Opinion
NO. 5-14-0573
10-27-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC HURLEY, Defendant-Appellant.
NOTICE
Decision filed 10/27/17. The text of this decision may be changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of the same.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Madison County.
No. 10-CF-2514
Honorable Kyle Napp, Judge, presiding.
PRESIDING JUSTICE MOORE delivered the judgment of the court.
Justices Welch and Cates concurred in the judgment.
ORDER
¶ 1 Held: The defendant's conviction of the offense of aggravated battery of a child (720 ILCS 5/12-4.3(a-5) (West 2010)) is affirmed where the circuit court did not abuse its discretion in finding the victim competent to testify pursuant to section 115-14(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-14(c) (West 2014)), in allowing hearsay evidence of the victim's statements to her father and grandmother pursuant to section 115-10 of the Code (725 ILCS 5/115-10 (West 2014)), and in refusing to admit certain evidence offered by the defendant where the defendant failed to make an offer of proof; the evidence was sufficient to convict the defendant; and the defendant failed to use a peremptory challenge to exclude a juror he now claims should have been excluded.
¶ 2 The defendant, Eric Hurley, appeals his May 21, 2014, conviction, in the circuit court of Madison County, of the offense of aggravated battery of a child (720 ILCS 5/12
4.3(a-5) (West 2010)), based on a jury's finding that he intentionally burned the victim, H.H., the then three-year-old daughter of his paramour, with a cigarette. On appeal the defendant argues that he is entitled to a new trial based on the following claims of error: (1) the finding that the victim, H.H., was competent to testify; (2) the admission of the hearsay testimony of H.H.'s father and grandmother as to statements H.H. made to them about the offense; (3) the refusal to admit evidence that the victim's father impregnated another woman during his relationship with the victim's mother and that the victim's mother's charges arising from the same incident were dismissed days before trial; (4) the insufficiency of the evidence that H.H. was actually injured; and (5) the impaneling of a juror who at first stated she had never been a victim of a crime, but later stated she had been a victim of child abuse after having been accepted and tendered to the State as part of a panel of four. For the following reasons, we affirm.
¶ 3 FACTS
¶ 4 On November 5, 2010, the defendant was charged by information, in the circuit court of Madison County, with the offense of aggravated battery of a child. The information alleged that, on October 23, 2010, the defendant "knowingly caused bodily harm to H.H., a child under the age of thirteen *** years, in that he burned H.H. about the body with cigarettes." 720 ILCS 5/12-4.3(a-5) (West 2010). On March 26, 2013, the State filed a motion to join, for the purposes of trial, the defendant's charge with that of H.H.'s mother, Stacy Sumner, who had been charged with the same offense stemming from the same incident. The circuit court granted that motion on September 16, 2013.
¶ 5 On May 20, 2013, the State filed a notice of intent to present hearsay evidence pursuant to section 115-10 of the Illinois Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2012)), in which it notified the circuit court that it intended to call, inter alia, H.H.'s father and grandmother, to testify as to statements that H.H. made to them about the alleged offense, and that it intended to call H.H. to testify as well. On October 29, 2013, the defendant filed a motion to determine H.H.'s competence to testify pursuant to section 115-14 of the Code. 725 ILCS 5/115-14 (West 2012).
¶ 6 A hearing on the State's notice of intent to present hearsay evidence took place on January 8, 2014. Zachary Hammon testified that he is H.H.'s father and that H.H. was six years old at the time of the hearing. Zachary further testified that H.H. was three years old on October 23, 2010. On that date, Zachary was not living with H.H. and her mother, Stacy Sumner, but Zachary had visitation with H.H. on Wednesday evenings and every weekend. At that time, Stacy and H.H. were residing with the defendant, who H.H. referred to as "Mr. Eric." Zachary further testified that when he picked H.H. up from Stacy's residence on October 23, 2010, he noticed there were some marks on H.H.'s face. He asked H.H. how she got her "boo-boos," and H.H. told him that Mr. Eric had burned her with a cigarette because she was being a bad girl. Zachary testified that he had not been talking about the defendant at all prior to asking H.H. about the marks on her face.
¶ 7 Zachary testified that, prior to October 2010, H.H. had suffered from eczema, but that the marks he saw on H.H.'s face on the date in question were inconsistent with the eczema he had seen on H.H. prior to that date. After leaving the defendant and Ms. Sumner's residence, Zachary took H.H. to the residence of his mother, Maureen
Hammon. Upon arriving, Zachary told Maureen, outside of H.H.'s presence, that she should look at H.H.'s face. Maureen then asked H.H., in Zachary's presence, what had happened to her face, and H.H. again stated that Mr. Eric burned her because she was being a bad girl. At some point thereafter, Zachary took H.H. to her pediatrician, Dr. Wangard, who verified that the injuries were burns and not the eczema for which he previously treated H.H.
¶ 8 On cross-examination, Zachary testified that H.H. was not crying when he picked her up and she did not make the statements at issue until after Zachary asked her where she got her boo-boos. Zachary also admitted that he wished for custody of H.H. at the time. Upon more specific questioning, Zachary testified that H.H. told him that the defendant "held me and burned me with cigarettes" because she was crying. Zachary testified that H.H. had three burn marks on her face, one on her hand, and one on her stomach. On redirect, Zachary testified that H.H.'s story is always consistent when she talks about what happened and that he knows H.H. to be truthful.
¶ 9 Maureen testified that she is H.H.'s grandmother. In October 2010, H.H. would stay with her when she had visitation with Zachary. Maureen knew Stacy based on Zachary's prior relationship with her. Maureen knew defendant as Stacy's paramour and knew his family owned a local business. Maureen also testified that H.H. referred to the defendant as "Mr. Eric." On the day in question, at the behest of Zachary, Maureen observed marks on H.H.'s face, in addition to the marks on H.H.'s belly, hand, and leg that she had observed during a prior visitation approximately five days earlier. Maureen testified that she easily distinguished these marks from the eczema that H.H. had on prior
occasions. Maureen testified that, upon asking H.H. the source of her "boo-boos," H.H. stated that Mr. Eric had burned her with cigarettes because she was being bad, or crying. H.H.'s demeanor was withdrawn and sad. Maureen asked H.H. where Stacy was when this happened. H.H. gave several different answers including that Stacy was holding her upside down, and that Stacy was watching Scooby-Doo. Maureen testified that H.H. has always been consistent with her story about the defendant, however, and she finds H.H. to be generally truthful.
¶ 10 On cross-examination, Maureen testified that H.H. spontaneously told her a few weeks prior to the day in question that she got in trouble for wetting on the toilet and the defendant made her start going outside to use the bathroom. In contrast, H.H. did not spontaneously tell Maureen about the defendant burning her with cigarettes, but rather H.H. was prompted by Maureen's question as to how she got her "boo-boos." Maureen also clarified that a couple of days prior to October 23, 2010, she saw H.H. in her home and noticed marks on her right hand and on her right leg. She thought they looked like burn marks but was unsure. Maureen and Zachary talked about the marks and decided not to inquire at that time, but rather to "keep an eye on her [and] see if she had any marks when she came back next time." Maureen again insisted that the marks that she saw looked nothing like the eczema that H.H. had suffered from her entire life.
¶ 11 Kim Mangiaracino testified that she is employed by the Madison County Child Advocacy Center as a forensic interviewer, trained specifically to interview children when there are allegations of abuse. She interviewed H.H. on October 27, 2010. The interview lasted 17 minutes. H.H. was three years old at the time of the interview. Ms.
Mangiaracino testified that three-year-old children can typically tell who did something and what they did. However, three-year-old children are pretty limited as to questions beyond that realm, such as specific dates and times. A DVD depicting the interview was admitted into evidence. At the close of the evidence, the defendant objected to the hearsay testimony of Zachary and Maureen, but agreed that the DVD depicting the interview with Ms. Mangiaracino should be admitted at trial. The circuit court granted the State's motion to present the hearsay evidence of Zachary and Maureen over the defendant's objection, as well as the motion to present the hearsay testimony of Ms. Mangiaracino.
¶ 12 On May 13, 2014, the defendant filed a motion in limine, requesting that he be allowed to comment upon and question witnesses concerning the State's decision to dismiss Stacy Sumner's charges "nearly on the eve of trial." The circuit court denied the defendant's motion at a pretrial hearing on May 19, 2014. On May 20, 2014, the circuit court commenced voir dire. During voir dire, the circuit court asked the prospective jurors whether any one of them, or a family member, or a very close personal friend, was ever a victim of a crime. Prospective juror numbers 15, 31, and 32 all answered yes and answered follow-up questions for the circuit court. No other juror answered this question affirmatively. After the panel was asked whether any of them or close family members had ever been charged or convicted of a crime, prospective juror number 18 asked to speak with the court and counsel privately. During this private exchange, juror number 18 disclosed that she had been convicted of a DUI in the past and her son had been charged
with DUI two times. However, she did not disclose any information regarding having been a victim of a crime.
¶ 13 Following initial questioning of the venire by the circuit court, counsel began questioning the prospective jurors in panels of four. After the defendant had exercised some, but not all, of his peremptory challenges, a panel of four that included juror number 18 was tendered to the parties for questioning. After the defendant questioned this panel, he approved the panel and tendered the panel to the State for questioning. In response to the State's question as to whether there was anything she thought the circuit court and counsel should know about regarding whether she would be the right juror for the case, juror number 18 responded, "I was abused when I was younger." The State then asked juror number 18 if that was something that she is comfortable talking about, to which juror number 18 responded, "Back then nobody listened." The State then asked juror 18 whether she would decide the case based on evidence that she hears in the courtroom, to which juror 18 responded, "[T]he child needs to be listened to. I mean, that's my feelings, because nobody listened to me. I mean, that's my feeling." Following this colloquy, the State indicated that it would accept the panel including juror 18, which would complete the jury of 12. The defendant did not object to the panel at that time or attempt to challenge juror 18. After picking an alternate juror, the jury trial commenced.
¶ 14 Following opening statements, the State called Dr. Christopher Wangard to testify. Dr. Wangard testified that he had been a board certified pediatrician for 14 years and was then serving as site supervisor for Cardinal Glennon Pediatrics at Anderson Hospital in Maryville. Prior to taking this position, he worked as a pediatrician at Bard and Didriksen
Pediatrics. Dr. Wangard saw H.H. as a patient while working as a pediatrician at Bard and Didriksen. He testified that he first saw H.H. when she was about 20 months old. Prior to October 25, 2010, Dr. Wangard conducted routine pediatric care with H.H., as well as diagnosing and treating her eczema. Dr. Wangard testified that eczema is a skin condition that is common in both adults and children, usually resulting from an allergen of some type. It presents as an itchy rash, most often in the folds of the elbows, folds of the knees, and on the face. In treating H.H. for eczema, Dr. Wangard testified that he prescribed steroid creams. Dr. Wangard testified that he has seen eczema on hundreds of occasions.
¶ 15 Dr. Wangard testified that on October 25, 2010, H.H. came to his office for a scheduled visit regarding a suspicion H.H. had been abused and burned with cigarettes. Upon examination, Dr. Wangard observed several markings on her body, several markings on her face, a marking on one of her hands, and a marking on her lower abdomen. Each of these markings was circular in shape, with some scabbing and an area of surrounding redness. Each of the markings was about six to seven millimeters in diameter. Dr. Wangard testified these markings did not look like eczema, and specifically did not look like the fairly typical eczema for which he had treated H.H. Dr. Wangard explained H.H.'s eczema generally presented as large, itchy patches of rash on her skin, rather than small, circular marks. Dr. Wangard testified the markings on H.H. on October 25, 2010, appeared to be in different stages of healing, which could be due to their occurring at different times or due to a difference in severity. After examining H.H., Dr.
Wangard diagnosed H.H. with nonaccidental trauma, as the markings appeared to him to fit the classic description and appearance of cigarette burns.
¶ 16 Dr. Wangard testified he asked H.H. how she got her "boo-boos." H.H. replied, "Eric did it." When he asked her what happened, she said, "the cigarettes." After reviewing photographs of H.H., Dr. Wangard testified the photographs depicted H.H. with the injuries as he saw them. On cross-examination, Dr. Wangard reiterated H.H. had recurring eczema from the first time he saw her as a patient. On one occasion, he received a call requesting a different treatment for the eczema because it was "all over her body" and was not resolving with the then-current treatment, but he did not testify who placed this call to him.
¶ 17 Following the testimony of Dr. Wangard, the circuit court conducted a hearing, outside the presence of the jury, to determine H.H.'s competency to testify, pursuant to section 115-14(c) of the Code. 725 ILCS 5/115-14(c) (West 2014). Responding to inquiry by the circuit court, H.H. spelled her full name and testified she was six years old at the time of the hearing. She testified her birthday is October 5th and she was in kindergarten. She had a stuffed animal on the stand with her she referred to as "Ducky." When the circuit court asked her if it would be the truth or a lie he had purple hair, H.H. responded, "lie." When the circuit court asked her if it would be the truth or a lie it was snowing outside, H.H. responded, "lie." When the circuit court asked her if her teacher was a real person or a cartoon character, H.H. responded, "real person." When the circuit court asked her if Scooby-Doo was real or fake, H.H. responded, "fake."
¶ 18 Upon further inquiry by the circuit court, H.H. promised to tell the truth, not to tell any lies, and she would say "I don't know" if someone asks her a question she did not know the answer to. H.H. testified she knew the difference between a truth and a lie and if you tell a lie, "you get in trouble." After a sidebar with counsel, the circuit court excused H.H. and stated on the record it did not inquire of H.H. regarding her ability to recollect events from the past because it did not go to her competency, but instead, was an area of cross-examination that would go to credibility and the weight to be given her testimony. The circuit court found H.H. was competent to testify and her testimony would be allowed at the trial.
¶ 19 H.H. testified as to her name and age, and stated she lived with Zachary. She further testified as follows:
"Q. Do you remember when you went to your mom Stacy's house?
A. Yeah.
Q. Did you used to go there when you were younger?
A. Yeah.
Q. And did anything happen there?
A. Yeah.
Q. What happened at your mom Stacy's house?
A. Burnt me with a cigarette.
Q. Do you want to say it into the microphone or can you say it a little bit louder. What happened at your mom Stacy's house.
A. Eric and Stacy burnt me with a cigarette.
Q. Where did they burn you at?
A. My heart.
Q. In your heart. Did it hurt?
A. I don't know.
Q. Did you tell anybody that you were burned?
A. Daddy.
Q. You told your Daddy?
A. Meemaw.
Q. I'm sorry who?
A. Meemaw.
Q. Who is Meemaw?
A. Maureen.
Q. That's your grandma?
A. (Shaking head)."
¶ 20 Zachary testified consistently with his testimony at the hearing on the State's motion to present hearsay evidence. He testified that when he asked H.H. on the day in question how she got the boo-boos, H.H. told him, "she was being a bad girl and Mr. Eric burned her with cigarettes." On cross-examination, Zachary was presented with his written statement to the police wherein he stated H.H. told him Stacy held her head and covered her eyes while Mr. Eric burned her. Zachary testified if that was what was in the
statement, then that is what he said to police, that is what H.H. told him, and he believes her. Zachary agreed he did not take H.H. to the hospital until about five hours after H.H. told him what had happened. Defense counsel asked Zachary a question regarding the timing of his impregnation of another woman, in relation to his relationship with Stacy. The State objected on grounds of relevance, and after a sidebar off the record, the circuit court sustained the objection and instructed the jury to disregard the question. Defense counsel did not make an offer of proof as to the testimony he was attempting to elicit from Zachary prior to the objection. Zachary did testify that he sought custody of H.H. in January 2010.
¶ 21 Maureen also testified consistently with her testimony at the hearing on the State's motion to present hearsay testimony. On cross-examination, she testified that when she asked H.H. where Stacy was while the defendant was burning her with cigarettes, H.H. gave her three different stories. First, H.H. told her Stacy was holding her upside down. Second, H.H. told her Stacy was holding her down. Third, H.H. told her Stacy was watching Scooby-Doo. Also, Maureen reiterated she was able to get H.H. for visitation anytime she wanted, and on the day in question, Stacy let Zachary pick H.H. up despite the marks on her face. On redirect, Maureen testified H.H. has never strayed from her assertion that the marks on her skin were the result of the defendant burning her with a cigarette.
¶ 22 Kim Mangiaracino also testified consistently with her testimony at the hearing on the State's motion to present hearsay testimony, laying a foundation for the DVD interview she conducted with H.H., which was played for the jury. On cross-examination,
Ms. Mangiaracino agreed that, during the interview, H.H. referred to the defendant as Eric, rather than "Mr. Eric." Ms. Mangiaracino was asked to reiterate information from the DVD interview, such as the fact that she was not able to get H.H. to give her details about what happened other than "Eric" burned her with a cigarette, and it happened outside. Specifically, H.H. was unable to tell Ms. Mangiaracino where on her body she was burned, what her mom said when she was burned, or how the burn felt.
¶ 23 After the State rested its case and the circuit court denied the defendant's motion for a directed verdict, Delinda Hurley was called to testify on behalf of the defendant. Ms. Hurley testified she is the defendant's mother. She further testified she babysat H.H. on the night of Friday, October 22, 2010, while H.H. slept and the defendant worked at the bar downstairs, which she and her husband owns. She testified she never saw the mark on H.H.'s cheek that was depicted in the photographs in evidence, but rather, she only saw a mild eczema rash. She further testified she saw the mark on H.H.'s hand, which the defendant told her was from H.H. burning herself on her grandma's barbeque grill. She also testified that on the night of October 22, 2010, Zachary was at the bar drinking and playing pool with the defendant and wanted to take H.H. with him that night, which the defendant refused because Zachary had been drinking.
¶ 24 Dr. Barry Zeffren testified he has been a board certified allergist since 1984. He saw H.H. as a patient on June 11, 2009, when she presented with complaints of wheezing and recurrent upper respiratory infections. During his examination of H.H., he noticed what he termed as "eczematous" changes on her cheeks and hands. Dr. Zeffren described eczema as an inflammatory, crusty-type of weepy rash on the skin with non-specific
borders. Dr. Zeffren testified that eczema causes a tremendous amount of itching and scratching. Based on his identification of eczema on H.H., Dr. Zeffren recommended a course of aggressive skin care with moisturizers. In addition, Dr. Zeffren prescribed an antibiotic based on his suspicion that a secondary skin infection was developing. Although Dr. Zeffren recommended a follow-up in three weeks, H.H. was not returned to his office. Dr. Zeffren testified eczema can produce a scabbing effect, particularly if there is a secondary infection. On cross-examination, Dr. Zeffren agreed a well-demarcated circle is not typical of eczema.
¶ 25 The defendant testified he met Stacy when Stacy and Zachary came into his parents' bar every now and then. After Stacy and Zachary split up, Stacy came into the bar alone and they began a dating relationship. When the defendant started dating Stacy, she still lived with Zachary for H.H.'s sake, but Zachary was also dating someone else. One night, the defendant took Stacy home and all of Stacy and H.H.'s belongings were on the lawn. Stacy cried and told him she had no place to go, so the defendant told her to get her belongings and she could stay at his house until she figured something out. H.H. stayed there most of the time, with the visitation arrangement being as Zachary described in his testimony.
¶ 26 The defendant testified he never touched H.H. inappropriately and never placed a cigarette on her skin. He testified he would never let anyone hurt a child. He was looking for a bigger place for them, took care of her, played with her, made most of the meals, and took her and Stacy to the zoo and parks. The defendant testified H.H. never called him Mr. Eric, and always called him Eric. When Zachary picked H.H. up and dropped
her off, he always referred to the defendant as Mr. Eric. He never attempted to discipline H.H. in any way, as he felt that was Stacy's responsibility, and H.H. was a good kid that never acted up.
¶ 27 The defendant testified that during the week in question, H.H. had been on the mend from a flare-up of her eczema. Up until Wednesday, October 20, 2010, they had been using topical creams and mild soap as directed by the doctor. H.H. scratched at her rash and it "scabbed up." On Friday, October 22, Zachary did not pick H.H. up at the defendant's apartment on time, so he and Stacy took H.H. to his parents' bar because they were both scheduled to work there. The defendant's mother watched H.H. in the apartment above the bar. At 9:30 p.m. that night, Zachary showed up at the bar and they drank beer and played a game of pool. He asked to take H.H. with him that night, and Stacy told him he could not because he had been drinking and H.H. was sleeping upstairs. The defendant testified Zachary "had a little bit of an attitude" because he could not take H.H. with him that night, but did not make much of it and left.
¶ 28 The defendant testified that Zachary came to his apartment around 10:30 the following morning to pick up H.H. The defendant testified that at that time, H.H.'s face did not look like the photographs. Rather, the defendant testified, she had the eczema rash on her cheek, but it was not yet to the point of scabbing over. As to the mark on her hand, the defendant testified that H.H. told him she burned it on a grill. The defendant testified he never had occasion to see H.H.'s abdomen, and so could not to speak to its condition before she left with Zachary that morning. The defendant testified he had not seen H.H. from that morning until she took the stand to testify. Defense counsel asked the defendant
whether he had any knowledge as to why Zachary and Stacy's relationship had deteriorated. The defendant answered, "Yeah. He had a baby with another woman, the baby was approximately the same age as [H.H.], and she found out about it." The defendant testified that at the time of the allegations, he and Stacy smoked about a pack of cigarettes per day between them, but they never smoked around H.H., in the house, or in the car.
¶ 29 Following closing arguments and a period of deliberations, the jury found the defendant guilty of aggravated battery of a child. On June 20, 2014, the defendant filed a posttrial motion in which he raised, inter alia, the errors that he raises on appeal. On October 24, 2014, the circuit court denied the defendant's posttrial motion and, after a sentencing hearing, sentenced the defendant to 30 months in the Illinois Department of Corrections, with a one-year mandatory supervised release to follow. On November 20, 2014, the defendant filed a notice of appeal.
¶ 30 ANALYSIS
¶ 31 1. H.H.'s Competency to Testify
¶ 32 The first issue the defendant raises on appeal is whether the circuit court erred in finding that the victim, H.H., was competent to testify. Pursuant to section 115-14(a) of the Code (725 ILCS 5/115-14(a) (West 2014)), all witnesses, regardless of age, are presumed competent to testify. Potential witnesses can be disqualified if they are incapable of expressing themselves in a manner in which they can be understood or incapable of understanding the duty of a witness to tell the truth. 725 ILCS 5/115-14(b) (West 2014). The burden of proving that a witness is not competent falls upon the party
challenging the witness's ability to testify. 725 ILCS 5/115-14(c) (West 2014). The question of a witness's competency is to be determined by the trial judge, and a reviewing court may not disturb that determination absent a clear abuse of discretion. People v. Sutherland, 317 Ill. App. 3d 1117, 1125 (2000).
¶ 33 A circuit court should consider the following four criteria in determining whether a minor is competent to testify: (1) the ability of the witness to receive correct impressions from her senses; (2) the ability to recollect those impressions; (3) the ability to understand questions and express answers; and (4) the ability to appreciate the moral duty to tell the truth. People v. Puhl, 211 Ill. App. 3d 457, 464 (1991). Based on these criteria, we find that the circuit court did not abuse its discretion in finding H.H. was competent to testify. H.H. was able to say and spell her full name, tell her age, her birthday, and her grade in school. She answered several questions evidencing she was able to tell the truth from a lie. While the criteria require the witness be able to recollect impressions from her senses, this is a general requirement, and we agree with the circuit court that the degree of H.H.'s recollection of the past events at issue was not relevant to her competence to testify, but was rather a factor for evaluating the weight of H.H.'s testimony. The defendant does not cite a case to the contrary, and we note the defendant did not cross-examine H.H. during her testimony to test her ability to recollect the allegations against the defendant. For these reasons, we find that the circuit court did not err in finding that H.H. was competent to testify.
¶ 34 2. Hearsay Testimony of H.H.'s Father and Grandmother
¶ 35 The second issue on appeal is whether the circuit court erred in admitting the hearsay testimony of H.H.'s father, Zachary, and grandmother, Maureen, as to statements H.H. made to them about the alleged offense. The admission of hearsay testimony in this context is governed by section 115-10 of the Code (725 ILCS 5/115-10 (West 2012)), which provides, in relevant part, as follows:
"(a) In a prosecution for a physical *** act perpetrated upon or against a child under the age of 13, *** including but not limited to prosecutions for violations of Section [ ] *** 12-4.3 (aggravated battery of a child) *** of *** the Criminal Code of 2012 ***, the following evidence shall be admitted as an exception to the hearsay rule:
***
(2) testimony of an out of court statement made by the victim 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 *** physical act against that victim.
(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 circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child ***:
(A) testifies at the proceeding ***; ***
*** and
(3) In a case involving an offense perpetrated against a child under the age of 13, the out of court statement was made before the victim attained 13 years of age or within 3 months after the commission of the offense, whichever occurs later, but the statement may be admitted regardless of the age of the victim at the time of the proceeding."
¶ 36 The applicability of this statutory section involves a question of the admissibility of evidence. Accordingly, we may overturn the circuit court's determination that Zachary and Maureen's hearsay testimony was admissible only if the record clearly demonstrates it abused its discretion. People v. Zwart, 151 Ill. 2d 37, 44 (1992). A circuit court abuses its discretion only when its ruling is arbitrary, fanciful, or no reasonable person would take the view adopted by the circuit court. People v. Donoho, 204 Ill. 2d 159, 182 (2003). Here, we cannot say this is so. As the State points out, the time, content, and circumstances of H.H.'s statements to both Zachary and Maureen supported reliability. According to evidence set forth at the hearing, H.H.'s statements were made in response to Zachary and Maureen's questions as to where she got her "boo-boos," but the questions were open-ended in a way that did not suggest a particular response. H.H. was consistent in her statements, and her statements were related to an event that occurred in the then-recent past and were consistent with the type of injuries she had.
¶ 37 The only case the defendant cites in support of his argument that the circuit court abused its discretion in determining that the hearsay testimony of Zachary and Maureen was inadmissible pursuant to section 115-10 of the Code (725 ILCS 5/115-10 (West 2012)) is Zwart, 151 Ill. 2d 37. However, we find that case to be distinguishable. First, unlike the case at bar, prior to making statements implicating the defendant, the child in Zwart was interviewed by at least three persons regarding the alleged crime, and the State failed to produce any evidence regarding the substance of any of these interviews. Id. at 44. This made the circumstances of the statements suspect. Id. Second, the child's statements were made approximately five weeks after the alleged abuse occurred, making the timing of the statement suspect. Id. at 45. The circumstances and timing of the victim's statements were particularly problematic due to the fact that the victim was not available to testify. Id. These concerns with the timing and circumstances are qualitatively different than those expressed by the defendant in this case, which center on the motive of Zachary to fabricate H.H.'s statements. The defendant cites no authority that the possibility that the prospective witnesses would have a motive to fabricate the victim's statements would be cause to find an abuse of discretion in admitting the witnesses' testimony. For these reasons, the circuit court did not err in admitting the statements at issue.
¶ 38 3. Refusal to Admit Evidence
¶ 39 The third issue the defendant raises on appeal arises from the circuit court's refusal to admit two items of evidence, which we will address in turn. First, however, we reiterate we review the circuit court's decision to exclude specific items of evidence for
an abuse of discretion. People v. Becker, 239 Ill. 2d 215, 234 (2010). This means we will not overturn that decision unless it is arbitrary, fanciful, or no reasonable person would agree with the circuit court's decision. Donoho, 204 Ill. 2d at 182.
¶ 40 We begin with the circuit court's prohibition of defense counsel's cross-examination of Zachary regarding his impregnating another woman around the same time as H.H.'s mother, Stacy, became pregnant with H.H. According to the defendant's brief, this evidence was relevant to Zachary's motive to fabricate H.H.'s allegations. However, our review of the record reveals the defendant was permitted to directly testify that Zachary impregnated another woman while Zachary was dating Stacy. Moreover, defense counsel made the suggestion during closing argument that Zachary had a motive to fabricate H.H.'s allegations due to his desire to have custody of H.H. For these reasons, we find no reversible error.
¶ 41 Moving to evidence that the State dropped Stacy's charges a few days prior to trial, we also find no abuse of discretion in the circuit court's exclusion of such evidence. The defendant cites no case suggesting that the refusal to admit evidence that a codefendant's charges were dropped would be an abuse of discretion, and we are aware of none. In addition, the exclusion of such evidence did not impact the defendant's ability to cast doubt upon his guilt. The defendant was able to introduce evidence, via his own testimony, that Stacy had the opportunity to perpetrate the abuse against H.H., which was one point he made in his closing argument. As the State points out, introduction of evidence of dropped charges against Stacy would open the door to the State presenting
evidence of its reasons for doing so, which may have harmed the defendant's trial strategy. For these reasons, the circuit court did not err in excluding this evidence.
¶ 42 4. Sufficiency of the Evidence
¶ 43 The fourth issue on appeal is whether the evidence was sufficient to convict the defendant where Dr. Wangard was only able to testify that H.H.'s injuries were "consistent with" a cigarette burn. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. People v. Collins, 106 Ill. 2d 237, 261 (1985). When presented with a challenge to the sufficiency of the evidence, rather than retry the defendant, it is the function of this court to determine, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.
¶ 44 Applying the aforementioned principles, we find the evidence sufficient to convict the defendant. Dr. Wangard testified he treated H.H.'s eczema in the past. He observed that the markings on H.H.'s body were not eczema, but rather, were the result of nonaccidental trauma consistent with uniform burn marks having the "classic description and appearance of cigarette burns." Even if Dr. Zeffren had effectively contradicted this testimony, which is questionable given that he conceded that skin marks with a delineated circular shape are not typical of eczema, the determination of the relative weight to give the doctors' testimony was within the province of the jury. Id. at 262. Put simply, the defendant has not presented a bona fide challenge to the sufficiency of the evidence in this case.
¶ 45 5. Impanelment of Prospective Juror 18
¶ 46 Finally, the defendant argues that he is entitled to a new trial due to the impanelment of prospective juror number 18, who, during voir dire, initially indicated that she had never been a victim of a crime, but who later stated that she had been a victim of child abuse. In the defendant's brief, the defendant admits that his failure to exercise a peremptory challenge or challenge this juror for cause during voir dire is a forfeiture of the right to object to that juror. See People v. Brooks, 185 Ill. App. 3d 935, 939 (1989). That is precisely what happened here. The defendant's only argument in the face of this well-established authority is that "[t]hese seem like sensible rules, provided prospective jurors are taking their jobs seriously[ ] and being forthright when given multiple opportunities to do so." This argument is insufficient to warrant a change in existing law on this subject. Accordingly, the defendant is not entitled to a new trial on this basis.
¶ 47 CONCLUSION
¶ 48 For the foregoing reasons, the defendant's conviction is affirmed.
¶ 49 Affirmed.