Petition for Writ of Certiorari — Hoffner v. Illinois

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

CHARLES HOFFNER,

Petitioner,

Vv.

ILLINOIS

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE APPELLATE COURT OF ILLINOIS

PETITION FOR A WRIT OF CERTIORARI

WILLIAM H. WISE

WISE & KUZAS, LTD.

180 NORTH LASALLE STREET

SUITE 2116

CHICAGO, ILLINOIS 60601

(312) 346 - 4555

May, 1993

QUESTIONS PRESENTED

i Does due process require a pre-

trial hearing in order to determine the

reliability of out-of-court statements not

falling within a firmly rooted hearsay

exception?

& Is a defendant denied his right

ae

oO confrontation under the Sixth Amendment

by the admission at trial of the hearsay

Statements of an alleged victim of child

sexual abuse when those statements are

consistent with the child's testimony at

trial?

TABLE OF CONTENTS

QUESTIONS PRESENTED

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TABLE OF CONTENTS

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OPINIONS BELOW

BASIS FOR JURISDICTION

CONSTITUTIONAL & STATUTORY PROVISIONS. 2

eeeeeeewe WE 2OID CADE 2c tee es 4

REASONS FOR GRANTING THE WRIT ........ 7

el ec. koe hk a 6 4 6h Kk 6 8 6 6 ee rR

ee 24

11

TABLE OF AUTHORITIES

CASES:

PAGES

IDAHO V. WRIGHT, 497 U.S. 805, 110

S.Ct. 3139, 111 £.8¢.20 639

Cee) sks bake ee eee es ee 11, 14 |

16, 19

California v. Green, 399 U.S. 149

i ys eee eee eee OS ee ee ee ee 16, 17

18, 20

21

United States v. Inadi, $75 U.s8. 387

Bi oD era ere ee ee rer re 23

White v. Tilinois. §.85. ., tie &.Ct.

pe On eh. * of ee Gee ee mena vee aren 19

CONSTITUTION AND STATUTES:

YS. Court. ee ie “scene eek shee 17

8... eee . eee. ee .- 4-4 eae ie eee 17

T11.Rev.Stat. 1969, ch. 38, par.

4 Oe UB. iets eee wee ee ee ack re ee ee . oo

111

No

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

CHARLES HOFFNER,

Petitioner,

V.

PEOPLE OF THE STATE OF ILLINOIS

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE APPELLATE COURT OF ILLINOIS FOR THE

SECOND DISTRICT

Petitioner herein respectfully prays

that a writ of certiorari issue to review

the judgment and opinion of the Appellate

Court of Illinois, Second District, en-

tered in this action on November 20, 1992.

OPINIONS BELOW

The decision of the Illinois Appel-

late Court, Second District in this matter

has not yet been published but is attached

hereto in the Appendix. The order denying

Petitioner leave to appeal to the Illinois

Supreme Court is also not yet reported and

is attached in the Appendix.

BASIS FOR JURISDICTION

The final judgment of the Illinois

Appellate Court, Second Division, was en-

tered on November 20, 1992. On February

3, 1993, the Illinois Supreme Court enter-

ed an order denying a petition for leave

to appeal. This Court has jurisdiction to

review the judgment of the Illinois Appel-

late Court pursuant to 28 U.S.C. sec. 1257

(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

United States Constitution, Amendment V:

No person shall ... be deprived of

life, liberty, or property, without due

process of law....

United States Constitution, Amendment VI:

In all criminal prosecutions, the

nite

accused shall enjoy the right ... to be

confronted with the witnesses against him.

Illinois Revised Statute 1989, chapter 38,

paragraph 115-10 (now 725 ILCS 5/115-

10 (1992))

115-10. Sexual acts on child under

13--Hearsay exception (a) In a prosecution

for a sexual act perpetrated upon a child

under the age of 13, including but not

limited to prosecutions for violations of

Sections 12-13 through 12-16 of the Crimi-

nal Code of 1961, the following evidence

Shall be admitted as an exception to the

hearsay rule:

(1) testimony by such child of an

out of court statement made by such child

that he or she complained of such act to

another; and

(2) testimony of an out of court

statement made by such child 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 act per-

petrated upon a child.

(b) Such testimony shall only be

admitted if: (1) The court finds in a

hearing conducted outside the presence of

the jury that the time, content, and cir-

cumstances of the statement provide suffi-

cient safeguards of reliability; and (2)

The child either: (A) Testifies at the

proceeding; or (B) Is unavailable as a

«tie

witness and there is corroborative evi-

dence of the act which is the subject of

the statement.

(c) If a statement is admitted pur-

suant to this Section, the court shall

instruct the jury that it is for the jury

to determine the weight and credibility to

be given the statement and that, in making

the determination, it shall consider the

age and maturity of the child, the nature

of the statement, the circumstances under

which the statement was made, and any

other relevant factor.

(d) The proponent of the statement

shall give the adverse party reasonable

notice of his intention to offer the stat-

ement and the particulars of the state-

ment.

STATEMENT OF THE CASE

Section 115-10 of the Illinois Code

of Criminal Procedure (Ill. Rev. Stat.

1989, ch. 38, par. 115-10, now 725 ILCS

115/10 (1992) provides that in the prose-

cution of a sexual offense committed on a

child under age 13, out-of-court state-

ments made by the child pertaining to the

sexual offense may be admissible as an

exception to the hearsay rule if:

es

(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 safe-

guards of reliability;

(2) The child either:

(A) Testifies at the proceeding;

or

(B) Is unavailable as a witness

and there is corroborating evidence of the

act which is the subject of the state-

ment.'' Ill. Rev. Stat. 1989, ch. 38, par.

115-10(b) (1), (b)(2).

The Appellate Court of fIllinois,

Second District affirmed a judgment and

sentence of the trial court which, in a

bench Sriai, had convicted Petitioner

Charles Hoffner of aggravated criminal

sexual abuse (Ill. Rev. Stat. 1989, ch.

38, par. 12-16(b)) for allegedly commit-

ting an act of sexual conduct upon his

ten-year-old stepdaughter. The child,

A.B., testified at petitioner's trial.

Additionally, statements allegedly made by

A.B. to her mother and a Department of

Child and Family Services investigator

me

approximately eight months prior to trial

were admitted during the trial.

Before the trial commenced, Petition-

er requested the court to conduct a statu-

tory hearing to ascertain whether the cir-

cumstances surrounding A.B.'s out-of-court

statements exhibited sufficient indicia of

reliability. The trial court allowed the

testimony since it was a bench trial,

stating that it would rule on the admissi-

bility of the testimony at its conclusion;

defense counsel did not object at this

time. [R. 66-67] After defense objec-

tions at the close of the State's case

[R.179, 183], a brief hearing was held the

next day as to whether the hearsay state-

ments were admissible [R. 183-85], after

which the court ruled that:

The statute provides that the Court

can allow the statement into evidence, if

the court finds at the time, contact and

circumstances surrounding the statement

-6-

provide sufficient safeguards of reliabil-

ity and the child who allegedly made the

purported statement testifies at the hear-

ing. I think that the State has met their

burden of showing me that it is admissible

under 115-10 and, of course, the weight

that the Court will attach to that state-

ment is a different matter which will be

taken up at the time I hear arguments in

the case, but I will allow the statement

under 115-10."

[R. 184-85]

A.B's statements were made after her

mother went to the police station to com-

plain that her husband, petitioner, had

violated an court order of protection she

had obtained during acrimonious divorce

proceedings. [R. 135-36, 139-42] During

this time, petitioner and his wife and her

children, including A.B., continued to

live in the same home. [R. 136]

Prior to going to the police station,

A.B.'s mother had no idea that anything

was happening to A.B. [R. 144], although

she had previously testified that she,

several weeks earlier, had asked her daug-

hter if petitioner was bothering her [R.

116), to which A.B. responded negatively

[R.117]. At a later date, in response to

her mother's queries, A.B. said that peti-

tioner was rubbing her stomach. [R. 117-

18] After spending about one and one-half

hours at the police station discussing the

protective order, A.B.'s mother mentioned

that she had spoken to petitioner and her

psychiatrist about peti- tioner's rubbing

of A.B.'s stomach while he read a bedtime

story to A.B. and her sister. A.B.'s moth-

er was then asked to bring her daughters

in for interviews. [R. 123, 140]

Investigator Schaid then testified

regarding a half-hour interview with A.B.

which was initiated by Schaid identifying

Al

..myself as an investigator and I talked

to children when they got hurt or got

touched by people, and sometimes some of

the kids I talk to get touched on their

private parts." [R. 156] The interview

then immediately concentrated on querying

A.B. regarding her private parts. A.B.

identified private parts of her body [R.

156) and, near the end of the short ses-

sion, stated that she had been touched on

her private parts. [R. 90, 157] According

to A.B.'s testimony, prior to this inter-

view, ols had only told her mother that

petitioner had touched her on her stomach.

([R. 90] A.B. did not tell anyone that she

had been touched on her "bottom" until ap-

proximately two weeks after the last al-

leged incident and more than three months

after the occurrence of other incidents.

[R. 168] A.B.'s trial testimony was, for

the most part, consistent with her out-of-

court statements. [R. 79-100]

The interview was not taped nor was

anyone else present, although it was cus-

tomary for two persons to be present dur-

ing questioning of a child. [R. 167] The

officer that initially requested that the

girls be interviewed testified that she

was at the station during A.B.'s inter-

view, but was not present during the ques-

tioning. [R. 191] Schaid destroyed the

notes she had taken during the interview

after writing a report. A.B.'s mother had

spoken to Schaid twice before the inter-

view and told the investigator that A.B.

had complained that petitioner had touched

her on the abdomen below her navel and

above her genital area. [R. 95, 168]

Petitioner admitted having’ rubbed

A.B.'s stomach during story hour but de-

nied any improper touching. After having

been found guilty [R. 368-73], Petitioner

objected to admission of the hearsay

statements and the court's procedure ther-

eon in his written motion for a new trial,

asserting that he had been denied a fair

and impartial trial. [R. 39-42] During

arguments on the motion [R. 378-402],

petitioner first presented a Confrontation

Clause argument based upon this Court's

ruling in Idaho v. Wright, 497 U.S. 805,

110 S.Ct. 3139, 171 L.B@. 2@ 638 (1990),

which was released two months af- ter

petitioner's trial. After denial of his

motion for a new trial{R. 47, 402-07],

Petitioner filed a timely notice of appeal

to the Illinois Appellate Court, Second

Division [R. 61]

On appeal, the Appellate Court held

that Petitioner had not waived the Con-

frontation Clause issue by failing to

raise it at trial level because of the

timing of the Wright decision, but con-

Cluded that no confrontation violation

occurred since A.B. testified as a wit-

ness. [7-8a] Noting that the improper

admission of hearsay statements of A.B.

could have deprived petitioner of a funda-

mentally fair trial [8a], the court exam-

ined the facts of the present case in

light of the principles enunciated by this

Court in Wright [10-13a].

The reviewing court concluded that

there wasS no error in admitting the state-

ments since Schaid's questioning was not

unduly suggestive, the interview environ-

ment was not coercive, A.B.'s description

of the abuse was consistent throughout the

interview and was also consistent with her

trial testimony, and there was no evidence

of a motive to fabricate. [10a] Although

the court stated that petitioner had

=.

il

waived the issue of lack of a pretrial

hearing pursuant to the Illinois statute,

it proceeded to state that, because the

trial was before the bench and not a jury,

no plain error arose. [R. 13-14a]

A subsequent petition for leave to

appeal to the Illinois Supreme Court was

denied on February 3, 1993. [23a]

REASONS FOR GRANTING THE WRIT

I. The Court Below Has Decided a

Federal Question of Substance Probably Not

in Accord With Applicable Decisions of

This Court

The rulings below presents to this

Court for review the question of whether,

pursuant to a statutory hearsay exception

for child sexual abuse victims, a trial

court during a bench trial at which the

child is a witness must, prior to admis-

sion, ascertain the reliability of the

child's out-of-court statements in accord

with this Court's decision in Idaho vv.

i

Wright, 497 U.S. 805 (1990) in order to

afford a defendant a fair trial com-

patible with principles of due process.

The Illinois Statute permits’ the

substantive use of certain hearsay state-

ments of a child sexual abuse victim only

if the court determines in a hearing con-

ducted outside the jury's presence that

the time, content, and circumstances of

the statements provide sufficient safe-

guards of reliability and if the child

either testifies or is unavailable as a

witness and there is corroborative evi-

dence of the act alleged, I11.Rev.Stat

1989, ch. 38, par. 115-10(b); now 725 ILCS

5/115-10(b) (1992). It is apparent that

the Illinois legislature intended to in-

corporate into the statute the rights to

confrontation and due process. It is also

clear that section 115-10(b) is not a

~44>

firmly rooted hearsay exception and there-

fore, it is presumptively unreliable.

The requisite statutory hearing to

determine reliability in the present case

was not held until the day after the pros-

ecution had completed its case. At that

time, the trial court made no specific

findings as to the basis for its conclu-

sions; it merely recited the statutory

language and ruled that the State had met

its burden to demonstrate that the evi-

dence was admissible.

In determining that the Defendant was

not deprived of a fundamentally fair tri-

al, the Illinois Appellate Court found

that the child's out-of-court statements

were properly admitted. In so concluding,

the court looked to the guidelines enunci-

ated in Wright for determining the reli-

ability of such hearsay statements and

acknowledged the circumstances surrounding

the making of the statements.

Although the child declarant in |

Wright did not testify as in the present

case, the Wright analysis is applicable in

making a reliability determination. As

Stated by this Court in California v.

Green, 399 U.S. 149, 155 (1970), hearsay

rules and the Confrontation Clause are

generally designed to protect similar

values. However, the Court has consis-

tently refused to include all hearsay

ee eer

statements under the protection of the

Confrontation Clause, Idaho v. Wright, 497

U.S. 805, 814 (1990). Justice Harlan

noted in a concurring opinion in Green

that, while the Confrontation Clause re-

guires only that the prosecution produce

available witnesses, the Due Process

Clause bars a conviction where the criti-

y=

cal issues at trial were supported only by

ex parte testimony not subjected to cross-

examination, and not found to be reliable

by the judge, California v. Green, 399

U.S. at 186 no. 20. Thus, reliability of

hearsay statements used substantively isa

constitutional requirement under both the

Fifth and Sixth Amendments.

Even though the appellate court rec-

ognized that it is the circumstances sur-

rounding the making of the hearsay state-

ment that are crucial to a reliability

determination, it nevertheless concluded

that plain error had not occurred by the

trial court's failure to hold a separate

hearing [14a]. Despite this Court's ad-

monition, in order for hearsay evidence to

be substantively admissible, it must pos-

sess indicia of reliability by virtue of

its inherent trustworthiness and not by

«#3

bootstrapping on the trustworthiness of

other trial evidence, Id. at 822-23. The

court below approved the trial court's

postponement of its reliability determina-

tion until after the State had concluded

its case. Furthermore, the appellate

court's presumption that the trial judge

only considered admissible evidence is

insufficient to overcome this Court's

ruling that evidence at trial can not be

used to corroborate the veracity of out-

of-court statements, Id. at 823-824. This

is especially true in cases where the

trial court gave no reasons for its deter- |

mination of reliability.

II. This Case Presents an Important Ques-

tion of Law As to Whether A Statutory

Exception to Hearsay Statements of Child

Sexual Abuse Victims Is Violative of the

Confrontation Clause When the Child De-

clarant Is a Witness at Trial.

In its consideration of many cases

involving the constitutional propriety of

th.

the admission of hearsay evidence at tri-

al, this Court has recently issued several

decisions regarding statutory, non-tradi-

tional exceptions to the hearsay rule

enacted for the protection of child sexual

abuse victims. In Idaho v. Wright, 497

U.S. 805 (1990), it was held that the

admission of a child's out-of-court state-

ments not within the ambit of a tradition-

al hearsay exception lacked particularized

guarantees of trustworthiness so as to

overcome the presumption of their inherent

unreliability. However, statements admit-

ted under a firmly rooted hearsay excep-

tion are inherently trustworthy and may be

admitted into trial evidence even when the

prosecution neither produces the declarant

at trial or proves that the witness is

unavailable, White v. Illinois, __ U.S.

» thd &.CO. 736, 743 (7992). In both of

tS

these cases, the child declarant did not

testify.

The Illinois statute provides for the

admission of a child's out-of-court state-

ment if, interalia, the child testifies at

trial, I11.Rev.Stat. 1989, ch. 38, par.

115-10(b)(2)(A).

Often a State's enactment of a new

hearsay exception will give rise to con-

stitutional issues under the Confrontation

Clause, California v. Green, 399 U.S. 149,

156 (1970). This Court, in Green, held

that the State's newly-enacted hearsay ex-

ception, permitting the introduction at

trial of prior inconsistent statements of

a witness not subject to contemporaneous

cross-examination, was not violative of

the Sixth Amendment Confrontation Clause

if the witness testified and was subject

to full and effective cross-examination at

amc.

triai, Id. wat 138. This Court reasoned

that "the main danger in substituting

subsequent for timely cross-examination

seems to be in the possibility that the

witness's .. . testimony is apt to harden

and become unyielding to the blows of

truth in proportion as the witness has the

opportunity for reconsideration and influ-

ence by the suggestion of others, whose

interest may be, and often is, to maintain

falsehood rather than the truth," Id. at

159. The Green Court concluded, however,

that the danger disappears when a witness

changes his testimony so that his prior

statement has softened to a repudiation of

the out-of-court statements, Id. at 159.

The danger of a hardening falsehood

is especially possibie where, as in the

present case, the declarant is a child who

will be subject to the influence of adults

a

in the time period between the making of

the out-of-court statement and the trial

testimony. In the present case, the hear-

say statement sought to be introduced is

consistent with the child's testimony at

trial and there is, therefore, no justifi-

cation for admitting into evidence, state-

ments lacking the testing of contemporane-

ous cross-examination.

This Court, in ruling that a showing

of a witness' unavailability is unneces-

sary before the admission of co-conspira-

tor statements, explained that former

testimony is often a weaker substitute for

live testimony; if the declarant is avail-

able and the same information can be pre-

sented with live testimony subject to full

cross-examination and with an opportunity

to view the declarant's demeanor, there is

little justification for reliance on the

oe

weaker version, United States v. Inadi,

475 U.S. 387, 394-95 (1986). Accordingly,

in cases where the out-of-court statement

is consistent with in-court testimony, the

substantive use of such hearsay statements

serve no purpose resulting in a denial of

confrontation as to the prior statement.

CONCLUSION

For all of the above reasons, Peti-

tioner respectfully requests that this

Honorable Court grant his- petition for a

writ of certiorari and review the decision

of the Illinois Appellate Court.

WILLIAM H. WISE

Wise & Kuzas

180 N. LaSalle Street, Suite 2116

Chicago, Illinois 60601

(312) 346-4555

nite

APPENDIX

24

(Filed September 10, 1992)

seeee ecccee

STATE OF ILLINOIS APPELLATE COURT SECOND DISTRICT

OFFICE OF THE CLERK APPELLATE COURT BUILDING

708/695-3750 ELGIN, ILLINOIS

60120-5558

Appeal from the Circuit Court

of County of DuPage

Trial Court Number: 89CF1991

THE COURT HAS THIS DAY, 09/10/92, ENTERED

THE FOLLOWING ORDER IN THE CASE OF:

Gen. No.: 2-90-1379

People v. Hoffner, Charles

On the Court's own motion, pursuant

to Supreme Court Rule 352(a), oral

argument is dispensed with, and the

case will be decided on the briefs

only. A disposition will be filed in

due course.

Loren J. Strotz, Clerk

cc: Mr. William H. Wise

Honorable James E. Ryan

William L. Browers, Deputy Director

Lawrence M. Bauer

|) a

(Filed on November 22, 1992)

No. 2-90-1379

IN THE

APPELLATE COURT OF ILLINOIS

SECOND JUDICIAL DISTRICT

THE PEOPLE OF THE STATE ) Appeal from the

OF ILLINOIS, ) Circuit Court of

DuPage County.

PLAINTIFF-APPELLEE

No. 89-CF-1991

Honorable Brian

F. Telander,

Judge, Presiding

)

)

)

v. )

)

CHARLES HOFFNER, )

)

)

DEFENDANT-APPELLANT.

JUSTICE UNVERZAGT delivered the opin-

ion of the Court:

After a bench trial, the circuit

court of DuPage County convicted defen-

dant, Charles Hoffner, of aggravated crim-

inal sexual abuse (I11.Rev.Stat.1991, ch.

38, par. 12-16(b)). The court sentenced

defendant to 30 months probation, includ-

ing six months' work release. Defendant

~ 26

appeals, contending that (1) his rights to

due process and to confront witnesses were

denied when the trial court permitted a

Department of Children and Family Services

(DCFS) investigator to testify regarding

her interview with the victim; (2) the

State failed to prove him guilty beyond a

reasonable doubt; and (3) he was denied

the effective assistance of counsel where

his trial counsel failed to request a

hearing to determine the competency of the

minor witnesses and failed to object to

certain allegedly improper questions.

The victim was defendant's stepdaugh-

ter, A.B., who was ten years old at the

time of trial. She testified that defen-

dant would read bedtime stories to her and

her sister, E.B. Defendant would sit on

the bed between the girls. While reading

the stories, defendant would sometimes rub

ey

A.B.'s stomach. Sometimes he would touch

her on her "bottom" underneath her

clothes. She described her "bottom" as

! '

'right below the back bone" and the part

of her body which she used to "go to the

bathroom."

A.B. further testified that sometimes

she would get up and pretend to go the

bathroom in hopes of avoiding further

touching. Once her mother became suspi-

cious and asked her whether defendant had

been touching her. She told her mother

that he had only touched her on her stom-

ach. She said this because she was embar-

rassed and afraid.

E.B. also testified that defendant

would read stories to her_and her sister.

Sometimes A.B. would get up and go the

bathroom during the stories.

D.H. testified that she is defen-

~an..

dant's wife and A.B.'s mother. One night

in August 1988, she saw defendant sitting

on the side of the bed next to A.B., with

his hand on her bare thigh. After dis-

cussing this incident with her counselor,

she told defendant that she thought his

actions were inappropriate. On another

occasion, she walked into the bedroom

while defendant was reading to the chil-

dren. A.B. jumpea out from under the

covers and said, ‘No, mommy, nothing is

happening here.’ A.B. appeared extremely

upset. She was quivering, very tense and

nervous.

The following day, she questioned

A.B. about the incident. A.B. said only

that "[C.H.] was rubbing her tummy."

She subsequently brought defendant to

see her counselor, Dr. Schwab, to discuss

the incident with A.B. Defendant admitted

«20.

oe

that he rubbed A.B.'s stomach, but denied

touching her improperly.

D.H. testified that on September 1,

1989, she and defendant were sleeping

apart and had been for some time. During

the early morning hours, a2fendant twice

entered the room where she slept and woke

her up. He told her that he was disap-

pointed that her counselling was not going

well, that her "attitude problem" was the

source of their problems, and that she

should apologize to him for taking him to

Dr. Schwab. The second time, he told her

that A.B. should apologize to him also.

That evening, D.H. went to the police

station. She had previously obtained an

order of protection against defendant

which prohibited him from harassing her.

She felt that he had violated the order of

protection the previous night. At the

<36-

police station, sne talked to Officer

Juliet Fabbri. During the interview,

Fabbri sueantad that D.H. return to the

police station with her children, so that

they could be interviewed by a DCFS inves-

tigator.

D.H. stated that she did subsequently

return to the police station with her

children. A.B. was interviewed by Mary

Ellen Schaid of DCFS. She and her chil-

dren then spent the night at a shelter for

battered women.

D.H. recalled that on September 15,

1989, she arranged to meet defendant at

the library to discuss the sale of their

home. She said that she felt the money in

the parties' savings accounts should go

toward the down payment on a new home for

her and her daughters. Defendant replied

that none of the funds in the savings

accounts could go toward finding a new

home. She asked him why and he said,

"because."

D.H. then asked defendant, "Are you

telling me that [A.B.] lied?"

Defendant leaned over the table and

said, "No, she didn't, but I can't go to

| + ae Later, outside the library, he

said, "Do you know what they do to child

molesters in prison?"

D.H. also stated that defendant's

former wife had told her about incidents

of alleged sexual abuse involving defen-

dant's natural children.

MaryEllen Schaid testified about her

interview with A.B. at the police station.

Defendant objected to her testimony and

requested that the court conduct a hearing

pursuant to section 115-10 of the Code of

Criminal Procedure of 1963 (I11l1.Rev.Stat.

a oe

1989, ch. 38, par. 115-10) to determine

whether the circumstances Surrounding

A.B.'s statements to Schaid demonstrated

sufficiently the reliability of those

statements. The court stated that since

it was a bench trial, he would allow Sch-

aid to testify. At the conclusion of her

testimony he would rule on the admissibil-

ity of the victim's statements to Schaid.

Defense counsel acquiesced to this proce-

dure.

Schaid testified that on September 1,

1989, she interviewed A.B. in a private

room at the police station. The interview

was not taped. She identified herself as

someone who "talked to children when they

got hurt or go touched by people" and said

that ‘sometimes some of the kids I talk to

get touched on their private parts." She

asked A.B. if she had ever been touched on

her private parts. A.B. said that she had

She said that the touching had occurred

"lots of times" and that the most recent

time was approximately two weeks prior to

the interview.

Schaid and her partner, James Grady,

also interviewed defendant at his home.

Defendant admitted that he would = rub

A.B.'s stomach under her clothes. He ex-

plained that he had a "target zone" and

that he might have missed it on at least

one occasion. He recalled one instance in

which he touched A.B.'s "pubic bone" and

did not remove his hand immediately.

Grady's testimony was similar to

Schaid's regarding his interview with

defendant. Grady added that as he and

Schaid were leaving defendant's house,

defendant said that "he felt like he could

go upstairs and cry when he thinks about

ee

what he did to [A.B.] mentally."

The next day, the court heard argu-

ments from counsel regarding the admissi-

bility of Schaid's testimony concerning

her interview with A.B. After the argu-

ments the court stated:

The statute provides that the

Court can allow the statement

into evidence, if the court finds

at the time, contact and circum-

stances surrounding the statement

provide sufficient safeguards of re-

liability and the child who alleged-

ly made the purported statement

testifies at the hearing.

I think that the State has met

thier [sic] burden of showing me

that it is admissible under 115-10,

of course, the weight that the Court

will attach to that statement is a

different matter which will be taken

up at the time I hear arguments in

the case, but I will allow the state-

ment under 115-10.

Following the court's ruling, the State

rested.

C.T., defendant's ex-wife, testified

for the defense. She denied that she ever

told D.H. that defendant had engaged in

-t6-

inappropriate conduct with his natural

children. She denied that she ever ac-

cused him of such conduct during their

divorce proceedings.

Defendant testified. He admitted

that he rubbed A.B.'s stomach while read-

ing to her. He denied that he touched

other parts of her body. He denied making

incriminating statements to D.H. or James

Grady.

The court found defendant guilty.

Following the denial of his post-trial

motion, defendant filed a timely notice of

appeal. On appeal, defendant contends

that his rights under the due process and

confrontation clauses were violated by the

admission of Schaid's testimony about her

interview with A.B. Defendant contends

that insufficient "indicia of reliability"

surrounded A.B.'s statements to Schaid.

«26.

Specifically, defendant notes that’ she

introduced herself to A.B. as someone who

talks to children who "get touched on

their private parts.’ No one else was

present at the interview besides Schaid

and A.B. The session was not videotaped.

Schaid almost immediately steered the

questioning to the subject of A.B.'s "pri-

vate parts," and most of A.B.'s subsequent

statements came in response to leading

questions. These circumstances, defendant

suggests, rendered A.B.'s statements unre-

liable.

The State responds initially that

defendant has waived this constitutional

issue by failing to raise it in the trial

court. The State noted that while defen-

dant objected to the admission of Schaid's

en pursuant to section 115-10, he

failed to raise any argument under the

a.

confrontation clause until his brief in

this court.

Generally, arguments raised for the

first time on appeal are deemed waived.

(People v. Enoch (1988), 122 I1ll.2d 176,

186. ) In the instant case, defendant

bases his confrontation clause argument

primarily on Idaho v. Wright (1990), 497

U.S. 605, 111 L.Ed.2d 638, 110 §.Ct. 3139,

a case decided two months after the trial

in the instant case. Under these circum-

stances, it would be unfair to apply the

waiver rule. People v. Kargol (1991), 219

£242.AD0. 30 66, 73.

We conclude, however, that the con-

frontation clause is not implicated in

this case. The constitution provides that

the accused in a criminal case shall have

the right to confront the witnesses

against him. (U.S. Const., amend VI.) The

~38-

confrontation clause has been interpreted

as barring the State from introducing

some, but not all, hearsay testimony.

(Wright, 497 U.S. at __, 111 L.Ed.2d at

651, 110 S.ct. at 3145.) Wright, as well

as the other confrontation clause cases

which defendant cites, involved child wit-

nesses who were deemed unavailable to

testify.

In the instant case, the complaining

witness did testify and was subjected to

cross-examination. The Supreme Court has

stated that it is the literal right to

"confront" the witness which is at the

core of the values protected by the con-

frontation clause. Thus, the court stat-

ed, there is ''good reason to conclude that

the 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."

(California v. Green (1970), 399 U.S. 149,

157-58, 26 L.Ed.2d 489, 496-97, 90 S.Ct.

1930, 1934-35.) This court recently stat-

ed unequivocally that the confrontation

Clause was not implicated where, as here,

the declarant was available to testify.

People v. Edwards (1992), 224 I11.App.3d

10717, 1028.

In the instant case, the victim did

testify and was subjected to cross-exami-

nation on a variety of subjects, including

her statements to Schaid. Under these

circumstances, there is simply no confron-

tation clause violation. This does not

end our inquiry, however. Defendant's

argument aiso refers to the statutory

requirements of section 115-10 for admis-

sion of out-of-court statements by victims

«80x

of sexual abuse who are age 13 or younger.

Defendant objected to Schaid's testimony

on this basis in the trial court and

raised the issue in his post-trial motion.

Arguably, defendant has waived this issue

by explicitly relying on the confronta-

tion clause in his brief in this court.

However, because the admission of improper

hearsay could have deprived the defendant

of a fundamentally fair trial, we choose

to consider the question of whether the

victim's out-of-court statements’ were

admissible under section 115-10.

Section 115-10 provides in relevant

part:

In a prosecution for a sexual

act perpetrated upon a child

under the age of 13, including

but not limited to prosecution

for violations of Sections 12-13

through 12-16 of the Criminal Code

of 1961, the following evidence

shall be admitted as an exception

to the hearsay rule:

(1) testimony by such child of an

—

out of court statement made by such

child that he or she complained of

such act to another; and

(2) testimony of an out of court

statement made such child describing

any complaint of such act or matter

or detail describing any complaint

of such act or matter or detail per-

taining to any act which is an ele

ment of an offense which is the sub-

ject of a prosecution for a sexual

act perpetrated upon a child. (b)

Such testimony shall only be admitted

if: (1) the court finds ina hearing

conducted outside the presence of the

jury that the time, content, and cir-

cumstances of the statement provide

sufficient safeguards of reliability

and; (2) the child either; (A) testi-

fies at the proceeding; or (B) is

available as a witness and there is

corroborative evidence of the act

which is the subject of the state

ment.

Tl1l.Rev.Stat.1989, ch. 38, par. 115-10.

In Edwards, although this court held that

the confrontation clause was not violated,

we nonetheless held that the analysis of

Idaho v. Wright was useful in determining

whether statements were properly admitted

under section 115-10. The issue in Wright

was whether the circumstances surrounding

~@2.

FE

the victim's out-of-court statements con-

tained sufficient "indicia of reliability"

to permit introduction of the statements

under Idaho's residual hearsay exception

despite defendant's inability to cross-

examine the complainant. The relevant

circumstances to be examined are those

surrounding the making of the statement

and which render the declarant particular-

ly worthy of belief. These may include

spontaneity of repetition, consistency of

repetition, use of terminology unexpected

of a child, and whether the child had a

motive to lie. Edwards, 224 I11.App.3d at

1028, citing Wright, 497 U.S. at 5 Ee

L.Ed.2d at 655-56, 110 S.Ct. 2149-50.

Considering the facts of the instant

case in light of these principles, we are

unable to conclude that the court erred in

admitting A.B.'s out-of-court statements.

win

The questions which Schaid asked were not

unduly suggestive and the environment of

the interview was not coercive. A.B.'s

description of the abuse was consistent

throughout the interview and was consis-

tent with her trial testimony. Also,

there is no evidence that A.B. had a mo-

tive to lie.

We do not believe the record supports

defendant's contention that Schaid's ques-

tions to A.B. were unduly suggestive. We

note that Schaid testified only in general

terms concerning what took place at her

interview with A.B. Much of her testimony

consisted of summaries or paraphrases of

the interview. Defendant made no attempt

to elicit from Schaid specific questions

and answers. It appears that Schaid did

ask some specific questions and answers.

It appears that Schaid did ask some lead-

spe

|,

ing questions. However, this is under-

standable in light of the victim's age and

the need to focus the interview. i ¢

appears generally that A.B.'s responses

were in her own words. The fact that

statements were made in response to ques-

tions does not render them inadmissible.

(Edwards, 224 I11.App.3d at 1031, People

v. Deavers (1991), 220 I11.App.3d 1057,

1070.) Certainly, the record does not

Support defendant's contention that A.B.

“was merely acting as a puppet for the in-

vestigator.”

It also does not appear that the en-

vironment of the interview was unduly co-

ercive. Schaid was the only person in the

room with the complainant. There is no

evidence in the record that she behaved

threateningly or other wise intimidated

A.B.

Further, there is no evidence that

A.B. had any motive to lie. (Cf. People

v. Schott (1991), 145 I111.2d 186, 207

(complainant told investigator she made up

story about defendant because "she was

angry at him for something"). ) In this

case, there is no evidence that A.B. had

any reason, apart from the alleged abuse

itself, to be angry with defendant. De-

fendant notes that his wife may have had a

motive to lie. D.H.'s testimony makes

clear that her marriage to defendant was

in trouble prior to the allegations of

sexual abuse. She also testified that

defendant repeatedly harassed her, neces-

Sitating her obtaining an order of protec-

tion against him. While this may be true,

there is simply no evidence that A.B. was

Similarly motivated to lie or that D.H.

manipulated A.B. to make false allega-

-46-

“a

tions. D.H. testified that, although she

mentioned her concerns about defendant and

A.B. to officer Fabbri, she "hoped it

wasn't true.'' There is simply no evidence

that she talked to A.B., either before the

interview with Schaid or before her trial

testimony, and encouraged her to fabricate

allegations of sexual abuse.

Finally, we note that A.B.'s allega-

tions were consistent throughout her in-

terview with Schaid. Her trial testimony

was also consistent with these statements.

Cross-examination failed to bring out any

inconsistencies or contradictions in her

testimony. Considering all the circum-

stances, we believe that A.B.'s statements

to Schaid were sufficiently reliable that

the court did not err in admitting them.

The supreme court recently reached

the same conclusion under similar circum-

a.

stances. In People v. Wittenmyer (Oct. 1,

1992), No. 72593, the court held that out-

of-court statements to a police detective

by a minor sex abuse victim were properly

admitted. The court noted that the vic-

tim's answers were primarily in her own

words and nothing in the record indicated

that the interviews were threatening or

coercive. (Wittenmyer, slip op. at 8.)

The court also rejected the defendant's

suggestion that due process required vi-

deotaping of the interview. Wittenmyer,

Slip op. at 8-9.

Defendant makes several additional

contentions. He notes that Schaid was the

only person present besides the victim. He

cites no authority, however, for the con-

tention that this circumstance renders the

statements inadmissible. We note that the

statements held admissible in Wittenmyer

~48-

were apparently made in the course of a

one-on-one interview with the detective.

Defendant further contends that the

complainant's delay in reporting the abuse

renders her subsequent statements unreli-

able. Defendant notes that A.B. told

Schiad that the most recent incident of

abuse occurred at least two weeks prior to

the interview. However, courts have re-

peatedly held that a relatively slight de-

lay in reporting abuse does not render

subsequent statements unreliable. (See

Edwards, 220 I111.App.3d at 1069 (com-

plainant's failure to complain earlier

does not necessarily diminish the reli-

ability of her later statements).) Here,

we do not consider the two-week delay to

be significant, given the victim's testi-

mony that she was afraid and embarrassed.

Finally, defendant complains that the

~49-

court erred in refusing to conduct a sepa-

rate hearing to determine the admissibili-

ty of Schaid's testimony. Instead, the

court stated that it would allow Schaid to

testify and it would rule on the admissi-

bility of A.B.'s out-of-court statements

afterward. Defendant contends that this

procedure may have tainted the trial

court. Initially, we note that defense

counsel acquiesced in this procedure, and

thus any error in this regard iS waived.

Moreover, we note that this was a bench

trian. In a bench ree the court is

presumed to consider only admissible ev-

idence. (People v. Hart (1991), 214 I1ll.-

App.3d 512, 524; People v. Roy (1990), 201

I1ll.App.3d 166, 183.) In light of this

presumption, the Roy court refused to

consider as plain error the court's fail-

ure to conduct a separate hearing. Sim-

-$6-

—

ilarly, in Hart, the reviewing court found

the lower court's failure to conduct a

separate hearing to be harmless error. In

the instant case, the trial court's re-

marks show that it applied the correct

test in ruling on the admissibility of

A.B.'s statements to Schaid. We do not

believe that the court committed plain

error.

Defendant cites People v. Coleman

(1990), 205 I11.App.3d 567. That case,

however, is distinguishable. The Coleman

court reversed defendant's conviction on

other grounds. Since the cause was being

remanded, the court directed the trial

court to conduct a new hearing on defen-

dant's section 115-10 claim in conform-

ity with Idaho v. Wright. In the instant

case, although likewise decided prior to

Wright, the court considered the appropri-

ate standard in determining the statements

to be admissible. There is no need to

remand for a new hearing.

Defendant's second contention is that

the State failed to prove him guilty be-

yond a reasonable doubt. Specifically,

defendant makes two related contentions.

First, defendant maintains that the State

failed to prove that an act of sexual con-

duct occurred. Second, defendant contends

that the State failed to show that defen-

dant acted with the intent to obtain sexu-

al gratification. According to defendant,

the State proved, at most, that he inno-

cently rubbed A.B.'s stomach and may have

accidentally touched her pubic area. The

State responds that the circumstantial ev-

idence was sufficient to show that defen-

dant committed an act of sexual conduct

with the requisite intent.

i.

OEE

The relevant statute provides that

the accused "commits aggravated criminal

sexual abuse if he or she commits an act

of sexual conduct with a victim who was

under 18 years of age when the act was

committed and the accused was a family

member,'' I1]l.Rev.Stat.1989, ch. 38, par.

12-16(b). In turn, "sexual conduct" is

defined as “any intentional or knowing

touching or fondling by the victim or the

accused, either directly or through cloth-

ing, 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 sexual gratification or

arousal of the victim or the accused,"

I11.Rev.Stat.1989, ch. 38, par. 12-12(e).

Criminal convictions are not to be

overturned on review unless the evidence

is so improbable or unsatisfactory as to

create a reasonable doubt of the defen-

dant's guilt. The relevant question is

whether, after considering the evidence in

the light most favorable to the prosecu-

tion, any rational trier of fact could

find the essential elements of the offense

beyond a reasonable doubt. (People v.

Schott (1991), 145 I11.2d 188, 203; People

v. Collins (1985), 106 i1i:4@ 2a7, 20°59

The issue of the witnesses' credibility is

reserved for the trier of fact, and ina

bench trial great deference and weight

must be given to the trial court's deter-

mination of the credibility of the wit-

nesses. (People v. Allison (1983), 115

Ill.App.3d 1038, 1042.) The intent to

gratify sexual desires for purposes of the

sex offense statutes may be established by

circumstantial evidence. People v. Goebel

(1987), 161 Ill.App.3@ 113, V25F- 8.55000,

_~54-

Ee

115 Ill.App.3d at 1043.

In Goebel, the court held that where

defendant, a school teacher, deliberately

stretched out his hand a considerable dis-

tance and touched the victim's breast, the

court could infer that defendant acted

with the intention of satisfying his sexu-

al desires. In the instant case, A.B.

testified that defendant touched her pubic

area underneath her clothes numerous times

over a period of several months. A.B.

testified that these touches so upset her

that she frequently feigned going to the

bathroom to avoid them. D.H. testified to

A.B.'s startled reaction when she walked

in on defendant and A.B. Both D.H. and

James Grady testified that defendant made

statements indicating a consciousness of

guilt. Defendant himself admitted that he

might have touched A.B.'s "pubic bone” and

-55-

failed to remove his hand. From this evi-

dence, the court could infer that defen-

dant deliberately touched the victim with

the intention of gratifying his sexual

desires. Although defendant testified

that he merely rubbed the victim's stom-

ach, and any touching of her pubic area

was accidental, the trial court chose to

reject this testimony and accept the tes-

timony of A.B. and the other witnesses.

We will not disturb the trial court's de-

terminations cf the credibility of the

witnesses.

Defendant complains that the only

evidence of defendant's touching A.B. in

improper places came from the prosecutor.

Specifically, defendant complains” that

"there were only two strong statements

about a touching of the genital or anus

area, both came from the mouth of the

aT ee

Prosecutor. *** [A.B.] never testified

about a private spot, only the Prosecutor

did. Moreover, several times during the

trial [A.B.] testified that Defendant was

merely touching her stomach." Defendant

then cites to several portions of the

record by page and line of the transcript.

Defendant's argument simply misstates

the record. Defendant's first record ci-

tation, for example, is at the end of the

following colloquy:

Q. Now, when [defendant] read

you stories, did anything un-

usual ever happen?

A. Well, he would touch me in

places that he wasn't supposed

co.

Q. When you say, he touched you

in places he wasn't supposed to,

where did [defendant] touch you?

A. Well, on my bottom.

Q. Could you describe for the Judge

what you mean by your bottom?

A. Well, right below the back bone.

Q. Did he ever touch you on any

other part of your body?

A. Well, on my stomach.

A.B. later described her "bottom" as the

«87

part of her body which she uses "to go to

the bathroom."

A.B. clearly testified in response to

nonleading questions that defendant

touched her between her legs where she

[goes] to the bathroom.'' This completely

belies defendant's assertion that the only

testimony regarding a touching anywhere

other than her stomach came from the pros-

ecutor.

The evidence was sufficient to prove

beyond a reasonable doubt that defendant

committed an act of sexual conduct with

A.B. for the purpose of sexual gratifica-

tion.

Defendant's final contention is that

he was denied the effective assistance of

counsel where his attorney failed to ob-

ject to numerous allegedly improper ques-

tions and failed to request a hearing on

x =

the competency to testify of the two minor

witnesses.

To succeed on a claim of ineffective

assistance of counsel, defendant must es-

tablish that (1) counsel's’ performance

fell below an objective standard of rea-

sonableness, and (2) a reasonable proba-

bility exists that, but for counsel's

errors, the result of the proceedings

would have been different. (Strictland v.

Washington (1984), 466 U.S. 668, 80 L.Ed-

.20 674, 104 S.Ct. 2052; People v. Alban-

ese (1984), 104 I11.2d 504, 525.) A

strong presumption exists that counsel's

performance falls within the wide range of

professional competence. (People _v.

Barnard (1984), 104 I11.2d 218, 233.) It

is not incompetent for counsel to refrain

from raising issues which he believes are

without merit unless his assessment of the

-§9-

merits is patently wrong. (Barnard, 104

tit .2g at 231.) Matters involving coun-

sel's exercise of judgment or trial tac-

tics do not give rise to a claim of in-

effective assistance of counsel. People

v. Madej (1985), 106 Ill.2d 201, 214.

Defendant's argument concerning the

lack of objections consists of numerous

citations to the transcript by page and

line number and the alleged basis for an

objection. Absent is any citation of

authority with regard to why the questions

were improper or how defendant was pre-

judiced by admission of the evidence. The

allegedly improper questions and answers

fall into two general categories; leading

questions during the State's direct exam-

ination of A.B. and allegedly irrelevant

testimony by D.H. regarding her and defen-

dant's marital difficulties and previous

=O.

allegations of sexual misconduct by defen-

dant with his natural children made by de-

fendant's ex-wife.

Defendant was not prejudiced by coun-

sel's failure to object to leading ques-

tions. Assuming for the sake of argument

that the failure to object fell below an

objective standard of reasonableness, de-

fendant suffered no prejudice. We have

already noted that A.B. testified to the

essential elements of the offense in re-

sponse to nonleading questions. That some

preliminary or follow-up questions may

have been leading did not detract from

this testimony. Moreover, it is well es-

tablished that leading questions may be

asked of a child witness. (E. Cleary & M.

Graham, Handbook of Illinois Evidence Sec.

611.9, at 412 (5th ed. 1990), citing Peo-

ple v. Luigs (1981), 96 I11.App.3d 700.)

os

From our review of the record, it is clear

that the prosecutor's questions to A.B.

were not so suggestive as to undermine the

reliability of her testimony. Thus, de-

fendant was not prejudiced by counsel's

failure to object to these questions.

Defendant was similarly not preju-

diced by counsel's failure to object to

D.H.'s testimony. D.H.'s testimony con-

cerning the order of protection was rel-

evant to show why she went initially to

the police station on September 1, 1989.

Her testimony about alleged prior in-

stances of sexual misconduct by defen-

dant, even if arguably inadmissible, was

Substantially impeached by the testimony

of defendant's ex-wife, C.T., and his

daughter, E.H. In announcing its finding,

the trial court stated that even if it

discounted D.H.'s testimony completely, it

«2.

found the evidence sufficient to prove

defendant's guilt beyond a_ reasonable

doubt. Moreover, the court specifically

stated that it was giving no weight to

allegations of sexual conduct with anyone

but A.B. Thus, testimony by D.H. about

additional instances of sexual misconduct

was substantially impeached, and the trial

court gave it no weight in reaching its

decision. It follows that defendant could

not have been prejudiced by his counsel's

failure to object to this evidence.

We have examined defendant's addi-

tional contentions of failure to object to

allegedly improper questions and found

them to be without merit.

Defendant's final contention is that

counsel was ineffective for failing to

request a hearing to determine the compe-

tency of the two minor witnesses to testi-

=i 3+

fy. Once again, we disagree with defen-

dant.

A.B. was 10 years old at the time of

trial. Her sister, E.B., was eight. All

witnesses are presumed to be competent to

testify, I11.Rev.Stat.1989, ch. 38, par.

115-14. The degree of a child's intelli-

gence, rather than chronological age, is

the critical factor in determining compe-

tency. If the witness is sufficiently ma-

ture to receive correct impressions by her

senses, to recollect and narrate intelli-

gently and to appreciate the moral duty to

tell the truth, then the witness is compe-

tent to testify, People v. Garcia (1983),

37 {11.26 5G, 75; in sre A.M.C. (19866), 148

Il1l.App.3d 775, 778.

In the instant case, in evaluating

the testimony of the various witnesses,

the trial judge specifically stated that

-~64-

———

he found A.B. to be "an articulate, can-

did, open, intelligent and honest

witness.'' Our independent review of the

record supports this conclusion. In pre-

liminary questioning by the prosecutor,

A.B. correctly stated her name, her age,

the name of her school and her grade, her

address, her other family members and the

age of her sisters. Throughout her testi-

mony she gave appropriate answers to ques-

tions asked of her. In light of the trial

court's assessment of A.B.'s testimony, a

challenge to her competency would certain-

ly not have been successful.

Similarly, the record would support a

finding that E.B. was a competent witness.

In any event, as the State points out,

E.B.'s testimony was not particularly sig-

nificant to the State's case. She merely

confirmed that defendant would read to her

-65-

and her sister, which defendant does not

deny, and that A.B. would sometimes go to

the bathroom during the stories. Assuming

for the sake of argument that E.B. was an

incompetent witness, striking her testimo-

ny would not have altered the outcome of

the trial. Therefore, any error in per-

mitting her to testify was harmless be-

yond a reasonable doubt.

Since defendant was not prejudiced by

any alleged errors of his trial counsel,

he was not denied the effective assistance

of counsel.

For the foregoing reasons, defen-

dant's conviction and sentence are

affirmed.

Affirmed.

INGLIS, P. J., and DOYLE, J., concur

-66-

United States of America

\

State of Illinois,

Appellate Court, } ss.

Second District,

I, LOREN J. STROTZ, Clerk of the Appellate

Court, in and for said Second Judicial

District of the State of Illinois, and the

keeper of the Records and Seal thereof, do

hereby certify that the foregoing is a

true, full and complete copy of the deci-

sion of the said Appellate Court in the

above entitled cause of record in my said

office.

IN TESTIMONY WHEREOF, I have set my hand and affixed

the seal of the said Appellate Court, in Elgin, in said State,

this 20th day h_» NOVEMBER AD. 1992_.

- ev ‘ mY pase a ed

Ps a4: - $ * Pe cited

Oty wer) A erat

Clerk Appellate Court, Seco Distnct

«£4.

(Filed February 25, 1993)

74726

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

February 3, 1993

Mr. William H. Wise

Wise & Kuzas, Ltd.

180 N.

Chicago,

a

No. 74726

The

petition

entitled

The

Lasalle St., S#2116

IL 60601

People State of Illinois,

respondent, v. C.H., petition

er. Leave to appeal,

Appellate Court, Second Dis-

crice.

Supreme Court today DENIED the

for leave to appeal in the above

Cause.

mandate of this Court will issue

to the Appellate Court on February 25,

1993.

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