No. 2--02--0400   			 

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

THE PEOPLE OF THE STATE OF 	   )  Appeal from the Circuit Court

ILLINOIS,					   )  of Boone County.

					 	   )  

	Plaintiff-Appellee,	 	   )

					 	   )  

v.						   )  No. 00--CF--133  

						   )   

ROBERT J. HODOR,			   )  Honorable

						   )	 Gerald F. Grubb,

	Defendant-Appellant.	   )	 Judge, Presiding.

	JUSTICE GROMETER delivered the opinion of the court:

	Following a jury trial in the circuit court of Boone County,

defendant Robert J. Hodor was convicted of one count of criminal

sexual assault (720 ILCS 5/12--13(a)(3) (West 2000)).  The trial

court sentenced defendant to four years' imprisonment.  On appeal,

defendant argues that the trial court committed several evidentiary

errors that deprived him of a fair trial.  Defendant also complains

that defense counsel's failure to object to these alleged errors

resulted in ineffective assistance of counsel.  We reverse and

remand the cause for a new trial.

I. BACKGROUND

	On or about August 8, 2000, defendant was charged by criminal

complaint with one count of criminal sexual assault (720 ILCS 5/12-

-13(a)(3) (West 2000)).  The State later charged defendant by

information.  As amended, the information alleged that, on or about

the last week of January or the first week of February 2000, defendant placed his tongue in the sex organ of his stepdaughter,

Marilyn S.  Prior to trial, defendant filed a motion in limine seeking to bar the State from presenting testimony from

"counselors."  The motion stated "[a]ny testimony from counselors

would be hearsay and cumulative as to what the minor may testify

to."  At the hearing on his motion, defendant argued that any

statements Marilyn made to the counselors during psychological

examinations were inadmissible.  The State agreed that Marilyn's

remarks to her counselors during these sessions would be

inadmissible, and the trial court granted defendant's motion.

	The State's first witness was Marilyn S.  Marilyn testified

that during the last week of January and the first week of February

2000, she was 17 years old and a senior at Belvidere High School. 

At that time, she resided on Poacher Circle in Belvidere with her

mother, her stepfather (defendant), her stepbrother, her

stepsister, and Melissa S., her sister.

	Marilyn recounted the events of the day of the alleged

offense.  Marilyn stated that she left the family residence at

about 7 a.m. to go to school.  After school, she attended track

practice before returning home between 5:30 and 6 p.m.  When she

arrived home, only her sister, her stepbrother, her stepsister, and

defendant were present.  Marilyn had a snack, played with the dogs,

and spoke with her sister and stepsister.  She then went to her

room to do homework.  At about 8 p.m., Marilyn dined with her

siblings.  After dinner, Marilyn went upstairs, where she bathed,

prepared her clothes for the following day, set her alarm clock, and dried her hair.  At about 10 p.m., Marilyn dressed in a

nightgown and went downstairs to say goodnight.

	Marilyn encountered defendant in the kitchen where he was

mixing something in a blender.  Defendant told Marilyn he was

preparing a White Russian.  At defendant's request, Marilyn took a

sip of the drink.  Marilyn then escorted the dogs to the basement

where they slept.  As Marilyn was heading to bed, defendant called

her into his bedroom.  Marilyn entered the room.  A radio was tuned

to a popular station, and there were lit candles on the bed's

headboard.  Defendant had prepared two drinks.  On three or four

occasions, defendant suggested that Marilyn have a drink "to loosen

up."  Eventually, Marilyn began drinking.  Marilyn identified the

drink as a White Russian and testified that she became light-headed

and queasy as she drank the beverage.

	Initially, defendant and Marilyn talked about school, track,

and her boyfriend.  Defendant told Marilyn that he would talk to

her mother about extending her curfew.  Approximately 45 minutes

into the conversation, defendant asked Marilyn how well she gave

back rubs.  Marilyn responded "okay, I guess."  Defendant then took

his shirt off and lay face down on the bed.  Marilyn began

massaging his back and shoulders.  At some point, defendant told

Marilyn to take off her clothes.  She initially refused.  However,

defendant insisted, and Marilyn eventually complied.  Shortly

later, defendant told Marilyn that he was going to show her how to

give a good back rub.  Marilyn lay face down on the bed, and

defendant began to massage her back.  At defendant's request,

Marilyn changed to a supine position.  Defendant then rubbed lotion on Marilyn's shoulders, breasts, stomach, legs, and around her

vagina.  At one point, defendant placed his tongue in Marilyn's

vagina and licked it inside and out.  Marilyn told defendant to

stop, and he did.  Defendant then pulled down his shorts and placed

Marilyn's hand on his penis.  Marilyn asked defendant to leave her

alone, and he told her she could go to bed.  Marilyn dressed and

ran to the bathroom, where she vomited.  While Marilyn was in the

bathroom, defendant entered with her underwear, which she had left

in his bedroom.  Marilyn then changed her pajamas and went to bed.

	Approximately four months later, Marilyn and her sister,

Melissa S., were discussing the fact that their mother was going to

divorce defendant.  At that time, Marilyn related part of what

transpired between her and defendant months earlier.  Later that

same day, Marilyn's mother came to the store where Marilyn worked

and had her recount the incident for the police.

	Marilyn testified that the incident affected her school

performance.  Prior to the incident, she had perfect attendance at

school.  However, during the spring 2000 semester, she missed 121⁄2

days of school.  Marilyn also said that she had trouble

concentrating at school.  She stated that her grades were "usually

honor roll," but that she had "a couple of C's [sic] and D's [sic]" during the spring 2000 semester.  Marilyn testified that she began

counseling in response to the incident between her and defendant.

	Marilyn's mother, Barbara O., testified that she met defendant

in 1991, when Marilyn was nine years old.  Five months later,

defendant began living with Barbara and her children.  On February 14, 1998, Barbara and defendant got married.  That same year the

family moved to the Poacher Circle address.

	During January and February 2000, Barbara was employed as a

nurse at a health care center that was located about an hour's

drive from her home.  Normally, Barbara worked the 7 a.m. to 3 p.m.

shift.  However, due to surgery, Barbara was not working during

most of January.  She resumed working at the end of January.  Late

in January and early in February, Barbara worked the 3 to 11 p.m.

shift because those were the only hours available.

	Barbara testified that before she and defendant began

experiencing marital problems, defendant initiated sexual relations

with her on a few occasions.  Normally, defendant would light

candles in the bedroom and play music.  Barbara testified that

after her surgery, she and defendant had no sexual contact.  On

February 14, 2000, defendant informed Barbara that he was leaving

her.  Defendant moved out of the Poacher Circle home sometime in

the middle of February.  During the two-week period prior to moving

out, defendant spent very little time in the house.  Barbara

described Marilyn's demeanor during the same two-week period as

quiet.  Normally, Marilyn was "[b]ubbly, happy, talking."  Barbara

recalled that on one occasion, she asked Marilyn to dust her

bedroom furniture.  When Marilyn finished the task, she was crying.

	Barbara testified that on May 31, 2000, her daughter Melissa

told her about what happened between Marilyn and defendant.  As a

result of this conversation, Barbara picked up Marilyn from work,

took her home, and called the police.  In June 2000, Barbara filed

for a divorce.

	Melissa S. was 17 years old at the time of her testimony.  She

testified that late in January or early in February 2000, she

resided with Marilyn, her mom, defendant, and defendant's children

in Belvidere.  Melissa recalled one evening late in January or

early in February 2000, when she observed defendant mixing a liquid

in a blender.  Melissa asked defendant what he was making.  He

replied that "it's not for little kids."  Defendant then told

Melissa and his two children to go to bed and to close their doors. 

Melissa found the latter request unusual because her mother

normally required the children to keep their bedroom doors open.

	In May 2000, Melissa had a conversation with Marilyn.  Melissa

told Marilyn that their mother and defendant were getting divorced. 

Marilyn, who was crying, then told Melissa that something happened

between her and defendant.  Melissa later reported the conversation

to Barbara.  Thereafter, Melissa and Barbara picked up Marilyn at

her place of employment, took Marilyn home, and contacted the

police.

	Cheryl Gieseke, an assistant principal at Belvidere High

School, testified that Marilyn attended the school for four

semesters, graduating in spring 2000.  Gieseke testified that

during Marilyn's first three semesters at Belvidere High School,

she had only one absence.  However, Marilyn accumulated a total of

121⁄2 absences during just the spring 2000 semester.  Gieseke

testified that during the fall 1999 semester of school, Marilyn

received one A, four Bs, and two Cs, for a grade point average

(GPA) of 3.5.  During the spring 2000 semester, Marilyn received

three As, one B, and two Cs, for a GPA of 3.0.  All but one of the classes Marilyn took during the spring 2000 semester were

electives.

	Paula DiCaprio testified that she has a master's degree in

counseling and works as a therapist for Rockford Sexual Assault

Counseling.  DiCaprio initially counseled Marilyn between June 2000

and March 2001.  When asked why Marilyn began counseling with her,

DiCaprio responded that "[Marilyn] had reported that she had been

sexually abused."  Defense counsel objected to this remark.  The

trial court overruled the objection, but prohibited the State from

inquiring about the details.  When DiCaprio's testimony resumed,

she stated that Marilyn "presented with some very serious trauma

reaction symptoms primarily."  After suspending their sessions in

March 2001, Marilyn resumed seeing DiCaprio in September 2001.

	J.P. Grace, the assistant counseling supervisor for Catholic

Charities, testified that she holds a master's degree in general

counseling.  Grace counseled Marilyn from March 29, 2001, through

September 6, 2001, for a total of 17 sessions.  Over defendant's

objection, Grace testified that her treatment goal for Marilyn was

"to minimize the effects of sexual trauma."  Grace characterized

Marilyn as very cooperative and motivated during their sessions

together.

	Thea Bruce testified that she is the executive director at

Family Advocate, a social service agency, and has both

administrative and clinical duties.  On the clinical side, Bruce is

a licensed clinical professional counselor who is responsible for

the training and clinical supervision of the professional staff at

the agency.  Bruce testified that Family Advocate specializes primarily in child sexual abuse.  Bruce testified regarding "child

sex abuse accommodation syndrome."  This "syndrome" is actually a

pattern of five behavioral characteristics often observed in

children who have been sexually abused.  The characteristics are

secrecy, helplessness, entrapment or accommodation, delayed or

unconvincing disclosure, and recantation.  Bruce admitted that not

all victims of child sexual abuse will exhibit all these

characteristics.  She also stated that the fact that a child

exhibits some of these characteristics does not necessarily mean

that the child has been sexually abused.

	Bruce testified that the concept of delayed or unconvincing

disclosure recognizes that children do not necessarily report that

they have been abused right after it happens.  Moreover, when they

do make such reports, they are often viewed as incredible.  Bruce

testified that this characteristic is often observed when the

relationship between the victim and the perpetrator is that of

parent-child or caretaker-child.  In such situations, the child

initially opts not to disclose the incident for fear of the

consequences of reporting it, e.g., hurting the other parent, sending the perpetrator to jail, or being viewed as incredible. 

However, once the child feels distant from the offender, the minor

may disclose the matter.  Bruce offered that, in her experience,

delayed disclosure is common and that "most" of the children she

has seen did not make an immediate disclosure. 

	Following Bruce's testimony, the State rested.  Defendant then

moved for a directed verdict, which the trial court denied. 

Defendant's first witness was his son, Robert H. II.  Robert testified that he is 17 years old and that he met defendant's ex-

wife, Barbara, when he was seven years old.  Robert described his

relationship with Barbara as "not very good."  According to Robert,

Barbara physically and verbally abused him if he did not perform

his chores properly.  Robert testified that he also observed

Barbara strike Melissa, Marilyn, and his sister for the same

reason.  Robert never called the police to report these

allegations.  Robert also stated that Barbara imposed a rule

requiring the children to keep their bedroom doors open at night. 

	Defendant testified that he first met Barbara in 1991.  That

same year they began cohabiting.  The couple married in 1998. 

Defendant moved out of the marital home late in February 2000.  He

later filed for divorce.  Defendant denied touching Marilyn in an

inappropriate manner.  In addition, he denied touching Marilyn's

body or vagina with his tongue or having Marilyn touch his penis.

	Defendant admitted that he spoke with Cristina Gloria of the

Department of Children and Family Services (DCFS).  Defendant

testified that he was unaware that the purpose of Gloria's visit

was to investigate an allegation that he molested Marilyn. 

Defendant believed that Gloria was looking into allegations of

child abuse by Barbara.  Defendant did acknowledge that immediately

prior to speaking with Gloria he spoke to Alton Eugene Parker, Jr.,

of the Belvidere police department and that Parker told defendant

that he was investigating an allegation that defendant had molested

Marilyn.

	In rebuttal, the State called Parker and Gloria.  Parker

testified that at approximately 7 p.m. on July 6, 2000, he interviewed defendant.  Before asking defendant any questions,

Parker read and defendant signed a Miranda warning and waiver.  Parker then asked defendant if he was aware of an incident between

him and Marilyn that occurred the last week of January or the first

week of February 2000.  Defendant responded, "What incident[?]"

When Parker informed defendant of the specific allegations,

defendant denied them.

	Gloria testified that in 2000, she was employed as an

investigator by DCFS.  Gloria interviewed defendant at

approximately 7:35 p.m. on July 6, 2000, regarding Marilyn's

allegations.  Defendant denied the allegations.  Following Gloria's

testimony, the State rested.  The parties then presented their

closing arguments.  The jury returned a verdict of guilty.  The

trial court sentenced defendant to four years' imprisonment. 

Following the denial of his posttrial motion, defendant appealed.

II.  ANALYSIS

	Defendant first contends that he was denied his right to a

fair trial when the State was permitted to introduce testimony from

J.P. Grace and Paula DiCaprio that they provided counseling to

Marilyn after the alleged incident.  We agree. 

	Generally, testimony regarding psychiatric treatment is

inadmissible.  People v. Daniels, 172 Ill. App. 3d 616, 626 (1988).  For instance, in People v. Gillman, 91 Ill. App. 3d 53 (1980), the defendant was convicted of contributing to the sexual delinquency

of a child.  On appeal, the defendant asserted that the trial court

erred in permitting the prosecution to elicit testimony from the

victim that she had undergone psychiatric treatment.  This court determined that such testimony resulted in reversible error because

it was irrelevant to the issue of the defendant's guilt or

innocence.  Gillman, 91 Ill. App. 3d at 60.  We also noted that the testimony constituted an attempt by the prosecution to evoke

sympathy on behalf of the victim and prejudice the defendant. 

Gillman, 91 Ill. App. 3d at 60.  In People v. Fuelner, 104 Ill. App. 3d 340 (1982), the defendant was convicted of rape and armed

violence.   On appeal, the Fuelner court, citing to Gillman, found that the trial court committed reversible error in allowing

testimony from the complainant, the complainant's father, and the

complainant's treating physician regarding the complainant's

suicide attempt and subsequent hospitalization in a psychiatric

ward.  See also People v. Williams, 99 Ill. App. 3d 919, 925 (1981).

	However, where testimony regarding psychiatric treatment has

relevance beyond evoking sympathy from the jury, such testimony is

admissible.  Daniels, 172 Ill. App. 3d at 626; People v. Brown, 107 Ill. App. 3d 576, 582-84 (1982).  Thus, in Brown, the complainant alleged that the defendant had molested her.  At trial, the State

elicited testimony from the complainant that she began psychiatric

treatment subsequent to the alleged attack.  On appeal, the

reviewing court held that this testimony was proper because it was

admitted to rebutclarify defense counsel's false statement that the

complainant had been receiving psychiatric treatment prior to the

alleged incident.  Brown, 107 Ill. App. 3d at 582-84.

	Based on our review of the record in this case, we can

conceive of no reason for the testimony of Grace and DiCaprio other than to evoke sympathy from the jury and to prejudice defendant. 

The essence of the testimony of both witnesses was that Marilyn

underwent counseling following the alleged incident.  Neither Grace

nor DiCaprio testified about any other matter of substance.  This

evidence had no bearing on defendant's guilt or innocence. 

Accordingly, we hold that the admission of their testimony

constituted reversible error.  See Fuelner, 104 Ill. App. 3d at 351-52; Gillman, 91 Ill. App. 3d at 60-61.

	Despite this precedent, the State claims that the testimony of

Grace and DiCaprio was properly admitted pursuant to section 115--

7.2 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115--7.2

(West 2000)).  That statutory provision provides in relevant part:

		"In a prosecution for an illegal sexual act perpetrated

upon a victim, including but not limited to prosecutions for

violations of Sections 12-13 through 12-16 of the Criminal

Code of 1961, *** testimony by an expert, qualified by the

court relating to any recognized and accepted form of post-

traumatic stress syndrome shall be admissible as evidence." 

725 ILCS 5/115--7.2 (West 2000).

	We hold that the testimony of DiCaprio and Grace was not

admissible under section 115--7.2.  The purpose of section 115--7.2

is to provide for the admission of an expert's testimony concerning

whether the victim's behavior is consistent with known syndromes. 

People v. Pollard, 225 Ill. App. 3d 970, 978 (1992).  Section 115-- 7.2 does not require the expert to label his or her theory as

posttraumatic stress syndrome as long as the expert testifies

regarding behavioral patterns typically manifested by victims of sexual abuse.  People v. Wasson, 211 Ill. App. 3d 264, 272 (1991); People v. Nelson, 203 Ill. App. 3d 1038, 1041-42, 1046 (1990).  In this case, both DiCaprio and Grace testified regarding their

educational background, their experience, and the periods during

which they treated Marilyn.  In addition, DiCaprio testified that

Marilyn "presented with some very serious trauma reaction symptoms

primarily," while Grace testified that her treatment goal for

Marilyn was "to minimize the effects of sexual trauma."  This vague

testimony suggesting that Marilyn suffered from "trauma" was

insufficient to fall within the purview of section 115--7.2. 

Notably, neither DiCaprio nor Grace testified concerning behavioral

patterns typically manifested by victims of sexual abuse or whether

Marilyn's behavior was consistent with known syndromes.

	In contrast to the testimony of Grace and DiCaprio is the

testimony of Bruce.  Bruce testified not only regarding her

educational background and experience, but also about the

characteristics of child sexual abuse accommodation syndrome. 

Child sexual abuse accommodation syndrome is a recognized and

accepted form of posttraumatic stress syndrome.  People v. Leggans, 253 Ill. App. 3d 724, 733 (1993); People v. Dempsey, 242 Ill. App. 3d 568, 587 (1993); Pollard, 225 Ill. App. 3d at 976.  We believe that this was the type of testimony contemplated by the legislature

in promulgating section 115--7.2.   Thus, unlike the testimony of

Grace and DiCaprio, Bruce's testimony was admissible pursuant to

section 115--7.2 because Bruce testified regarding the behavioral

patterns typically manifested by victims of sexual abuse.

	Defendant also argues that the trial court committed

reversible error in allowing the State to elicit testimony that

Marilyn told Melissa about the alleged incident between her and

defendant four months after it happened and that Melissa, in turn,

told Barbara.  According to defendant, these statements constituted

hearsay and do not fall into any of the recognized exceptions to

the rule against hearsay.  We address the issue here because it may

arise on remand.

	Hearsay evidence is testimony regarding an out-of-court

statement offered to prove the truth of the matter asserted.  In re Marriage of Flannery, 328 Ill. App. 3d 602, 614 (2002).  Generally, hearsay is inadmissible.  People v. Carroll, 322 Ill. App. 3d 221, 223 (2001).  The primary rationale for the exclusion of hearsay

testimony is the inability of the opposition to test the

testimony's reliability through cross-examination of the

out-of-court declarant.  People v. Jones, 273 Ill. App. 3d 377, 385 (1995).  Thus, where the declarant is available in court or there is an opportunity to ascertain the veracity of the testimony by

cross-examination, there is no hearsay problem.  People v. Burchette, 257 Ill. App. 3d 641, 660 (1993); People v. Jennings, 142 Ill. App. 3d 1014, 1027 (1986).  In this case, Marilyn and

Melissa, the declarants of the complained-of statements, testified

at trial and defense counsel cross-examined the witnesses. 

Accordingly, under these circumstances, there wasis no hearsay

problem.  

	Finally, defendant urges reversal on the basis that defense

counsel's failure to object to certain testimony constituted ineffective assistance of counsel.  Because we reverse defendant's

conviction and remand the cause for a new trial on other grounds,

we need not consider this issue.

III. CONCLUSION

	For the reasons stated above, we reverse the judgment of the

circuit court of Boone County and remand the cause for a new trial.

	Reversed and remanded.

	BYRNE and GILLERAN JOHNSON, JJ., concur.