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Summary Rule 23 order filed 2020 IL App (5th) 180570 

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 

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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. Id. § 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 

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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, 103 Ill. 2d 536, 539 (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., 235 Ill. 2d 530, 540 

(2009); People v. Drum, 194 Ill. 2d 485, 492 (2000); People v. Truitt, 175 Ill. 2d 148, 152 (1997), 

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abrogated in part on other grounds by People v. Miller, 202 Ill. 2d 328 (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., 235 Ill. 2d at 540; see also Drum, 194 Ill. 2d at 

492; Truitt, 175 Ill. 2d at 152. 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, 194 Ill. 2d at 489. Our review of this question is de novo. Id. at 488. 

¶ 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, 2017 IL App (5th) 160189, and the Illinois Supreme Court’s decision in People v. Bowen, 

183 Ill. 2d 103 (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, 2017 IL App (5th) 160189, ¶ 1. 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 

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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, 183 Ill. 2d at 

104-05. 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.” Id. 

at 113. 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.” Id. at 115. The court 

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

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

Id. 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. Id. 

¶ 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., 235 Ill. 2d at 540; Brindley, 2017 IL App (5th) 160189, ¶ 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. 

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¶ 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, 

2018 IL App (1st) 152616, ¶ 36 (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 

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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., 235 Ill. 2d at 532-33. 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. Id. at 533. 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., 235 

Ill. 2d at 533. 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 crossexamination” on the factual matters at issue. Id. at 534. 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. Id. at 535. 

¶ 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. Id. at 537. The State then appealed to the Illinois Supreme Court. Id. 

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

proceedings. Id. at 541. 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.” Id. at 537. 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. Id. at 538 (quoting Drum, 194 Ill. 2d at 492). 

¶ 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.” Id. at 539. 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.” Id. at 540. 

¶ 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.) Id. 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.) 

Id. 

¶ 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 

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

the pertinent issue.” Id. 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. 

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2020 IL App (5th) 180570 

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