Summary Rule 23 order filed

July 9, 2020. Motion to publish granted NO. 5-18-0570 July 29, 2020. IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Massac County. ) v. ) No. 17-CF-203 ) RAY G. LEE, ) Honorable ) Joseph M. Leberman, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________

JUSTICE WHARTON delivered the judgment of the court, with opinion. Presiding Justice Welch and Justice Moore concurred in the judgment and opinion.

OPINION

¶1 The defendant, Ray G. Lee, was charged with six counts of predatory criminal sexual

assault of a child in connection with the sexual abuse of his three young daughters, L.L., T.L., and

I.H. The trial court denied the State’s request to admit into evidence video-recorded interviews

with all three girls pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725

ILCS 5/115-10 (West 2016)). The State appeals that ruling pursuant to Illinois Supreme Court

Rule 604(a)(1) (eff. July 1, 2017). We find that we do not have jurisdiction to hear this appeal.

Accordingly, we dismiss the appeal.

¶2 The incidents of alleged abuse at issue in this case occurred between May 1, 2016, and

September 1, 2017. At some point, the abuse was called to the attention of the children’s mother

by their brother, R.J.L. Although T.L. told her mother that the defendant touched her butt, an

1 allegation she later admitted was not true, it is not clear on the record before us whether any of the

girls ever reported the abuse to their mother.

¶3 On November 30, 2017, forensic interviewer Dawn Wright interviewed all three girls at

the Two Rivers Child Advocacy Center in Anna, Illinois. L.L. turned 13 years old just four days

before the interviews took place. T.L. was 10 years old at the time, and I.H. was 7 years old. I.H.

told Wright that the defendant licked her “private parts” during the summer she was six years old

(which would have been 2016). T.L. described multiple incidents in which the defendant licked

her vagina or attempted to do so. She also told Wright that she saw the defendant lick I.H.’s vagina

when I.H. was only four years old. This prompted her to tell her mother that the defendant had

touched her butt so that her mother would keep the defendant away from I.H.

¶4 On December 26, 2017, the State charged the defendant with six counts of predatory

criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2016)). The charging

instrument alleged that the defendant put his mouth on each girl’s genitals between May 1 and

September 1, 2016, and between May 1 and September 1, 2017.

¶5 In June 2018, the State filed a notice of intent to introduce the video recordings of all three

interviews pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-

10 (West 2016)). That statute provides that in a prosecution for specified crimes committed against

a child under the age of 13, the child’s out-of-court statements about the crime are admissible as

an exception to the hearsay rule.

§ 115-10(a). There are, however, conditions on the

admissibility of such statements. The statements are only admissible if, after holding a hearing

outside the presence of the jury, the trial court determines “that the time, content, and

circumstances of the statement provide sufficient safeguards of reliability.” Id. § 115-10(b)(1). In

addition, the statements are only admissible if the child either testifies at trial or is unavailable as

2 a witness. Id. § 115-10(b)(2). If the child is unavailable as a witness, there must be corroborative

evidence. Id. § 115-10(b)(2)(B).

¶6 The court held a motion hearing in November 2018. The court viewed the interviews prior

to the hearing pursuant to the parties’ agreement. In ruling, the court considered the recordings

themselves along with the testimony of Dawn Wright and a police officer who observed the

interviews. The court ruled that (1) the recording of L.L.’s interview was not admissible because

she did not make the statement before she turned 13 years old or within three months of the

commission of the offenses (see id. § 115-10(b)(3)) and (2) the recordings of the interviews with

T.L. and I.H. were not admissible because the State did not provide sufficient evidence of the

reliability of their statements (see id. § 115-10(b)(1)). In explaining its ruling, the court emphasized

that it had no evidence before it regarding when the allegations were first reported and what the

girls said in their earlier statements. The court found that without such evidence, it was impossible

to determine whether the girls had been coached in what to say or whether any earlier statements

were consistent with what they told Wright.

¶7 The State appeals the court’s ruling as to the interviews of T.L. and I.H. We cannot address

the merits of its arguments, however, unless we find that we have jurisdiction to hear this appeal.

See Archer Daniels Midland Co. v. Barth,

(1984).

¶8 Illinois Supreme Court Rule 604(a)(1) allows the State to file appeals in criminal cases

under the limited circumstances set forth in the rule. In relevant part, the State may appeal “an

order or judgment the substantive effect of which results in *** suppressing evidence.” Ill. S. Ct.

R. 604(a)(1) (eff. July 1, 2017). An order has the substantive effect of suppressing evidence if it

prevents the State from presenting facts or opinions to the jury. In re K.E.F.,

(2009); People v. Drum,

(2000); People v. Truitt,

(1997),

3 abrogated in part on other grounds by People v. Miller,

(2002). If, on the other

hand, “the sole impact of the circuit court’s order is on the means by which the information is to

be presented,” the order does not have the substantive effect of suppressing evidence, and the State

may not appeal. (Emphasis in original.) K.E.F.,

; see also Drum,

; Truitt,

. It is the substantive effect of a trial court’s order that determines

appellate jurisdiction under Rule 604(a)(1), not its label or the label of the underlying motion.

Drum,

. Our review of this question is de novo.

.

¶9 The State acknowledges that in this case, it “may be argued that the evidence that was

excluded [was] admissible by other means, namely by virtue of live, in-court testimony that,

presumably, would detail the same facts surrounding their allegations.” The State further

acknowledges that there is no indication in the record that T.L. or I.H. will not be available as

witnesses. It is worth noting that, prior to trial, the State filed a motion to allow all three of the

girls to testify by closed-circuit television. This indicates that the State intends to call all three girls

to testify, including T.L. and I.H. The State urges us, however, to “find that the recorded statements

*** constitute discrete evidence whose evidentiary value is not as a substitute or alternative for

the live testimony of the minor victims, but as highly impactful corroborative evidence of their

claims.” In support of this contention, the State relies heavily on this court’s decision in People v.

Brindley,

, and the Illinois Supreme Court’s decision in People v. Bowen,

(1998). We find no support for the State’s position in those cases.

¶ 10 In Brindley, the trial court granted the defendant’s motion to suppress an audio-video

recording of a drug transaction. The State appealed that ruling to this court under Rule 604(a)(1).

Brindley,

. Prior to considering the merits of the appeal, we

addressed our jurisdiction to hear it. Id. ¶ 14. We rejected the defendant’s contention that the trial

4 court’s order “simply impacted the means by which the State could present the facts depicted in

the recording” because it could instead present the testimony of the confidential informant about

the transaction. Id. ¶ 22. We explained that “the suppressed evidence [was] actual audio-video

recording of relevant events as they occurred, capturing the defendant’s exact words, demeanor,

and visual manifestations at the time he is alleged to have committed the crimes charged.” Id. ¶ 23.

As such, we found that testimony describing these events was “not the same evidence” as the

recording itself. Id. For this reason, we concluded that the order excluding the recording had the

substantive effect of suppressing evidence and that we therefore had jurisdiction over the appeal.

Id. ¶ 24.

¶ 11 Here, by contrast, the recorded interviews would not allow jurors to see the charged

offenses as they occurred. Instead, jurors would simply see T.L. and I.H. describe the events at

issue several months to over a year after they occurred—much as they would be able to do through

their trial testimony. In support of its claim that the recordings are nevertheless so qualitatively

different from trial testimony that they cannot be considered “the same evidence,” the State calls

our attention to Bowen.

¶ 12 There, appellate jurisdiction was not at issue. The defendant filed an appeal after being

convicted of the aggravated criminal sexual assault of a three-year-old child. Bowen,

. In relevant part, he argued that the trial court erred in admitting a videotaped statement

from the child in addition to her trial testimony because it “was repetitive and untrustworthy.”

. In rejecting this argument, the supreme court discussed the value of such statements at

length. The court first explained that section 115-10 was enacted as “a needed response to the

difficulty of convicting persons accused of sexually assaulting children.”

. The court

explained that this difficulty arises in part because “child witnesses, especially the very young,

5 often lack the cognitive or language skills to effectively communicate instances of abuse at trial.”

The court also noted that children are often subject to suggestion (id. at 116) or may otherwise

be hampered psychologically from describing their abuse at trial (id. at 115). The Bowen court

explained that the statute alleviates these problems by making “detailed corroborative evidence of

the child’s complaint” admissible.

¶ 13 The State argues that this language in Bowen demonstrates that “the recorded statements

of minors serve a purpose independent from the testimony of the child witnesses themselves.” The

State explains that such statements are “often given in a much more comfortable and relaxed

environment” than trial testimony, and, as such, the statements “cannot be reasonably duplicated

by any other means at trial.” The jurisdictional question, however, is not whether evidence is

admissible, how reliable the evidence is, or what purpose it serves; the question is simply whether

the ruling appealed precludes the State from presenting information to the jury by any means. See

K.E.F.,

; Brindley,

, ¶ 16. In this case, the answer to

that question is no.

¶ 14 As we explained earlier, section 115-10 does allow the admission of a child’s out-of-court

statements when the child is not available as a witness. See 725 ILCS 5/115-10(b)(2)(B) (West

2016). Under those circumstances, the child’s out-of-court statement would be the only means of

providing the pertinent facts to the jury, and an order excluding it would therefore be appealable

under Rule 604(a)(1). Here, however, it appears that both children are available to testify and that

the State intends to call them as witnesses. Thus, while the recorded statements could possibly be

more compelling than their in-court testimony, they are not the only means available to the State

to present the relevant information to the jury.

6 ¶ 15 At oral argument, the State argued in rebuttal that accepting the defendant’s argument

would mean that, in many cases, the State would be required to rely on “the testimony of a witness,

who then gets on the stand and freezes.” As the State further noted, under such circumstances, it

would not be able to provide the testimonial evidence contained in the section 115-10 statement

through other means. Although the State forfeited this argument by failing to include it in its brief

(see Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018)), we choose to address it (see People v. Curry,

(explaining that forfeiture is a limitation on the parties, not on the

courts)).

¶ 16 We do not believe the possibility of a child witness “freezing” on the stand is sufficient to

vest this court with jurisdiction. Under those circumstances, the State would be free to ask the trial

court to revisit its pretrial ruling on the admissibility of the recordings. In this case, such a request

would also give the State the opportunity to present additional evidence concerning the reliability

of the recordings to address the concerns raised by the trial court at the motion hearing.

Specifically, the State could present evidence of the contents of any earlier statements made by the

girls or evidence that they did not make any earlier statements. The trial court’s ruling on such a

request would be appealable as an order suppressing evidence due to the subsequent unavailability

of a child witness previously thought to be available. As we explained earlier, we have jurisdiction

over appeals by the State in criminal cases only under the limited circumstances prescribed by

Rule 604(a)(1). The mere possibility that an available child witness might become unavailable is

not enough to transform an otherwise unappealable order impacting only the means by which the

State may present its evidence into an appealable order suppressing evidence.

¶ 17 Moreover, even if we found the State’s argument persuasive, we would be bound by our

supreme court’s holding in K.E.F. That case, like the case before us, involved appellate jurisdiction

7 over the State’s appeal of a trial court’s refusal to admit a child’s out-of-court statement under

section 115-10. Although the case arose under factual circumstances that were different from those

involved here, for the following reasons, we find it to be controlling.

¶ 18 K.E.F. involved a juvenile delinquency petition alleging that K.E.F. was delinquent

because he committed multiple sex offenses against his sister. K.E.F.,

. The

State requested a pretrial ruling on the admissibility of the sister’s recorded statements to a forensic

interviewer under section 115-10. After a hearing, the court found that the recorded statements

were reliable. The court ruled that the statements were admissible, subject to the State’s

compliance with the other requirements of section 115-10.

. As we mentioned earlier,

one of those requirements is that the child testify at trial unless she is unavailable as a witness. 725

ILCS 5/115-10(b)(2) (West 2016). Although the prosecution in K.E.F. did call the sister as a

witness, she was not questioned at all concerning the events at issue; she was asked only whether

she spoke to the forensic interviewer and whether she told the truth when she did so. K.E.F.,

. K.E.F.’s attorney objected, arguing that the statutory requirement is not satisfied

unless the child testifies at trial about the substance of the allegations. Counsel explained that the

State’s failure to ask the sister any substantive questions made her “unavailable for cross-

examination” on the factual matters at issue.

. The trial court agreed and ruled that the

recording of the sister’s forensic interview was not admissible unless the prosecutor asked her

about the events at issue.

.

¶ 19 The State filed an interlocutory appeal from that ruling. The appellate court dismissed the

appeal for lack of jurisdiction, holding that Rule 604(a)(1) is inapplicable in juvenile delinquency

proceedings.

. The State then appealed to the Illinois Supreme Court.

8 ¶ 20 The supreme court did not address the applicability of Rule 604(a)(1) to juvenile

proceedings.

. Instead, the court found that the “threshold question” before it was

“whether the trial court’s ruling is appealable under Rule 604(a)(1)—at all.”

. The court

then explained that, as we have already discussed, evidence is not suppressed within the meaning

of that rule unless the trial court’s ruling prevents the State from presenting information to the trier

of fact.

at 538 (quoting Drum,

).

¶ 21 In applying that rule to the facts before it, the supreme court noted that “the State chose—

for reasons that quite frankly defy comprehension—to attempt to gain admission of a prior

statement that the trial court had already ruled reliable” by asking the child “only whether she had

previously answered [the forensic interviewer’s] questions truthfully.”

. The court

“question[ed] the wisdom of that course of action,” emphasizing that the “admissibility of the

evidence in question was a matter entirely within the State’s control.”

.

¶ 22 The court then addressed what we consider to be at the heart of the jurisdictional question

before us. The court pointed out that “the prosecution had the option of presenting live testimony

to secure admission of the information it sought to introduce, an option it declined to pursue.”

(Emphasis added.)

The court concluded that “the sole impact of the circuit court’s order” was

therefore “on the means by which the information [was] to be presented.” (Emphasis in original.)

¶ 23 The State seeks to distinguish K.E.F., arguing that, there, “the State appealed because it

simply refused to comply with the dictates of the statute by refusing to present testimony ‘at the

proceeding’ *** about the alleged sexual assault.” We are not persuaded. As we have just

discussed, the supreme court’s ultimate conclusion rested on the fact that the trial court’s ruling

left the State with the option of presenting the information it wanted to present through live

9 testimony. See

As the court emphasized, “[t]he substantive effect of the trial court’s ruling is

the pertinent issue.”

Although there are many other differences between this case and K.E.F.,

we find no meaningful distinction on this dispositive point. We therefore conclude that we do not

have jurisdiction to consider the merits of the State’s appeal.

¶ 24 For the reasons stated in this opinion, we dismiss the appeal.

¶ 25 Appeal dismissed.

10

NO. 5-18-0570

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Massac County. ) v. ) No. 17-CF-203 ) RAY G. LEE, ) Honorable ) Joseph M. Leberman, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________

Summary Rule 23 Order Filed: July 9, 2020 Motion to Publish Granted: July 29, 2020 Opinion Filed: July 29, 2020 ______________________________________________________________________________

Justices: Honorable Milton S. Wharton, J.

Honorable Thomas M. Welch, P.J., and Honorable James R. Moore, J., Concur ______________________________________________________________________________

Attorneys Hon. Josh Stratemeyer, State’s Attorney, Massac County for Courthouse, 101 West 8th Street, Metropolis, IL 62960; Patrick Delfino, Appellant Director, Patrick D. Daly, Deputy Director, Office of the State’s Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2, Mt. Vernon, IL 62864 ______________________________________________________________________________

Attorneys James E. Chadd, State Appellate Defender, Ellen J. Curry, Deputy for Defender, Richard J. Whitney, Assistant Appellate Defender, Office of the Appellee State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864 ______________________________________________________________________________