¶1dissenting:
¶2I respectfully dissent. The trial court erred in admitting the hearsay statements of A.C., as related by Detective Wiese and DCFS investigator Gonzalez. The trial court also erred in preventing the jury from knowing that A.C. had falsely accused Richard Aston of the same conduct. I would reverse and remand for a new trial.
¶3A.C. lived with her apparent parents,-defendant and his wife Judith Cookson, until August 1999, when Judith and her boyfriend, Richard Aston, took A.C. with them to Hammond, Indiana. In Hammond, Richard, Judith, and A.C. lived on the streets, with Judith engaging in prostitution and Richard acting as her pimp. Richard then took A.C. and disappeared, and Judith contacted defendant, who came to Indiana and, along with Judith, filed a report of child abduction against Richard. Several days later, on January 29, 2000, Richard returned to Illinois and turned A.C. over to authorities. At that time DCFS caseworker Rice spoke to A.C., who told Rice that she had not been to school in a while, that she understood she was going to be placed in a foster home, that she wanted to live in a clean place, and that she did not want to stay with Don (defendant?) and Judith because they fed her nasty food “like dogs or cats would eat.” In response to Rice’s questioning about marijuana, A.C. told Rice that “daddy” Don had given her marijuana, put her in the bathtub, took out his “thingy” and proceeded to “hump” on her.
¶4The next day, in response to the question whether she was doing okay, A.C. told her foster mother, Landers, that “I am never going home. I’m not going back to Don and Judy. Don fucked me in the ass.” Of course, A.C. had not lived with defendant during the prior six months. In a later conversation with Dr. Nichols-Johnson, A.C. made it clear that she had not been subjected to anal penetration although she then claimed she had been subjected to vaginal penetration. Dr. Nichols-Johnson found no sign of rectal injury and determined that A.C.’s hymen was intact with no indication of sexual abuse. A.C. also stated that “Judy ate my pussy,” and “they are going to jail,” while she would stay with the foster mother forever. At trial, A.C. acknowledged that she sometimes got Richard and defendant mixed up. She considered both Richard and defendant to be her dad. In mid-2000, after deoxyribonucleic acid (DNA) testing was done, it was established that Richard was A.C.’s biological father.
¶5A.C.’s testimony at trial consisted primarily of one- or two-word answers in response to leading questions. Often A.C. changed her answers in response to follow-up questions.
¶6It is exceptional for hearsay evidence that is taken without the opportunity to cross-examine to be admitted under statutes such as section 115 — 10. Hearsay should be admitted, under the confrontation clause, only where “truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility,” and only where the evidence is “so trustworthy that adversarial testing would add little to [its] reliability.” Idaho v. Wright, 497 U.S. 805, 820-21, 111 L. Ed. 2d 638, 655-56, 110 S. Ct. 3139, 3149 (1990). Absent “particularized guarantees of trustworthiness” the evidence must be excluded. Evidence possessing “particularized guarantees of trustworthiness” must be at least as reliable as evidence admitted under a firmly rooted hearsay exception. Idaho, 497 U.S. at 821, 111 L. Ed. 2d at 656,110 S. Ct. at 3149. Because of the importance of the right of cross-examination, section 115 — 10, which places limits on that right, should be strictly construed. People v. Bridgewater, 259 Ill. App. 3d 344, 349, 631 N.E.2d 779, 782 (1994); People v. Bowen, 183 Ill. 2d 103, 126-28, 699 N.E.2d 577, 589-90 (1998) (McMorrow, J., dissenting).
¶7What was there about the child’s hearsay statements here that made them “particularly worthy of belief”? People v. Coleman, 205 Ill. App. 3d 567, 583-84, 563 N.E.2d 1010, 1020-21 (1990); 725 ILCS 5/115 — 10(b)(1) (West 2000) (“sufficient safeguards of reliability”). The statements to Detective Wiese and DCFS investigator Gonzalez were clearly not spontaneous. Simpkins, 297 Ill. App. 3d at 678, 697 N.E.2d at 308 (statements during questioning by DCFS investigator); Lilly v. Virginia, 527 U.S. 116, 124, 144 L. Ed. 2d 117, 126, 119 S. Ct. 1887, 1894 (1999) (specific intent of confrontation clause was to prevent trial on ex parte affidavits prepared by the prosecution). They were made in preparation for trial, and the conscious decision not to videotape the statements raises the inference that the prosecution saw an advantage in the jury hearing an interpretation of the child’s statements, rather than the statements themselves.
¶8The fact that A.C. used terminology unexpected of a child of similar age does not support admission of the hearsay, but in fact weighs against it. A.C. was clearly a streetwise child, but there is no suggestion that knowledge was acquired from activities with defendant. The mistaken reference to anal penetration suggests that A.C. was familiar with the words, but not with what they meant. The logical inference is that A.C.’s knowledge was acquired during the six months prior to the statements being made, the six months that A.C. spent with Richard and Judith in Indiana. The most troublesome aspect of this case is the possibility that A.C.’s references to her “daddy” Don are in fact references to her “daddy” Richard. A.C. testified at trial that she had previously been living in Indiana with her mother and a man named Donald. The fact that Detective Wiese, at the time he interviewed A.C., was not aware that she had spent the last six months in the custody of Richard is troublesome. Wiese’s narration of A.C.’s statements, given his misunderstanding of the situation, is likely to be misleading. The other witnesses relating A.C.’s statements may have suffered from the same misunderstanding.
¶9There was clearly a motive to fabricate. A.C.’s statements were prefaced with her remarks that she wanted to stay in a clean place and she did not want to stay with Don and Judith because they fed her nasty food. Of course A.C. was not “staying” with Don and Judith at the time her statements were made. It is also troublesome that Richard had just returned the child to Illinois after a report of child abduction had been filed against him by defendant and Judith. A.C. testified at trial that Richard had told her to say bad things about Don. Richard, who most recently had control over A.C., clearly had a motive to fabricate testimony against defendant.
¶10A.C.’s testimony at trial was halting and inconsistent. Were her statements to the four witnesses who repeated her hearsay any better? The hearsay testimony related by Detective Wiese and DCFS investigator Gonzalez was not merely cumulative. It reinforced the testimony of the other witnesses and “lent considerable credence to [the child’s] testimony at trial, noteworthy for its contradictions.” People v. Mitchell, 155 Ill. 2d 344, 355, 614 N.E.2d 1213, 1218 (1993). Inadmissible hearsay gives the State the advantage of having the victim testify twice and serves to unfairly add heft to the State’s case. Bowen, 183 Ill. 2d at 126-30, 699 N.E.2d at 589-91 (McMorrow, J., dissenting). A new trial is warranted “if it appears that the delicate scales of justice have been unfairly tilted by the sheer weight of repetition.” People v. Anderson, 225 Ill. App. 3d 636, 648, 587 N.E.2d 1050, 1059 (1992); People v. Moss, 275 Ill. App. 3d 748, 756, 656 N.E.2d 193, 199 (1995).
¶11The majority asserts that the contradictions in A.C.’s statements and testimony “go to the weight to be accorded the statements rather than to a determination of the admissibility of the statements.” 335 Ill. App. 3d at 792. That contradicts the majority’s listing of the factors to be considered in making a reliability determination under section 115 — 10(b). The first factor listed is “the child’s spontaneity and consistent repetition of the incident.” (Emphasis added.) 335 Ill. App. 3d at 791. The child’s repetition of the incident here was not consistent.
¶12The burden of proof is on the State, not just to show that the statements were made, but that they were “particularly worthy of belief.” What was there about these statements that made them “particularly worthy of belief’? The mere fact that defendant has not proved the statements to be inaccurate does not make them “particularly worthy of belief.” Section 115 — 10 is a new and controversial statute. It is not sufficient for us to recite that we cannot say that the trial court abused its discretion. The appellate court should maintain some consistency of result at least for certain situations that are common and for which a clear result follows from the spirit as well as the letter of the applicable rules or statutes. In re Estate of Smith, 201 Ill. App. 3d 1005, 1010, 559 N.E.2d 571, 574 (1990). Independent review is necessary to maintain control of, and to clarify, the legal principles governing the factual circumstances necessary to satisfy the protections of the Bill of Rights. Lilly, 527 U.S. at 136, 144 L. Ed. 2d at 134, 119 S. Ct. at 1900.
¶13The trial court further erred by refusing to admit evidence that A.C. made an allegation against Richard Aston that DCFS had determined to be unfounded. A complainant’s prior or subsequent unfounded allegations of sexual abuse against the accused may be admissible, if they bear upon the complainant’s credibility. Mason, 219 Ill. App. 3d at 81, 578 N.E.2d at 1355. Defendant must demonstrate only that it is more likely than not that the prior accusations were false. Mason, 219 Ill. App. 3d at 82, 578 N.E.2d at 1356. In Mason, we suggested that a DCFS finding that the accusation was unfounded was not sufficient proof of falsity, where the DCFS file also indicated that defendant admitted improper touching of the complainant. There is no such impeachment of the DCFS finding in the present case. Similar considerations apply to the admission of evidence of other crimes, wrongs, or acts committed by the accused. Proof of such acts need not be beyond a reasonable doubt, but such proof must be more than a mere suspicion. People v. Thingvold, 145 Ill. 2d 441, 456, 584 N.E.2d 89, 95 (1991). It is not required that evidence “definitely establish that the accusation determined to be unfounded was false.” 335 Ill. App. 3d at 793. There was evidence in this case from which a reasonable jury could have concluded that A.C. made false accusations against Richard.
¶14Even beyond that, the fact that A.C. accused Richard of abusing her was relevant to some very material elements of the crime charged in this case and should have been admitted. Evidence of other acts can be admissible if it is intertwined with the instant offense or where it relates to earlier events. People v. Lewis, 243 Ill. App. 3d 618, 625-26, 611 N.E.2d 1334, 1339 (1993). A.C. has stated that she has been sexually attacked by every adult in her life, by her mother, Judith, by her father, Richard, and by her stepfather, defendant. The jury was entitled to know that A.C. made these allegations against everyone, not just against defendant. Preventing the jury from knowing this essential evidence deprived defendant of a fair trial.