## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Bran don P. , 2013 IL App (4th) 111022

Appellate Court Caption In re: BRAND ON P., a Minor, THE PEOP L E OF T HE STATE OF I L L I NOI S
, Petitioner-Appellee
, v. BRAND ON P., RespondentAppellant.

District & N o. Four th District Docke t No. 4-11-1022

Filed Rehea ringdenied August 5, 2013

August 19, 2013

Held (Note : Th is syl lab us

c ons ti tut es no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the R epo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Respondent’s sentenc e t o t h e Depa rtment of Juvenile J ustice for an indeterminate term followinga findingthat he was guilty of ag g ravated criminal sexual abuse ag ainst his thre e-year -old cousin was upheld over his contentions that the trial court err ed in admitting the victim’s hear say statements t o a poli ce office r, t hat his counsel wa s ineffe ctive in failing
to object to the admission of DNA evidenc e, and that he was deprive d of a fa ir trial.

Dec ision Under Review Appea l from the Circuit Court of Ver milion County
, No. 10-JD-238; the Hon. CraigH. DeArmond, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Kar en Munoz, and Catherine K. Har t (ar gued), all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

Randall Br ineg ar, State’s Attorney
, of Danville (Patrick Delfino, Robert J

. Bide rman, and Da v id E. Mannche n (argued), all of S tate’s Attorney s Appellate Prose cutor’s O ffice , of counse l), for the People.

Panel PRES I DI NG J USTI C E STEI GMANN delivere d the judgme nt of the court, with opinion.
J ustices Appleton and Holder Whit e concurre d in the judgme nt and opinion.

OP INION

¶ 1 In November 2010, the State charg ed responde nt, Br andon P. (born Dec ember 5, 1995), by peti tion for adjudication of wardship with ag g ravated criminal sexual abuse (720 I L CS 5/12-16(c) (2)( i) (West 2010) (“the acc used was unde r 17 year s of ag e and *** commits a n act of sexual conduct with a victim who was under 9 y ea rs o f age when the act was committed”)). The State al l ege d that responde nt committed “an act of sexual conduct”
ag ainst M.J . (born July

30, 2007). ¶ 2 Following an August 2011 adjudicator y hearing, the trial court found responde nt guilty of ag g ravated criminal sexual abuse. Shortly there afte r, the court sentenc ed responde nt to the I llinois Dep ar t m ent of J uvenile Justice for an indeterminate period not to exceed (1) the period for which an adult could be committed for the same act or (2) the date of responde nt’s twenty -first birthday

(705 I L CS 405/ 5-750 (West 2010)), whicheve r ca me sooner. ¶ 3 Respondent appea ls, arguing that (1) the trial court err ed by (a) admitting M.J .’s hear say statements to police under section 115-10 of the I llinois Code of Criminal Procedur e of 1963 ( Cr iminal Procedur e Code) (725 I L CS 5/115-10 (West 2010)) be c a u s e th e y w e r e “ u

nr e li a b le ” and (b) finding that statements M.J

. made to police wer e not “t es t i m onial,” resulting in a violation of his rig ht to confr ont M.J .; (2) he was provided ineffe ctive assistance of counsel,
g iven that counsel failed to object to the admissibili ty of cer tain scientific evidenc e; and (3) he was deprive d of a fair trial beca use the State’s evidenc e consisted of “unconstitu t i o n al hear say testimony and inconclusive y et p re judicial scientific evidenc e.” We disag ree and aff irm.

¶ 4 I . BA CKGROUND ¶ 5 A. The State’ s Charg e and Pre trial Motions ¶ 6 In November 2010, the State charg ed responde nt by petition for adjudication of wa rdship with ag g ravated criminal sexual abuse (720 I L CS 5/12-16(c) (2)( i) (West 2010) ( “ th e a ccuse d

-2-was under 17 y ear s of ag e and *** commits an act of sexual conduct with a victim who was

u nder 9 y ear s of ag e when the act was committed”)). The State alleg ed that 14-y ea r- o l d responde nt committed an act of sexual conduct ag ainst his 3-y ear -old cousin, M.J

. ¶ 7 In Dec ember 2010, t h e S t at e fi led a notice of intent to prese nt evidenc e under se ction 115-10 of the Criminal Procedur e Code (725 I L CS 5/115-10 (West 2010)). Specifica lly
, the State soug ht to offe r statements that M.J

. initially made to her mother and later to the police that responde n t “p u t h is fing er in her vag ina which made her fee l bad and *** spit on her
vag ina and put his penis on her at Uncle Mike’s.” ¶ 8 In J anuar

y 2011, the State filed a motion, seeking a hearing on consumption of samples of deoxy ribonucleic acid (DNA ) evidenc e taken from a sexual assault kit perf ormed on M.J

. That kit contained vag inal, anal, and underw ear swabs. As part of its motion, the State also
reque sted a buc cal swa

b from re spondent. The tria l court later g rante d that motion.

¶ 9 B. The Hea ringon the State’s Motion To Present Statements Under Section 115-10 of the Criminal Proce dure Code ¶ 10 In May 2011–while the trial court was waiting for th e DN A re s u l t s fr om the State’s laboratory

–the court conducte d a hearing to deter mine whether to admit the section 115-10
statements the State soug ht to prese nt. M.J .’s m o t h er , There sa J
., and also Offic er Troy Hogren, who investiga

ted M.J .’s all eg ations ag ainst responde nt, testified reg arding the statements M.J . made to ea ch of the m, respec tively

. ¶ 11 There sa testified that she had fiv e ch ildren: Stephanie (19 y ear s old); Kay la (19 year s old); L ucas (7 y ear s old); Alana (5 y ear s old); and M.J

. (3 y ear s old). There sa also noted that responde nt was her

nephew

. ¶ 12 There sa explained that on Octobe r 23, 2010, she picke d responde nt up from the police station, and responde nt spe nt the night at her house with her and the children. (Respondent

was at the police station for an unrelated matter.) Respondent had been having problems with his pare nts. (Respondent’s fathe r, Mike, was a truck driver and awa y from home at the time.) ¶ 13 The nex t morning
, There sa l eft the house fo r approximately two hours. W hen The resa returne d, she was in the dining room with Kay la, Stephanie, and Kay

la’s boy friend, J eff

. The
rest of the children wer e upstairs. There sa hear d a scre am, and J eff went upstairs to “ chec k

on the kids.” L

ucas, Alana, M.J
., and responde nt wer e all in Lucas’ s room with the door shut. ¶ 14 Shortly there afte r, Ther esa le ft to pick up Mike from the “truck yard.” All the children

rema ined at the house. There sa and Mike arr ived back at the house, and not much later, Mike and responde nt left to return home. The prosec utor inquired into what happene d at that point, as follows: “[PR OSECUTOR] : And what happe ned af ter [respondent] left? [THERES A]: Uhm, I can’ t reme mber approximatel y h o w l ong it was afte r [respondent] left, but [ M.J .] had come downstairs; and she was *** holdingherse lf. [P ROSECUTOR] : What do y ou mean by holding he rself? [THERES A]: She had her hand on her *** pee- pee as she would say , and she had–I thought she had to g o to the bathroom. And I asked her if she had to g o, and she said y es

-3-but it hurt. And I told her to g o ahea d and–I believe I told he r to g o ahea d and g o. Then Iasked he r why

it hurt, and she said be cause[respondent] had put spitin her pe e-pe e. [P ROSECUTOR] : And afte r she sa id *** that, did you ask any further questions? [THERES A]: I , uhm, Iasked he r to–Itook her to my brother’ s house.” ¶ 15 When There sa and M.J

. arrived at Mike’s house, There sa asked M.J

. to tell respondent’ s pare nts what she told her, as follows: “Can you tell Uncle Mikey and Aunt Aundre a what you told me? ” M.J

. there afte r told responde nt’s pare nts that responde nt “put spit on her pee- pee.” There sa then called the police, who instructed There sa to take M.J

. to the hospital immediately . The police later me t There sa at the hospital. ¶ 16 On cross-e x amination, defe nse counsel sough t t o clar ify what, prec isely
, M.J

. said to There sa: “[DEFEN SE] : So when you wer e questioning or talking to [M.J .], *** she stated to
you that her pe e-pe e hurt; is that corr ect? [THERES A]: Yes. [DEFENSE]: And then what exactly did you say

afte r that? [THERES A]: Her pee- pee hurt, that’s why she couldn’t g o pee. I asked her why
, and she said that [respondent] had spit on her pee -pee

. [DEFENSE]: And she *** used the ac tual word spit? [THERES A]: S he we nt like–said, ‘He did this and put it on my pee- pee.’
THE COURT: The rec ord should ref lect that the witnes s i n s er t ed her rig ht index fing er into her

mouth indicating that motion by the child.
* * * [DEFENSE]: When she said that *** [respondent] put the s aliva with that motion, did she g ive any

indication of what he did with it? [THERES A]: S he said that–she just touche d her pe e-pe e and sa id it hurt and that’s what he ha d done. [DEFENSE]: She didn’t g ive any indication if it was below the clothes or under the clothes? [THERES A]: I*** can’ t remembe r if it was at that time or if it wa s when we wer e at the hospital.” ¶ 17 Hogren testified that he beg an investigating M.J .’s case “a couple of day s afte r the repor t

was g ener ated by [the] patrol office r.” Hogren interviewe d M.J

. at a “Public Safety Building ” while There sa was prese nt. On direc t examination, the prose cu t o r asked Hogren how he initiated the discussion about the alleg ations, g iven M.J .’s tender ag e: “[PR OSECUTOR] : And how did you initiate your conve rsation with [M.J .]? [HOGREN]: She sat–she was very shy

. She obviously didn’t know me. I introduced
my self to her, explained to her that I was a police office r and I work with kids and I was here–she wasn ’t in any trouble and I was here to talk to her about something that may have happene d to her. And she sat on my lap and I asked her, you know, what her name

was. She was able to tell me her full name, her middle name and her last n ame. And I

-4-asked her how old she was. She said she was three

. I asked her who she lived with. She said that she lived with her mommy and her sisters. And I as k ed h er if she had any brothers and she said she had a brother named Lucas and I believe he was six and another sister named A lana that was five or six
, around there

. Said she didn’t g o to school, you know, she didn’t attend a ny schools. She wasn’t a

ble t o tell me what town she lived in

or–or what street she lived on, but she appea red–othe r than being very shy she appea red to function normally

I thought f or her ag e. [P ROSECUTOR] : And she under stood the questions that you wer e asking ? [HOGREN]: Yes. * * * [P ROSECUTOR] : And how did you bring up with he r the pending investiga tion at that point? [HOGREN]: Well, I explained to her that I wanted to talk to her about what she had told her mother a couple day s ag o and that I was here to talk to her about something that
may have happene d to her that she didn’t like, and she told me that she was at home there in Lucas’ s bedroom and it was her and L ucas and Alana and [respondent] and they wer e playing police and cops, some sor t of a police a

nd cops g ame, a

nd she couldn’t tell me what [respondent’s] last name was[,] she just told me that [r espondent] was Uncle Mike’s s o n

. * * * An d [M.J .] explained that they wer e playing this g ame and that [respondent] stuck his fing er in he r pee pee. [P ROSECUTOR] : She said that he stuck his fing er in he r pee pee? [HOGREN]: Yes. [P ROSECUTOR] : Did ** *you ask her what her pee pe e wa s or– [HOGREN]: Well, when she said that she pointed, she made a motion with her fing er in betwee n her le g s. [P ROSECUTOR] : And pointed in betwee n her le g s? [HOGREN]: Yes, in the fr ont. [P ROSECUTOR] : And afte r she made that s t at em ent did you inquire more of her from that [( sic )]? [HOGREN]: I asked her if she *** had her clothes on or off. Sh e s ai d h er clothes

wer e on. I asked her if she had told a ny body what had happene d to her and she said she told Aundre a and Uncle Mike *** what h appened to her. She said she told them that [respondent] spit in her pee pee and that [respondent] put his wiener on her at Uncle Mike’s house. [P ROSECUTOR] : And she said that happe ned at Unc le Mike’s house? [HOGREN]: Well, she said that [respondent] put his wiener on her at Uncle Mike’s house. [P ROSECUTOR] : And did you inquire more of those statements? [HOGREN]: I asked her if *** that was on top of her clothes or on her skin and she said her c lothes were on.”

-5-Hogren a dded that his entire c onversation with M.J . lasted betwe en 20 and 25 minutes.

¶ 18 Following the prese ntation of evidenc e and argument at the section 115-10 hearing, the trial court found that the State could introduceat trial the statements M.J

. made to T here sa and later to Hog ren, outliningits rationale as f ollows: “Well, we need to take into consideration, first of all, this is a three [-] y ear [-] old child
at the time. Secondly
, disclosure was not even intended as a d i s closure which g ives it
even greater re liability

. The child comes downstairs holding herse lf. The mother aske d if she needs to g o to the bathroom. She’s not asking any thing about any susp i ci ous behavior
, simply do you need to g o to the bathroom. The child say s y es but it hurts. The mother simply asked why does it hurt and the child then discloses. There ’s nothing leading about it. There ’s nothing sug g estive about it. The child simply indicates the

rea son why her private hurts which is an indication that [respondent] has done something with her vag ina. There ’s no time to fabr icate. The ag e of the child is rele vant. There ’s no motive. There ’s no indication of any issues betwee n the child, the child’s mother and the minor or those member s of the fa mily

. Taking into considera

tion all of t hose fa ctors, the time, conte nt, and circumstances do provide sufficie nt reliability to the statements as to allow them to be admissible under [section] 115-10. Then we g o to *** Hogren. Contrary to arguments of counsel[,] there wer e no leading questions. The questions wer e very open-e nded. The questions *** did not have to do with the i nvestig ator sugg esting the perpetrator to the child. That wa sn’t the t estimony at all. Yes, [ responde nt’s] name came up earlier i n th e co n v ersation but it had nothi ng to do wi t h i d en t i fying him as the perpe trator of what happene d. She is the one who identified who the person was. The office r’s questions wer e nonspecific, v ery openended. Taking into consideration the ag e of the child, she answe red the questions as best she could. Adding g reater reliability is the fac t that in her statements to the office r she even acknow ledg ed the second st at em en t s m ade to the aunt and uncle and she wasn’t even b eing asked about that. She was being asked about whateve r she had told her mother which would also a dd to its reliability

. So taking into considera

tion all of those fac tors, I find that there is a sufficie nt basis for r eliability

of the stateme nts to allow them to be admitted.” Notwithstanding the court’s f in d in g s as to M.J .’s statements to There sa and Hogren, the court found that the State should not be permitted to use M.J .’s statements to responde nt’s pare nts at responde nt’s house at trial beca use the State did not specific ally seek to use those
statements.

¶ 19 C. Respondent’s August 2011 Benc h Trial ¶ 20 At responde nt’s August 2011 bench trial, the State prese nted evidenc e in suppor t of its alleg ation that responde nt committed ag g rava ted criminal sexual abuse ag ainst M.J

. throug h testimony
, phy sical evidenc e, and M.J .’s 115-10 statements. The State called There sa to

-6-testify first. ¶ 21 There sa testified consis t en t l y wi t h h er testimony from the May 2011 section 115-10 hearing. Namely
, among other things, There sa rec all ed t h at shortly afte r Mike took
respo n dent home, M.J

. came downstairs complaining that her “pee -pee ” hurt and that responde nt had spit on her “pe e-pe e.” ¶ 22 The trial court rec essed and there afte r rec onvened in the jury room with the prosec utor, There sa, respondent, Mike, as we ll as defe nse counse l, for M.J.’s testimony

. M.J

. testified as follows:
“THE COU RT: *** Can you tell me how old you are ? [M.J .]: Four

. THE COURT: Four . Did you just turn four? [M.J .]: (Witness nodding hea d up and down) THE COURT: Do you know what your birth date is? [M.J .]: (Witness shaking he ad bac k and for th)
THE COURT: No? Did you have a birthday party ? [M.J .]: (Witness nodding hea d up and down) THE COURT: Was it a good pa rty ? [M.J .]: (Witness nodding hea d up and down)
THE COURT: Okay

. Do you know wher e we are ? Do you know what this building is called? [M.J .]: (Witness shaking he ad bac k and for th)
THE COURT: No? Okay . Do you know what we ’re doing he re? [M.J .]: (Witness shaking he r hea d back a nd forth)
THE COURT: Not rea lly ? Wil l you answe r some questions for us if we ask you some questions? [M.J .]: (Witness nodding hea d up and down) [THERES A]: C an you say ‘yes’? THE COURT: Can you say ‘yes’ f or me? [M.J .]: ‘Ye s.’
THE COURT: Yes or no, whicheve r your answe r is. This lady takes ever y thing down; ever

y thing we say

she ty pes on a little machine
, okay ? So we have to make sure that we talk out loud. Okay ? [M.J .]: (Witness nodding hea d up and down)
THE COURT: I f we ask you questions, will y ou tell us the truth? [M.J .]: (Witness nodding hea d up and down)
THE COURT: I s that a ‘yes’? [M.J .]: (Witness nodding hea d up and down) THE COURT: Could y ou answe r out loud.

-7-[M.J .]: ‘Ye s.’
THE COURT: I f you don’t understand a question, if you don’t understand something I ’m saying or

that somebody

is saying, w ill y ou let us know that? [M.J .]: (Witness nodding hea d up and down)
THE COURT: I s that a ‘yes’? [M.J .]: ‘Ye s.’
* * * [P ROSECUTOR] : [ M.J .], can you tell us what your full name is[? ] [M.J .]: [(M.J . provides her full name)] [P ROSECUTOR] : And you just turned four? [M.J .]: (Witness nodding hea d up and down) [P ROSECUTOR] : Can you say it out loud? [M.J .]: [(M.J . repe ats her f ull name)]
* * * [P ROSECUTOR] : Where do you live, [M.J .]? [M.J .]: In Oakwood. [P ROSECUTOR] : In Oakwood? W ho do you live with? [M.J .]: Mommy

. [P ROSECUTOR] : Mommy ? Who else lives with y ou? [M.J .]: Stephanie. [P ROSECUTOR] : Stephanie? Who is Stephanie? [M.J .]: My

sister. [P RO S E CUTOR]: Your sister. Who else lives with you? Do you have any other brothers or

sisters? [M.J .]: Kayla is my

sister. [P ROSECUTOR] : And do you have a ny other sisters? [M.J .]: (Witness shaking he r hea d back a nd forth) [P ROSECUTOR] : J ust Kayla? [M.J .]: J ust St ephanie

. [P ROSECUTOR] : And Stephanie? Do you have a ny other sisters? [M.J .]: Alana. [P ROSECUTOR] : And do you have a brother? [M.J .]: Yes. [P ROSECUTOR] : What’s y our brother ’s name? [M.J .]: Lucas. [P ROSECUTOR] : Lucas? Are you g oing to sc hool this y ear , [M.J .]? [M.J .]: (Witness shaking he ad bac k and for th)

-8-[P ROSECUTOR] : Where ar e you g oing to sc hool? [M.J .]: In presc hool. [P ROSECUTOR] : In presc hool? And do you know when you start school? [M.J .]: (Witness shaking he ad bac k and for th) [P ROSECUTOR] : No? Pretty soon? [M.J .]: (Witness shaking he ad up and down) [P ROSECUTOR] : Yes? Okay . Can you say your answe rs out loud for me. [M.J .]: ‘Ye s.’ [THERES A]: Don’t shake your hea d. Answer y es or no. [P ROSECUTOR] : [ M.J .], do y ou reme mber whe n you had to g o to the hospital? [M.J .]: (Witness shaking he r hea d back a nd forth) [P ROSECUTOR] : You don’t reme mber? [M.J .]: (Witness shaking he r hea d back a nd forth) [P ROSECUTOR] : Do you reme mber having to talk to the police ? [M.J .]: (Witness shaking he r hea d back a nd forth) [P ROSECUTOR] : Can you answe r out loud for me[? ] [M.J .]: ‘No’ [P ROSECUTOR] : You don’t reme mber? [M.J .]: (Witness shaking he ad bac k and for th) [P ROSECUTOR] : Do you reme mber Mommy takingyou to the hospital? [M.J .]: No. [P ROSECUTOR] : No? Do you *** have a cousin named [responde nt] ? [M.J .]: (No re sponse) [P ROSECUTOR] : Do you? [M.J .]: (Witness shaking he r hea d back a nd forth) [P ROSECUTOR] : Can you answe r our loud for me? [M.J .]: ‘No.’ [P ROSECUTOR] : No? Did you see [responde nt] in here today ? [M.J .]: (Witness nodding hea d up and down) [P ROSECUTOR] : Can you point to him ? [M.J .]: (No re sponse) [THERES A]: L isten to what [t he prosec utor] is saying and answe r h er questions, okay ? [P ROSECUTOR] : Can you point to [ responde nt] ? [M.J .]: (Witness shaking he ad bac k and for th) [P ROSECUTOR] : No? Did something ba d happen to you?

-9-[M.J .]: (Witness shaking he ad bac k and for th) [P ROSECUTOR] : You don’t reme mber having to g o to the hos p i t al beca use something ba d happene d? [M.J .]: (Witness nodding hea d up and down) [P ROSECUTOR] : You do reme mber g oing to the hospital? [M.J .]: Um-um. [THERES A]: S he’s g etting c onfused. [P ROSECUTOR] : Do you want to talk to us? [M.J .]: (No re sponse) THE COURT: She shrug s her shoulder s. [P ROSECUTOR] : Can Ihave just a minute[? ] THE COURT: No, she’ s–she’s beingquestioned. You c an’t talk to her separ ately

. [P ROSECUTOR] : Okay

. [THERES A]: C an I

say something or

no? THE COURT: No. That’ s part of the problem. We have to deal with it this way

. [P ROSECUTOR] : Your Honor, I ’m not g oing to a sk any other que stions. THE COURT: [Defense counsel? ] [DEFENSE]: No questions, y our Honor. THE COURT: All rig ht. You can g o. Thank you.” ¶ 23 The State then c alled M.J.’s brother Lucas to testify

. Lucas, who was 7 y ear s old at the time, testified that “something ” happene d to M.J

. in his bedroom. He explained that he was in his room with responde nt, M.J
., and Alana, and that M.J

. was lying down on the floor with her shirt on but without pants. When asked by the prosecutor what he saw ha ppen to M.J
., Lucas would only respond, “I ’m s ca red.” Def ense counsel elec ted not to cross-e x amine Lucas. ¶ 24 Hogren testified consistently with his earlier testimony from the May 2011 section 115- 10 hearing. Def

ense counsel objected to Hogren testifying about what M.J

. told him during his October 26, 2010, interview with her, arguing that as testimonial statements, the hear say

was inadmissible beca

use M.J

. was unavailable for cros s -e x amination. The trial court there afte r allowed Hogren to testify as to what M.J

. told him beca use the State could rec all M.J

. to testify and he was conducting a bench trial. Hogren then p roceede d to outline his interview with M.J .–namely
, that “[respondent] put his fing er in her pee- pee, and she pointed betwee n h er leg s.” Hogren also testified reg arding his interview of responde nt. Although responde nt acknow ledg ed being in Lucas’ s room with M.J
., Lucas, and Alana, and showing them “picture s of naked ladies on his cell[ular] phone,” he denied th at he did what M.J

. claimed that he had done. ¶ 25 After calling multipl e witnesses to testify to the chain of custody of the DNA e vidence
, the State ca lled Dana

Pitchford, a fore nsic scientist, to testify about t he swabs collecte d as evidenc e in this ca s e. Pitchford testified that she tested M.J .’s sexual assault kit for the

-10-prese nce of semen. Her conclusion was that semen was “indicate d” but that no sperm cells

wer e identified. A s such, she c ould not be cer tain that semen wa s prese nt. ¶ 26 Aar on Small, a second f o r e n s ic s c ientist, testified reg arding the DNA analy sis conducted. Small explained that “a minor male DNA profile” exis ted in some of the loci–that is, the 15 marke rs that he uses when analy zing DNA samples–but did not exis t in others. Respondent could not be excluded from the are as–the loci–in which the minor male DNA was detec ted. Statist ically , that sample would indicate , as follows:
“The statistics that would be g iven with the sample on the minor DNA profile wer e that it would be approximately o n e i n a hundred thousand Afric an-America ns, one in 7400 Caucas i ans, one in 16,000 Southwest Hispanics–Southwest Hispanic unrelated individuals cannot be excluded from that minor DNA p ro file at the loci that are listed–the are as that ar e listed wher e the f oreign profile wa s detec ted.” Small explained that he used an I dentifier Plus DNA test, implementing the 15 loci plus an additional “sex-deter

mining” locus. Small’s results rev ea l ed that responde nt (a male, Cauca sian minor) could not be excluded from seven loci but that the other nine loci showed no results. Small clarified those r esults as follows:
“The re are nine loci wher e I do not–I interpre t the profile as there is no minor profile that is showing up in those loci. There is DNA that is to be fo r t h e victim’s profile. There fore
, it is only at the seven loci that I actua lly g ot results. It’s not saying that there

are n’t–it’s not saying that the person or people are excluded from the rema ining loci. It’s
saying that there’ s no result obtained fr om those loci.” ¶ 27 At the close of the State’s evidenc e, the trial court took up the issue of the section 115-10
statement s fr om Hogren, g iven that the State did not rec all M.J

. to testify

. Following
arguments from t h e p ar t i es, the court admitted the statements, explaining its rea soning as follows:
“I have to look at all the circumstances surround i n g t he st atements to *** Hogren. The incident occur s on October [24]

. She’s taken to the hospital later that day

. She makes her first statements to her mother sometime during the day on the [24t h]. This is a three [- ]y ear [-] old child. *** [On t] he 26th *** Hogren *** questions the t h re e y ear old *** with the mother prese nt. The ch i l d was called to testify [.] [S he t] estified initially to preliminary matters and then essentially froze up. It’s clea r the child is unavailable as a witness.” The court there afte r decide d to allow Hogren’ s testimony afte r finding that M.J .’s statements to police were not testimonial beca use t hose st atements were (1) made as part of an initial series of questions to a child of tender y ear s, and (2) not intended to be formal statements by the child. ¶ 28 In his defe nse, responde nt called his fathe r, Mike, to testify

. As best we can tell, Mike’s testimony was dire cted at impeachingThere sa’s timeline of e vents. ¶ 29 On t h i s ev i d en ce , an d after closing arguments from counsel, the trial court found responde nt guilty , explaining its finding a s follows: “Well, I think it was an uninte ntional misstatement by [defense counsel], but ***

-11-Small did not say that [respondent] couldn’t be included. He said h e co u ldn’t be excluded. But he didn’t say he couldn’t be included beca use he said that there was a one in 7,400 possibili ty that it wa s someone else. He said that he couldn’t be excluded. But it’s clea r that he can be included. 7 out of the 16 [l oci] wer e identified as his. Out of the

rema ining 9 there wer e some which he couldn’t identify at all. Ther e was just no result obtainable from those [l oci]. He didn’t s ee a m inimum profile. He neede d to make a specific deter

min ati on. Doesn’t mean that [respondent’s] DNA wasn’t there
, it wasn’t
enough to make a deter mination
, so he included only the 7 that he was able to specific ally identify

. Which beg s the question how otherwise does [respondent’s] DNA wind up on a three [-] y ear [-] old child’s underw ear

. [I t] is not the statements of the mother that are the most important ones. The statements of the child. Was the door locked? Was there a scre am? I don’t know. It’s clea r, though, that the mother say s that within f ive to ten m inutes of [respondent] leaving[M.J .] comes down the stairs say s she has to g o to the bathroom. She tells her to g o. She say s s h e ca n ’t

. Why [? ] It hurts. Why [? Respondent] put spit on my pee pee. Up to that point in time[
, There sa] doesn’t have any suspicion that there ’s any

thing g oing on. She’s not the one fabr icating a statement which the child doesn’t reiter ate to investigators. She relates what the child said to her and it’s that point then that ever

y thing star ts happening

. Was [Theresa] at the house all day or not[ ? ] I don’t know. What we do know is that the chil d t o l d h er that her pee pee hurt. That [respondent] put spit on my pee pee. *** Hogren spoke wi t h h er about a day and a half afte r that. And let’s back up to Lucas. Lucas testified that they wer e all playing upstairs. [R espondent] was there with them. He

saw something happen to [M.J .] but he couldn’t tell what he saw. Something did happen in the bedroom. [R espondent] a nd [M.J .] and Alana w ere there

. [M.J .] wa s lying down

on the floor, her shirt was on but her pants wer en’t on. Then he indicated *** he was too

scar ed to tell. That’s also indicative of something that happene d. It has nothing to do with the m other’s statements. *** Hogren asked her if s o m ethi ng happene d she di dn’t like. She said [res p o n d en t ] p ut his fing er in her pee pee. She said she told Uncle Mike responde nt put spit in her pee pee and put his penis on her. *** Hogren asked her if this happene d and she said y es i t d i d

. T h o s e are the s tatements of the m inor. Those are the
statements of the three [-] y ear [-] old. Every thing else has to do with corr oboration of the three [-] y ear [-] old’s statements, b e c a u s e a s is the nature of these case s[,] the most rele vant evidenc e comes from the least capa ble relater. To disbelieve the child I have to assume that this three [-] y ear [-] old fo r s o m e inexpl icable rea son would tell at least two people that [respondent,] her cousin[,] who appea rs to have no issues with her nor does she with him put his fing er in her pee pee and put his penis on her. I have to assume that Lucas for

some rea son saw something happen to [M.J .] but indicated he couldn’t tell what he saw. That something happene d in the bedroom with [M.J .] l ying down on the floor with her shirt on and her pants off, and that for some rea son he would make that statement. I then have to try to assume that there would be some other explanation for semen indicated on the vag inal swab. I didn’t hear any evidenc e that a three [-] y ear [-] old g irl is cap ab l e of producing semen. It would be difficult to envision what circ umstances would cre ate the
prese nce of semen on a three [-] y ear [-] old’s underw ear –I ’m sorry , three [-] y ear [-] old’s

-12-vag ina ot her than that one described b y t h e three [-] year [-] old. It’s difficult t o envision how [respondent’s] DNA would wind up on her underw ear other than in t h e m an n er descr ibed by [M.J .] I don’t have to rely on [Theresa]. I have the child who related i t in the best way she could, in the only way she could with her limit ed ability to relate what happene d. The circ umstances under which her statements are made are indicative of the truthfulness of the statements. They ’re made shortly afte r the episode. There ’s neither time nor rea son to fabricate. They contain information which she would not be normally likely to know or understand. And there ’s no reas o n to believe that she’s not cre dible. When you couple that with the statements of Lucas, the DNA evidenc e, and the burden of proof isn’t differ ent b ec au s e of the seriousness of the offe nse. The burden of proof

rema ins the same. It’s not like if it’s a rea lly serious offe nse there has to be a whole lot

more evidenc e. There has to be proof beyo n d a rea sonable doubt. I would have to somehow have a rea sonable doubt that this three [-] y ear [-] old was n o t telling the truth which I don’t, or some rea sonable doubt as to some other explanation for [respondent’s] DNA and the presence of semen on the child or in her underw ear

which I don’t. In my opinion[ ,] that’s more than sufficie nt evidenc e to establish proof beyond a re as o n able doubt.” ¶ 30 Shortly there after, t h e t ri al court sentenc ed responde nt to the I llinois Depa rtment of J uvenile J ustice for an indeterminate period not to exceed (1) the period for which an adult could be committed for the same act or (2) the date of responde nt’s twenty -first birthday (705 I L CS 405/ 5-750 (West 2010)), whicheve r occ urre d first. ¶ 31 This appea l followed.

¶ 32 I I . ANALYSI S ¶ 33 Respondent appea ls, arguing that (1) the trial court err ed by (a) admitting M.J .’s hear say statements to police under section 115-10 of the Criminal Procedur e Code (725 I L CS 5/115- 10 (West 2010) ) beca

use they wer e “unr eliable” and (b) finding that statements M.J

. made
to police wer e not “testimonial,” resulting in a violation of his rig ht to confr ont M.J .; (2) he

was provided ineffe ctive assistance of counsel, g iven that counsel fa i l ed t o object to the admissibili ty of cer

tain scientific evidenc e; and (3) he was deprive d of a fair trial beca use the State’s evidenc e consisted of “unconstitutional hear say testimony and inconclusive y et prejudicia l scientific evide nce.” We addre ss respondent’ s contentions in turn.

¶ 34 A. M.J .’s Statements to Hogren ¶ 35 1. Respondent’ s Statutory Cl aim ¶ 36 Respondent contends that the trial court err ed by admitting M.J .’s hear say statements to Hogren unde r sec tion 115-10 beca use those stateme nts were “unre liable.” We disagree

. ¶ 37 Section 115-10(b) of the Criminal Proc edure Code provides that ce rtain evide nce shall be admitted as a

n exception to the hear say rule unde r the followingcirc umstances: “(1) The court finds in a hearing conducte d outside the prese nce of the jury that the time, content, and circ umstances of the statement provide sufficie nt safe guards o f

-13-reliability ; and (2) The child *** either: (A) te stifies at the proc eeding ; or (B ) is unavailable as a witness and there is corr oborative evidenc e of the act which is the subject of

the statement[.] ” 725 I L CS 5/ 115-10(b) (West 2010). ¶ 38 At the section 115-10 hearing, “[the] trial cou rt m u s t ev al u at e t h e t o t ali ty of the circ umstances surrounding the making of the hear say statements.” People v. Sharp
, 391 I ll. App. 3d 947, 955, 909 N.E.2d 971, 978 (2009). We agree with the Second District Appellate Court that wrote in People v. Sundling
, 2012 I L App (2d) 070455-B
, ¶ 30, 965 N.E.2d 563, that “[t] here are no prec ise tests for evaluating trustworthiness or reliability
, b u t ra ther particula rized guara

ntees of trustworthiness mu s t b e drawn from the totality of the circ umstances surrounding the victim’s statements.” The fac tors a court may look to in making the reliability deter mination include the following : “ ‘(1) the child’s spontaneity and consistent repe tition of the incident, (2) the child’s mental state, (3) use of terminolog y unexpected of a child of si mi l ar ag e, and (4) the lack of motive to fabr icate.’ ” Sharp
, 391 I ll. App. 3d at 955, 909 N.E.2d at 978 (quoting People v. Cookson
, 335 I ll. App. 3d 786, 791, 780 N.E.2d 807, 811 (2002)
, aff’d , 215 I ll. 2d 194, 830 N.E.2d 484 (2005)). ¶ 39 As the proponent of the out-of-c ourt statements soug ht to be admitted under section 115- 10, the State bear s the burden of establishing that the statement s ar e re l i able and “not the result of adult prompting or manipulat i o n .” Sharp
, 391 I ll. App. 3d at 955, 909 N.E.2d at 978. Howeve r, when the trial court finds that the State has met its burden, a revie wing court will not reve rse that finding unless the rec ord demonstrates t h at the court abused its discretion. Id. “ ‘An abuse of discretion occur s when the [court’s] ruling is arbitra ry , fanc iful,

o r unrea sonable, or when no rea sonable person would take the same view.’ ” Id

. (q u o t i n g People v . Robertson , 312 I ll. App. 3d 467, 469, 727 N.E.2d 404, 406 (2000))

. ¶ 40 In this c ase, the trial court’s finding that M.J .’s statements to H ogren wer e reliable was not a n abuse of the court’s discretion. Indeed, all four fac tors outlined in Sharp support the court’s finding that the statements wer e reliab l e. M .J .’s initial statements to There sa wer e spontaneous and her later statements to H og ren wer e totally consistent with the statements she made to There sa. Morev er , Ho gre n testified that M.J .’s response s to him, as well as interac tions with him, wer e entirely consistent with what he would expect from a child of M.J .’s tender y ear s. Additionally
, the terminolog y M.J

. used to descr ibe the incident was the ty pe of terminolog y one would expect from a child of M.J .’s experience–for example, M.J

. used t he phrase “pee pee” to descr ibe her private parts. Finally
, M.J

. lacke d an y m o t ive t o fabr icate–in f

act, M.J.’s reac tion to questions on di rec t examination at trial would indicate that she was less t h an en thusiastic about rec ounting what had happene d. In sum, M.J .’s statements about what respondent had done to her were timely
, consistent, and in her own words. ¶ 41 Acc ording ly
, we conclude that the trial court d i d not abuse its discretion by admitting M

. J

. ’s statements to Hogren reg arding the criminal sexual abuse responde nt perpe trat ed
ag ainst her pursuant to section 115-10 of the Criminal Procedur e Code (725 I L CS 5/115-10 (West 2010)). Those statements wer e re liable.

-14-¶ 42 2. Respondent’ s Consti tutional C laim ¶ 43 R es p o n dent also contends that the trial court err ed by finding that the statements M

. J

. made to Hogren reg ardi n g what happene d to her “pee pee” wer e not “testimonial.” Respondent asserts that his six th amendment right to confr ont M.J

. was viol ated when t he
court a dmitted these testimonial hearsa y statements. ¶ 44 S o m ew h at i n ex p l i cably
, the State–citing People v. Learn
, 396 I ll. App. 3d 891, 9 1 9 N.E.2d 1042 (2009), a case that much of the I llinois judiciary has distanced itself from (see People v. Vannote
, 2012 I L App (4th) 100798, ¶ 31, 970 N.E.2d 72 (listing case s that have

s p e c if ically distinguished Learn
, including some from the same appellate court district)), and that our rese arc h reve als no court has cited approving ly –initially conce ded that M.J

. was unavailable

. Neve rtheless, the State argues that M.J .’s statements to Hogre n wer e not testimonial and therefor e were properly admitted. Be cause the re cord shows that M.J

. was available for cross-e x amination, we reje ct th e State’s conce ssion and conclude that responde nt was not denied his constitutional rig ht to confront M.J. ¶ 45 In Crawf

ord v. W ashington
, 541 U.S. 36, 53-54 (2004), the United States Supreme Court held that, under the confr ontation c lause, testimonial stateme nts of a witness who does not testify at trial are inadmissible unless (1) the witness is “unava ilable” and (2) the defe ndant had a prior opportunity to cross-e x amine the witness. When the decla rant appea

rs for crossexamination at trial, howeve r, the confr ontation clause “plac es no constraints at all on the use of [ the] prior testimonial statements.” Crawf ord
, 541 U.S. at 59 n.9. Acc ording ly
, we turn to whether

the dec lara

nt in this case , M.J ., appea red f or cr oss-examination. ¶ 46 As this court has repe atedly noted, the key inquiry when deter mining whether a dec lara

nt is available for cross-e x ami n ation is whether the decla rant was “pre sent for crossexamination and answe red questions asked of her by defe nse counsel.” People v. Bryant
, 391 I l l

. Ap p

. 3d 1072, 1083, 909 N.E.2d 391, 401 (2009); Sharp
, 391 I ll. App. 3d at 955, 9 0 9 N.E.2d at 977. ¶ 47 In Bryant
, the s even- y ear -old victim testified o n d i re ct examination that the def endant
p u t h i s “p ri vate part in her bottom.” Bryant
, 391 I ll. App. 3d at 1083, 909 N.E.2d at 401. Howeve r, the victim did not testify about how the defe ndant also made her put her mouth on his private part, a statement that investigators testified the victim made to them. Id. On crossexamination, the victim answe red all the questions put to her by the defe nse, but the defe nse did not cross-examine her reg ardingwhether

the def endant made her put her mouth on hi s private part ( id. )–that i s, defe nse counsel did not ask her about t he st atements tha t h e later complained violated his rig ht to confr ont the witness. The defe ndant argued that the victim

was require d to testify from the witness stand about the statements she made to investigators, despite the defe nse failure to conduct any cross-e x amination about those statements. Id. On these fac ts, this court conclude d that the confr ontation clause was not implicated beca use the victim was “avai l able” for cross-e x amination, even though the victim had an “appa rent unwillingness or inability to testify on direc t examination about [t he] defe ndant’s making her put her mouth on his private pa rt.” Id. ¶ 48 In thi s ca s e, as in Bryant
, the victim was available for cross-e x amination. M.J . was

-15-prese nt for cross-e x amination but did not answe r any questions about the events which wer e

the subject of her statements to Ho gre n beca use defe nse counsel did not ask M.J

. any questions about those events. Despite M.J .’s appar ent unwillingness or inability to testify on direc t examination about these events, M.J

. “appe are d” for cross-e x amination at trial within the meaning of the confr ontation clause

. M.J

. appeare d for cross-e x amination beca use defe nse counsel could have cross-e x amined her but chose not to do so. M.J .’s failure to testify about her statements to Hogren on direc t examination does not relieve responde nt of his obligation to cross-e x amine M.J

. See Bryant
, 391 I ll. App. 3d at 1083, 909 N.E.2d at 401 (explaining that the focus must be on the defe n d an t’s ability to confr ont the witness,

re serving for another day what the leg al conseque nces would be if the witness an s we re d
some, but not all, of defe nse counsel’s questions). Thu s, under Crawf ord
, the hear say statements offe red at trial reg arding M.J .’s “p ee p ee” wer e a constitutional nonevent. As such, eve n if M.J .’s statements to Hogren c onstitut ed testi monial hear say –a conte ntion we need not f urther a ddress–they

wer e admissible at trial. ¶ 49 In so concluding
, we note other rec ent decisions of this court and o u r s ister appe llate districts that have addre ssed the same issue and rea ched the same result. In People v. Sharp
, the trial court g rante d the State’s motion to introduce cer tain hear say statements of the victim under section 115-10 of the Criminal Proc edure Code, but when the victim testified at trial and was asked what the defendant did to her wh en t hey wer e alone inside the room wher e the sexual assault took place
, sh e would not respond. Sharp
, 391 I ll. App. 3d at 951, 909 N.E.2d at 975. On cross-e x amination, the victim answe red all of defe nse counsel’s questions (which wer e of a g ener al sort), but counsel elect ed n o t as k h er any questions as to what h ap p en ed in the room when the defe ndant and she wer e in it toge ther. Id. On appea l, we reje cted the defe ndant’s argument that the admission of the victim’s h earsay statements pursuant to section 115-10 o f t he Criminal Procedur e Code violated his rig ht of confr ontation, concluding that beca use the victim appea

r e d for cross-e x amination at trial, the confr ontati o n cl ause place d no constraints at all on the use of her prior testimonial
statements. Id. at 953, 909 N.E.2d at 976. In so concluding
, this c ourt noted that the victim

answe red all of the questions put to her by defe ns e co u n s el even though counsel made no attempt to cross-e x amine her reg ardingwhat his client did while in the room with her

. Id. ¶ 50 Simi larly
, in People v. Garcia-Cordova
, 2011 I L App (2d) 070550-B
, 963 N.E.2d 355, the def endant wa s convicted of

three counts of predatory criminal sexual assault of a c hild and argued on appea l that the trial court err ed by admitting hear say testimony of the victim pursuant to section 115-10 of the Criminal Procedur e Code. Specifica lly
, althoug h the victim testified at trial, she did not testify reg ardingany

criminal conduc t of the defe ndant. Citi ng Learn
, the defe ndant argued “that a victim’s testimony must be acc us a tor y and must establish

eac h of the elements of the counts ag ains t [ t h e] d ef en dant in order for the victim to have
appea red f or cr oss-examination.” Id. ¶ 53, 963 N.E.2d 355. The Second District Appe llate C o u rt in Garcia-Cordova (the same court that earlier had rende red the Learn op i n i o n ) reje cted this arg

ument and, in doing so, cited approving ly this court’s decisions in Bryant and Sharp

. The court also pointed out that the defe ndant choose not to cross-e x amine the victim in this case. The court then a ddresse d that matter a s follows: “Where a defe ndant does not attempt to cross-e x amine a witness on her out-of-c ourt

-16-statements, he cannot complain that the witness was unavailable for cross-e x amination. People v . Lewis , 223 I ll. 2d 393, 405[, 860 N.E.2d 299, 306] (2006). A witness who is
prese nt for cross-e x amination and answe rs questions is available for cross-e x amination even when defense counsel chooses to let the witness’s dire ct t estimony stand. People

v. Major-Flisk
, 398 I ll. App. 3d 491, 506[, 923 N.E.2d 324, 336] (2010). We agree with the cour t in People v . Lara , 2011 I LApp (4th) 080983- B, ¶ 51[, 958 N.E.2d 719] : ‘In a situation such as this, defe nse counsel is place d in a prec arious position. In g ener al, during any trial, an attorne y does not want to ask a question if he does not know how the witness will answe r. Fur ther, an attorney surely does not want to elicit

an answe r that will implicate his client. Howeve r, strateg ic considerations s u ch as these do not make the witness unavailable for cross-e x amination.’ ” Id. ¶ 63, 963 N.E.2d 355. ¶ 51 In People v. Major -F l is k
, t h e d ec i s i o n o f t h e Fi rst District Appellate Court cited approving ly by Garcia-Cordova
, the same issue was prese nted–namely
, the admissibili ty of the victim’s hear say statements under section 115-10 of the Criminal Procedur e Code when the victim’s testimony at trial was far less incriminating of the defe ndant. The First District cited approving ly this court’s decisions in Bryant
, Sharp
, and People v. Kitch
, 392 I ll. App. 3d 108, 915 N.E.2d 29 (2009) , and noted that the vic tim in t he ca se bef ore it
“wa s p re s en t for cross-e x amination and answere d all of t he questions posed t o him by defe nse counsel. Although co u n s el chose not to do so, he cer tainly could have crossexamined [t he vict i m] about his testimony that defe ndant touched him, whether defe ndant touched him in any other way , o r his inability to reme mber cer tain

conver sations. Howeve r, as noted, counsel chose to let [t he victim’s] direc t testimony stand and attempted to use it to destroy t h e fo rc e o f [t he victim’s] hear say statements. [C itations.] Acc ording ly
, we find that the admission of [t he victim’s] hear say statements did not violate defe ndant’s rig hts unde r the confr ontation clause or Crawf ord .” MajorFlisk, 398 I ll. App. 3d at 506-07, 923 N.E.2d at 336.

¶ 52 B. Responde nt’s Claim That His Counsel P rovided Ineff ective A ssistance ¶ 53 Respondent next contends that he was provided ineffe ctive assistance of counsel, g iven that his attorney failed to objec t t o t he admissibili ty of the scientific evidenc e the State introduced at trial. Specifica lly
, responde nt asser ts that his counsel was ineffe ctive for failing
to challeng e the reliability and rele vance of the “extrem el y s p eculative DNA and ‘semen’ evidenc e” that the court c onsidered in f inding him guilty . We disag ree

. ¶ 54 Ineff

ective- assistance -of- counsel claims are revie wed u n d er t h e familiar standard se t forth in Strickland v. W

ashington
, 466 U.S. 668 (1984). Reversa l under Strickland require s defe ndant t o prove that (1) the conduct of t rial counsel fell below an objective standard of

rea sonablene ss ( Strickland
, 466 U.S. at 687-88) and ( 2 ) the defic ient perf ormanc e prejudice d defe ndant such that a “re asonable probability” exis ts that the resul t w o u ld have been differ ent but for the de ficient pe rfor mance ( Strickland, 466 U.S. at 694). ¶ 55 The g rava

men of responde nt’s complaint here is that the DNA and semen evidenc e wa s

so speculative and inconclusive that all owing the trial court to consider it was improper

-17-beca use that e v id e n c e w a s f

a r mo r e p r e ju d ic ia l than probative. Howeve r, this char acte rization of th e S t ate’ s DNA and semen evidenc e ignor es the fac t that the court, as the fac t finder, understood the limit ations of the evidenc e. Scientific evidenc e, like the DNA and semen evidenc e in this ca s e, i s not require d to be absolutely conclusive. Instead, the question is whether the evidenc e is useful; it is a question of degree

. Her e, the court rec og nized that the DNA evidenc e was not absolu t el y conclusive but was cer tainly useful in limit ing the spectrum of

possible perpe trators–a fac t the court c learly understood af

ter de fense counsel executed a th o ro u gh cr oss-examination of the State’s expert. Moreove r, a revie w of the court’s finding s reve als that it likewise understood the limit s of the State’s semen evidenc e. A close rea ding of the court’s finding s reve als that, rathe r than viewing the DNA and semen evidenc e as absolutely conclusive of responde nt ’s gu i l t , the court mere ly considere d the DNA and semen evidenc e as a supplement to th e p ri m ar y evidenc e–name ly
, M.J .’s
statements to There sa and Hogren, as well as L ucas’ s testimony corr oborating the circ umstances surrounding the incident. The court explained as much in its specific finding s, as follows: “What we do know is that the child told [Theresa] that her pee pee hurt. That [respondent] put spit on my pee pee. *** Hogren spoke with he r about a day and a half afte r that. *** Lucas testified that they wer e all playing upstairs. [R espondent] was there with them. He saw something happen to [M.J .] but he couldn’t tell what h e s aw

. Something did happen in the bedroom. [R espondent] a nd [M.J .] and Alana w ere there

. [M.J .] was lying down on the floor, he r shirt was on but her pants wer en’t on. Then he indicated the he was too scar ed to tell. That’s also indicative of something that happene d. It has nothing to do with the m o t her’ s statements. *** Eve rything else has to do with corroboration of the three[-] year[- ] old’s statements, because as is the nature of these cases[,] the most relev ant evide nce come s from the least capable relater

. To disbelieve the child I have to assume that this three [-] y ear [-] old for some inexpl icable rea son would tell at least two people that responde nt[ ,] her cous in[ ,] who appea rs to have no issues with her nor does she with him put his fing er in he r pee pee and put his penis on her. I have to assume that Lucas for some rea son saw something happen to [M.J .] but indicated he couldn’t tell what he saw. That something happene d in the bedroom with [M.J .] lying down on the floor with her shirt on and her pants off, and that for some rea son he would make that statement. I then have to try to assume that there would b e some other explanation for semen indicated on the v agi n al swab. I didn’t hear any evidenc e that a three [-] y ear [-] old g irl is capab l e o f p roducing semen. It would be difficult to envision what circ umst an ces would cre ate the prese nce of semen on a three [-] y ear [-] old’s underw ear

–I ’m sorry , three [-] y ear[ -] o ld’s vag ina other than that one descr ibed by the three [-] y ear [-] old. It’s difficult to envision how [respondent’s] DNA would wind up on her unde rwe ar othe r than in the manne r desc ribed by [M.J .]” (Emphasis added.) ¶ 56 Be cause the rec ord shows that the trial court proper ly considere d the DNA and seme n evidenc e, we conclude that defe nse counsel’s failure to object to th e ad m i s s i o n of that evidenc e did not amount to ineffe ctive assistance of counsel under either prong of t he Strickland

test.

-18-¶ 57 C. Respondent’s Claim That He Was Deprived of a Fa ir Trial ¶ 58 Respondent next contends that he was deprive d of a fair trial beca use the State’s evidenc e consisted of “unconstitutional hear say testimony and inconclusive y et prejudicia l scientific evidenc e.” In this reg ard, responde nt asser ts that the integ rity of the judicial proce ss has been compromised b eca

use the court permitted unconstitutional hear say evidenc e and inconclusive scie ntific evidenc e. We disagree

. ¶ 59 As we h ave alre ady explained, M.J .’s statements to Hogren, as well as the DNA a nd

semen evidenc e, wer e proper ly adm i t t ed an d appropr iately considere d by the trial court. Essentially
, responde nt’s contention i s t h at h e was deprive d of a fair trial beca use of the cumulative effec t of t he court’s err ors. However, the court did n o t er r b y ad mitti ng M.J .’s hear say statements, nor did the court err by considering the scientific e vidence . There fore
, no cumulative err or exis ts. See People v. Bowens
, 407 I ll. App. 3d 1094, 1111, 943 N.E.2d 1 2 4 9
, 1 2 6 6 (2011) (“Cumulative err or requires reversa l when, as a result of multiple tri a l
court errors , a defe ndant is denied a fair trial.” (Emphasis added.) ). Acc ording ly
, we reje ct responde nt’s claim that he wa s not provided a f air trial.

¶ 60 I I I . CONCLUSI ON ¶ 61 For

the re asons stated, we aff irm the trial cour

t’s judgme nt.

¶ 62 Affir

med.

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