Docket No. 108769.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

 RICHARD D. KITCH, Appellant. 

Opinion filed January 21, 2011.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Kilbride and Justices Thomas, Garman, Karmeier,

Burke, and Theis concurred in the judgment and opinion.

OPINION

Following a jury trial, defendant Richard Kitch was convicted of

nine counts of predatory criminal sexual assault of a child and one

count of aggravated criminal sexual abuse. The circuit court of

Schuyler County sentenced him to nine consecutive natural life prison

terms for predatory criminal sexual assault of a child, and a concurrent

14-year extended term for aggravated criminal sexual abuse. The

appellate court ordered the natural life prison terms to be served

concurrently rather than consecutively, and affirmed in all other

respects. 392 Ill. App. 3d 108. For the reasons set forth below, we

affirm the judgment of the appellate court. 
 

1Prior to trial, the State dismissed count VIII. 

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I. BACKGROUND

 In February 2005, the State charged defendant with multiple

counts of sexual assault and abuse allegedly perpetrated against his

stepdaughter, K.J.K., who was born January 8, 1991, and his stepson,

M.J.B., who was born May 5, 1994. Specifically, the State charged

defendant with predatory criminal sexual assault of a child (720 ILCS

5/12–14.1(a)(1) (West 2004)), alleging that, between March 2000 and

March 2003, defendant (a) placed his penis in the mouth of K.J.K.

(counts I and II); (b) allowed his penis to have contact with K.J.K.’s

vaginal area (count III); (c) placed his penis in K.J.K.’s vagina (counts

IV, V, and VI); and (d) placed his penis in the mouth of M.J.B.

(counts IX, X, and XI). The State also charged defendant with

aggravated criminal sexual abuse (720 ILCS 5/12–16(c)(1)(i) (West

2004)), alleging that in November 2002 he knowingly touched

M.J.B.’s penis with his fingers for the purpose of sexual arousal

(counts VII and VIII).1

Pursuant to section 115–10 of the Code of Criminal Procedure of

1963 (725 ILCS 5/115–10 (West 2004)), the State filed a pretrial

notice of intent to introduce hearsay statements of K.J.K. and M.J.B.

describing the alleged abuse. Defendant objected. At a hearing,

Schuyler County Sheriff Don Schieferdecker (Don) and one of his

employees, Anna Marie Schieferdecker (Anna Marie), testified to the

circumstances of their interviews of the children and introduced the

children’s written statements, which Anna Marie and Don had

transcribed. The State indicated K.J.K. and M.J.B. would testify at

trial. The circuit court found the hearsay statements admissible under

the statute, on the condition that the children testified. 

Defendant fled the jurisdiction prior to trial and was subsequently

tried in absentia in October 2005. The evidence at trial included

testimony from K.J.K. and M.J.B.; their mother, Susan; Anna Marie

and Don; an obstetric gynecologist; and two forensic scientists. 

Dr. Victoria Nichols-Johnson, an obstetric gynecologist, testified

she examined K.J.K. on July 3, 2003. K.J.K. told her that her “mom’s

husband” had touched her breasts and vagina. When Dr. NicholsJohnson visually examined K.J.K.’s genital area, she observed
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“changes in the hymenal ring” that suggested possible penetration by

an external object. She encountered little resistance when inserting her

fingers or a speculum into K.J.K.’s vagina, and opined that

“something had been there before.” According to Dr. NicholsJohnson, it was “highly likely that [K.J.K.] had been abused.” 

Susan testified that she and her children moved in with defendant

on December 16, 1999, and she married defendant on February 29,

2000. Thereafter, Susan noticed defendant “started to favor” K.J.K.

and became less friendly toward M.J.B. Defendant also began

disciplining the children. He spanked them with a leather strap and

would “scream at them.” 

Susan testified further that defendant often hugged and kissed

K.J.K., and would grab her buttocks and breasts. When K.J.K. was 11

years old, defendant tattooed her bare buttock while she was partially

clothed and lying on the dining room table. When K.J.K. was 12,

Susan observed defendant rubbing lotion on K.J.K.’s breasts. On one

occasion, Susan saw defendant coming out of a shower he had been

sharing with K.J.K. When Susan confronted him, he said he had been

helping K.J.K. wash her hair.

In March 2003 Susan moved out of defendant’s residence. As she

and the children drove away, she assured K.J.K. and M.J.B. they

would not have to live with defendant again. K.J.K. and M.J.B. then

told her defendant had sexually abused them. Susan reported the

allegations to the sheriff. In June 2003, Susan provided the sheriff

with the comforter that K.J.K. had on her bed when they lived with

defendant. Susan testified she and defendant never engaged in any

sexual activity on the comforter. 

Anna Marie testified she interviewed K.J.K. in March 2003 at the

sheriff’s department. Anna Marie wrote down the questions she asked

K.J.K., followed by K.J.K.’s answers. The statement was admitted

into evidence without objection. 

Anna Marie testified regarding K.J.K.’s statement. In March 2000

K.J.K. was home alone with defendant when he came into her room.

He asked her if she wanted to have sex and she said no. K.J.K. tried

to leave, but defendant blocked the doorway, pushed her down on the

floor, and forced his penis into her mouth. Later that day defendant

returned to K.J.K.’s room and again forced his penis into her mouth.
 

2K.J.K.’s direct testimony differed from her out-of-court statement with

regard to the time defendant began inserting his penis inside her vagina, and

the number of times this occurred. According to the transcribed statement,

defendant began having sexual intercourse with K.J.K. in June 2002, and he

repeated this act about once a week. According to K.J.K.’s direct testimony,

which was less precise with regard to dates, this conduct apparently began

about December 2000 or January 2001 and was repeated “a couple times a

month.” 

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When he was finished, he told her that if she told anyone, he would

kill her. Anna Marie asked K.J.K. if this happened again, and she

replied: “Anytime my mom was gone, in the shower, or sleeping late.”

In the summer of 2001, K.J.K. was home alone with defendant.

K.J.K. had blocked the entrance to her bedroom, but defendant forced

his way in, pushed her down on the bed, and put his penis between her

legs, rubbing his penis on her vaginal area. Defendant repeated this act

almost every time K.J.K. was home alone with him until June 2002,

when defendant began inserting his penis inside her vagina. After June

2002 defendant had sexual intercourse with K.J.K. about once a week.

K.J.K. testified consistently with her statement to Anna Marie

regarding defendant forcing his penis into her mouth, between her

legs, and into her vagina.2 K.J.K. also explained that a couple of

months after defendant began putting his penis between her legs, he

started putting his fingers in her vagina, telling her he was doing it so

his penis would eventually “fit.” K.J.K. also described an instance

when defendant’s ejaculate dripped onto her comforter, and defendant

told her to wipe it up with some paper towels. K.J.K. identified the

comforter as the one Susan had testified she gave to the sheriff. K.J.K.

also testified about defendant rubbing cocoa butter on her breasts,

showering with her, and putting a tattoo on her right buttock. 

Don, the Schuyler County sheriff, testified that in March 2003 he

interviewed M.J.B. at the sheriff’s office. Don wrote out the questions

he asked M.J.B., followed by M.J.B.’s answers. The statement was

admitted into evidence without objection. 

Don testified regarding M.J.B.’s statement. Sometime after

Thanksgiving 2002, defendant came into M.J.B.’s room, grabbed

M.J.B.’s penis, and began rubbing it for about 30 seconds. In January
 

3Although defendant was tried and sentenced in absentia, he subsequently

returned to the jurisdiction, and has been in the custody of the Illinois

Department of Corrections since March 6, 2007. 

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2003, defendant took M.J.B. into the bathroom, put M.J.B.’s hand on

defendant’s penis, and told M.J.B. to move his hand up and down.

M.J.B. did this for about one minute, and defendant ejaculated. Later

that same month, defendant took M.J.B. into the bathroom, put his

penis in M.J.B.’s mouth, and told him to suck it. M.J.B. told the

sheriff that, subsequently, defendant forced him to perform this same

oral act an additional three or four times. Don also testified about an

April 2003 written statement by K.J.K. which described how

defendant’s ejaculate came to be on her comforter. 

M.J.B. testified, in relevant part, that when he was about eight

years old defendant touched M.J.B.’s penis in M.J.B.’s bedroom.

Other incidents occurred in the bathroom. On one occasion, defendant

forced M.J.B. to touch defendant’s penis, and on three or four

occasions defendant put his penis in M.J.B.’s mouth. 

Forensic scientists at the Illinois State Police Forensic Science

Laboratory testified that the deoxyribonucleic acid (DNA) profile

identified in a semen stain on K.J.K.’s comforter matched defendant’s

DNA profile. 

The jury convicted defendant on all 10 counts. Defendant filed a

motion for a new trial, which the circuit court denied. In November

2005 the court sentenced defendant in absentia3 to nine natural life

prison terms for predatory criminal sexual assault of a child, each to

run consecutively, and a 14-year extended-term sentence for

aggravated criminal sexual abuse, to run concurrently. 

The appellate court affirmed defendant’s convictions but modified

his natural life prison sentences from consecutive to concurrent terms.

392 Ill. App. 3d 108. The court also granted the State its statutory

assessment of $50 against defendant as costs of the appeal. We

allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.

Feb. 26, 2010). 
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II. ANALYSIS

A. Direct Testimony of K.J.K. and M.J.B.

Defendant first argues K.J.K. and M.J.B. did not testify in enough

detail to have “appeared” for cross-examination within the meaning of

the confrontation clause. Specifically, defendant contends the State

failed to ask K.J.K. and M.J.B. “about each incident in enough detail

to establish each and every element of every count,” and defendant

was unable to engage in effective cross-examination, in violation of his

right to confrontation under the sixth amendment (U.S. Const.,

amend. VI). 

The State argues defendant forfeited this argument. “To preserve

an alleged error for review, a defendant must raise a timely objection

at trial and raise the error in a written posttrial motion.” People v.

Cosby, 231 Ill. 2d 262, 271 (2008). “The failure to object to alleged

error at trial and raise the issue in a posttrial motion ordinarily results

in the forfeiture of the issue on appeal.” People v. Allen, 222 Ill. 2d

340, 350 (2006). Here, defendant did neither. He did not object at

trial, as he does before this court, that the child witnesses were not

available for cross-examination, such that admitting their hearsay

testimony violated the confrontation clause. Nor did he contend in his

motion for new trial that admission of the hearsay testimony violated

his confrontation right; rather, he argued only that the hearsay

statements were not sufficiently reliable, an apparent reference to

section 115–10(b)(1), which requires a judicial determination that “the

time, content, and circumstances of the statement provide sufficient

safeguards of reliability” (725 ILCS 5/115–10(b)(1) (West 2004)). We

therefore agree with the State that defendant has forfeited this issue.

Defendant however maintains that if we conclude there was

forfeiture, we should review the issue under the plain-error doctrine.

Rule 615(a), the basis for this doctrine, provides: “Any error, defect,

irregularity, or variance which does not affect substantial rights shall

be disregarded. Plain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of the trial

court.” Ill. S. Ct. R. 615(a). The plain-error doctrine creates “a

narrow and limited exception to the general rule of forfeiture, whose

purpose is to protect the rights of the defendant and the integrity and

reputation of the judicial process.” Allen, 222 Ill. 2d at 353, citing

People v. Herron, 215 Ill. 2d 167, 177 (2005). The defendant bears
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the burden of establishing plain error. Herron, 215 Ill. 2d at 187. 

 We observe, initially, that defendant does not challenge in this

court the adequacy of K.J.K.’s testimony with regard to counts I, II,

and III. In his brief, defendant challenges the adequacy of the victims’

testimony only with respect to counts IV, V, and VI (involving acts

of vaginal penetration against K.J.K.) and counts VII, IX, X, and XI

(involving M.J.B.). 

The first step in plain-error review is to determine whether an

error occurred. In re M.W., 232 Ill. 2d 408, 431 (2009). In making

this determination, we consider whether, as defendant argues, the

State improperly failed to ask the victims about each incident in

enough detail to establish the elements of each count. Counts IV

through VI and IX through XI all charged defendant with predatory

criminal sexual assault of a child (720 ILCS 5/12–14.1(a)(1) (West

2004)), and count VII charged him with aggravated criminal sexual

abuse (720 ILCS 5/12–16(c)(1)(i) (West 2004)). To prove predatory

criminal sexual assault of a child, the State needed to show that (1)

defendant was 17 years of age or older when he (2) committed “an act

of sexual penetration” with (3) a victim under the age of 13. 720 ILCS

5/12–14.1(a)(1) (West 2004). “Sexual penetration” is “any contact,

however slight, between the sex organ or anus of one person by an

object, the sex organ, mouth or anus of another person.” 720 ILCS

5/12–12(f) (West 2004). As defendant acknowledged in the appellate

court, when the State files multiple charges, “the State is not required

to prove dates of commission,” but only to provide “some way to

differentiate between” the various counts. To prove aggravated

criminal sexual abuse (count VII), the State needed to show that (1)

defendant was 17 years of age or older when he (2) committed “an act

of sexual conduct” with (3) a victim under the age of 13. 720 ILCS

5/12–16(c)(1)(i) (West 2004). “Sexual conduct” is “any intentional or

knowing touching or fondling by the victim or the accused, either

directly or through clothing, of *** any part of the body of a child

under 13 years of age *** for the purpose of sexual gratification or

arousal of the victim or the accused.” 720 ILCS 5/12–12(e) (West

2004). 

It is undisputed that defendant was over the age of 17 and the

victims were under the age of 13 when the offenses occurred. The

question, then, is whether the State, through the victims’ direct
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testimony, proved “an act of sexual penetration” with regard to counts

IV through VI and IX through XI, and “an act of sexual conduct”

with regard to count VII. 

The counts pertaining to K.J.K. alleged defendant penetrated her

vagina with his penis once in June 2002 (count IV); once between July

1, 2002, and February 28, 2003 (count V); and once on approximately

March 1, 2003 (count VI). At trial, K.J.K. testified that, on multiple

occasions, defendant “put his penis inside [her] vagina” while they

were in her bedroom, adding that sometimes ejaculate ran down her

leg onto her comforter and that “[o]ccasionally, after he was finished,

[she] would go to the bathroom and it stung a little.” While K.J.K.’s

testimony was somewhat unclear as to when every incident occurred,

it nevertheless established that at least three acts occurred between

June 2002 (count IV) and March 2003 (counts V and VI). K.J.K.

testified that defendant (1) first forced her to have oral sex “[a] couple

months” after defendant married her mother in February 2000; (2)

touched her vaginal area with his penis “[a] couple months after he

had started doing it oral”; (3) put his fingers in her vagina two or three

months later; and (4) began having vaginal intercourse with K.J.K.

approximately three months after that. According to this testimony,

defendant would have begun having vaginal intercourse with K.J.K.

about December 2000 or January 2001. K.J.K. testified defendant

repeated this act “a couple times a month” until K.J.K. moved out in

March 2003. 

The counts pertaining to M.J.B. alleged that (1) defendant touched

M.J.B.’s penis in about November 2002 (count VII); and (2) on three

occasions, twice in approximately January 2003 (counts IX and X)

and once in February 2003 (count XI), defendant placed his penis in

M.J.B.’s mouth. At trial, M.J.B. testified that defendant “[p]ut his

hand on [M.J.B.’s] penis” when M.J.B. was about eight years old, and

subsequently defendant placed his penis in M.J.B.’s mouth “[t]hree or

four times.” According to this testimony, defendant touched M.J.B.’s

penis after May 5, 2002 (count VII), and placed his penis in M.J.B.’s

mouth “three or four times” thereafter (counts IX through XI). 

Accordingly, K.J.K.’s and M.J.B.’s direct testimony, standing

alone, was sufficient to establish the elements of the relevant counts

against defendant. We also conclude, largely for this reason, that

K.J.K.’s and M.J.B.’s direct testimony was sufficient to allow for
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effective cross-examination. Their direct testimony provided enough

detail to allow for cross-examination within the meaning of the

confrontation clause. Our review of the record shows that both K.J.K.

and M.J.B. answered all of the questions put to them by defense

counsel on cross-examination. Their answers were forthright. There

was no indiction they were being evasive. 

There is nothing in People v. Learn, 396 Ill. App. 3d 891 (2009),

a case on which defendant relies, that compels a different result. In

Learn, the defendant was charged with one count of aggravated

criminal sexual abuse. The victim was his four-year-old niece. Prior to

trial, the circuit court granted the State’s section 115–10 motion to

admit out-of-court statements made by the victim to her father and

two police officers. The motion was granted on condition that the

child testify. At trial, the victim testified to preliminary matters but

then became too emotionally distraught to continue, and therefore did

not testify on direct examination to any of the alleged incidents of

sexual abuse. The circuit court concluded the child nevertheless had

testified for purposes of section 115–10, and allowed the State to

introduce her hearsay statements. The appellate court reversed,

holding that the victim did not “testify” within the meaning of the

statute. The court reasoned that a victim must give “accusatory

testimony,” i.e., “confront the defendant and accuse him of

[some]thing.” Learn, 396 Ill. App. 3d at 898-901. The court stated:

“[The victim’s] spoken testimony was not incriminating; thus,

defendant was not confronted by his accuser nor given the right to

rigorously test the accusation against him through cross-examination.”

Learn, 396 Ill. App. 3d at 901-02. Here, by contrast, K.J.K. and

M.J.B. “accused” defendant of multiple acts of sexual abuse, through

their direct testimony. Learn is distinguishable from the case at bar. 

Given that defendant has failed to demonstrate there was any error

with respect to this issue, his forfeiture stands. See People v. Keene,

169 Ill. 2d 1, 17-18 (1995). 

B. Constitutionality of Section 115–10

Defendant next argues that section 115–10 is unconstitutional on

its face. Defendant points to Crawford v. Washington, 541 U.S. 36

(2004), which reinterpreted the confrontation clause, and argues that,
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in light of Crawford, section 115–10 violates the confrontation clause

of the United States Constitution (U.S. Const., amend. VI) as well as

that of the Illinois Constitution (Ill. Const. 1970, art. I, §8).

Specifically, defendant contends the statute is unconstitutional

because: (1) it improperly incorporates the now-defunct reliability

standard for determining whether admission of hearsay testimony

comported with the confrontation clause, and (2) it does not

incorporate the limitations on admissibility imposed by Crawford.

According to defendant, the hearsay statements in the case at bar were

improperly admitted under an unconstitutional statute, section

115–10, and defendant “must receive a new trial.” 

Initially, there is a “strong presumption” that a legislative

enactment passes constitutional muster, and a party challenging the

constitutionality of a statute bears the burden of clearly establishing its

invalidity. People v. Thurow, 203 Ill. 2d 352, 367 (2003). A statute is

unconstitutional on its face only if no set of circumstances exists under

which it would be valid. Napleton v. Village of Hinsdale, 229 Ill. 2d

296, 306 (2008). “Thus, so long as there exists a situation in which a

statute could be validly applied, a facial challenge must fail.” Hill v.

Cowan, 202 Ill. 2d 151, 157 (2002). Whether a statute is

constitutional is a question of law, which we review de novo. People

v. McCarty, 223 Ill. 2d 109, 135 (2006). 

Section 115–10 provides, in pertinent part: 

“(a) In a prosecution for a physical or sexual act

perpetrated upon or against a child under the age of 13 ***

the following evidence shall be admitted as an exception to the

hearsay rule:

(1) testimony by the victim of an out of court

statement made by the victim that he or she complained of

such act to another; and 

(2) testimony of an out of court statement made by the

victim describing any complaint of such act or matter or

detail pertaining to any act which is an element of an

offense which is the subject of a prosecution for a sexual

or physical act against that victim. 

(b) Such testimony shall only be admitted if:

(1) The court finds in a hearing conducted outside the
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presence of the jury that the time, content, and

circumstances of the statement provide sufficient

safeguards of reliability; and 

(2) The child *** either:

(A) testifies at the proceeding; or 

(B) is unavailable as a witness and there is

corroborative evidence of the act which is the subject

of the statement[.]” 725 ILCS 5/115–10 (West 2004).

Section 115–10 allows for a child victim’s hearsay statement to be

admitted under two scenarios: (1) the court deems the statement

reliable and the child testifies at trial (subsections (b)(1) and

(b)(2)(A)); or (2) the child does not testify, the statement is deemed

reliable, and the allegations of sexual abuse are independently

corroborated (subsections (b)(1) and (b)(2)(B)). Here, the circuit

court admitted K.J.K.’s and M.J.B.’s hearsay statements under the

first scenario, as both children testified at trial. 

UnderCrawford, the confrontation clause poses no restrictions on

the admission of hearsay testimony if the declarant testifies at trial and

is present “to defend or explain” that testimony. 

“[W]e reiterate that, when the declarant appears for crossexamination at trial, the Confrontation Clause places no

constraints at all on the use of his prior testimonial statements.

See California v. Green, 399 U.S. 149, 162 (1970). *** The

Clause does not bar admission of a statement so long as the

declarant is present at trial to defend or explain it.” Crawford,

541 U.S. at 59 n.9. 

Accordingly, where K.J.K. and M.J.B. testified at trial and were

present to defend or explain their testimony on cross-examination, the

admission of their hearsay statements under section 115–10 does not

violate the confrontation clause.

1. Ohio v. Roberts Reliability Standard

Defendant argues, however, that section 115–10 is facially

unconstitutional because it incorporates the now-repudiated reliability

standard set forth in Ohio v. Roberts, 448 U.S. 56 (1980). Under

Roberts, the presentation of hearsay testimony of an unavailable

witness comported with the confrontation clause if the statement fell

within a “firmly rooted hearsay exception” or showed “particularized
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guarantees of trustworthiness.”Roberts, 448 U.S. at 66. The language

of section 115–10 tracks the Roberts standard in part because it

allows hearsay statements of a child witness to be admitted only

if–among other things–the circuit court finds that “the time, content,

and circumstances of the statement provide sufficient safeguards of

reliability” (725 ILCS 5/115–10(b)(1) (West 2004)). 

InCrawford, however, the Supreme Court repudiated the Roberts

reliability test. Crawford held that the confrontation clause requires

the reliability of testimony to be tested through cross-examination, and

that no judicial assessment of “reliability” may be substituted for this

form of credibility testing. Crawford, 541 U.S. at 61-62. Now, under

Crawford, testimonial statements of an unavailable witness may be

admitted–regardless of their perceived “reliability”–only if the

defendant had a prior opportunity to cross-examine the declarant.

Crawford, 541 U.S. at 68. 

Section 115–10 satisfies Crawford in part. Under this statute, a

child’s reliable hearsay statement, i.e., one which has been found

reliable under subsection (b)(1), is admissible only if (1) the child

testifies (subsection (b)(2)(A)), or (2) the child “is unavailable as a

witness and there is corroborative evidence of the act which is the

subject of the statement” (subsection (b)(2)(B)). Under the second

scenario, which does not apply here, a statement deemed reliable by

a judge could conceivably be admitted if the child were “unavailable”

and the statement was supported by “corroborative evidence.”

Crawford, however, requires something different: where the declarant

is unavailable, the defendant must have had a prior opportunity for

cross-examination. The situation is different under the first

scenario–the one at issue in this case–because there the declarant is

not absent, but testifies at trial and is present to defend or explain the

testimony on cross-examination. See Crawford, 541 U.S. at 59 n.9.

Admitting a hearsay statement under the first scenario thus comports

with Crawford. See People v. Cookson, 215 Ill. 2d 194, 204 (2005).

That a hearsay statement admitted under section 115–10 must

meet the additional reliability requirement of subsection (b)(1) is not

problematic. See People v. Reed, 361 Ill. App. 3d 995, 1002 (2005).

Indeed, the requirement of “sufficient safeguards of reliability”

provides defendants with additional protection, i.e., “protection over

and above the confrontation clause.” Reed, 361 Ill. App. 3d at 1002;
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accord People v. Cannon, 358 Ill. App. 3d 313, 320 (2005). This

additional reliability requirement does not affect the constitutionality

of section 115–10 because hearsay testimony still must satisfy

Crawford’s constitutional requirements, in addition to the statutory

requirement of reliability. See In re E.H., 224 Ill. 2d 172, 179-80

(2006). 

2. “Blanket Prohibition” 

Defendant next contends that section 115–10 is unconstitutional

because it does not incorporate the limitations on admissibility

imposed by Crawford. Specifically, defendant argues the statute is

unconstitutional because it “fails to incorporate a blanket prohibition

of testimonial statements” where the declarant is absent from trial and

the defense had no prior opportunity for cross-examination. However,

hearsay exceptions such as section 115–10 need not be coextensive

with the scope of the confrontation clause to pass constitutional

muster. See California v. Green, 399 U.S. 149, 155 (1970) (although

“it may readily be conceded that hearsay rules and the Confrontation

Clause are generally designed to protect similar values,” the overlap

need not be complete).

Indeed, the evidentiary question of whether hearsay testimony

satisfies a statutory exception (such as section 115–10) is separate

from, and antecedent to, the issue of whether admitting the testimony

satisfies the confrontation clause. See In re E.H., 224 Ill. 2d at 179-80

(courts must engage in two-step analysis, first statutory and then

constitutional, to determine admissibility of hearsay testimony).

Because testimony is admissible only if it meets both evidentiary and

constitutional requirements, the two standards need not be identical.

In sum, we reject defendant’s argument that section 115–10 is

facially unconstitutional in light of Crawford’s reinterpretation of the

confrontation clause. 

C. Statutory Assessment

Defendant’s final argument concerns the appellate court’s grant to

the State of its statutory assessment of $50 against defendant as costs

of this appeal. 

Section 4–2002 of the Counties Code provides that a State’s

Attorney in a county such as Schuyler is entitled to a fee of $50 “[f]or
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each case of appeal taken from his county *** to the Supreme or

Appellate Court when prosecuted *** by him.” 55 ILCS 5/4–2002(a)

(West 2008). Defendant argues that the appellate court here erred in

ordering him to pay this $50 fee because the State’s Attorneys

Appellate Prosecutor (SAAP), and not the Schuyler County State’s

Attorney herself, prosecuted his appeal. 

This is an issue of statutory construction, which is reviewed de

novo. People v. Cardamone, 232 Ill. 2d 504, 511 (2009). When

construing a statute, this court seeks “to give effect to the legislature’s

intent,” considering “the subject [the statute] addresses and the

legislature’s apparent objective in enacting it,” and adopting the plain

and ordinary meaning of the statutory terms. Cardamone, 232 Ill. 2d

at 512. 

Under the applicable statutory scheme, it appears that any case in

which SAAP appears is, by necessity, prosecuted or defended by a

State’s Attorney. See 55 ILCS 5/3–9005 (West 2008) (it is State’s

Attorney’s duty to commence and prosecute all criminal actions

arising out of his or her county). Moreover, under section 4.01 of the

State’s Attorneys Appellate Prosecutor’s Act, SAAP attorneys are

authorized to “represent the People of the State of Illinois” in the

appellate court when “requested to do so and at the direction of” a

State’s Attorney. 725 ILCS 210/4.01 (West 2008). Once taking on

this representation, SAAP attorneys may prepare, file and argue briefs

in the appellate court “with the advice and consent of the State’s

Attorney.” Under this statute, it appears that State’s Attorneys retain

a central role in an appeal even where they utilize SAAP’s services. 

We conclude, contrary to defendant, that the appellate court

correctly granted the State its $50 statutory assessment in this case.

III. CONCLUSION

We affirm the judgment of the appellate court. 

Affirmed.