Filed 12/28/07 NO. 4-06-0822
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County PAUL W. SANDEFUR, ) No. 04CF1064 Defendant-Appellant. ) ) Honorable ) Leo J. Zappa, Jr., ) Judge Presiding. ______________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In May 2006, a jury found defendant, Paul W. Sandefur,
guilty of two counts of aggravated criminal sexual abuse and one
count of predatory criminal sexual assault. In September 2006,
the trial court sentenced defendant to consecutive terms of nine
and four years in prison, respectively, for the predatory crimi-
nal sexual assault of O.W. and the aggravated criminal sexual
abuse of L.W.
On appeal, defendant argues the trial court erred in
(1) refusing the defendant's jury instruction on the lesser-
included offense of battery and (2) admitting hearsay statements
of the minors. We affirm.
I. BACKGROUND
In October 2004, a grand jury indicted defendant on two
counts of predatory criminal sexual assault (720 ILCS 5/12-
14.1(a)(1) (West 2004)), alleging defendant, over the age of 17,
committed an act of sexual penetration with O.W., under the age
of 13 at the time of the act, by placing his finger in her sex organ. The second count alleged defendant committed the same
offense by placing his penis in contact with the sex organ or
anus of L.W. The grand jury also indicted defendant on two
counts of aggravated criminal sexual abuse (720 ILCS 5/12-
16(c)(1)(i) (West 2004)), alleging he committed an act of sexual
conduct with O.W. when he knowingly touched her body for the
purpose of his own sexual arousal. The second count alleged
defendant committed the same offense when he knowingly touched
the body of L.W. for the purpose of his own sexual arousal.
Defendant pleaded not guilty.
A. Section 115-10 Hearing
In September 2005, the State filed a notice of intent
to offer hearsay statements of L.W. and O.W. pursuant to section
115-10 of the Code of Criminal Procedure of 1963 (Procedure Code)
(725 ILCS 5/115-10 (West 2004)). Thereafter, the trial court
conducted a hearing on the State's motion.
Somiko Granderson testified she is the mother of L.W.
and O.W. On or around June 17, 2002, Granderson was staying with
her mother, Mae Ella Bolden. At that time, Bolden was seeing
defendant; O.W. was seven years old and L.W. was six. They would
sleep in one bedroom, while Bolden and defendant slept in
Bolden's bedroom. Granderson slept in the living room. On June
17, 2002, Granderson returned home from a night out and found
L.W. asleep in bed with defendant. When Granderson removed the
cover, she "noticed that [L.W.'s] underwears [sic] were off."
She stated L.W.'s nightgown was lifted up above her waist. When
- 2 - Granderson asked L.W. where her underpants were, L.W. said,
"'Paw-paw hid them up under the pillow.'" L.W. referred to
defendant as Paw-paw. Shortly thereafter, Granderson asked L.W.
if defendant touched her in any type of way. L.W. stated, "'He
touched my butt.'" Granderson then took her to the hospital.
On cross-examination, Granderson testified it was not
unusual for L.W. to climb into bed with Bolden and defendant.
She stated L.W. had a habit of wetting herself and would then
hide her underwear. Granderson stated neither the bed nor L.W.
was wet at the time. She also stated she looked under
defendant's pillow but did not find any underwear. Granderson
stated her mother found the underwear in her dirty clothes.
Tracy Pearson, a forensic interviewer with the Sangamon
County Child Advocacy Center, testified she interviewed L.W. on
June 28, 2002. The interview was taped, but the tape was de-
stroyed when the case was ruled unfounded. Pearson asked L.W. if
anyone touched her private, referring to her vagina, and L.W.
said no. When Pearson asked her if anyone ever touched her butt,
L.W. responded "'Paw-paw.'" L.W. stated it occurred at her
grandma's house and the touching occurred under her clothes.
Pearson then asked L.W. if she could tell her what defendant did,
but L.W. responded, "'I don't know.'" When asked whether it hurt
to be touched, L.W. nodded her head yes.
Pearson also interviewed L.W. and O.W. on May 17, 2004.
L.W. told Pearson she did not know the reason for the interview.
When Pearson asked her whether anyone ever touched her private
- 3 - part in back, L.W. stated her "Grandpa" Paul touched her at her
grandma's house. At one point, Pearson asked if L.W. could tell
her exactly what Grandpa Paul did and L.W. stated, "I forgot."
After further questioning, she stated she was wearing a
nightshirt and she was lying down. When asked what Grandpa Paul
touched her with, L.W. stated "his stuff," which she stated was
his front part. L.W. stated if felt "nasty." L.W. stated she
did not see his "stuff." She also stated defendant's clothes
were off when he touched her and he took off her underwear.
O.W. told Pearson her stepgrandpa Paul "Andaver"
touched her at her grandma's house when she was seven. When she
was sleeping on the couch in the living room, defendant touched
her inside her private part, her "coochie," with his finger under
her clothes. She tried to push him away. She stated it later
was hard for her "to pee." She told her grandma the night of the
incident, but her grandma did not believe her. She told her
mother after learning about touching private parts at a school
program.
The trial court allowed the statements under section
115-10. The court considered the time, content, and
circumstances of the children's statements and found the
statements provided sufficient safeguards of reliability to allow
admission into evidence under section 115-10.
B. Jury Trial
In May 2006, defendant's jury trial commenced. Mae
Ella Bolden testified Granderson came home and asked where L.W.
- 4 - was because she was not in her bed. Bolden found L.W. at the
foot of her bed and defendant at the head of the bed. Granderson
asked L.W. where her underwear was, and L.W. stated "'Paw-paw
told me to take them off.'" Bolden later found L.W.'s underwear
behind the dryer.
Somiko Granderson testified Bolden watched L.W. as she
and her boyfriend went out the evening of June 16, 2002. Upon
returning, she found L.W. lying on Bolden's bed next to
defendant. Granderson noticed L.W.'s "gown was up" and "she
didn't have any underwears [sic] on." She asked L.W. where her
underwear was, and L.W. stated, "'Paw-paw put them under the
pillow.'" She took L.W. to the bathroom and asked her if defen-
dant touched her. L.W. stated he touched her buttocks.
On cross-examination, Granderson stated L.W. had a
problem with wetting the bed. L.W. also had a habit of hiding
her underwear when she wet the bed. This incident was the first
time she ever found L.W. without underwear on because L.W. would
always clean herself and put on new underwear.
O.W. testified she was 11 years old. When she was
seven, she lived with her mom, her siblings, Bolden, and
defendant. On one occasion, she was lying on the couch in the
living room when defendant came in and touched her on her
"private parts and stuff." O.W. stated defendant put his finger
in her "coochie" and it "really hurt." She stated it "kept
hurting for a while" when she had used the bathroom. She tried
telling her grandma at a later time but "she didn't understand."
- 5 - She then saw a movie at school about what to do when
inappropriately touched by someone and told a grown-up about what
happened. O.W. stated she did not tell her mom or her grandma
again about what happened because she was scared of defendant.
L.W. testified she was 10 years old. When she was six
years old, she was in bed in her grandma's bedroom when defendant
touched her "bottom" with "his private part." She did not
remember what it felt like.
Dr. Victoria Nichols-Johnson testified she specializes
in obstetrics and gynecology and performs medical examinations of
children to assess sexual abuse. She stated she conducted an
examination of L.W. in June 2004. L.W. stated her grandpa had
touched her back private area with "his stuff." L.W. indicated
it hurt at the time it happened but it did not hurt afterward
when she went to the bathroom. A physical examination did not
reveal anything out of the ordinary. Dr. Nichols-Johnson stated
she expected a normal exam because L.W. did not give any indica-
tion that she was in pain afterward or observed any bleeding.
Dr. Nichols-Johnson also examined O.W. in June 2004.
O.W. stated her stepgrandpa had touched her in her private area
with his finger. She stated it hurt and later noticed "a dot of
blood on the tissue afterwards when she went to the bathroom." A
medical examination revealed "some defects in the hymenal ring
that appeared to be traumatic in origin," that being caused by
"some external force." Dr. Nichols-Johnson stated the injury
could be caused by an adult finger being inserted into the
- 6 - child's genitals. She also stated the examination revealed a
"bump" on the hymenal ring that could have been caused by the
healing of the initial injury. Dr. Nichols-Johnson was of the
opinion that O.W. had been sexually assaulted.
Herbie McBride, a convicted felon, testified he resided
at Graham Correctional Center. While in the Sangamon County
jail, McBride had a conversation with defendant in September
2005. Defendant told him O.W. had "a bump" down by her leg and
he was "checking it." He said he rubbed on the bump to make sure
it was not a major sore or infection.
Laundra Haynes testified he was housed at the Sangamon
County jail at the same time as defendant and McBride. Haynes
overheard a conversation between defendant and McBride, wherein
defendant stated the "little girl" had a rash near her vagina and
he was trying to see what it was by rubbing on it. On cross-
examination, Haynes testified he had pending cases for
trafficking in marijuana and unlawful use of a weapon and faced 8
to 30 years in prison.
Tracy Pearson testified she interviewed L.W. in June
2002. The interview was taped but the tape was later destroyed
because the Department of Children and Family Services case was
unfounded. Pearson found L.W. reluctant to answer the questions.
When asked whether someone touched her butt, L.W. stated "'Paw-
paw.'" When asked how "Paw-paw touched her butt," L.W. stated
she did not know. In May 2004, Pearson conducted taped
interviews of both L.W. and O.W., and they were played for the
- 7 - jury.
Dr. Maria Spivey testified for the defense as an expert
in pediatrics. She reviewed the reports authored by Dr. Nichols-
Johnson in connection with this case. As to L.W., Dr. Spivey was
unable to draw a conclusion from the information. As to O.W.,
she found the history provided by O.W. was consistent with sexual
assault. Dr. Spivey did not agree with Dr. Nichols-Johnson's
opinion that the "mound" that extended into O.W.'s vagina was
evidence of an intrusion because that "bump of tissue" is normal
in newborn infants and children who have not been abused. Dr.
Spivey indicated nothing in the photographs showed evidence of
scar tissue.
Bill Clutter, a licensed private investigator,
testified he interviewed Mae Ella Bolden in May 2005. Bolden
told him L.W. would periodically wet her bed and her mother would
"whip her at times." L.W. would oftentimes hide her underwear
"to avoid the beatings." On Father's Day in June 2002, Bolden
found L.W. sleeping at the foot of Bolden's bed on top of the
covers. After Granderson took L.W. to the hospital, Bolden found
L.W.'s underwear, which smelled like urine, behind the washing
machine. Clutter also interviewed Bolden with respect to O.W.
Bolden stated O.W. never brought to her attention any allegation
of touching by defendant. Bolden also questioned O.W.'s
truthfulness.
Defendant exercised his constitutional right not to
testify. See U.S. Const., amend. V. Following closing
- 8 - arguments, the jury found defendant guilty of aggravated criminal
sexual abuse as to L.W., aggravated criminal sexual abuse as to
O.W., and predatory criminal sexual assault as to O.W. The jury
found defendant not guilty of predatory criminal sexual assault
as to L.W.
In June 2006, defendant filed a motion for a new trial,
alleging, inter alia, the trial court erred in allowing hearsay
statements of the victims and in denying defendant's tendered
jury instructions. In September 2006, the court denied the
motion. Thereafter, the court sentenced defendant to nine years
in prison for the offense of predatory criminal sexual assault as
to O.W. and four years for the offense of aggravated criminal
sexual abuse as to L.W. The court ordered the sentences to run
consecutively. Also, the conviction for aggravated criminal
sexual abuse as to O.W. merged into the conviction for predatory
criminal sexual assault. This appeal followed.
II. ANALYSIS
A. Lesser-Included-Offense Instruction
Defendant argues the trial court erred in refusing to
tender defendant's jury instruction on the lesser-included
offense of battery. We disagree.
"A defendant generally may not be convicted
of an offense for which the defendant has not
been charged. However, in an appropriate
case, the defendant is entitled to have the
jury instructed on less serious offenses that
- 9 - are included in the charged offense. Such a
practice provides an important third option
to a jury. If a jury believes that a
defendant is guilty of something, but
uncertain whether the charged offense has
been proved, the jury might convict the
defendant of the lesser offense rather than
convict or acquit the defendant of the
greater offense." People v. Ceja, 204 Ill.
2d 332, 359, 789 N.E.2d 1228, 1246 (2003).
In Illinois, courts determine whether an offense is a
lesser-included offense using the two-tiered charging-instrument
approach. Ceja, 204 Ill. 2d at 360, 789 N.E.2d at 1246. The
first tier requires the reviewing court to determine whether the
charging instrument describes the lesser offense. Ceja, 204 Ill.
2d at 360, 789 N.E.2d at 1246. "At a minimum, the instrument
charging the greater offense must contain a broad foundation or
main outline of the lesser offense." Ceja, 204 Ill. 2d at 360,
789 N.E.2d at 1246.
If the charging instrument describes the lesser
offense, the court moves to the second tier and determines
whether the evidence adduced at trial rationally supports the
conviction on the lesser-included offense. Ceja, 204 Ill. 2d at
360, 789 N.E.2d at 1247. "A court must examine the evidence
presented and determine whether the evidence would permit a jury
to rationally find the defendant guilty of the lesser-included
- 10 - offense, but acquit the defendant of the greater offense." Ceja,
204 Ill. 2d at 360, 789 N.E.2d at 1247.
1. Predatory Criminal Sexual Assault
In the case sub judice, the indictment alleged
defendant committed the offense of predatory criminal sexual
assault in that he, over the age of 17, committed an act of
sexual penetration with O.W., under the age of 13 at the time the
act was committed, by placing his finger in her sex organ. See
720 ILCS 5/12-14.1(a)(1) (West 2004). "Sexual penetration" is
defined 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." 720 ILCS 5/12-12(f) (West 2004). A person
commits the offense of battery if he "intentionally or knowingly
without legal justification and by any means *** makes physical
contact of an insulting or provoking nature with an individual."
720 ILCS 5/12-3(a) (West 2004).
In People v. Poulos, 303 Ill. App. 3d 818, 819-20, 709
N.E.2d 303, 304 (1999), the defendant was charged with two counts
of residential burglary and one count of criminal sexual assault.
The evidence showed the defendant entered the residence of the
victim, who felt "'something penetrating inside of [her]
vagina.'" Poulos, 303 Ill. App. 3d at 820, 709 N.E.2d at 304.
She awoke to find the defendant stroking his penis. Poulos, 303
Ill. App. 3d at 820, 709 N.E.2d at 304. A police detective
testified the defendant initially denied touching the victim but
later stated he touched her thigh, not her vaginal area. Poulos,
- 11 - 303 Ill. App. 3d at 821-22, 709 N.E.2d at 305.
The defendant sought a jury instruction on the offense
of battery as a lesser-included offense of criminal sexual
assault, but the trial court refused. Poulos, 303 Ill. App. 3d
at 822, 709 N.E.2d at 306. A jury found him guilty of criminal
trespass to a residence and criminal sexual assault. Poulos, 303
Ill. App. 3d at 822, 709 N.E.2d at 306.
On appeal, the defendant argued the trial court erred
in refusing to instruct the jury on the offense of battery as a
lesser-included offense of criminal sexual assault. Poulos, 303
Ill. App. 3d at 822, 709 N.E.2d at 306. The Second District
disagreed, concluding an examination of the charging instrument
and evidence at trial indicated the offense of battery as
described by the defendant was not described by the charging
document of criminal sexual assault. Poulos, 303 Ill. App. 3d at
824, 709 N.E.2d at 307.
"The indictment charges defendant with
penetrating W.S.'s vagina with his finger.
Defendant disputed that any touching of the
vagina occurred; the defendant claims a
touching of W.S.'s thigh was the factual
basis that a battery occurred. Clearly, the
indictment does not describe a battery
premised on an insulting or provoking
touching of the thigh. *** Here, the proposed
insulting touch was a different act of
- 12 - touching a different part of the body. It
could not be proved by the same or less than
all the facts or a less culpable mental state
than that required to establish the
commission of criminal sexual assault.
[Citation.] To accept defendant's argument
would be to accept that a charge of criminal
sexual assault includes an insulting or
provoking touch anywhere on the body, despite
the limited description of the charge. This
is an absurdity. Touching the thigh is no
more contemplated by the indictment in this
case than is tickling the bottom of the foot
or punching the back of the head. If
defendant touched W.S. on the thigh, he could
have been charged with a separate offense of
battery and could have been convicted of both
criminal sexual assault for inserting his
finger into W.S.'s vagina and battery for
touching her thigh. The indictment does not
describe the battery that defendant proposes;
therefore, the court did not err in refusing
to give the battery instruction to the jury."
(Emphasis in original.) Poulos, 303 Ill.
App. 3d at 824, 709 N.E.2d at 307.
In this case, defendant contends his claimed battery,
- 13 - that he knowingly and by any means made physical contact of an
insulting or provoking nature with O.W.'s leg, is a lesser-
included offense of the charged predatory criminal sexual assault
of O.W. Defendant cites testimony from McBride, who heard
defendant say he was rubbing on O.W.'s leg.
Here, the indictment does not describe a battery
premised on an insulting or provoking touching of O.W.'s leg. As
in Poulos, if defendant touched O.W. on the leg, he could have
been charged with the separate offense of battery and could have
been convicted of both predatory criminal sexual assault for
placing his finger in O.W.'s sex organ and battery for touching
her leg. As the indictment does not describe the battery that
defendant proposes, the trial court did not err in refusing to
give the battery instruction as a lesser-included offense of
predatory criminal sexual assault.
2. Aggravated Criminal Sexual Abuse
In this case, the indictments alleged defendant, over
the age of 17, committed an act of sexual conduct with O.W. and
L.W., both under the age of 13 when the acts were committed, in
that he knowingly touched the bodies of O.W. and L.W. for the
purpose of his own sexual arousal. See 720 ILCS 5/12-16(c)(1)(i)
(West 2004). "Sexual conduct" has been defined as "any inten-
tional or knowing touching or fondling by the victim or the
accused, either directly or through clothing, of the sex organs,
anus[,] or breast of the victim or the accused, or any part of
the body of a child under 13 years of age *** for the purpose of
- 14 - sexual gratification or arousal of the victim or the accused."
720 ILCS 5/12-12(e) (West 2004).
Defendant argues the jury could have found he touched
the buttocks of L.W. without finding his purpose was for his own
sexual arousal. Although defendant correctly points out L.W.
testified at trial he touched her "butt" and she told others
outside of trial the same thing, defendant fails to mention he
used his penis to touch her. Dr. Nichols-Johnson testified L.W.
told her defendant had touched her back private area with "his
stuff." At trial, L.W. testified defendant touched her bottom
with "his private part." When asked at trial to mark the place
she was referring to as defendant's private area on a drawing of
a naked adult male, L.W. drew a line near the penis.
Here, the evidence would not permit a rational jury to
find defendant guilty of battery and acquit him of the aggravated
criminal sexual abuse of L.W. The sexual arousal a defendant
seeks by touching a young girl's buttocks with his penis so
outweighs the insulting or provoking nature of the touch that it
can constitute nothing less than sexual conduct.
Defendant argues the facts presented here are similar
to those in People v. Reynolds, 359 Ill. App. 3d 207, 832 N.E.2d
512 (2005), and required instructing the jury on the lesser-
included offense of battery. There, the defendant used his hand
to rub the victim's back to within an inch of her buttocks.
Reynolds, 359 Ill. App. 3d at 209, 832 N.E.2d at 515. The trial
court found the State failed to prove the defendant's touching
- 15 - was for the purpose of his sexual arousal and found him guilty of
the lesser-included offense of battery. Reynolds, 359 Ill. App.
3d at 211, 832 N.E.2d at 517.
Here, defendant used his penis to touch defendant's
buttocks. Given the evidence at trial, the jury could only
conclude that, if he touched L.W.'s buttocks with his penis, he
did so for the purpose of his own sexual arousal. Therefore, the
jury instruction on the offense of battery was not warranted, and
the trial court did not err in refusing to give the instruction.
Defendant also claims the jury could have convicted
defendant of battery as to O.W., thereby requiring an instruction
on the lesser-included offense. However, "there is no final
judgment in a criminal case until the imposition of a sentence,
and, in the absence of a final judgment, an appeal cannot be
entertained." People v. Johnson, 318 Ill. App. 3d 281, 291, 743
N.E.2d 150, 158 (2000); see also People v. Baldwin, 199 Ill. 2d
1, 5, 764 N.E.2d 1126, 1128 (2002) ("Absent a sentence, a convic-
tion is not a final and appealable judgment").
Here, the trial court merged defendant's conviction for
aggravated criminal sexual abuse as to O.W. into his conviction
for predatory criminal sexual assault. The court then sentenced
defendant on the convictions for predatory criminal sexual
assault and aggravated criminal sexual abuse as to L.W. Since no
judgment of conviction was entered or sentence imposed on the
aggravated-criminal-sexual-abuse offense as to O.W., defendant is
barred from challenging any aspect of that charge on appeal.
- 16 - B. Hearsay Statements
Defendant argues the trial court erred when it admitted
out-of-court hearsay statements of the minors pursuant to section
115-10. We disagree.
In prosecuting a defendant for a physical or sexual act
against a child under the age of 13, certain evidence shall be
admitted as an exception to the hearsay rule pursuant to section
115-10(b) of the Procedure Code under the following
circumstances:
"(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[.]" 725
ILCS 5/115-10(b) (West 2004).
At the section 115-10 hearing, the trial court must
consider the totality of the circumstances surrounding the
hearsay statements and should consider the following factors in
- 17 - making a reliability determination: "(1) the child's spontaneity
and consistent repetition of the incident, (2) the child's mental
state, (3) the child's use of terminology unexpected of a child
of similar age, and (4) the child's lack of motive to fabricate."
People v. Sharp, 355 Ill. App. 3d 786, 796, 825 N.E.2d 706, 714
(2005), citing People v. Cookson, 335 Ill. App. 3d 786, 791, 780
N.E.2d 807, 811 (2002).
"The State bears the burden of proving that the state-
ments were reliable and not the result of adult prompting or
manipulation." Cookson, 335 Ill. App. 3d at 791, 780 N.E.2d at
811. A reviewing court will not overturn a trial court's
evidentiary ruling pursuant to section 115-10 absent an abuse of
discretion. People v. Stechly, 225 Ill. 2d 246, 312-13, 870
N.E.2d 333, 372 (2007); Sharp, 355 Ill. App. 3d at 797, 825
N.E.2d at 714. "An abuse of discretion occurs when the court's
ruling is arbitrary, fanciful, or unreasonable or when no
reasonable person would take the same view." Sharp, 355 Ill.
App. 3d at 797, 825 N.E.2d at 714.
Defendant argues the time, content, and circumstances
of the following statements did not provide sufficient safeguards
of reliability: (1) L.W.'s statement to her mother following the
June 17, 2002, incident; (2) L.W.'s statement to Pearson on June
28, 2002; (3) L.W.'s statement to Pearson on May 17, 2004; and
(4) O.W.'s statement to Pearson on May 17, 2004.
1. L.W.'s June 17, 2002, Statements
Granderson testified she returned home and found L.W.
- 18 - sleeping in Bolden's bed while defendant was watching television.
After lifting the covers off L.W. to carry her to her own bed,
Granderson saw L.W.'s underpants were off and her nightgown was
up above her waist. Granderson asked L.W. where her underpants
were, and L.W. stated "'Paw-paw hid them up under the pillow.'"
Granderson took L.W. to the bathroom and again asked, "Where's
your underwear?" L.W. responded, "'Paw-paw got them, they're up
under his pillow.'" Granderson then asked her if defendant
touched her in any way. L.W. stated, "'He touched my behind.'"
Granderson went on to testify L.W. pointed to her butt and said,
"'He touched my butt.'"
L.W.'s statements to her mother were made within hours
of the incident with defendant. She also used terminology that
could be expected of a six-year-old child. Further, her
statements were made in response to her mother's reasonable
questions concerning her underwear. Granderson's questions were
not designed to evoke an incriminating response but were general
in nature in terms of where L.W.'s underwear was located and
whether defendant touched her in any type of way. Defendant
argues Granderson's recollection of the statements "were tainted
by alcohol." However, this argument goes to the evidentiary
weight of the statements and does not address admissibility under
section 115-10. We find no abuse of discretion.
2. L.W.'s June 28, 2002, Statements
Pearson interviewed L.W. at the Child Advocacy Center
less than two weeks after the incident. The interview was taped,
- 19 - but the tape was later destroyed when the case was determined to
be unfounded. Pearson stated L.W. was six years old and "seemed
very shy." With children that young, Pearson stated she uses
anatomical drawings of the front and back view of a child. She
asked L.W. to identify all the body parts and asked her to point
out the "private parts on the drawing." She named them "'private
and butt'" and later pointed and called them "'private and
private.'"
When Pearson asked L.W. if anyone had touched her
private area, referring to her vagina, L.W. said no. When she
asked if anyone ever touched her butt, L.W. nodded her head yes.
Pearson asked who, and L.W. said "'Paw-paw.'" L.W. then told her
it occurred at her grandma's house on the big bed in Bolden's
room. Further, she had her clothes on, but the touching occurred
under her clothes. After Pearson left the room to talk with
investigators, she returned and asked L.W. if she could tell her
what defendant did. L.W. said, "'I don't know.'" When asked if
it hurt to be touched, L.W. nodded her head yes.
Defendant argues L.W. was confused by naming both body
parts her private area and then stating defendant did not touch
her private but touched her butt. However, we find it natural
for a six-year-old child to label her vaginal and anal area as
her "privates" and refer to her buttocks as "butt." Although
L.W. could not tell Pearson exactly what defendant did, it is
reasonable to conclude she was unable to articulate what happened
or did not see what defendant was "exactly" doing to her from
- 20 - behind.
We note that a taped interview "provides a better means
for assuring that there was no adult prompting or manipulation
involved, and the failure to do so may be considered a negative
factor when considering reliability." Cookson, 335 Ill. App. 3d
at 792, 780 N.E.2d at 811. The questions asked by Pearson did
not suggest an affirmative answer to the issue of touching or who
may have done the touching. L.W. answered no when asked if
anyone touched her vaginal area and yes when asked about her
buttocks. When asked who touched her, L.W. referred to
defendant. We find no abuse of discretion.
3. L.W.'s May 17, 2004, Statements
On May 17, 2004, Pearson again conducted an interview
with L.W., which was recorded and shown to the trial court. When
Pearson asked L.W. whether anyone ever touched her private part
in back, L.W. responded her "Grandpa" Paul touched her at her
grandma's house. When asked what defendant touched her with,
L.W. stated "his stuff." During the interview, L.W. oftentimes
responded "I don't know" or "I don't remember." Further, long
pauses would sometimes occur after Pearson asked a question,
requiring Pearson to ask the question again. Defendant argues
L.W.'s statements were inconsistent and not spontaneous.
However, it is clearly evident that L.W. had difficulties talking
about the incident. Those difficulties are understandable
considering her age, educational level, and the emotional toll
required to talk about the incident. L.W.'s statements on May
- 21 - 17, 2004, do not differ substantively from what she previously
told Pearson or her mother. Her responses to Pearson's
questions, as evidenced by the taped interview, indicate L.W. was
not prompted or manipulated into falsely incriminating defendant.
Instead, her statements were consistent with her prior statements
that defendant touched her buttocks. We find no abuse of dis-
cretion.
4. O.W.'s May 17, 2004, Statements
On May 17, 2004, Pearson conducted an interview with
O.W., which was recorded and shown to the trial court. When
Pearson asked O.W. who touched her, she responded her stepgrand-
pa. O.W. stated she was sleeping on the couch in the living room
of her grandma's house when defendant touched her private part
with his finger. She stated it "really hurt" and it "kept
hurting for a while" when she had to use the bathroom.
Defendant argues O.W.'s statements were not reliable
because she had trouble spelling her middle name, called
defendant "Paul Andaver," did not state when the incident
occurred, and did not tell anyone, besides Bolden, until she
learned about child abuse at school. However, the taped
interview indicates O.W. was an articulate and talkative young
girl who provided explanations to the questions asked. She did
not exaggerate defendant's conduct or attempt to add other acts
of misconduct. For example, she stated defendant did not touch
her anywhere else on her body and that he had not shown his
private parts to her or asked her to touch his private parts.
- 22 - Although O.W. did not state the date of the incident,
she did indicate it happened at night, in the living room, on the
couch, when she was seven years old. While she did not disclose
the incident to anyone other than her grandma until she learned
about inappropriate touching at school, "[d]elays in reporting
sexual acts do not automatically render a child victim's
statements inadmissible." Cookson, 335 Ill. App. 3d at 792, 780
N.E.2d at 811. Further, considering her grandma's response and
the likelihood O.W. did not understand the inappropriate nature
of the touching, her delay in reporting the incident was under-
standable.
The taped interview indicates O.W. was not prompted or
manipulated into falsifying the incident and incriminating
defendant. The interview shows the time, content, and circum-
stances of the making of O.W.'s statements to Pearson provided
sufficient safeguards of reliability to be admissible under
section 115-10. We find no abuse of discretion.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we award the State its $50
statutory assessment against defendant as costs of this appeal.
Affirmed.
APPLETON, P.J., and STEIGMANN, J., concur.
- 23 -