We initially dismissed this appeal for lack of jurisdiction on February 27, 2009, having found that defendant's notice of appeal was premature. People v. Garcia–Cordova, No. 2–07–0550 (2009) (unpublished order under Supreme Court Rule 23). The Illinois Supreme Court issued a supervisory order on April 7, 2009, which vacated our February 27, 2009, order and directed us to treat defendant's notice of appeal as validly filed.

R.K. was available as a witness and answered all of defendant's questions on cross-examination.          Defendant's argument is similar to an argument made by the defendant in People v. Garcia-Cordova, 392 Ill.App.3d 468, 332 Ill.Dec. 94, 912 N.E.2d 280 (2009). In Garcia-Cordova, the question was whether the child was available for cross-examination during defendant's trial.

Until facts are in issue, a defendant has no reason to turn a sworn witness into a sworn hostile witness. The dissent relies in great part on People v. Garcia-Cordova, 392 Ill. App. 3d 468 (2009), for support for its conclusion that K.O. was available and testified. However, we find that this court's analysis in Garcia-Cordova and the State's argument in this case fail to address the lack of confrontation in the examination of the victim.

Bryant, 391 Ill. App. 3d at 1083. Likewise, in People v. Garcia-Cordova, 392 Ill. App. 3d 468, 476-77 (2009), a Department of Children and Family Services (DCFS) worker testified at trial to statements made by the victim during an interview which indicated that the victim had been sexually assaulted. The victim, however, testified on direct examination that she could not recall the contents of those conversations or the incidents of abuse and the defendant chose not to cross-examine the victim.

People v. Leeper, 317 Ill.App.3d 475, 480, 251 Ill.Dec. 202, 740 N.E.2d 32 (2000).¶ 48 In deciding whether defendant's constitutional right to confrontation was violated, we relied on this court's opinion of People v. Garcia–Cordova, 392 Ill.App.3d 468, 332 Ill.Dec. 94, 912 N.E.2d 280 (2009) (Garcia–Cordova I ). In Garcia–Cordova I, like here, the victim could not recall or remember the details of the sexual abuse.

"[U]nder the confrontation clause of the United States Constitution, a testimonial statement of a witness who does not testify at trial is inadmissible unless (1) the witness is unavailable to testify, and (2) the defendant had a prior opportunity for cross-examination." People v. Garcia-Cordova, 392 Ill. App. 3d 468, 479 (2009) (citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004)). However, "where `the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.'"

The dissent would also have held that "admission of this initial statement was not a violation of the confrontation clauses of either the Hawai'i or United States constitutions" because the Complainant appeared at trial and Delos Santos "had the opportunity to cross-examine her, notwithstanding her testimony that she could not remember the incident in question or her statements to police." Id. at 1-2 (footnote omitted) (citing United States v. Owens, 484 U.S. 554, 559-60, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988); People v. Garcia-Cordova, 392 Ill.App.3d 468, 332 Ill.Dec. 94, 912 N.E.2d 280 (2009); State v. Fields, 115 Hawai'i 503, 523, 168 P.3d 955, 975 (2007)). Finally, the dissent would have held that there was sufficient evidence to remand to the family court for a new trial because the Complainant's statement "that `my boyfriend beat me up,' her testimony that she and Delos Santos were living together at the time and the police officer's observations of her swelling and marked chin, limp, and two-inch by two-inch circular red mark on her thigh were sufficient to support a conviction for Abuse of Family or Household Member."

The complaining witness did appear at trial and Defendant-Appellant Kenneth Delos Santos (Delos Santos) had the opportunity to cross-examine her, notwithstanding her testimony that she could not remember the incident in question or her statements to police. See United States v. Owens, 484 U.S. 554, 559-60 (1988) (the opportunity to cross examine is not denied due to witness's bad memory); People v. Garcia-Cordova, 912 N.E.2d 280 (Ill. App. Ct. 2009) (child victim was available for cross-examination, despite her claimed loss of memory and lack of knowledge). See also State v. Fields, 115 Hawai'i 503, 523, 168 P.3d 955, 975 (2007) (quoting Owens with approval: "It is sufficient that the defendant has the opportunity to bring out such matters as the witness' bias, his [or her] lack of care and attentiveness, his [or her] poor eyesight, and even (what is often a prime objective of cross-examination, see 3A J. Wigmore, Evidence § 995, pp. 931-932 (J. Chadbourn rev. 1970)) the very fact that he [or she] has a bad memory.") (internal quotation marks and italics omitted).

A trial court abuses its discretion where no reasonable person would take the trial court's view. People v. Garcia-Cordova, 392 Ill. App. 3d 468, 487-88 (2009). Moreover, we are to examine and consider the entire record as it existed at the time the trial court considered the State's petition.Id.

"A trial court abuses its discretion where its decision is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the trial court's view." People v. Garcia-Cordova, 392 Ill. App. 3d 468, 487-88 (2009). "Whether the State has exercised due diligence is a question that must be determined on a case-by-case basis after careful review of the particular circumstances presented."