E.2d at 409-10.
In In re Rolandis G., 232 Ill. 2d 13, 32-33, 902 N.E.2d
600, 611 (2008), our supreme court ruled a videotaped statement
made by a child to a child advocate was testimonial in nature.
Because the court found the child did not testify at trial and
defendant had no prior opportunity for cross-examination, our
supreme court held admission of the videotaped statement violated
defendant's right to confront his accuser. Rolandis G., 232 Ill.
2d at 33, 902 N.E.2d at 611. However, our supreme court has also
stated, "[t]he confrontation clause is not violated by admitting
a declarant's out-of-court statements, as long as the declarant
is testifying as a witness and subject to full and effective
cross-examination." People v. Flores, 128 Ill. 2d 66, 88, 538
N.E.2d 481, 489 (1989). R.K. was available as a witness and
answered all of defendant's questions on cross-examination.
Defendant's argument is similar to an argument made by
the defendant in People v. Garcia-Cordova, 392 Ill. App. 3d 468,
912 N.E.2d 280 (2009). In Garcia-Cordova, the question was
whether the child was available for cross-examination during
defendant's trial. Garcia-Cordova, 392 Ill. App. 3d at 480, 912
N.E.2d at 291. Even though the child was physically present and
- 20 - answered some preliminary questions, the defendant argued the
child was unavailable because she denied remembering, among other
things, defendant doing anything to her on the couch or bed, why
she spoke with an investigator from DCFS, and whether other
people should not touch certain parts of her body. Garcia-
Cordova, 392 Ill. App. 3d at 480, 912 N.E.2d at 291. Defendant
argued the child was unavailable for cross-examination regarding
her statements to the DCFS investigator because defendant "would
have been forced to first elicit the damaging testimony from [the
child] and then attempt to refute it." Garcia-Cordova, 392 Ill.
App. 3d at 480, 912 N.E.2d at 291.
The Second District found the child was available for
cross-examination. The child appeared at trial, testified under
oath, made an in-court identification of the defendant, and
recalled speaking with the DCFS investigator. Garcia-Cordova,
392 Ill. App. 3d at 483, 912 N.E.2d at 294. The child testified
she made several drawings during her meetings with the DCFS
investigator, some of which she identified during her testimony.
She also testified who was depicted in the drawings she was able
to identify. Garcia-Cordova, 392 Ill. App. 3d at 483-84, 912
N.E.2d at 294.
"Although [the child] testified that she was
unable to recall what she spoke with [the
DCFS investigator] about, what the activities
- 21 - depicted in the drawings were, and whether
anything had happened to her on the couch or
in the bed, and although she did not know the
context of some of the drawings or why she
drew them, she did answer all of the ques-
tions put to her on those subjects. She did
not refuse, like the child witness in
Rolandis G. did, to answer the questions;
rather, she simply testified she could not
remember or did not know." Garcia-Cordova,
392 Ill. App. 3d at 484, 912 N.E.2d at 294.
The court noted defendant could have cross-examined the child on
her descriptions of the drawings she made, her inability to
remember her conversation with the DCFS investigator or the
alleged incidents of abuse, and her claimed lack of knowledge
regarding some of the pictures. Garcia-Cordova, 392 Ill. App. 3d
at 484, 912 N.E.2d at 294. The court stated cross-examination on
these topics could be considered "'friendly' cross-examination."
Garcia-Cordova, 392 Ill. App. 3d at 484, 912 N.E.2d at 294. The
court also stated defendant could have emphasized the issue of
the child's credibility to the jury. Garcia-Cordova, 392 Ill.
App. 3d at 484, 912 N.E.2d at 294.
In the case at bar, defendant was not deprived of an
opportunity to cross-examine R.K. She answered all of defen-
- 22 - dant's questions on cross-examination. Defense counsel at both
trial and on appeal provide a somewhat misleading representation
of R.K.'s testimony. R.K. never specifically denied defendant
placed his tongue or mouth on her vagina. She was never asked
this specific question by either the State or defendant. The
State only asked R.K. if defendant had touched her with anything
beside his hand. As we stated earlier, it is easy to see how
R.K. would not equate oral sex with touching. There is no reason
to believe R.K. would have refused to answer a question from
defense counsel as to whether defendant put his mouth or tongue
Defendant does not argue his trial counsel was ineffec-
tive for failing to ask R.K. whether defendant put his mouth or
tongue on her vagina. It appears this was a matter of strategy
on the part of defense counsel. Defense counsel argued to the
jury the State failed to prove its case beyond a reasonable doubt
because R.K. testified defendant had never touched her with
anything beside his hand. Defense counsel made the following
argument to the jury:
"Now, ladies and gentleman, you've heard
a lot of testimony about [defendant] alleg-
edly touching [R.K.'s] butt, putting his hand
on her butt. That's not the charge here.
He's not charged with touching her butt. As
- 23 - far as whether he's guilty or not guilty,
that isn't the ultimate question. What you
have to find is that [the State] has proved
beyond a reasonable doubt that he put his
mouth on her vagina. [R.K.] did not tell you
that today. As she sat here in open court
having to face everyone in the courtroom she
did not tell you that happened once. In
fact, she told you that didn't happen.
Ladies and gentleman, it comes down to
the believability of witnesses and you be-
lieve what happened on a tape when she didn't
have to face everyone, when she's in a pri-
vate room with the detective who is just
gathering information and not asking ques-
tion, or you believe what happened in court,
or do you believe that you just can't possi-
bly know. Is there so much of a difference
that it's impossible to know exactly what
happened? Because if that comes into your
mind, that's reasonable doubt. When you call
that kind of evidence into question, that's
reasonable doubt. Like I said, ladies and
gentleman, this case is riddled with it."
- 24 - In a situation such as this, defense counsel is placed
in a precarious position. In general, during any trial, an
attorney does not want to ask a question if he does not know how
the witness will answer. Further, an attorney surely does not
want to elicit an answer that will implicate his client. How-
ever, strategic considerations such as these do not make the
witness unavailable for cross-examination. In this case, R.K.
was present, she answered all of the questions posed by defense
counsel, and nothing in the record indicates she would not have
answered any other questions defense counsel could have asked.
Since we find R.K. was available for cross-examination, trial
counsel's performance was not deficient. An attorney is not
required to, and indeed should not, make an argument not well-
grounded in fact or law.
III. CONCLUSION
For the reasons stated, we affirm defendant's convic-
tion. As part of our judgment, we grant the State its $50
statutory assessment against defendant as costs of this appeal.
Affirmed.
MYERSCOUGH, P.J., and TURNER, J., concur.
- 25 -