## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Garcia-Cordova , 2011 IL App (2d) 070550-B

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. DANI ELGARCIA-CORDOVA , Def endant- Appellant.

District & N o. Second District Docke t No. 2-07-0550

Filed Dec ember 20, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo 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

. ) De fendant’s conviction for predatory criminal sexual assault of a chi l d based on his conduct with the seven- y ear -old da ug hter of his ex-girlf

riend

was upheld over his contentions t h at the testimony of an investigator

conc ern i ng the statements the victim made during an interview was improperly admitted in evidenc e, that t h e t ri al court err ed in admitting evidenc e that defe ndant had been abused as a child, and that his sentenc e to 24 y ear s’ imprisonment was an a buse of discr etion.

Dec ision Under
Review Appea l from the Circuit C o u rt of L ake County
, No. 06-CF- 1371; the Hon. Geor g e B ridg es, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Patricia Unsinn an d L evi S. Har ris, both of State Appellate Def ender ’s Offic e, of Chica g o, for a

ppellant.

Michae l J . Waller, State’s Attorney , of W aukeg an (L awr ence M. Ba uer and Edwar d R. Psenicka, b o th of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE Z ENOF F de livered the judgme nt of the cour t, with opinion.
J ustices B urke a

nd Hudson conc urre d in the judgme nt and opinion.

OP INION

¶ 1 On Fe bruar

y 8, 2007, a jury found defe ndant, Daniel Gar cia- Cordova, guilty of t h re e

co u n ts of predatory criminal sexual assault of a child (720 I L CS 5/12-14.1(a) (1) (W es t 2004)). On defe ndant’s motion for judgme nt notwithstanding the verdic t , t he trial court enter ed judgme n t s o f ac qu i t tal on two of the three counts for which the jury had returne d
guilty verdic ts. Def

endant was sentenc ed to 24 y ear s’ imprisonment on the rema ining count. Def endant filed a motion to rec onsider the sentenc e, which the trial court denied. Def endant then appea led. We initially dismiss ed this appea l for lac k o f j u risdiction on Fe bruar y 27, 2009, having found that defe ndant’s notice of appea l was prematu re

. People v. GarciaCordova
, No. 2-07-0550 (2009) (unpublished order under Supreme Court Rule 23). The I llinois Supreme Court issued a supervisory o rd er o n April 7, 2009, which vacated our Fe bruar y 27, 2009, order and direc ted us to treat defe ndant’s notice of appea l as validly filed. On J une 26, 2009, this court filed an opini on, People v. Garcia-Cordova
, 392 I ll. App. 3d 468 (2009) ( Garcia-Cordova I ), i n whi ch we aff

irmed the judgme nt of the trial court. On Marc h 30, 2011, in a supervisory order denying defe ndant’s petition for leave to appea l, the I llinois Supreme Court direc ted us to vacate and rec onsider our judgme nt in light of People

v. Kitch
, 239 I ll. 2d 452 (2011), to deter mine if a differ ent result is war rante d. In acc ordanc e with the supervisory order
, we here by vacate our prior judgme nt. Upon rec onsideration, we aff irm the judg ment of the trial c ourt.

¶ 2 I . Ba ckground ¶ 3 On April 26, 2006, defe ndant was indicted on two counts of predatory criminal sexual assault of a child. Count I alleg ed that betwee n April 5, 2005, and April 5, 2006, defe ndant, being over the ag e of 17, committed an act of sexual penetr ation with the victim, C.R., who

was under the ag e of 13, in that defe ndant p l ac ed his penis in the mouth of C.R. Count I I alleg ed that betwee n April 5, 2005, and April 5, 2006, defe ndant, being over the ag e of 17, committed an act of sexual penetr ation with C.R., who was u n d er t h e ag e of 13, in that defe ndant place d his finge r in the vag ina of C.R.

-2-¶ 4 Following a hearing pursuant to sec t i o n 115-10 of the Code of Criminal Procedur e of

1963 (Code) (725 I L CS 5/115-10 (West 2006)), the trial court d eter mined that statements C.R. had made to witness J ennife r Ba re wer e not testimonial statements pursuant to 1 Crawf ord v. W ashington
, 541 U.S. 36 (2004), and wer e otherwise admissible under section 115-10. The trial court also deter mined that statements C.R. made to Christina Kruschw itz
, an investigator with the De p ar t ment of Children and Family Service s (DCFS), wer e testimonial a

nd, thus, pur suant to Crawf ord , would be admissible at trial only if C.R. we re to testify at trial. ¶ 5 On J uly 12, 2006, defe ndant was indicted on six additional counts of predatory criminal sexual assault of a child. Count I I I allege d t h at b et we en April 5, 2005, and April 5, 2006, defe ndant, being over the ag e of 17, committed an act of sexual penetr ation with C.R., who

was under the ag e of 13, in that defe ndant place d his pe nis in the vag ina of C.R. Counts IV throug h VI I I contained the same alleg ations as count I I

. In response to a reque st for a bill of particula rs, the State specifie d that counts IV, V, VI
, an d VII
, we re all separ ate and independe nt acts of pe netration. CountVI I Iwas nol-pr ossed on September 27, 2006. ¶ 6 Def

endant’ s trial beg an on Fe bruar y 7, 2007. J ennife r Ba

re testified first. Ba

re te stified that she wa s a student at the Scholl University Clini c in North Chicag o, I llinois

. Whil e workingin the clinic one da y , a patient c ame in with her two daughters, one of whom was C.R. Whil e the patient was g etting an X-ra y , Ba re sat in the clinic hallway with the two littl e g irls. Ba re testified that while sitti ng in the hallway
, C.R. asked her if she could keep a secr et. Ba re responde d in the aff

irmative, afte r which C.R. told Ba re that her fathe r “make s [her] put his thing in [her] mout h.” ¶ 7 C.R.’s mother, Mi chelle, testified that she h ad t wo daughters: C .R. and Danielle. C.R.

was seven at the time of trial. Def endant, Michelle’s ex-boy friend, was the biologica l fathe r of Danielle but not of C.R. Michelle testified that she had known defe ndant for six y ear s and that she had lived w ith him for one year

. ¶ 8 C.R. t es t i fi ed next. She testified to some g ener al preliminary matters, such as her a g e, family members, and schooling

. When asked if she lived with someone else befor e she lived with only her mother and Danielle, C.R. answere d no. When asked if she knew somebody she called fathe r or Daniel, she shook her head. The rec ord does not sp ec i fi ca l l y indicate whether she shook her head back and forth or nodded up and down. She did, howeve r, identify defe ndant in court as the person she ref err ed to a s Danny or her stepdad. The State then asked if C.R. rec alled g oing to a m ed i cal clinic with her mother and telling someone there a sec ret. C.R. testified that she did not reme mber doingthat. ¶ 9 C.R. did testify that she rec al l ed m ee ting with someone named Christina and that a
person named Al an was also prese nt when she met with Christina. C.R. testified that she

rec alled speaking with Christina and draw ing p i ct u re s during their meeting

. She did not

rec all why s h e s poke with Christina or what the room looked like when she spoke to

T hro ughout the re cor d, Bar e’ s name is s p el le d in a varie ty of ways, inc lud ing “Bar e,” 1 “Ber e,” and “Bar a.” As “Bar e” was the spe ll ing giv en by the witnes s at tr ia l and is the spe ll ing use d by the par ti es in the irbr ie fs , we wi ll re fe r t o t he wi tne ss as “Bar e.”

-3-Christina. C.R. identified People’s Ex hibit 7 as a dr awingshe made . When asked what the

picture was about, C.R. responde d, “It was a long time ag o.” C.R. identified herse lf and defe ndant’s hand in the draw ing. She g ave no response when asked what defe ndant’s hand

was doing in the draw ing. When asked whether she printed the words on the draw ing, C.R. shook her head but gaveno audible re sponse, and the rec ord does not specific ally indicate whether C.R. shook her head back and forth or nodded up and down. When shown People’s Ex hibit 9, which consisted of a single sheet of paper with two separ ate draw ings on it, C.R. identified a draw ing of her, Danielle’ s, and defe ndant’s fac es with “blankies” bel ow their fac es. She did n ot rec all what the blankets wer e on. She also identified on Ex hibit 9 a draw ing of herse lf and defe ndant sitti ng on a couch. She testified that she did not know what defe ndant was doing on the couch. She testified t h at she did not rec all draw ing People’s Ex hibit 6. C.R. testified that she di d not know why she drew pictures of herse lf and defe ndant. ¶ 10 When shown People’s Ex hibits 1 and 2, which wer e char ts of a fema le child’s anatomy from the front and back, C.R. testified that she did not reme mber ever seeing them. C.R. testified that she rec alled seeing People’s Ex hibit 3, a char t of a male child’s anatomy from
t h e fr o n t , b ut did not rec all when she saw it or whether she drew any thing on it. She al s o testified that she rec alled seeing People’s Ex hibit 4, a char t of a male child’s anatomy from the bac k, but did not reca ll when or whe re she saw it. ¶ 11 C.R. testified that she rec alled when defe ndant lived with her, her mother, and her sister, but testified that she did not rec all any thing happening in her bedroom or on the couch. C.R. also testified t hat s he did not know what part of the body the bot tom par t o f a bathing suit

cover ed and that she did not know whether there wer e cer tain parts of her body that should not be touched. ¶ 12 Def

ense c ounsel did not cross-e x amine C.R. ¶ 13 Serg eant Alan L other of the Z ion police depar tment testified that as a result of rec eiving

an incident repor

t from DCFS in Marc h 2006, he contac ted C.R.’s mother. On April 4, 2006, he and Kruschw itz met with C.R. at the L ake County Advoca cy Center. During that meeting
, L other’s r ole was simply

to take notes. ¶ 14 L other testified tha t he also interviewe d defe ndant on April 4, 2006, at the Z ion police depar tment following the meeting with C.R. Assisting L other in interviewing defe ndant was L ieutenant Kir

k Hende rson; L other, howe ver, w as the primar y interviewe r. ¶ 15 L other testified that afte r re adingdefe ndant his Miranda rig hts, he informed defe ndant of the specific alleg ations that C.R. had made ag ainst him. Def endant denied having abused C.R. Acc ording to L other, he and defe ndant discussed defe ndant’s life and his rela tionship with C.R. and her mother. L other testified that during that conver sation defe ndant stated that he had been a victim of sexual a buse when he was a child. L other testified that he then told defe ndant th at “a lot of times people who are victims of things later on cre ate simil ar situations to that; that they will treat others the same wa y they wer e treated because that is how they understand that expression.” At one point, L other sug g ested that defe ndant loved C.R. and that defenda

nt was taught to ex press love through his alleg ed actions. Acc ording to L other, de fenda

nt’s demea

nor cha ng ed fr om nervous to more r elaxed.

-4-¶ 16 After L other continued to talk about defe ndant’s abuse as a child, defe ndant told L other

that whateve r C.R. said was true. L other explained that defe ndant neede d to be more specific about what happene d. Acc ording to L other, defe ndant then stated that about three wee ks prior, he had g one into C.R.’s room, pulled down his pa nts, a nd rubbed his penis on C.R.’s lips. L other also testified that defe ndant stated that he place d his penis in C.R.’s mouth, did
not have an ere ction, and did not ejac ulate. Def endant also told L other that when he rubbed his pe nis on C.R.’s mouth, C.R. rolled awa y

. Def endant informed L other that he felt guilty about what he had done. ¶ 17 L other testified that defe ndant also said that while sitti ng on the couch with C.R., he had

rea ched down h er p an t s and touched her vag ina not more than five times. L other further testified that defe ndant also stated that on sever al other occa sions he had rea ched into C.R.’s underw ear and done “similar acts” while C.R. was in his bed. Def endant did not s ay how
many times he had done this while C.R. was i n h i s b ed. L other testified that he spoke to defe ndant in a ver

y calm manne r and in a

subdued tone of voic e. ¶ 18 L other testified that afte r defe ndant had related these o cc u rr en ces orally
, he agree d to provide a written statement. L other provided defe ndant with a pen and paper , and L other and Hende rson left the room while defe ndant wrote t h e statement. After approximately 10 minutes, L other and Hende rson returne d to the room and found that defe ndant had completed the written statement. Both d efe ndant and L other signe d the written statement. L other identified People’s Exhibit 11 as defenda nt’s written statement. It rea d:
“I Daniel G had been sexualy [ sic ] abbused [ sic ] when I was a child and I never talk [ sic ] to eny [ sic ] one about it when it happend [ sic ]. Now Imade a mistake off [ sic ] tuching [ sic ] my [d] aug ther [ sic ] [ C

. R .] on her pry vete [ sic ] part and putting my peene s [ sic ] around her lips. I need help. I ’m so sorry for what I have done; never in my hear t I [ sic ] want to hurt my

family . But I

did.” ¶ 19 On cross-e x amination, L other testified t h at du ri ng the interview, Hende rson y elled at defe ndant three times. On re direc t examination, L other testified that as defe ndant was providing details of specific occur renc es, he would beg in to “withdra w from his confe ssion,” “bac k awa

y ,” and make denials. Acc ording to L other, “He nderson leane d forwa rd and said
you did do this, and you alre ady said that. Mr. Gar cia beg an to lower his head and withdraw from the conver sation. Serg eant Hende rson at the time challeng ed him very direc tly and said
you did that. You said you did it. Say it with me, I stuck my penis in her mouth. And he said that t[ w]o or three times.” L other testified that afte r Hende rson m ad e th o se statements to defe ndant, defe ndant said that he put his penis in C.R.’s mouth. L other further testified, howeve r, that this wa s not the first time de fenda nt ha d admitted putting his pe nis in C.R.’s mouth. Rather, Hende rson’s statements wer e meant to bring defe ndant back to the admission he had a lrea dy

made. ¶ 20 Hende rson testified that he assisted L other in interviewing defe ndant, but that L other wa s the primary

interviewe r. He nderson testified that duringthe interview of def endant, he did raise his voice to defe ndant. Acc ording to Hende rson, he raised hi s voice with defe ndant beca use defe ndant had made admissions of placing his penis in C.R.’s mouth and touching her vag ina under her clothes, but would then beg in to rec ant those statements. Hende rson

-5-testified that he raised his voice with defe ndant to “re mind him of what he had just told [t he

office rs] and that [Henderson] wasn’t g oing to acc ept and prete nd that what he just told [t he office rs] had never taken place .” Def endant would then return to his admissions. Hende rson testified that he would describe the voice he used not as y elling or scre aming
, but as a “loud, commanding voice.” Hende rson did not, he testified, tell defe ndant any thing that defe ndant had not pre viously

said. ¶ 21 On cr oss-examination, Henderson te stified that he wa s forc eful with his voice and that he told d ef

en d an t to say in unison with Hende rson that defe ndant had stuck his penis in C.R.’s mouth. Hende rson did not rec all the number of times he told defe ndant to say that, but he did not believe it was more than twice. On redire ct examination, Hende rson testified that befor e he told defe ndant t o say that he had stuck his penis in C.R.’s mouth, defe ndant had alre ady admitted that he had stuck his penis in C.R .’s mouth. Hender son also testified that he did not raise his voice and tell defe ndant to say that h e p u t his hand or fing er in C.R.’s
vag ina. ¶ 22 Christina Kruschw itz te s ti f ie d n e xt. Prior to her testimony
, howeve r, defe ndant re quested that the trial court bar her from testifying about statements C.R. had made to her. Def endant
argued that the testimony of what C.R. told Kruschw itz was inadmissible under both section 115-10 and Crawf

ord beca use defe ndant was u n ab l e to cross-e x amine C.R. about those
statements. Acc ording to d ef en d ant, C.R. was unavailable for cross-e x amination on the
statements beca

use while C.R. testified that she reme mbere d meeting with Kruschw itz
, she also testified that she did not reme mber why she met with Kruschw itz

. Def endant also asked that the trial court strike Ba re’ s testimony on the same basis. The trial court d en ied defe ndant’s reque st, finding that C.R. was, in fac t, available for cross-e x amination. The trial
court also found, with respe ct to the admiss i b i l i ty of Kruschw itz ’s and Ba re’ s testimony under section 115-10, that defe ndant’s statement to police provided sufficie nt corr oboration for C.R.’s statements to Kruschw itz and Ba re, so as to rende r them admissible under section 115-10. ¶ 23 Kruschw itz testified that she was a child protec tion investigator with DCFS and that on April 4, 2006, she interviewe d C.R. at the L ake County Children’s Advoca cy Center. Also
prese nt during the interview was L other, who to o k n o t es. Kruschw itz testified that, at the beg inning of the interview, she asked C.R. about the differ ence betwee n the truth and a lie. When asked how C.R. responde d, Kruschw itz testified, “[C.R .] g ave me her defin i t i o n of both the truth and a lie, which appea red to show that she understood the differ ence .” Def ense counsel objec ted, and the trial court sust ained the obje ction. Kruschw itz then testified that she did not rec all the definitions that C.R. g ave for the truth and a lie and that the only other thing that C.R. stated about the truth a nd a lie wa s that it was better to tell the truth. ¶ 24 During the interview, Kruschw itz showed C.R. char ts of the anatomy of both a male and

a fema le child. Kruschw itz identified People’s Ex hibits 1, 2, 3, and 4 as the anatomica l char ts that she showed C.R. during the meeting

. Kruschw itz t estified that C.R. told her that on a fema le, i t was not okay to touch t he breasts, vag ina, and bel l y

. C.R. also told her that on a male, it was not okay

to touch his “private.” ¶ 25 Kruschw itz testified that she asked C.R. to tell her about the secr et C.R. had share d with

-6-the nurse (pre sumably Ba re)

. Acc ording to Kruschw itz
, C.R. stated that her fathe r p ut his penis in her mouth. C.R. said that on a Saturday night a few wee ks prior to the meeting with Krusc h wi t z , h er fathe r came into her bedroom, touched her lips with his penis, and then place d his penis in her mouth. C.R. then rolled off the bed onto the floor. He then tried to put his penis back into her mou t h a second time befor e walking out of the room. C.R. told Kruschw itz that his penis was soft, nothing was on it, and nothing came out of it. Kruschw itz testified that she then asked C.R. to identify on the anatomica l char ts what part of her fathe r’s body was place d in her mouth and what part of her body was touched by his penis. Kruschw itz testi fi ed t h at C.R. circ led the penis on the male char t and the mouth on the fema le cha

rt. ¶ 26 Kruschw itz also testified that C.R. told her that one time while C.R. and her fathe r we re sitti ng on the couch, he put his hand under her underw ear and put his fing ers in her vag ina. C.R. also told Kruschw itz that on multipl e occa sions (C.R. did not provide a specific number), while lying in he r father’s be droom with him and her sister, he would rea ch over her sister, put his hand unde rnea th her pa jamas and underw ear , and touch both the out side and the inside of her vag ina. C.R. said that she would try to roll awa y from him, but that he would then try to g et closer to her. Kruschw itz testified that when she asked C.R. to use the anatomica l c harts to de monstrate what body part he r father used to touc h her and wher e he touched he r, C.R. circled the hand on the male char t and the vag ina on the fe male cha rt. ¶ 27 Kruschw itz testified that during the interview, C.R. made multip le draw ings. K ruschwitz identified P eople’ s Ex hibit 6 as a draw ing that C.R. m ade during the meeting

. Kruschw itz testified that Ex hibit 6 was a draw ing of C.R. lying in her bed with her fathe r standing next to her. Acc ording to Kruschw itz
, C.R. stated that it was a picture of when her fathe r tried to put his penis in her mouth. C.R. wrote the word “Da d” above the standing figure, circ led what was supposed to be her fathe r’s penis (located in the pictu re j u s t b el ow the figure’ s waist), and stated that this was the part that went int o her mouth. Kruschwitz t estified that she wrote the words “B ed wea ring P.J .’s” on the picture, beca use C.R. explained that she was in her be d wea

ringher pa

jamas. ¶ 28 Kruschw itz identified People’s Ex hibit 7 as another draw ing that C.R. made duringthe meeting . In the picture is a larg e hand next to the figure of a g irl. Kruschw itz testified that C.R. wrote the word “Da d” above the hand and her name above the g irl. Kruschw itz testified that C.R. also wrote the wor ds “He is touching my privant [ sic ].” ¶ 29 Finally
, Kruschw itz identified People’s Ex hibit 9 as a piece of p ap er co n t ainingtwo draw ings that C.R. made during the meeting

. In the draw ing on the left, there are three fac es above a larg e rec tang le. Kruschw itz testified that C.R. stated that the draw ing was a picture of her, her sister, a

nd her dad sleeping in a bed. Above the fac e on the l eft is C.R.’s name, above the fac e in the middle is the word “sister,” and above the fac e on the right is the word “Da d,” all written by Kruschw itz

. Also written by Kruschw itz wer e the words “put his hand

over Dan[ielle] and she scoots in c orner .” Kruschw itz testified that C.R. explained that her dad would put his hand over her sister to touch C.R.’s vag ina. C.R. would then scoot into the

corne r. The draw ing on the rig ht depicts a couch with two figures sitti ng on it. The figure on the right, which is larg er than the figure o n t he left, has a disproportionately long arm t hat is rea ching toward the figure on the left. Above the smaller figure is C.R.’s name, and above

-7-the larg er figure is the word “Da d.” Also written on the pag e is the word “hand” with a line

pointing to the arm of th e larg er figur e and the words “couc h in living room.” Kruschw itz testified that she wrote those words beca use C.R. told her that the draw ing was of C.R. and her f ather sitti ngon the couc h when he r father touche d her va g ina. ¶ 30 On cr o s s -e x am i nation, Kruschw itz testified that as an investigator with DCFS, she is require d to notify law enfor ceme nt when an alleg ation of child sexual abuse is rec eived and to set up an interview

with the child. ¶ 31 Following Kruschw itz ’s testimony
, t h e S t at e rested. Def endant made a motion for a direc ted verdic t, and the trial court g rante d it as to counts I I I
, VI
, and VI I
, but denied it as to counts I
, I I
, IV, and V. Def endant rested without prese nting the testimony of any witnesses. Following closing arguments, the ca se wa s tendere d to the jury . The jury returne d verdic ts of guilty on counts I , I I , and V, a

nd a ver dict of not guilty

on count IV. ¶ 32 Def

endant filed a motion for judgme nt notwithstanding the verdic t or, alterna tively
, for

a new trial. At the hearing on the motion, defe ndant ar gu ed
, am ong other things, that defe ndant’s confrontation rights, as delineated i n Crawf ord
, we re violated when C.R

. was unavailable for cross-examination at t rial but her st at em ents to Ba re and Kruschw itz wer e ad m i tted throug h their testimony

. The State argued that C.R. did testify
, for purpo s es o f defe ndant’s confr ontation rig hts, when she identified the dra wi ng s she made during her meetin g wi th Kruschw itz and stated that she had cre ated them. The State contende d that
t h rough those draw ings, C.R. testified as to the substance of the alleg ations ag ain s t defe ndant. The trial court found that the statements C.R. made to Ba re wer e not testimonial and, thus, wer e not subject to Crawf ord

. The trial court also found, howeve r, that the statements C .R. made to Kruschw itz wer e testi monial and, thus
, subject to Crawf ord . The trial court found that, beca use C.R. was not available at trial for cross-e x amination, the
statements C. R

. made to Kruschw itz should have been excluded under Crawf ord

. Consequently
, the trial court enter ed judgme nts of acquittal as to counts I I and V, but denied d ef en d an t ’s motion as to count I
, finding that the “statutory and constitutional safe guards

wer e follow ed” with respe ct to that count. To ref resh the rea der’ s rec ollection, count I char g ed defe ndant with placing his penis in C.R.’s mouth. C.R. volunteere d this information
to Ba re in a nontestimonial statement, and the statement was corr oborate d b y d ef endant’s admissions to t he police. T hus, Ba re’ s testimony

was prope rly

befor e the jury

. ¶ 33 The trial court then held the sentenc ing hearing, during which it sentenc ed defe ndant to 24 y ear s’ imprisonment on co u nt I

. Following an unsucce ssful motion to rec onsider the
sentenc e, def

endant a ppeale d. We initially dismiss ed this a ppeal for lack of jurisdiction on Fe bruar y 27, 2009, having found that defe ndant’s notice of appea l was premature. People v. Garcia-Cordova
, No. 2-07-0550 (2009) (unpublished order under Supreme Court Rule 23). The I llinois Supreme Court issued a supervisory order on April 7, 2009, which vacated our Fe bruar y 27, 2009, order and direc ted us to treat defe ndant’s notice of appea l as validly filed.

¶ 34 I I . Analy sis ¶ 35 A. The O pinion in Garcia-Cordova I ¶ 36 On appea l, defe ndant raised three issues: (1) whether Kruschw itz ’s testimony reg arding

-8-C.R.’s statements during the interview was inadmissible under Crawf ord ; (2) whether the trial court erre d in admitting evidence that defe ndant had been sex ually abu s ed as a ch ild; and (3) whether the trial court abused its discretion in sentenc ing defe ndant to 24 y ear s’ imprisonment. ¶ 37 Wit h respe ct to the first issue, we a cknowledg ed that under People v

. Melc hor
, 226 I ll. 2d 24, 33-34 (2007), and In r e E.H.
, 224 I ll. 2d 172, 179 (2006), we wer e oblige d to deter m i n e the admissibili ty of out-of-c ourt statements as an evidentiar y matter befor e considering any constitutional claims. Garcia-Cordova I
, 392 I ll. App. 3d at 479. Howeve r, beca use defe ndant conce ded that the out-of-c ourt st at em ents wer e admissible under evidentiar y principles, we proce eded to revie w defe ndant’s constitutional claim. GarciaCordova I

, 392 I ll. App. 3d at 479. We held that C.R.’s testim ony fell wit hin the m emory

loss r ule of United States v. Owens
, 484 U.S. 554 (1988), Delaware v. Fenstere r , 474 U.S. 15 (1985), a

nd People v . Flores , 128 I ll. 2d 66 ( 1989). Garcia-Cordova I , 392 I ll. App. 3d at 483. I n Flores
, applying Fenstere r and Owens
, our supreme court de clar ed that a g ap in

a witness’s rec ollection conce rning the content of a prior statemen t does not nece ssarily
prec lude an opportunity for eff ective cross-e x amination. Flores
, 128 I ll. 2d at 88. In GarciaCordova I

, we conclude d that C.R. was available for cross-e x amination wher e she appea red
at trial and tes t i fi ed u n d er oath. She made an in-court identification of defe ndant; she testified t hat s he reca lled speaking with Kruschw itz and that L other wa s prese nt when she spoke with Kruschw itz ; she testified that during her meeting with Kruschw itz she made draw ings, some of which she identified during her testimony
, and
, althoug h C.R. did not

rec all wh at ac t ivities wer e depicted in the draw ings, or why she made the draw ings, she

answe red all of the prosec utor’s questions on that subject. Garcia-Cordova I
, 392 I ll. App. 3 d at 483-84. We said that, even though defe ndant chose not to cross-e x amine C.R., we could not conclude that she was unavailable had defe n d an t chosen otherwise. GarciaCordova I

, 392 I ll. App. 3d at 484. ¶ 38 We then went on to conduct a harmless-e rror analy sis and conclude d that any err or in the admission of the entirety of Kruschw itz ’s testimony was harmless beca use it was duplicative and cumulative of proper ly admitted evidenc e and beca use the evidenc e of defe ndant’s guilt

on count I (the only count of which he was convicted afte r the trial court g rante d his motion for judgme nt notwithstanding the verd i ct o n the other two counts) was overwhelming. Garcia-Cordova I

, 392 I ll. App. 3d at 485-86. ¶ 39 Wit h respe ct to defe ndant’s sec ond and third issues, we he ld that the trial court did not

err in admitting the evidenc e of defe ndant’s sexual abuse as a child and that the sentenc e of 24 y ear s’ imprisonment was not an abuse of discretion. Garcia-Cordova I
, 392 I ll. App. 3d at 489, 492. ¶ 40 On Marc h 30, 2011, our supre me cour t denied defe ndant’s petition f or leave to a

ppeal, but in a supervisory order direc ted us to vacate o ur judgme nt and rec onsider it in light of Kitch

. We proc ee d now to rec onsider our decision. We asked the parties to submit supplemental briefs, which they have done, to aid us in our eff ort. Be fore we rea ch their
respe ctive ar guments, we will revie w Kitch

.

-9-¶ 41 B. The Dec ision in Kitch

¶ 42 A jury co n v i ct ed t h e d ef endant, Richard Kitch, of nine counts of predatory criminal sexual assault of a child and one count of ag g ravated criminal sexual abuse. Kitch , 239 I ll. 2d at 455. The appellate court modified the defe ndant’s sentenc e, but aff irmed the convictions. Kitch
, 239 I ll. 2d at 455. Befo re t he I llinois Supreme Court, the defe ndant 2
argued, inter alia
, that the child victims did not testify in enough detail to have appea red for

cross-e x amination within the meaning of the confr ontation clause

. Kitch
, 239 I ll. 2d at 460. ¶ 43 Pursuant to section 115-10 of the Code of Criminal Procedur e of 1963 (Code) (725 I L CS 5/115-10 (West 2004)), the trial court held that out-of-c ourt statements made by the victims, K.J .K. and M.J .B., to the Schuyler County sheriff and one of his employ ees wer e admissible
at trial if the children testified. Kitch
, 239 I ll. 2d at 456. At trial, the sheriff and his employ ee testified to the victims’ statements. Kitch
, 239 I ll. 2d at 4 5 7 -5 8

. I n addition, an obstetric
g y necolog ist who examined K.J .K. t es t i fi ed that it was highly likely that K.J .K. had been abused. Kitch
, 239 I ll. 2d at 456-57. For ensic scientists testified that a semen stain on K.J .K’s comforte r matche d the def endant’ s DNA prof

ile. Kitch , 239 I ll. 2d at 459. ¶ 44 At trial, K.J .K. testified consistentl y wi t h h er o u t -o f- co u rt statement reg ardingthe defe ndant forc ing his penis into her mouth, betwee n her leg s, and into her vag ina. Kitch
, 239 I ll. 2d at 458. She also testified that, a couple of months afte r the defe ndant beg an putting his penis betwee n her leg s, he started putting his fing ers in her vag ina, telling her he was doing i t s o his penis would eventua lly fit. Kitch
, 239 I ll. 2d at 458. K.J .K. described an instance when the defe ndant’s ejac ulate dripped onto her comforte r and the defe ndant told her to wipe it up with paper towels. Kitch
, 239 I ll. 2d at 4 5 8 -5 9

. K.J .K. testified about the defe ndant rubbing her breasts with cocoa butter, showering w ith her, and tattooing her rig ht buttock. Kitch , 239 I ll. 2d at 459. ¶ 45 At trial, M.J .B. also testified consistently with his out-of-cour

t statement that, when he

was about eight y ear s old, the defe ndant touched his penis in his bedroom. Kitch
, 239 I ll. 2d
at 459. M.J .B. testified that other incidents occur red in the bathroom, including one occa sion when the defe ndant forc ed M.J .B. to touch the defe ndant’s penis and three or four other

occa sions when the def

endant put his penis in M.J .B.’ s mouth. Kitch , 239 I ll. 2d at 459. ¶ 46 The defe ndant argued befor e the supreme court that K.J .K. and M.J .B. did not testify in
enough detail to have appear ed for cross-e x amination within the meaning of the confr ontation c lause, beca use the State failed to establish through their testimony eac h and

ever y element of ever

y count ag ainst him. Kitch
, 239 I ll. 2d at 460. As a result, the defe ndant
argued that he was unable to eng ag e in eff ective cross-e x amination. Kitch
, 239 I ll. 2d at 460.

T he Four th Dis tr ic t ori ginal ly dec ide d Kit ch in an unpubli she d ord er pur sua nt to Supr eme 2 Cour t Rule 23 (e ff

. J uly 1, 1994 ). I n a sup ervisory or der
, the sup re m e court dir ect ed the app el la te

c o u r t t o vacat e it s ord er and re con si der it s j udgm ent in li ght of In re Rol andis G.
, 232 I l l

. 2 d 1 3 (20 08)

. Upon re con si der at ion
, the app el la te cou rt again af fi rmed, hol din g tha t the is sue was whet her the chi ld victi m s had app ear ed for cr oss

- exa m ina ti on within the m ean ing of the con fr ont at ion cl aus e,

an is sue not addre sse d in Rolandis G. si nce the Sta te the re con ced ed tha t the victi m was not avail abl e to te st if y at t ri al

. Peop le v. Ki tc h , 392 I ll . App. 3d 1 08, 1 21 ( 2009 ).

-10-Our supreme court considere d this claim under the pl ain-e rror doct ri n e and first looked t o

see whether err or occur

red. Kitch
, 239 I l l

. 2 d at 462. “In making this deter mination, we consider whether
, as defe ndant argues, the State improperly failed to a sk the victims a bout

eac h incident in enough detail to establish the elements of eac h count.” Kitch
, 239 I ll. 2d at 462. The court then s et forth eac h count and the elements of each co u nt. Kitch
, 239 I ll. 2d
at 462. The court stated that it was undisputed that the defe ndant was over the ag e of 17 and the victims were under the ag e of 13 when t he off enses oc curr ed. Kitch , 239 I ll. 2d at 463. “The question, then, is whether the State, throug h the victims’ direc t testimony
, proved ‘an
act of sexual penetr ation’ with reg ard to counts IV throug h VI and IX and XI
, and ‘an act of sexual conduct’ with re g ard to c ount VI I .” Kitch , 239 I ll. 2d at 463. ¶ 47 The supreme court observe d that K.J .K.’s testimony was “somewhat unclea r” as to when

ever y incident occur

red, but that it never

theless established in detail that three acts occur red betwee n J une 2002 and Marc h 2003 that corr esponded with coun t s aga inst the defe ndant. Kitch
, 239 I ll. 2d at 463. K.J .K.’s additional detailed testimony as to the acts the defe ndant committed upon her established abuse from Fe bruar y 2000 to Marc h 2003. Kitch
, 239 I ll. 2d
at 463. The supreme court held that M.J .B.’ s d et ai l ed testimony also corr esponded to the alleg ations in the releva

nt counts. Kitch , 239 I ll. 2d at 463-64. The c ourt stated:
“Ac cording ly
, K.J .K.’s and M.J .B.’ s direc t testimony
, standing alone, was sufficie nt to est ablish the elements of the rele vant counts ag ainst defe ndant. We also conclude
, larg ely for this rea son, that K.J .K.’s and M.J .B.’ s direc t testimony was sufficie nt to allow for eff ective cross-e x amination. Their direc t testimony provided enough detail to allow for cross-e x amination within the meaning of the confr ontation clause

. Our revie w of the

rec ord shows that both K.J.K. and M.J .B. a nswere d all of t he questions put to them by defe nse counsel on cross-e x amination. Their answe rs we re fo rthright. There was no indication they

wer e beingevasive .” Kitch , 239 I ll. 2d at 464. ¶ 48 The supre me cour t then stated that there was nothingin this court’s decision in People

v. L ea r n , 396 I ll. App. 3d 891 (2009), a case on which the defe ndant relied for the proposition that the victim must g ive acc usatory testimony
, that compelled a differ ent result. Kitch
, 239 I ll. 2d at 464. The supreme cou rt d istinguished the fac ts in Learn
, wher e the victim’s direc t testimony

was not incriminating
, from the fac ts in Kitch
, wher e K.J .K. and M.J .B. acc used the defe ndant of multipl e acts of sexual abuse throug h their direc t testimony

. Kitch
, 239 I ll. 2d at 465. Our supreme court held that there was no err or in the admission of K.J .K.’s and M.J .B.’ s out-of-c ourt statements, beca use they appea

red for cross-e x amination within the meaningof the c onfrontation cla use. Kitch , 239 I ll. 2d at 465. ¶ 49 We now consider whether Kitch require s a differe nt result i n this case than the one we initially rea ched.

¶ 50 C. W hether Kitch Established a Ne w Constitut ional Rule in Memory -L oss Cases ¶ 51 Be fore we launch our analy sis, we ag ain briefly rec ount C.R.’s t ri al t es t imony in the instant case

. She testified to her ag e, family members, and schooling

. She denied living with

someone else besides her mother and Danielle, and she shook her head (the rec ord does not

-11-ref lect the direc tion of the head shake) when asked if she knew somebody she called fathe r

or Daniel. Howeve r, she identified defe ndant in court as the person she ref err ed to as Danny or her stepdad. C.R. did not remember g oing to a

medical c linic and telling some one ther e

a secr et. She rec alled a meeting with Kruschw itz at which L other was prese nt, and she

reme mbere d speaking with Kruschw itz and draw ing pictures during their meeting

. She did
not rec all why she met with Kruschw itz or what the room looked like wher e they met. C.R. identified Ex hibit 7, one of her draw ings, but said “It was a long time ag o” wh en s he was asked what the draw ing was about. She identified herse lf and defe ndant ’s hand in the draw ing, but she did not respond to the questi on of what defe ndant’s hand was doing . She identified another draw ing of her, Danielle’ s, and defe ndant’s fac es with blankets below the fac es, but she did not rec all what the blankets were on. She identified a draw ing of herse lf and d ef en d an t sitti ng on a couch. When shown Ex hibit 6, another draw ing, C.R. did not

rec all making it. She testified that she did not know why she drew any of t h e p i ct u res of herse lf and defenda

nt. She did not reme mber seein g fe male anatomy char ts; she di d rec all having seen a male anatomy char t, but did not rec all when or wher e she saw it. She rec alled when defe ndant lived with her, her mother, and her sister, but she did not rec all any thing happening in her bedroom or on the couch

. S h e d i d not know what part of the body the bottom part of a bathing suit cover ed, and she did not know whether there wer e cer tain parts of her body that should not be touched. ¶ 52 Def

endant did not cr oss-examine C.R. ¶ 53 In this appea l, defe ndant urg es us to reve rse his conviction based on what he say s in his supplemental briefs is the dual doctrine established by Learn

-Kitch : that a victim’s testimony
must be acc usatory and must establish eac h of the elements of the counts ag ainst a defe ndant in order for the victim to have appea red for cross-e x amination. At oral argument, defe ndant clar ified hi s p o s ition with respe ct t o Kitch

. Def endant premises his arg

ument on his belief that the supreme court in Kitch adopted, or at least approve d of, Learn ’s analy sis and then 3
went further to approve a standard wher eby the v i ct i m’s direc t testimony established the elements of eac h count. Howe ver, defe ndant is not arguing the position the defe ndant took in Kitch
, that the victim must t es t i fy t o ea ch element of the offe nse. Instead, pursuant to defe ndant’s understanding of the holding in Learn
, defe ndant contends that C.R. did not g ive

acc usatory testimony ag ainst him and so did not satisfy either the Learn or the Ki t ch standards. He t hus conclude s that his constitutional right to confr ont the wit nesses ag ainst h i m was violated. We revie w de novo whether a person’ s constitutional rig hts have been violated. People v . Burns , 209 I ll. 2d 551, 560 (2004). ¶ 54 Section 1 1 5 -1 0 o f the C ode provides that, in a prosecution for a phy sical or sexual act
perpe trated upon or ag ainst a child under the ag e of 13, cer tain out-of-c ourt statements made by the child may be admitt ed at trial as an exception t o the hearsay rule where (1) the trial

Lear n dec ide d the is sue of whet her the chi ld victi m te st if ie d for purpos es of sec ti on 115-10 3 and sai d tha t the Code re qui re s the chi ld victi m , if she is the onl y w i t n e s s o t h e r tha n hea rs ay

re porte rs who can acc use the def end ant of act ion s con st ituti ng the cha rged o ff ens e, to te st if

y and

acc use

. Lear n , 396 I ll

. App. 3d at 900. However, for t his cou rt ’s fur the r tr eat m ent of Lear n , see Peop le v. M

art in , 408 I ll . App. 3d 8 91, 8 97 ( 2011 ), d is cus sedla te r i n this opi nio n.

-12-court c onducts a he aringoutside the presence of the jury to deter mine the reliabilit y of t he statements; and (2) the child testifies at trial or is unavailable and there is corr oborative evidenc e of the act that is the subject of the stat em en t

. 7 2 5 I L CS 5/115-110 (West 2006). Her e, defe ndant conce ded that the out-of-c ourt statements C. R. mad e to B a r e and Kruschw itz

wer e admissible under section 115-10. The question is whether de fenda nt was depr ived of

an opportunity to cross-e x amine C.R. conce rning her prior statements to Kruschw itz so that their admission violated the confr ontation clause of the six th amendment to the United States Constitution. ¶ 55 In Crawf

ord
, the United States Supreme Court held that, under the confr ontation c lause, a testi monial statement of a witness who does not testify at trial i s inadmi s s i b l e u nless (1) the witness is unavailable to testify
, and (2) the defe ndant had a prior opportunity for crossexamination. Crawf

ord
, 541 U.S. at 53-54. Subsequently
, in Davis v. W ashington
, 547 U.S. 813 (2006), the Court made clea r that the confr ontation clause does not app l y to nontestimonial statements. Davis
, 547 U.S. at 821. In the prese nt case , the State conce des that C.R.’s statements to Kruschwitz were testimonial. ¶ 56 The Supreme Court in Crawf ord also held t hat where “ the dec lara nt appea rs for c rossexamination at trial, the Confrontation Clause pl ace s no constraints at all on the use of his prior testimonial statements.” Crawf ord
, 541 U.S. at 59 n.9. Thus, the issue is whether C.R.
appea red for cross-e x amination wher e she did not reme mber or rec all cer tain things and did
not know ot hers. In Garcia-Cordova I
, we said that this casewas akin to the m emory-loss

case s of Fenstere r and Owens

. Garcia-Cordova I
, 392 I ll. App. 3d at 483. Nothing in Kitch dissuades us from that view , as Kitch did not involve memory loss and did not touch upon the ca ses dea ling with memory loss. ¶ 57 In Fenstere r , an expert witnes s ’s i n ab i l i t y to rec all the basis for his opinion did not implicate the confr ontation clause

. Fenstere r , 4 7 4 U.S. at 21. In Owens
, a fede ral prison
guard who was beate n by an inmate could not reme mber hi s as s ai l ant at trial, but

reme mbere d ident i fy i n g the defe ndant as his assailant in a prior conver sation with an FB I
ag ent. Owens
, 484 U.S. at 556. The S upreme Court held t hat t he confrontation clause was not implicated wher e the witness testified to a past bel i ef b u t was unable to rec ollect the

rea son for his past belief. Owens
, 484 U.S. at 559. The Court explained that the confr ontation clause g ives the acc used the rig ht to be confr onted with the witnesses ag ainst him, which has been rea d as secur ing an adequa te opportunity to cross-e x amine adver se witnesses. Owens
, 484 U.S. at 557. ¶ 58 Our supreme court followed Fenstere r and Owens in Flo r es

. I n F l o r es , the def

endant claimed that his rig ht to confr ontation was violated wher e the g rand jury testimony of a State witness–who stated at trial that he could not rec all having a conver sation with the defe ndant

conce rning the vi ct i m ’s d eath and could not rec all the content of his g rand jury testimony –was introduced as substantive evidenc e. Flores
, 128 I ll. 2d at 88. Our supreme court held that “a g ap in the witness’ rec ollection conce rning the content of a prior statement does not ne cessa

rily prec lude an opportunity for e ffe ctive cr oss-examination.” Flores , 128 I ll. 2d at 88. In People v. Sutton
, 233 I ll. 2d 89 (2009), our supreme court ag ain interpre ted Owens in deciding that a witness who recalled making out-of-cour t statements but did not

rec all what they

wer e wa s available for c ross-examination. Sutton , 233 I ll. 2d at 122-23.

-13-¶ 59 Thus, the United States Supreme Court and the I ll i n o i s S up reme Court have squa rely held that a witness’s memory loss does not implicate the confr ontation clause

. We conclude that our supreme court in Kitch did not hold otherwise, beca use it surel y would not have

overr uled Flores and Sutton without saying so. Moreove r, Fenstere r and Owens rema in the 4 supreme law of the l and, which further leads us to conclude that our supreme court would
not have staked out constitutional territory in direc t opposition to the Supreme Court of the United States. Indeed, in Flores and Sutton
, our supreme court made clea r that Fenstere r and Owens “g overn the question of whether a witness ‘has appea red for cros s -e x ami nation’ within the meaning of the confr ontation clause .” People v. Tracewski
, 399 I ll. App. 3d 1160, 1167-68 (2010) (Steig mann, J ., specia lly concur ring ). ¶ 60 It beca

me clea r at oral argument that defe ndant does not take i s s u e wi th the fore g oing discussion. Rather, defe ndant distinguishes the Fenstere r

- Owens

- Flores trilogy by arguing that Learn takes the insta n t ca s e o utside the m emory-loss case s. It is useful first to dissect defe ndant’s construction of Learn and then to scrutinize the conclusion he draw s. Def endant contends that Learn held that a hear say decla rant must g ive acc usatory testimony

. Def endant acknow ledg es that Learn was decide d under section 115-10, b u t a rg u e s that Kitch
, which was decide d under the confr ontation clause
, cited Learn with approva l. Def endant then draw s the conclusion that Learn require s the State to confr ont the witness with his or her out-of-c ourt stat em en t wher e the witness testifies that he or she does not reme mber g iving the out-ofcourt statement. Only in this fashion, defe ndant argues, can the witness be said to be prese nt to expl ain or de ny

the statement. ¶ 61 Def

endant’ s argument ignor es a couple of things about Learn

. First, Learn held that the victim must g ive acc usatory testimony wher e the victim is the only witnes s o t h er than hear say repor

ters who can acc use the defe ndant of actions constituting the char g ed offe nse. Learn
, 396 I ll. App. 3d at 900. In our case , C.R. was not the only witness other than hear say repor ters. Def endant’ s statements to the police corr oborate d C.R.’s out-of-c ourt statements. To this extent, Learn is not even applicable to our case

. Second, we disag ree that our supreme court cited Learn for any purpose other than to distinguish it. We reje ct defe ndant’s attempt to rec ast his rig ht to confr ont witnesses as the State’s burden to confr ont witnesses. It is the acc used who has the rig ht to be confr onted with the witnesses ag ainst him. Pointer v. Texas , 380 U.S. 400, 404-05 (1965). ¶ 62 The fore g oing compels us to deter mine that in Kitch our supreme court simply held that the evidenc e was sufficie nt to establish eac h el em en t o f eac h count. The court then distinguished Learn rathe r than adopting it. In People v. Martin
, 408 I ll. App. 3d 891 (2011), this cou rt said that in Learn the issue was one of competenc y

. Martin
, 408 I ll. App. 3d at 897. We explained the context in which we used the term “c o mp etenc y” when we said, “[T] he witness was unable to testify and, as a re s u l t , d i d n ot answe r any substantive questions. Thus, there was no ability for the witness to respond at all, even if only to state a

For a dis cus si on of the con si der abl e bo dy of appe ll at e c our t cas e la w on thi s sub j ect , see 4
P e o p l e v. Bry ant , 391 I ll

. App. 3d 1072
, 1093

- 1096 (20 09)

. Kit ch did not exp re ssl y or oth erwi s e

overrule th ese ca ses

.
-14-lack of memory , leading also to the inability to cross-e x amine the witness.” Martin
, 408 I ll.

App. 3d at 897. Whether we call it competenc y or availability
, the rea l distinction betwee n 5 Learn and our case is that in Learn
, althoug h the witness had initially been found competent by the trial judge
, when questioned by counsel she actua lly lacke d the ability to a nswer the questions propounded by counsel. In the prese nt case , C.R. answe red the questions put to her either verbally or with a head s hake except for t h e qu es t i on of what defe ndant’s hand was doing, to which she made no response

. Her an s wers that she did not rec all why she spoke with Kruschw itz and did not rec all any thing happening in her bedroom or on the couch place this case within the Fenstere r

- Owens

- Flores

- Sutton doctrine. Def endant argue s t h at in Fenstere r and Owens the witnesses g ave acc usatory testimony but c ould not reme mber the bases for the accu s at i o ns. Def endant simil arly distinguishes Flores on the basis that the witness reme mbere d g iving testimony befor e the grand jury

. Howeve r, we believe that those

case s all stand for the broade r principle that the confr ontation clause is not implicated wher e

a hear say decla

rant is prese nt at trial and subject to unrestric ted cross-e x amination. Memory loss can occur on a continuum. We do not have to decide at what point it may become a denial of the rig ht of confr ontation, beca use in the instant case , C.R. testified in enough detail that she could have bee n cross-e x amined. ¶ 63 In our case , defe ndant chose not to cross-e x amine C.R. T h i s ap p ea rs to be a matter of trial strategy beca

use, as we pointed out in Garcia-Cordova I
, there wer e topics upon which she could have been cross-e x amined, such as the descr iptions in her draw ings, her inability
to reme mber why she spoke with Kruschw itz
, and the alleg ed incidents of abuse. Def endant
argues that, “critically ,” C.R. did not reme mber Ex hibit 6, a draw ing that perta ined to count I
, the sole count upon which he was convicted. How ev er , her lack of memory could have been probed on cross-e x amination. Where a defe ndant does not attempt to cross-e x amine a witness on her out-of-c ourt statements, he cannot complain that the witness was unavailable for cross-e x amination. People v. Lewis
, 223 I ll. 2d 393, 405 (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 defe nse counse l chooses to let the witness’s direc t te stimony stand. People v . Major-Flisk
, 398 I ll. App. 3d 491, 506 (2010). We agr ee with the court in People v. Lara
, 2011 I L App (4th) 080983-B , ¶ 51:
“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 attorney 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 i m p l i ca t e his client. Howeve r, strateg ic considerations such as these do not make the w itness unavailable f or cr oss-examination.” ¶ 64 Our conclusion that Kitch was decide d on its fac ts rath er t h an announcing a shift in constitutional law is bolstered by consideration of the way in which out-of-c ourt statements

J ust ic e M cLa re n, who aut hor ed Lear n , con cur re d in Ma rt in

. I n Lear n , th e c our t s ai d t hat 5 it dec li ned to re ach the is sue of the witnes s’ s compe t e n cy. Wh il e Ma rt in st at es tha t Lear n and Rol andis G. dea lt wit h the is sue of compete n c y, t hos e cas es con cer ned the avail abi li ty of the wit nes ses

.
-15-under section 115-10.1 of the Code (725 I L CS 115-10.1 (West 2008)) are treated, which we

examine in the nextsection.

¶ 65 D. The Constitutional Nonevent ¶ 66 The issue prese nted by the admission of hear say is constitutionally identical in a child sex abuse case and a murder case , and the response of the six th a mendment is ide ntical in both ty pes of case s. People v. Bryant
, 391 I ll. App. 3d 1072, 1090 (2009). Crawf ord very simply
say s that, wher e the decla

rant appea

rs for cross-e x amination at trial, the confr ontation clause place s no constraints at all on the use of his prior testimonial statements. Crawf ord
, 541 U.S.
at 59 n.9. Where the decla rant appea

rs for cross-e x amination, even wher e the decla rant does

n o t testify to the s ubstance of hi s hear say statement, i ts admission is a nonevent un d er t h e confr ontation clause

. Bryant
, 391 I ll. App. 3d at 1090. This court rec ently so held in Martin

. ¶ 67 In Martin
, the defe ndant was indicted on two counts of domestic battery and one count of ag g ravated battery arising out of a phy sical alterc ation with his g irlfriend, Shannon Hosey

. Martin
, 408 I ll. App. 3d at 892. Hosey provided a written statement to the police, stating that the defe ndant hit her while she was driving

. Martin
, 408 I ll. App. 3d at 892. At trial, Hosey said she had been drinking and did not reme mber hav i n g an argume nt with the defendant, d i d not reme mber an alterc ation or injuries, and did not reme mber talking to the police, althoug h she rec og nized her handwr iting on the written statement. Martin
, 408 I ll. App. 3d
at 892. The trial court allowed the State to use Hosey ’s wri t t en s t atement, not just for impeachme nt, but for substantive evidenc e. Martin
, 408 I ll. App. 3d at 893. The trial court found the defe ndant guilty
, and he appea led, arguing that Hosey ’s written stat em en t wa s wrong ly allowed into evidenc e in violation of his rig ht to confr ontation. Martin
, 408 I ll. App. 3d at 893. ¶ 68 Thi s co u rt fi rs t d et er m i n ed t h at Hos ey ’s written statement was admissible as an evidentiar y matter u nder section 115-10.1, which allows a witness’s prior inconsistent
statement to be admitted if the witness is subject t o cr oss-examination conce rning the
statement and the statement explained events of which the witness had persona l knowledg e and the witness acknow ledg es under oath the making of the statement. 725 I L CS 5/115-10.1 (West 2008). Despite its admis s i b i l i t y under section 115-10.1, the defe ndant argued that admiss ion of the written statement violated his rig ht to confr ontation beca use Hosey ’s
memory loss made m ea n i n gful cross-e x amination impossibl e. Martin
, 408 I ll. App. 3d at 895. We said that Hosey appea red for cross-e x amination beca use she phy sically appea

red at trial and was cross-e x amined by defe nse counsel; she was able to answe r questions and willingly did so. Martin
, 408 I ll. App. 3d at 896. “We agr ee that [Hosey ’s] alleg ed lack of
memory did not cre ate confr ontation-clause problems mere ly beca use it prec luded her from being cross-e x amined to the extent that [t he defe ndant] would have liked.” Martin
, 408 I ll. App. 3d at 896-97. We held that Learn and In re Rolandis G.
, 232 I ll. 2d 13 (2008), did not dictate the opposite conclusion, beca use both Learn and Rolandis G. involved situations wher e the victims wer e unable or unwilling to testify

. Martin , 408 I ll. App. 3d at 897. ¶ 69 The point is that, if the confr ontation c lause did not bar the admission of Hosey ’s prior written statement in a battery prosec ution, it would not bar admission of a simil ar statement

-16-in a child sex abuse case wher e the victim appea red on the witnes s stand and answe red questions, assuming the admissibili ty of the out-of-c ourt statement under section 115-10. In Owens
, the Supreme Court said that ordinarily a witness is reg arde d as s ub j ec t to crossexamination when he is place d on the stand, under oath, and responds willingly to questions. Owens , 484 U.S. at 561. ¶ 70 W e d o n o t believe that our supreme court in Kitch would intend to upend all of th e exis ting c ase la

w on this subject and not expli citly say so. We read no implication into the supervisory order that direc ted us to rec onsider the prese nt case in light of Kitch
, beca use this issue is so important that our supreme court in Kitch
, being fully capa ble of expli citly saying that it was makingnew law , would have sa id so if that was what it meant to do. ¶ 71 Even if we were to conclude that C.R. was unavailable fo r cr o s s -examination and that defe ndant’s confr ontation rig hts under Crawf ord wer e thus violated by the admission of Kruschwitz’s testimony
, we deter mine that such an err or was harmless. Violations of a defe ndant’s confr ontation rig ht s u n d er Crawf ord are subject to harmless-e rror revie w. Rolandis G.
, 232 I ll. 2d at 43. The question is whether it appea rs beyond a rea sonable doubt that the err or did not contribute to the verdic t obtained. Rolandis G.
, 232 I ll. 2d at 43 (citing People v

. Stechly
, 225 I ll. 2d 246, 304 (2007)) . “When dec iding whe ther e rror is harmless,

a revie wing court may (1) focus on the err or to deter mine whether it might have contributed
to the conviction; (2) examine the other properly admitted evidenc e to deter mine whether it

overwhelmingly supports the conviction; or (3) deter mine whether the improperly admitted evidenc e is mere ly cumulative or duplicates proper ly admitted evidenc e.” Rolandis G.
, 232 I ll. 2d at 43. ¶ 72 We deter

mine that Kruschw itz ’s testimony re gar d i n g C

. R

. ’s s t atements was mer ely cumulative and duplicative of the proper ly admitted evidenc e prese nted at trial. Wit h respe ct to the alleg ation that defe ndant place d his peni s in C.R.’s mouth (the conduct alleg ed in

co u n t I
, whi ch was the only count on which a judgme nt of conviction was enter ed)
, Kruschw itz testified that C.R. stated that a few wee ks prior to the meeting with Kruschw itz
, defe ndant came into her bedroom, touched her lips with his penis, and then place d his penis in her mouth. C.R. stated that she then rolled off the bed onto the floor, at wh i ch point defe ndant tried a second time to place his penis in her mouth. Kruschw itz also testified that C.R. stated that d ef

endant’ s penis was soft, nothing was on it, and nothing came out of it. These statements are nearly identical to th e o ra l s tatement defe ndant g ave to L other and Hende rson. L o t h er testified that defe ndant stated that three wee ks prior to the interview (which took place the same day that Kruschw itz met with C.R.), he we n t i n t o C.R.’s bedroom, pulled down his pa nts, r ubbed his pe nis on C.R.’s lips, and then place d his pe nis in C.R.’s mouth. Def

endant also told L other that when he did this, C.R. rolled awa y

. Fur ther, just as C.R. descr ibed defe ndant’s penis as being s o ft
, having nothing on it, and not producing an y

th ing, defe ndant told L other that he did not have an ere ction and did not ejac ulate. In addition, Ba

re testified that C.R. told her that defe ndant made her put his “thing ” in her mouth. ¶ 73 Def

endant contends that Kru s ch wi t z ’s t es t i m o n y rega rding C.R.’s statements was

sub s t anti ally more detailed than the other evidenc e and that People’s Ex hibit 6 (which,

acc ording to Kruschw itz
, depicted d ef endant in C.R.’s room when he put his penis in her

-17-mouth) made the alleg ations “all the more vivid.” We disag ree

. As discussed above, the oral

statement that defe ndant g ave to L o t h er an d Hende rson was just as detailed as C.R.’s
statements to Kruschw itz

. We note specific ally that defe ndant described the same sequenc e of events as C.R.: touching his penis to her lips followed by putting his penis in her mouth. Both C.R. and defe ndant stated that C.R. rolled awa y , and both stated, in differ ent terms, that defe ndant’s penis was not ere ct and that he did n o t ej ac u l at e. People’s Ex hibit 6 did not depict an y

t h i n g o ther than what defe ndant described to L other and Hende rson. In fac t, defe ndant’s statement was far more descr iptive than the picture, as he descr ibed the specific phy sical contac t that took place in C.R.’s bedroom, while the picture shows only C.R. in her bed with def

endant standingnext t o her. ¶ 74 Def

endant also argues t hat t he admissi on of Kruschwitz’s test i m o n y was not harmless beca use she asked question s t o d et ermine whether C.R. knew the differ ence betwee n the truth and a lie, adding cre dibility to C.R.’s statements and und er m i n i n g defe ndant’s chief defe nse, that his state ment to police was coer ced. Ag ain, we disag ree

. Kruschw itz testified that she attempted to establish whether C.R. knew the differ ence betwee n the truth and a lie. Her testimony that C.R. appear ed t o kn ow the differ ence betwee n the truth and a lie, howeve r, was objected to by defe nse counsel and the trial court sustained the objection. The State was unable to elicit any other testimony that established that, during the interview with Kruschw itz
, C.R. demonstrated that she knew the differ ence betwee n the truth and a lie. At most, the admitted portions of Kruschw itz ’s testimony established that C.R. knew that it was better to tell the truth than to tell a lie; it did not establish, howeve r, that C.R. knew what the truth was as oppose d to a lie. ¶ 75 We also conclude that any err or in the admission o f t h e en t i re t y o f Kru s chwitz’s testimony wa s h ar m less beca use the evidenc e of defe ndant’s guilt on count I was

overwhelming, even putting aside Kruschw itz ’s testimony

. In addition to B are ’s testimony
reg ardingC.R.’s statement that defe ndant made he r put his “thing” in her mouth, the State
prese nted defe ndant’s very specific oral statement to police and his written statement. In his written statement, defe ndant simply stated that he put his penis around C.R.’s lips. In his oral
statement to polic e , h o w e v e r , d efe ndant provided g reat detail, explaining that, approximately three wee ks prior to the i nterview
, he entered C.R .’s bedroom, pulled down hi s pants, and rubbed his pe nis on C.R.’s lips, at which point C.R. rolled awa y

. He stated that he then put his penis in C.R.’s mouth. In addition, defe ndant told police that he did not have an ere ction and that he did not ejac ulate. All of the evidenc e prese nted at trial was consi stent with defe ndant’s conf

ession. ¶ 76 De fe n dant argues that his oral statement to police “did not jibe wi t h ” h i s wr i t t en

s t at em en t , i n that he orally told police that he put his penis in C.R.’s mouth, while in hi s written statement he stated that he put his pe nis “around [C.R.’s] lips.” Def endant ignor es, howeve r, that L other testified that defe ndant also o rally stated that he rubbed his penis on C.R.’s lips. Such evidenc e cer tainly corr esponds with defe n d an t ’s writ ten statement and descr ibes the ele ment of sexual penetra tion. ¶ 77 Def

endant also contends that L o t h er ’s an d He n d er s on’s testimony that duringthe interview Hende rson y elled at defe ndant in a “loud, commanding voice” indicates that defe ndant’s statement may have been coer ced. This contention is e qually without merit, a s

-18-th e u ncontra dicted testimony of both L other and Hende rson demonstrates that Hende r s o n d id
not use his “loud, commanding voice” until after defe ndant had alre ady admitted that he had rubbed his penis on C.R.’s lips and put his penis in her mouth. We ca n n o t agr ee t hat defe ndant’s admissions we re coer ced by something that did not occur until af ter defe ndant had alr eady

made the a dmissions

. ¶ 78 Acc ording ly
, we co n cl u d e t h at t h e evidence of defe ndant’s guilt on count Iwas

overwhelming. See People v. Harris
, 389 I ll. App. 3d 107, 118-24 (2009) (dete rmining the exclusion of cer

tain testimony was harmless beca use the defe ndant’s confe s s i on,

corr oborate d only by the fac t that the victim’s death was a homicide, was overwhelming evidenc e of the defe ndant’s guilt, despite the defe ndant’s contention that her confe ssion was

coer ced) ; Peopl e v. Spicer
, 379 I ll. App. 3d 441, 458 (2007) (holding that the improper ad m ission of evidenc e was harmless wher e the defe ndant’s unref uted and unrec anted
statement that he had put his fing er in the victim’s vag ina was overwhelming evidenc e that the def endant had penetr ated the victim); People v. Argo
, 133 I ll. App. 3d 421, 430 (1985) (conc luding that exclusion of certain evidenc e was harmless wher e the defe ndant’s confe ssion–the only evidenc e connec ting the d efendant to the murder–pr ovided

overwhelming e vidence supporting the defe ndant’s convic tion). ¶ 79 As we find that Kruschw itz ’s testimony reg ardingC.R.’s statements to her wa s mere ly cumulative and duplicative o f the proper ly admitted evidenc e and that the evidenc e of defe ndant’s gu i l t was overwhelming, we find any err or in the admission of Kruschw itz ’s testimony reg arding C.R.’s statements to b e h ar m l ess. See Rolandis G.
, 232 I ll. 2d at 43 (er ror is harmless wher e improperly admitted evidenc e is mere ly cumulative or duplicative of the prope rly

admitted evidenc e).

¶ 80 E. Evidence of Sexual Abuse ¶ 81 Def

endant ne x t contends that the trial court err ed in admitting evidence that defe ndant had been sexually abused as a child. Def endant argues that, becau s e i t is well known that people who are sexually abused as children are more likely as adults to sexually abuse others and beca use evidenc e that defe ndant had been sexually abused went only to show propensity
, such evidence was i rre levant and undul y p rejudicial. We disag ree that the t rial court err ed in admitting the evide nce. ¶ 82 Evidence is a dmissibl e when it is rele vant to a n issue in dispute and its probative value is not substantially outweighed by its prejudicia l eff ect. People v. Gonzalez
, 142 I ll. 2d 481, 487 (1991). “Evidenc e is considere d rele vant if it has any tendenc y to make the exis tence of
any fac t that is of conseque nce to the deter mination of an action either more or less probable than it would be without the evidence .” People v . Morgan , 197 I ll. 2d 404, 455-56 (2001). It is within the trial court’s discretion to deter mine whether eviden ce i s rele vant and admissible, and the trial court ’s d ecision on the i ssue wil l not be reverse d absent an abuse of discretion. Morgan
, 197 I ll. 2d at 455. A trial court abuses its discretion wher e its decision is arbitra ry , fanc iful, or unrea sonabl e o r wher e no rea sonable person would take the trial court’s vie w. Morgan , 197 I ll. 2d at 455. ¶ 83 In the present case , the t rial court found the evide nce that defe ndant had been sex ually

-19-abused as a child to be rele vant becaus e s u ch ev i dence could establish a motive on

defe ndant’s part. We need not decide whether the evidenc e that defe ndant had been sexually abuse d as a ch i l d was rele vant to the issue of motive, beca use we deter

mine that it was rele vant to the cre dibilit y of defe ndan t ’s s t at ements to police and the context in which he made them. See People v. Jefferson
, 184 I ll. 2d 486, 498 (1998) (stating that the issue of the

cre dibilit y of a confession is an issue for the jury and evidence weighing on the credibility of the confe ssion may be prese nted); s ee also 725 I L CS 5/114-11(f) (West 2006) (“The circ umstances s u rr o un d i ng the making of the confe ssion may be submitt ed to the jury as bearing upon the cre dibilit y or the weight to b e g iven to the confe ssion.”). Although the rele vance of the disputed evidenc e in the context of the police’s interrog ation of defe ndant

was not addre ssed by the trial court, we may aff irm for any rea son war

rante d by the rec ord,
reg ardle ss of the rea sons relied on by th e tri al co u rt

. People v. Nash
, 173 I ll. 2d 423, 432 (1996). ¶ 84 At trial, L other testified that, during his questioning of def en d an t , d efendant initially denied the alleg ations that he had abused C.R

. Def endant did not give the or al and written
statements indicating that he had abused C.R. until afte r h e h ad reve aled that he had been sexually abused as a ch ild and L other had told defe ndant that people who are abused sometimes abuse others beca use that is how they express love. L other testified that, once he told defe ndant that people who are abused sometimes abuse others as an expression of love, defe ndant’s “deme anor ch an ged. His arms beca me more relax ed and he beg an leaning towards [L other].” F o ll o w in g L other’s continued discussion of defe ndant’s childhood abuse, defe ndant made his oral and written statements indicati n g t hat he had abused C.R. Such evidenc e thus was cer

tainly rele vant to the circ umstances unde r which de fenda nt made his
statements. In addition, such evidenc e went to the cre dibili t y o f those statements, as it indicates that defe ndant may have g iven his statements as a result of a fee ling of comfort and understanding from L other, rather than as a result of Hende rson’s use of a “loud, commandingvoice.” ¶ 85 Def

endant contends t h at ev en i f t h e evidence that he had been sexually abused w as rele vant, its proba

tive value was substantially outweighed by its prejudicia l eff ect, beca use the jury was likely to believe that beca use defe ndant was sexually abused as a child, he was

more likely to have abused C.R. Even wher e evidenc e is rele vant, that evidenc e still may be excluded on the basis that its prejudicial ef fec t substantially outweighs its probative value. People v. Hoere r , 375 I l l

. Ap p. 3d 148, 157 (2007). “It is the function of the trial court to weigh the probative value and prejudicia l eff ect of evidenc e in deter

mining whether it should be admitted, ” and the trial court’s decision will not be overturne d absent a clea r abuse of discretion. Gonzalez
, 142 I ll. 2d at 489-90. We dete rmine that the trial court did not abuse its discretion. ¶ 86 The rec ord demonstrates that during the prese ntation of the evidenc e that defe ndant had been sexually abused, the trial court took ca re to e nsure that the e vidence was prese nted in the limit ed context of the interrog ati on of defe ndant by the police. The trial court also allowed L other to tes t i fy o n l y as to what he specific ally said to defe ndant during the interrog ation, keeping out any testimony by L other about whether he knew that people who had been abused as children actua lly wer e more likely to become abuser s as adults. Although

-20-the State, during its rebuttal argument, twice argued that defe ndant’s childhood abuse cause d

him to abuse C.R., defe ndant objected and the trial court quickly sustained those objections. In delivering the j ury instructions, the t rial court instructed the jury to disreg ard matters to which objections wer e sustained and that closing arg uments wer e not evidenc e. We also note that no other evidenc e was prese nted that would allow the jury to rea ch the conclusion that defe ndant was more likely to abuse children beca use he had been abused as a child, and the trial court instructed the jury to base its decision only on the evidenc e p resented at trial. Fur ther, just as defe ndant argues that the jury may have been prejudice d ag ainst him beca use he was sexually abused as a child, so too c ould the jury have felt deep sy mpathy for him a s a child victim. ¶ 87 We conclude that the trial court did not abuse its discretion in admitting the evidenc e that defe ndant had been sexually abused as a child, beca use any prejudicia l eff

ects the evidenc e may have ha d wer e mi nimiz ed by the very limit ed conte x t in which the trial cour t allowed the evidenc e. Thus, the prejudicia l eff ects of the evidenc e did not substantially outweigh its highly probative va lue on the issue of the cre dibilit y of def endant’ s confe ssion.

¶ 88 F. Sentenc ing ¶ 89 Def

endant finally argues that the trial court abused its discretion in sentenc ing him to 24
y ear s’ imprisonment, beca use the trial court failed to adequately consider numerous mitigatingfac tors and conside red some mitig atingfac tors as ag g ravating f actor s. ¶ 90 The sentenc e imposed by a trial court is entitled to great defe renc e and when the sentenc e is wi th i n the statutory limit s, it may be disturbed only wher e the trial court has abused its discretion. People v. Bosley
, 233 I ll. App. 3d 132, 139 (1992). So long as the t rial court “ ‘does not consider incompetent evidenc e, improper ag g ravating fac tors, or ignor e pertinent mitigating fac tors, it has wide latitude in sentenc ing a defe ndant to any term within the statutory rang e presc ribed for the offe nse.’ ” Bosley
, 233 I ll. App. 3d at 139 (quoting People v. He rnandez , 204 I ll. App. 3d 732, 740 (1990)). The trial court has no obligation to recite and assign value to ea ch fa ctor pre sented at a sentencing hearing. People v. Bake r , 241 I ll. App. 3d 495, 499 (1993). Where mitigating evidenc e is prese nted to the trial court during the
sentenc ing hearing, we may presume that the trial court co n s id e r e d it, absent some indication, other than the sentenc e itself, to the contra ry

. People v. Domingu ez , 2 5 5 I l l

. App. 3d 995, 1 0 04 (1994). As the revie wing court, we are not to rew eigh the fac tors consider ed i n deter mining the defe ndant’s sente nce; nor are we to substitute our judg ment for that of the trial court simply beca

use we would have w eighed the f actor s differ ently

. People v . Jones
, 376 I ll. App. 3d 372, 394 (2007). ¶ 91 Def

endant contends that the t rial court failed t o adequately consider cer tain mitigating evidenc e in imposing his sentenc e. Specifica lly
, defe ndant argues that the trial court did not adequately consider evidenc e o f d ef endant’s minimal criminal history
, supportive family
, steady employ

ment, and high school g raduation, all of which d ef en dant contends demonstrated h i s reha

bilitative potential. Def

endant also argues t hat t he trial court did not adequately

consider his dr

ug and alcohol addictions and the lack of phy sical injury

to C.R. The rec ord belies defe ndant’s contentions. The trial court expli citly stated at the sentenc ing

-21-hearing that it had considere d the letters submitt ed by defe ndant’s family in support of him

and that it had revie wed defe ndant’s criminal history
, noting that it consisted of a conviction of petty theft and a

conviction of burg lary

. The trial court also stated that it ha d considere d the prese ntence i n v est igation repor t. The prese ntence investigation repor t indicated defe ndant’s minimal criminal history
, the fac t that he had g raduated high school, his drug and alcohol use, and his steady employ ment history

. Finally
, the trial court stated that it rec alled the trial evidenc e. The fac t that C.R. did not suffe r a phy sical injury came to light during trial. As the rec ord demonstrates that the trial cour t considere d all of the evidenc e raised by defe ndant on appea l, defe ndant’s contention seems to be only that the trial court did not g ive
enough weight to the ev i d ence

. We are not, howeve r, permitted to disturb the sentenc e imposed by the trial court simply beca use we would weigh the evidenc e differ ently

. People

v. Streit
, 142 I ll. 2d 13, 19 (1991). Moreove r, althoug h a defe ndant’s reha bilitative potential
must be taken into acc ount, a defe ndant’s re h ab ilitative potential does not outweigh other fac tors war

ranting a sever e sentenc e, including the seriousness of the offe nse. Bake r , 241 I ll. App. 3d at 499. ¶ 92 Def

endant also argues that the trial court improperly considere d his remorse and the fac t t h at h e wa s sexually abused as a child as fac tors in ag g ravation. In so arguing, defe n d an t relies on the f

ollowing c omments by

the trial cour

t duringthe sentenc ing he aring : “I look at this case and in trying to g et an understanding of you, Mr. Cordova, you as the
person, I find it interesting that someone with your background, a person who tells us the story about how you wer e sexually abused in a number of foster homes at the hands of

a number of foster pare nts, that having that as a backdr op or in your background that that would put you in a situation wher e you find yourself today being found and convicted of having sexually abused a young child. You told the law enfor ceme nt office rs when you g ave them the statement that you felt bad about having done what you told them you had d o ne in this particula

r case , placing your penis on the lips of a child and pl ac i n g y o u r hand on a child’s vag ina, a very young child. Your statement to them about how bad you felt this Court can only imag ine how this young child felt wh en y o u we re doing the things that you did to this child.” The trial c ourt also stated:
“I rea d the fac t that the young victim in this case has been involved in counseling and it’s pretty clea

r t hat t his traumatic ex perie nce warr ants that. Mr. Cordova, it’s y ou that put this in motion. You are the one that has subjected this young chil d to this
treatment–requiring counseling rathe r. And ag ain it just esca pes this Court as to why somebody with your experiences of your own would put this young child through this incident her e.” ¶ 93 We cannot agree that these statements by the trial co u rt i n d i ca t e t h at it considered defe ndant’s remorse and childhood abuse as ag g ravating fac tors. Rather, the statement reg arding defe ndant’s remorse indicates that the trial court considere d defe ndant’s remorse but aff orded i t l i t t l e weight when balanc ed ag ainst the seriousness of the offe nse and the
psycholog ical harm done t o C

. R

. as a result. See People v. Leggans
, 253 I ll. App. 3d 724, 737 (1993) (psy ch o l o g ical harm done to a child as a result of sexual abuse is proper ly

-22-considere d as an ag g ravating fac tor); People v. Pavlovsk is
, 229 I ll. App. 3d 776, 782 (1992) (same)

. Simi larly
, the trial court’s comments on defe ndant’s childhood abuse wer e made in the context of evaluating the seriousness of the offe nse and the psycholog ical harm done to C.R. as a result. The trial court’s co m m en t s indicate that it believed defe ndant should understand the seriousness of the offe nse and the harm that results from sexual abuse, g iven that defe ndant himself suffe red such abuse. Cf. Bake r , 241 I ll. App. 3d at 498 (agree ing with the trial court that the defe ndant, who suffe red sexu al ab u s e as a child, should have been

awa re of the psycholog ical trauma that results from such abuse)

. Nothing, howeve r, indicates that the trial court believed that defe ndant should rec eive a greater sentenc e beca use he was abused a s a child. ¶ 94 Acc ording ly
, we deter mine that the trial court did not abuse its discretion in sentencing defe ndant to 24 y ear s’ imprisonment.

¶ 95 I I I . Conclusion ¶ 96 For the fore g oing rea sons, the judgme nt of the circ uit court of L ake County is a ffirme d.

¶ 97 Affir

med.

-23-