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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MATTHEW FRYER, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—1774
    Opinion filed May 28, 1993.
    Rehearing denied July 9, 1993.

      Rita A. Fry, Public Defender, of Chicago (Lynn Hubanks Miller, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Eileen O’Neill, and Clare M. Wesolik, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

A jury convicted the defendant, Matthew Fryer, of aggravated criminal sexual assault, criminal sexual assault and unlawful restraint. He was sentenced to imprisonment for nine years. He first maintains that he was not proved guilty beyond a reasonable doubt.

In early 1983, the defendant moved in with the complaining witness, L.H., and her two young daughters. L.H. owned the house and she paid the bills. In 1985 L.H. and the defendant began to argue frequently. At the request of L.H. the defendant moved out sometime in 1985. On December 28, 1985, he called L.H. and asked permission to visit her. She told him that she had company and that she did not want him to come. The defendant came anyway, and he was shot by a man who was in the house with L.H.

L.H. and the defendant renewed their relationship sometime in 1986 when the defendant moved back into L.H.’s house. They planned to be married, and they obtained a marriage license. They never married, and their relationship deteriorated. In January 1988, L.H. asked the defendant to move out of her house; he refused. On January 17, they had an argument, and the defendant went to bed. While he was sleeping, L.H. drove to a police station and returned to her home with the police, who arrested the defendant. The defendant did not live with her after this incident. She admitted that she was angry with the defendant in January 1988 and was still angry with him in April 1988.

L.H. testified that on April 15, 1988, the defendant called her at approximately 1 a.m., told her he was in the hospital, and asked her to bring him money. She refused, and the defendant told her he was “tired of suffering all by [him]self” and that it was L.H.’s “turn to suffer.” At approximately 7 p.m., the defendant called L.H. and told her that he hoped to sell the tires from his car, which was in her garage. He asked if he could come to her home to remove the tires; he told her that his cousin Kenneth Fryer would accompany him because Kenneth wanted to retrieve his clothes, which were also stored in L.H.’s garage.

When the defendant and Kenneth arrived at L.H.’s house, L.H. left the house with her two daughters, walked to the garage behind her house, and unlocked the overhead door on the front of the garage. The defendant asked L.H. to move her car from the garage to give him better access to the tires on his car. After L.H. moved her car, the defendant told her that someone was going to call about the tires “within a couple of minutes.” L.H. and her daughters went back inside the house.

The defendant came to her back door and said that he needed L.H. to help him steer his car. She left the house alone; she was wearing a coat, a skirt that snapped up the front, a light-weight night shirt, a cardigan sweater and house slippers. She entered the garage and saw that the defendant was behind his car and Kenneth was going through some boxes near the door. The defendant showed her what appeared to be a hospital bill and told her that he was telling the truth when he called early in the morning and that he had “really needed her.”

L.H. testified that the defendant told her to get into the car to steer. She noticed that there were no keys in the ignition and that Kenneth closed the overhead garage door. The defendant told L.H., “Get out of the car, bitch.” L.H. left the car and asked the defendant what was wrong. He said: “I am going to hurt you. I am going to kill you *** but I am going to rape you first.”

L.H. had a mace canister attached to her key chain in her coat pocket. She put her hand in her pocket, hoping to spray both the defendant and Kenneth. Kenneth reached his hand into her pocket, pulled out the mace, and sprayed L.H. in the eye. She cried out because the mace hurt her eyes and nose, causing her nose to bleed, but the defendant told her, “Be quiet, I am going to hurt you.”

She testified that the defendant told L.H. to remove her coat, and she did. He reached for an old mattress that was leaning against the garage wall and placed the mattress on the floor. He told L.H. to remove her panties and to lie on the mattress. She pleaded with the defendant and Kenneth, and offered the defendant the paycheck she received that day if he would let her leave the garage. The defendant and Kenneth refused, and L.H. removed her panties and lay on the mattress. Kenneth left the garage to retrieve a towel for L.H.’s face. She explained that she was on her back on the mattress when the defendant unsnapped the buttons on the top of her skirt, unzipped his pants, and took out his penis. The defendant got on top of L.H. and “tried to force his penis into [L.H.’s] vagina because he didn’t have an erection.” He did this approximately five times; his penis made contact with her vagina. He did not ejaculate. He did not strike her in the garage.

At the defendant’s direction, L.H. performed fellatio on the defendant for two or three minutes, but again he did not ejaculate. When Kenneth returned with a towel, he opened the garage door “halfway.” L.H. jumped up and ran out of the garage and down the alley. At this time, she was wearing her sweater, night shirt and partially unsnapped skirt.

The defendant followed her down the alley. L.H. screamed, “Help” and “Fire.” She saw a man and woman in the alley and cried for them to help her. She did not know them and had not seen them in her neighborhood before. The defendant caught up with L.H., and she fell. Her skirt and sweater came off or were “grabbed off” by the defendant while she was running. As a consequence, when she fell she was wearing only the nightshirt. The defendant began beating her with his fist on the top of her head. L.H. again asked the couple in the alley to help her, and even grabbed the woman around the waist while the defendant tried to drag her away. The defendant told the couple that L.H. was his wife, that he had caught her in this state of undress “messing around,” and that he was “taking [L.H.] home to take care of [her].” The defendant dragged her back toward her house, and her “legs and *** butt [were] scarred up from the way he was trying to drag [her].”

L.H. saw a police officer, and the defendant dropped her. At that point, the sleeves had been tom off her nightshirt. This nightshirt was admitted into evidence, along with the rest of her clothes that had been recovered in the alley. The nightshirt was described as having only a loop of material at the neckline that held it on to L.H. She told an officer what had happened in the garage and specifically that she had been raped.

The police took L.H. to Holy Cross Hospital, where she was examined, treated and photographed. She had facial bruises and scratches and a swollen eye. The pictures of her legs at the hospital showed scratches she received that evening. She showed the jury a five-inch scar on her leg that came from one of these scratches. She testified that she was treated with iodine for the “sores” on her face and for scrapes, scratches, and broken skin on her buttocks.

Chicago police officer Kenneth Pisano and his partner, Officer Scott Rotkovich, were the first officers to arrive at L.H.’s house. Rotkovich ran into the alley on foot, and Pisano drove his squad car into the alley behind the house. Pisano saw the defendant chasing L.H., who was wearing no clothing below the waist and a only “little bit of clothing on the top” hanging from her neck. Pisano saw the defendant “punching” L.H. in the head with his fist. Rotkovich also saw the defendant “beating” L.H., who was screaming for help, shaking and crying, and had blood on her leg and face.

The defendant told Rotkovich, “Officer, this is my wife, I just caught her with another man, and I am kicking the shit out of her.” The officers placed the defendant under arrest and examined the garage. They both testified that the defendant’s car did not look mobile because the hood and trunk were open and it had at least one flat tire. A mattress, two jackets, house slippers, a mace canister holder and bloodstains were on the garage floor.

Chicago police detective Leonard Kakulka interviewed the defendant at the police station. The defendant told Kakulka that he entered L.H.’s garage by using his own key; that he, Kenneth and L.H. were able to push his car out of the garage, and that they were pushing the car back into the garage when L.H. and the defendant began yelling at each other. L.H. walked down the alley, and he and L.H. were arguing there when the police arrived.

Assistant State’s Attorney Edward McCarthy also interviewed the defendant. McCarthy testified that the defendant told him that he and L.H. began arguing when she was steering the car in the garage. L.H. left the car and walked down the alley; the defendant followed her and “wasn’t really beating on her, [they] were tussling.” The defendant could not explain the presence of blood on the garage floor or the fact that L.H. lost most of her clothes.

L.H.’s daughter, Vashawn, who was 12 years old at the time of trial, testified that she and her sister accompanied L.H. to the garage to unlock the door. After L.H.’s car had been moved, Vashawn heard the defendant tell them that someone would call soon about the tires. A few minutes after L.H. left the house to steer the car, Kenneth came to the house requesting a towel. Vashawn heard “screaming and hollering,” and when she left the house to investigate, she saw the defendant chasing her mother down the alley; She heard Kenneth say, “Look what he is doing to your mother.” Vashawn ran into the house and called the police.

The defendant testified that on December 28, 1985, L.H. told him during a telephone conversation that he could visit her. When he arrived at her house, “some guy that was in [L.H.]’s house” shot him in the arm. On January 17, 1988, he went to bed after having an argument with L.H. and woke up when four police officers arrested him. He explained “that situation” was resolved before April 15, 1988. He denied that L.H. told him to move out of her house on January 16, 1988.

He did not go to L.H.’s house between January 17 and April 15, 1988. On April 15, L.H. told him that he could come to her house to remove his tires and Kenneth’s clothes. The garage door was not open, and he asked L.H. to open it. He told L.H. and her daughters to go inside so that they could hear the phone if anyone called.

After first trying to remove the tires while the car was in the garage, the defendant and Kenneth decided they should move the defendant’s car out of the garage to obtain better access to all four tires. The defendant placed the mattress on the floor of the garage. The mattress had been leaning against the wall next to his car and was in his way when he tried to remove the tires.

The defendant and Kenneth determined that they both needed to push the car while someone else steered it out of the garage; he asked L.H. to steer. The defendant did not have keys to the car; he climbed under the car and moved the gear shift. L.H. removed her coat when she climbed into the car to steer. He denied telling Kakulka that they pushed the car out of the garage. The defendant began yelling at L.H. because she was steering incorrectly. L.H. got out of the car and yelled at the defendant. Kenneth tried to calm both the defendant and L.H., but L.H. reached into her pocket; Kenneth grabbed her hand, and the mace discharged. The defendant told Kenneth to get L.H. a towel because the mace was in her eyes.

After Kenneth left to get a towel, the defendant tried to calm L.H. because “she was hysterical, just going crazy.” Kenneth returned with the towel, but L.H. ran out of the garage and down the alley. The defendant followed her down the alley and tried to calm L.H. by talking to her. He was trying to calm her when he picked her up from the ground. She was very upset, yelled at him, scratched him, and hit him several times. He became angry and hit L.H.; they were hitting each other when the police arrived. He denied telling anyone that she was his wife or that he caught her with another man. He denied that he ever removed her clothes. He did not know how she lost her clothes, but later he said they fell off while she was in the alley. He denied being on the mattress with L.H. and specifically denied having oral or vaginal sex with her.

The defendant argues that there was insufficient proof of criminal sexual assault and aggravated criminal sexual assault. A defendant commits criminal sexual assault if he “commits an act of sexual penetration by the use of force or threat of force.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(1).) The term “sexual penetration” means “any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f).) The terms “force or threat of force” mean:

“the use of force or violence, or the threat of force or violence, including but not limited to ***
threat[s] to use force or violence on the victim *** [when] the victim under the circumstances reasonably believes that the accused had the ability to execute that threat; or
when the accused has overcome the victim by use of *** physical confinement.” (Ill. Rev. Stat. 1987, ch. 38, par. 12— 12(d).)

A defendant commits aggravated criminal sexual assault if he commits criminal sexual assault and “cause[s] bodily harm to the victim.” Ill. Rev. Stat. 1987, ch. 38, par. 12-14(a)(2).

The defendant first argues there was insufficient evidence to show sexual penetration because there was no medical evidence. The defendant’s argument is untenable. It has been expressly rejected in People v. Diaz (1990), 201 Ill. App. 3d 830, 558 N.E.2d 1363, and People v. Allman (1989), 180 Ill. App. 3d 396, 535 N.E.2d 1097.

The defendant also argues that there was insufficient evidence to show he used or threatened to use force against L.H. because the defendant did not hit L.H. before the acts of vaginal and oral sex occurred. The defendant’s argument ignores several facts: L.H. was closed in a garage with two men after one of them threatened her earlier that day; she was told that she would be killed and raped; and she was unsuccessful in verbal efforts to persuade the defendant to stop. “If circumstances show resistance to be futile *** or if the victim is overcome by superior strength or fear, useless or foolhardy acts of resistance are not required.” (People v. Bolton (1990), 207 Ill. App. 3d 681, 686, 566 N.E.2d 348, 351; see also People v. Morgan (1986), 112 Ill. 2d 111, 492 N.E.2d 1303.) The defendant also ignores the evidence that Kenneth sprayed mace in L.H’s eyes. Contrary to the defendant’s argument, he was accountable for the actions of Kenneth.

We disagree with the defendant’s argument that we may not consider the injuries inflicted on L.H. by the defendant after the sex acts. In People v. Colley (1989), 188 Ill. App. 3d 817, 544 N.E.2d 812, the victim was awakened during the night and found the defendant standing naked over her bed. He told her of his intent to have sexual intercourse with her and forced her to have vaginal intercourse and to engage in oral sex. He accompanied her to the bathroom, hit her in the eye and told her he would kill her if she did not give him some money. He cut her on the neck and chin with a pocketknife. He was convicted of aggravated criminal sexual assault by causing bodily harm. The defendant argued that the prosecution failed to prove aggravated criminal sexual assault because the victim’s bodily injuries were committed too long after the sexual acts were completed to be considered part of the same course of conduct. In affirming, the appellate court explained:

“Here, the evidence showed that the defendant stabbed the victim soon after the sexual acts were completed. Under the instant circumstances, we will not draw a bright line between the ending of the sexual acts and bodily harm occurring afterward, as that would defeat the statutory purpose of protecting victims from sex offenders. We find that the stab wounds occurred sufficiently close in time to the sexual acts that they can be said to have been committed during the course of the sexual assault.” Colley, 188 Ill. App. 3d at 820.

See also People v. White (1990), 195 Ill. App. 3d 463, 552 N.E.2d 410.

In this case the physical injuries that the defendant inflicted on L.H. in the alley were sufficiently close to the sexual assault so that the injuries could be found to have been committed during the commission of the sexual assault. She suffered bruises on the face and multiple scratches on her buttocks and legs. One of the injuries to her leg left her with a five-inch scar. Finally, even if we were to accept the defendant’s argument on this point, we would still find that L.H. suffered bodily harm as a result of being sprayed by mace; the spraying took place before the sex acts occurred.

The defendant next contends that the indictment was defective because it did not allege a specific mental state. The defendant concedes that his argument has been rejected by several courts including this division in People v. Wilder (1991), 219 Ill. App. 3d 437, 579 N.E.2d 948. In Wilder, the defendant claimed that his aggravated criminal sexual assault conviction could not stand because the information charging him did not list any mental state. The information listed the applicable statute and stated only that the defendant “committed an act of sexual penetration upon [T.R.], to wit: contact between [defendant’s] penis and [T.R.’s] anus.” (Wilder, 219 Ill. App. 3d at 438.) The court noted that Illinois law was settled in this area and that the crime of aggravated criminal sexual assault is a general intent crime and does not require the allegation of a specific mental state, citing People v. Leonard (1988), 171 Ill. App. 3d 380, 526 N.E.2d 397. (Cf. People v. Jimenez (1989), 191 Ill. App. 3d 13, 547 N.E.2d 616 (aggravated criminal sexual statute not unconstitutional because of failure to specify a particular mental state).) We adhere to the views expressed in Wilder.

The defendant also alleges that the instructions were improper because they did not include a mental state. Because we have concluded that the defendant’s argument must be rejected, we need not address the State’s claim that the defendant has waived this argument by his failure to object to the instructions at any time in the trial court. Three cases have held that, in prosecutions for aggravated criminal sexual assault, the instructions need not set forth a specific mental state: People v. Avila (1989), 180 Ill. App. 3d 345, 535 N.E.2d 1027; People v. Leonard (1988), 171 Ill. App. 3d 380, 526 N.E.2d 397; and People v. Ortiz (1987), 155 Ill. App. 3d 786, 508 N.E.2d 490.

The defendant next maintains that the prosecutor violated the constitutional equal protection clause when she used peremptory challenges against two black venirepersons. During voir dire the State used seven peremptory challenges; three of these challenges were exercised against blacks, but only two are relevant to this appeal. First, the State struck two blacks from one panel and then asked to “back strike” another black venireperson who had been questioned and accepted by both parties earlier. The defense objected. The trial judge then asked the assistant State’s Attorney: “Okay, why are you taking him off *** I want you to give an explanation.”

The assistant State’s Attorney said that she “backstruck” juror Hose Freeman because of his facial “gestures” and expressions after he was questioned during the time that Freeman was watching the questioning of other venirepersons. Her co-counsel had brought these gestures to her attention while she was questioning a later panel of potential jurors. The prosecutor also stated that juror James Harris was being excused because he was unemployed and was unwilling to make eye contact with the prosecutors. Harris wore “sunglasses,” which made the prosecutors “unable to see exactly what he was doing.”

The trial judge remarked that two blacks had been accepted as jurors “thus far” and that the victim and defendant were black. The judge explained that “at this juncture [he was] not going to intervene,” but would “watch closely henceforth and hereafter.” Four blacks ultimately were seated as jurors.

The defendant contends that the exclusion of Harris and Freeman from the jury was against his right to equal protection based on Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Initially, we reject the State’s claim that the defendant waived any error in the jury selection by not listing this issue in his motion for a new trial. People v. Batchelor (1990), 202 Ill. App. 3d 316, 559 N.E.2d 948.

To rebut an inference of discrimination under Batson, the State “must come forward with race-neutral reasons for excluding the black venirefpersons].” (People v. McDonald (1988), 125 Ill. 2d 182, 198, 530 N.E.2d 1351.) The reasons “need not rise to the level justifying exercise of a challenge for cause” (People v. Mack (1989), 128 Ill. 2d 231, 239, 538 N.E.2d 1107), but must demonstrate “a neutral explanation related to the particular case to be tried” (Batchelor, 202 Ill. App. 3d at 323). Two “traits which may justify a peremptory challenge” are “courtroom demeanor, employment status and type of job.” (Batchelor, 202 Ill. App. 3d at 323.) A trial judge’s determination, based “largely *** on *** credibility,” that the prosecutor’s reasons are neutral and not racially motivated is entitled to “great deference.” (Mack, 128 Ill. 2d at 238.) The trial judge’s determination will not be overturned on review unless it is found to be against the manifest weight of the evidence. (McDonald, 125 Ill. 2d at 199.) In this court, therefore, it is the defendant’s burden to convince us that the trial judge’s determination was against the manifest weight of the evidence.

We must take the issue as it has been presented to us. The defendant’s sole argument is that, while demeanor of a venireperson may justify a State challenge, that demeanor must also have been observed by the trial judge. The defense does not cite any authority for the argument that the trial judge must observe the prospective juror’s demeanor but relies on People v. Baisten (1990), 203 Ill. App. 3d 64, 560 N.E.2d 1060. In Baisten, the State explained that it challenged a black venireperson because he was similar in age to the defendant and “continued looking at defendant, while avoiding looking at the judge.” (203 Ill. App. 3d at 79.) The appellate court found that the State’s citation of demeanor was a racially neutral reason for the challenge, and noted that the trial judge said the juror would look at the judge only when asked a direct question. The court did not say that the record must show that the trial judge agreed with the State’s interpretation of the juror’s demeanor.

The Baisten court followed People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453, a case on which the State relies in this court. The Young prosecutor explained that he challenged a black potential juror because of his “hesitation with response to certain questions and his demeanor in answering the questions.” (128 Ill. 2d at 19.) The trial judge did not comment on the juror’s demeanor. The defendant contended that demeanor could “be used as subterfuge for excusing the juror solely on the basis of race.” (Young, 128 Ill. 2d at 20.) The Young court stated that “[tjhere is appeal to the [defendant’s] contention, but demeanor *** has anciently been regarded as being of significance” and “traditionally been a factor of importance in jury selection.” (Young, 128 Ill. 2d at 20.) Also, “[c]ourts have held that a juror’s demeanor may constitute a legitimate and racially neutral reason for excusing him.” (Young, 128 Ill. 2d at 20.) The Young court noted that the trial judge was in the best position to observe a potential juror’s demeanor and to “evaluate prospective applications for the exercise of peremptory challenges,” and refused to reverse the trial judge’s finding that the State’s expressed reason was legitimate and nondiscriminatory.

The State also relies on People v. Mack (1989), 128 Ill. 2d 231, 538 N.E.2d 1107. We find Mack particularly significant. The defendant was convicted of murder, but the supreme court reversed his conviction and remanded the case for a Batson hearing. The Batson hearing was conducted by a judge other than the judge who presided at the trial. The prosecutors explained at the Batson hearing that they had excused some jurors because of the jurors' demeanor. The hearing judge, who had not observed the demeanor of the jurors, accepted the prosecutors’ explanation and the supreme court affirmed, holding that the trial judge’s finding that the State had adequately explained the reasons for challenging jurors was not against the manifest weight of the evidence. We judge, therefore, that it is not required that the record show that the trial judge noted the same demeanor of a juror that is later questioned by the State.

In this case, the trial judge conducted most of the voir dire examination of the jurors; he noted that the defendant and the victim were both black; he saw that two blacks had already been selected when the defendant first objected and that ultimately four blacks were selected; and he saw that the State excused four white jurors. His remarks, including his cautionary remarks to the prosecutors, show a conscientious effort on his part to insure that the jury was properly selected. He was in the best position to judge the credibility of the prosecutors. For a reviewing court, lacking the benefit of all the things the trial judge observed, to undo the efforts of the trial judge would be the height of unfairness. The defendant has fallen far short of a showing that the judge’s findings were against the manifest weight of the evidence. The case cited by the defendant, People v. Boston (1991), 224 Ill. App. 3d 218, 586 N.E.2d 326, does not assist the defendant’s position. In that case the appellate court found that the record showed that the trial judge failed to closely scrutinize the State’s explanations. The record in this case is to the contrary.

The defendant also maintains that his sixth amendment right to compulsory process was violated by a plea agreement between the State and his codefendant, Kenneth Fryer.

Before jury selection began both for the defendant and Kenneth Fryer, the State presented a plea agreement it had reached with Kenneth Fryer. The prosecutor told the judge that under the agreement Kenneth would plead to the charge of unlawful restraint and would not testify for either side, and that if Kenneth testified for the defense, the State would not dismiss the Class X charges. He also told the judge that the defendant’s attorney had subpoenaed Kenneth which, “would be against [Kenneth’s] 5th Amendment rights” because the State was not going to dismiss the Class X charges until after the defendant’s trial. He said that either he or Kenneth’s lawyer would move to quash Kenneth’s subpoena. The defendant’s attorney objected to the agreement and said, “They are depriving [the defendant] of his 6th Amendment right to put on a defense.” Kenneth’s attorney moved to quash the subpoena, explaining that Kenneth intended to “plead the Fifth Amendment if he is called to the stand for any questions whatsoever.” The judge quashed the subpoena, accepted the agreement between Kenneth and the State and entered Kenneth’s plea; the judge explained to the defendant’s attorney, “[Kenneth] does have that right, if he feels he has worked out a better deal, you know, that is his prerogative.”

The judge heard stipulated evidence in chambers which included a detailed summary of L.H’s testimony. The defendant and his attorney were present. Both Kenneth and his attorney specifically agreed that L.H’s testimony was accurate. The defendant’s attorney did not renew his request that Kenneth be called as a defense witness after Kenneth had pleaded guilty.

• 6 We find no denial of the defendant’s sixth amendment rights of compulsory process under the particular facts of this case. We do not hold, however, that any plea agreement which bars a witness from testifying for a defendant may never be a denial of a defendant’s right under the sixth amendment. It is one thing to condition a plea agreement on a witness’ abstaining from testifying falsely; it may be quite another thing to condition a plea agreement on the witness’ abstaining from testifying at all.

We also "wish to make our position clear on the right of Kenneth to invoke the fifth amendment. It is true that a witness called by a defendant has the right to refuse to testify on the ground that his answers may incriminate him. (People v. Loya (1980), 90 Ill. App. 3d 1078, 413 N.E.2d 1361.) But it is not true that a witness’ invocation of his fifth amendment rights precludes any further examination by the court to determine whether the witness has reasonable cause to believe he might subject himself to prosecution if he answers. (People v. Redd (1990), 135 Ill. 2d 252, 553 N.E.2d 316.) We make this observation because we are not certain that Kenneth could properly have invoked his fifth amendment rights after he had entered his plea of guilty. The issue has not been raised, and we do not decide here whether he did or did not have the right to invoke his fifth amendment rights after he had entered his plea of guilty.

We hold that the defendant has failed to establish a denial of his sixth amendment right because he has failed to show how Kenneth’s testimony could have assisted him. There is no showing in the record, for example, that Kenneth had previously made statements that would have been helpful to the defendant. Most important, in proceedings which were commendably thorough, in response to the judge’s question, Kenneth said that the stipulated testimony of L.H., which was in substance the same as her trial testimony, was true. Consequently, the record establishes that Kenneth’s testimony would have been harmful rather than helpful to the defendant. The compulsory process clause is not violated unless a defendant is able to show how the missing testimony would have been both material and favorable to his defense. (United States v. Valenzuela-Bernal (1982), 458 U.S. 858, 73 L. Ed. 2d 1193, 102 S. Ct. 3440.) In People v. Lego (1987), 116 Ill. 2d 323, 507 N.E.2d 800, the supreme court held that the quashing of 89 pretrial subpoenas was proper because the defendant had not shown that “the witnesses desired were material to his defense, and their testimonies relevant.” (Lego, 116 Ill. 2d at 337.) Under the circumstances before us, the judge did not err in quashing Kenneth’s subpoena. The case cited by the defendant, People v. King (1993), 154 Ill. 2d 217, is not in point. In that case, the supreme court reversed the conviction because the testimony of the codefendant would have exonerated the defendant and because the trial judge unduly admonished the codefendant of possible adverse consequences to him if he testified for the defendant.

The defendant also raises a compulsory process claim regarding the judge’s ruling that a defense witness could not testify. After a lunch break on the first day of trial, while L.H. was still testifying, the defendant’s attorney filed an amended answer to discovery that listed Annette Fryer, the defendant’s mother, as a witness. This was the first time the defense indicated it would call Annette, although it had filed other answers to discovery on three previous occasions. The State objected to her testimony on the grounds that the notice came too late and that the witness had been in court during the testimony of L.H. and during the pretrial discussions and pretrial arguments.

The judge called Annette to testify. She said that she entered the courtroom “before lunch,” sat on the courtroom benches and was present for “about four or five minutes” before the lunch break. She said she was not present for opening statements but heard “about two minutes” of L.H.’s testimony. She had known about the charges against her son “for some time” and had lived with her son “on and off” for the past year. She denied that she had been interviewed regarding the case, but the defendant’s attorney interrupted her and told the judge that the witness was confused about what constitutes an “interview”; he said that he had interviewed her during lunch. He explained, “She was up in my office [during the lunch break] *** and I was talking to her, and all of a sudden, she blurted out some things I had no knowledge of and that is why I amended my answer.” Another defense attorney noted that during lunch, Annette told them that one week after the April 15, 1988, incident, she had a telephone conversation with L.H. in which L.H. told her that the defendant hit her, but “did not touch her in that way; ‘in that way’ was L.H.’s phrase and it meant ‘sexually.’ ”

The State called L.H., who testified that she saw Annette enter the courtroom while she was testifying before the jury. Annette first sat on a bench on L.H.’s right side and then moved across the aisle and sat behind the defense table. She said that Annette was present for “a good thirty minutes of [L.H.’s] testimony.”

Two of the assistant State’s Attorneys prosecuting the case were permitted to testify without withdrawing from the case because the judge found that the question “could not have been foreseen before.” One prosecutor testified that she saw Annette in the courtroom for “at least 30 minutes” during the direct examination of L.H. Another prosecutor testified that Annette was present in the courtroom for “at least 15 minutes” during the examination of L.H.

The defense called Latina Fryer, the defendant’s sister, who testified that she came to court with her mother and that they heard L.H. testify for “about 5 or 10 minutes.” She admitted that she was present in the courtroom while her mother, L.H. and the assistant State’s Attorneys testified on the question of whether Annette should be permitted to testify. She said that she was with Annette and the defendant’s attorneys during lunch break when Annette told the attorneys about her telephone conversation with L.H. She also testified that her mother told her about the telephone conversation before the trial began. She spoke with the defendant after her mother told her this information, but she never told the defendant about L.H.’s statement because “it never came up.”

The judge ruled that Annette could not testify. In substance, he based his ruling on the credibility of the witnesses. He found that Latina Fryer’s testimony contradicted her mother’s and said that he did not believe Annette. He specifically found that Annette was in the courtroom during L.H.’s testimony for “an extended period of time, *** and that after hearing the testimony of [L.H.], it was then that [Annette] fabricated her statement.” He relied upon Taylor v. Illinois (1988), 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646, in which the Supreme Court upheld the constitutionality of Illinois Supreme Court Rules 413 and 415 (134 Ill. 2d Rules 413, 415), which provide that the defense must disclose all witnesses before trial and that, in some cases, a trial judge may bar the witness from testifying as a sanction for nondisclosure. The court affirmed the trial judge, who had found “a blatent [sic] violation of the discovery rules” and barred the "witness from testifying. Taylor, 484 U.S. at 405, 98 L. Ed. 2d at 808, 108 S. Ct. at 651.

The Illinois Supreme Court similarly found that a trial judge did not abuse his discretion by barring a witness from testifying when the witness had not been disclosed before trial. (People v. Nevitt (1990), 135 Ill. 2d 423, 553 N.E.2d 368.) We conclude that the judge’s preclusion order was not an abuse of discretion and did not violate the sixth amendment.

The defendant’s last claim of error is that the judge unduly restricted his cross-examination of L.H. During opening statement, the defendant’s attorney told the jury that L.H. was an “ex-lover who is angry.” He said that the evidence would show what happened on January 17,1988; he described it as a “crucial date.”

Before cross-examination of L.H. began, the assistant State’s Attorney moved to bar the defense from eliciting from L.H. the disposition of the court proceedings that arose out of the events between L.H. and the defendant on January 17. She told the judge that L.H. had the defendant arrested; a shotgun was alleged to be in his possession; and the defendant was found not guilty of an unspecified charge after a bench trial. She contended that the evidence of the disposition of the case was irrelevant. The defendant’s attorney told the judge that the evidence would show that L.H.’s motive was to get at the defendant one way or another; if she could not get him for the January 17 occurrence, she would make up a sexual assault charge against him. The judge allowed the State’s motion.

Contrary to the State’s argument, this assignment of error was not waived. However, we do not believe that the defendant has established any manifest prejudice by the judge’s exercise of his discretion in limiting the cross-examination of L.H. Both L.H. and the defendant testified that she was angry and had him arrested on January 17. L.H. admitted on cross-examination and redirect examination that she was still angry with Fryer in April 1988. There was considerable testimony from both the defendant and L.H. regarding their failed romantic relationship. In determining whether there is a constitutional sufficiency of cross-examination allowed in a criminal case, a reviewing court looks not only to what the defendant was prohibited from doing, but to what the defendant was permitted to do. (People v. Maldonado (1989), 193 Ill. App. 3d 1062, 550 N.E.2d 1011.) The defendant was able to give the jury sufficient information about L.H.’s bias against him. Therefore, the limit on the defendant’s cross-examination did not result in manifest prejudice to him and was not an abuse of the trial judge’s discretion. See People v. Edwards (1991), 218 Ill. App. 3d 184, 577 N.E.2d 1250; People v. Newman (1984), 123 Ill. App. 3d 43, 462 N.E.2d 731.

For all these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

RAKOWSKI and GIANNIS, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE TULLY

license: Public Domain

text:
    HAROLD PICK, Indiv. and on Behalf of a Class of Persons Similarly Situated, Plaintiff-Appellant, v. AURELIA PUCINSKI, Clerk of the Circuit Court of Cook County, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—91—0384
    Opinion filed June 16, 1993.
    Mark D. DeBofsky, of DeBofsky & DeBofsky, and Lionel I. Brazen, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Joan S. Cherry, Patricia M. Shymanski, and Laura L. Fese, Assistant State’s Attorneys, of counsel), for appellees.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

Plaintiff, Harold Pick, appeals from the trial court’s entry of summary judgment against him in favor of defendants, Aurelia Pucinski, clerk of the circuit court of Cook County, Illinois, and Edward Rosewell, treasurer of Cook County, Illinois. In his suit, Pick sought a declaratory judgment, an accounting, and injunctive relief. It is from the trial court’s orders denying the injunctive relief and entering summary judgment that Pick appeals to this court pursuant to Supreme Court Rule 301. 134 Ill. 2d R. 301.

On appeal, Pick urges that requiring the payment of a second filing fee to continue litigation after remandment by a reviewing court pursuant to section 27.2(ll)(b) of “An Act to revise the law in relation to clerks of courts” (hereinafter the Act) (Ill. Rev. Stat. 1989, ch. 25, par. 27.2(ll)(b)) imposes an unconstitutional burden upon litigants and, therefore, the trial court erred in granting summary judgment and denying the injunctive relief sought.

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

The genesis of this cause of action is in the initiation of a lawsuit in the circuit court of Cook County by Pick against an insurer relating to a disputed claim under a homeowner’s insurance policy. (Pick v. Associated Indemnity Corp. (Cir. Ct. Cook Co.), No. 85— L — 21200.) Prior to trial in that action, the trial court entered summary judgment against Pick. In Pick’s successful appeal of the entry of summary judgment against him, this court reversed the trial court and remanded that case to the circuit court. (See Pick v. Associated Indemnity Corp. (1989), 191 Ill. App. 3d 121, 547 N.E.2d 555, appeal denied (1990), 129 Ill. 2d 572, 550 N.E.2d 565.) The mandate of this court was filed with the clerk of the circuit court of Cook County on March 2, 1990.

Subsequently, Pick sought to proceed with his case in the circuit court and was informed by various employees of that court that pursuant to the Act he would have to pay a filing fee of $168, an amount equal to the fee for initially filing or commencing an action, in order to proceed with his case on remand. Pick was further notified that his case would also have to be renumbered to receive a new circuit court docket number pursuant to General Order 6.2(c) of the circuit court of Cook County (hereinafter General Order 6.2(c)). After reviewing the Act and General Order 6.2(c), Pick obtained the common law record of the case and filed-.it with the clerk of the circuit court, following payment, under protest, of the $168 fee. The suit was then redocketed as case number 90— L — 5144. Pick then brought the instant suit against defendants as a class action challenge to the validity of the Act on May 7, 1990.

Pick then filed a motion for a temporary restraining order seeking to enjoin Pucinski from transferring to Rosewell’s office all filing fees collected in accordance with the Act. The motion also sought to create a special protest fund into which Pucinski would be directed to deposit all such filing fees collected. The trial court entered its order denying this motion on June 13, 1990.

Pick also moved for a preliminary injunction seeking the same remedies sought in the temporary restraining order. The trial court denied this motion in its memorandum of opinion of November 5, 1990.

Defendants first moved, erroneously, to dismiss Pick’s complaint pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615 (now codified as 735 ILCS 5/2—615 (West 1992))). Defendants then filed a motion to dismiss pursuant to section 2—619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619 (now codified as 735 ILCS 5/2—619 (West 1992))). The trial court then properly ordered that the second motion, an impermissible hybrid of sections 2—615 and 2—619, be converted into a motion for summary judgment under section 2 — 1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005 (now codified as 735 ILCS 5/2 — 1005 (West 1992))). Subsequently, the trial court issued a detailed memorandum of opinion finding the Act constitutional and thereafter ordered that defendants’ motion for summary judgment be allowed.

Pick now appeals to this court.

Opinion-'

Pick challenges the constitutionality of the Act as being violative of due process of law and equal protection of law as guaranteed by the Federal and State constitutions. Pick also argues that the Act is violative of article I, section 12, of our 1970 Constitution by impermissibly interfering with the free exercise of justice. In the context of revenue laws, both the United States Supreme Court and the Illinois Supreme Court have held that States have a very wide discretion. (Madden v. Kentucky (1940), 309 U.S. 83, 87-88, 84 L. Ed. 590, 593, 60 S. Ct. 406, 408; People ex rel. Kutner v. Cullerton (1974), 58 Ill. 2d 266, 272, 319 N.E.2d 55; Doolin v. Korshak (1968), 39 Ill. 2d 521, 528, 236 N.E.2d 897.) The equal protection and due process clauses merely require that a State move upon a rational basis and not resort to a legislative classification that is palpably arbitrary. (Allied Stores of Ohio, Inc. v. Bowers (1959), 358 U.S. 522, 526-27, 3 L. Ed. 2d 480, 484-85, 79 S. Ct. 437, 440-41; Kutner, 58 Ill. 2d at 272-73.) “Furthermore, not only is the statute valid if the legislative classifications are supported by a reasonable basis, but a presumption of constitutionality is applied to revenue laws, and this presumption ‘may be overcome only by a clear showing that [the statute] is arbitrary and unsupportable by any set of facts.’ ” (Mlade v. Finley (1983), 112 Ill. App. 3d 914, 919, 445 N.E.2d 1240, quoting Kutner, 58 Ill. 2d at 273.) Thus, the burden is on the individual attacking a legislative classification to negate every conceivable basis which might support it. (Madden, 309 U.S. at 88, 84 L. Ed. at 593, 60 S. Ct. at 408; Doolin, 39 Ill. 2d at 528; Mlade, 112 Ill. App. 3d at 919; accord Berry v. Costello (1976), 62 Ill. 2d 342, 345, 341 N.E.2d 709.) However, our supreme court has held that with respect to litigation fees and taxes, section 12 of article I of the 1970 Illinois Constitution qualifies the above standard by further requiring that “court filing fees and taxes may be-imposed only for purposes relating to the operation and maintenance of the courts.” Crocker v. Finley (1984), 99 Ill. 2d 444, 454, 459 N.E.2d 1346.

Thus, the question in this case becomes whether there is a reasonable basis for the Act’s authorization of the collection of additional filing fees upon remandment of a cause from a reviewing court and are such fees being imposed for purposes relating to the operation and maintenance of the circuit court of Cook County.

In asserting that the Act is unconstitutional, Pick relies principally upon the supreme court’s holding in Crocker. We believe such reliance is misplaced.

In Crocker, the plaintiff brought a class action against the clerk of the circuit court of Cook County and other officials to challenge the validity of sections 27.1(a)(3) and 27.2(l)(d) of the Act (Ill. Rev. Stat. 1981, ch. 25, par. 27.1(a)(3); Ill. Rev. Stat., 1982 Supp., ch. 25, par. 27.2(l)(d)). These provisions of the Act required clerks of the circuit courts to collect a special $5 fee from petitioners for dissolution of marriage. The fee was intended to fund shelters and other services for victims of domestic violence in Illinois. The supreme court held that the imposition of the additional fee for use in a general welfare program conflicted with the State constitutional right to obtain justice freely (Ill. Const. 1970, art. I, §12), as the fee did not relate to either matrimonial litigation or the operation or maintenance of the court system. The Crocker court further held that the fee denied matrimonial litigants due process and equal protection of law by forcing them to bear the cost of maintaining a public welfare program, the services of which were offered to both married and unmarried persons, while excluding other classes of taxpayers from that burden without a rational basis. In other words, the Crocker court held that matrimonial litigants cannot be required to support a general welfare program that does not relate to either their litigation or to the court system.

The same argument cannot be advanced here as the requirement to pay a new filing fee upon remand to a trial court does relate to the litigation and to the court system. The imposition of a refiling fee upon remand is ostensibly for a court-related purpose, is., the conducting of litigation post-appeal. Thus, there is a distinction between the facts of Crocker, where the purpose of the $5 fee was unrelated to matrimonial litigation, and the facts of this case, where the purpose of the fee is linked with litigation conducted in the trial court after remand by a reviewing court. Furthermore, we cannot accept Pick’s additional assertion that the services rendered by Pucinski’s office are illusory and, thus, since the fee is merely a vehicle for raising revenue, not related to actual services rendered, it must be held invalid.

John Goggin, an associate circuit court clerk responsible for court operations, stated in his affidavit that upon remand the following operations are performed on a case: (1) it is renumbered; (2) it is assigned to a new judge; (3) manual or computer entries necessitated by the remand are made; (4) a new file jacket is prepared and assigned to the file; and (5) it is placed in the stacks. Thus, there are some additional services being performed that are in addition to the services normally required at the initial filing of a case. We believe whether these services merit the fee imposed is a matter best left to the judgment of the General Assembly. We know of no rule of law requiring a legislature to fix with precision the amount of a fee imposed for a governmental service. These determinations are, by their very nature, somewhat arbitrary. Accordingly, we decline to subject the cost of every vehicle sticker, parade permit, and cat license to an economic cost-benefit analysis.

Therefore, we find the Act not to be unconstitutional as it is supported by a reasonable basis, compensating clerks of the circuit courts for services rendered in connection with a case on remand from a reviewing court, and thus imposed for a purpose related to operation and maintenance of the courts.

Still to be considered is Pick’s contention that the trial court erred in denying his motions for injunctive relief. The order denying the temporary restraining order was entered on June 13, 1990, and the order denying the preliminary injunction was entered on November 5, 1990. Pick filed a “NOTICE OF APPEAL” on January 30, 1991. Supreme Court Rule 307(a), which addresses the issue of when an appeal may be taken from an interlocutory order, provides, in pertinent part, as follows:

“(a) Orders Appealable; Time. An appeal may be taken to the Appellate Court from an interlocutory order of court:
(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction[.]
* * *
The appeal must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal designated ‘Notice of Interlocutory Appeal’ conforming substantially to the notice of appeal in other cases.” (134 Ill. 2d R 307(a)(1).)

Thus, an appeal must be filed within 30 days from the entry of the order that is sought to be reviewed or the right to challenge such ruling will be deemed waived. (Design Studio International, Inc. v. Chicago Title & Trust Co. (1989), 185 Ill. App. 3d 797, 808, 541 N.E.2d 1166; Baird & Warner, Inc. v. Gary-Wheaton Bank (1984), 122 Ill. App. 3d 136, 138-39, 460 N.E.2d 840.) Pick raises the propriety of these orders for the first time here. Consequently, as Pick did not file a timely interlocutory appeal from either of these orders, the issue is deemed waived.

For all the above-stated reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

CERDA and GREIMAN, JJ., concur.

       Section 27.2(1 l)(b) (Ill. Rev. Stat. 1989, ch. 25, par. 27.2(ll)(b)) provides as follows:
      “(b) In any cases remanded to the Circuit Court from the Supreme Court or the Appellate Court, the Clerk shall be entitled to the same fee before the filing of the remanding order and the reinstating of the cause as if it were the commencement of a new suit.”

       General Order 6.2(e) of the circuit court of Cook County provides as follows:
      “Remanded Actions — Every action remanded by the Appellate Court or the Supreme Court for a new trial or hearing, upon reinstatement, shall be renumbered by the clerk in annual series with the number of the action preceded by the last two (2) figures of the current year and by the abbreviation of the division or district in which the action is filed, and the clerk of the court shall notify the parties of the new number. The case shall be set for trial on motion of either party.”

       Section 1 of the fourteenth amendment to the United States Constitution provides, in pertinent part, as follows:
      “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (U.S. Const., amend. XIV, §1.)
      Section 2 of article I of the Illinois Constitution of 1970 provides as follows:
      “No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” Ill. Const. 1970, art. I, §2.

       Section 12 of article I of the Illinois Constitution of 1970 provides as follows:
      “Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, property or reputation. He shall obtain justice by law, freely, completely, and promptly.” Ill. Const. 1970, art. I, §12.


author: JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. M.S., a Minor, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—1086
    Opinion filed June 14, 1993.

      Rita A. Fry, Public Defender, of Chicago (Michaela J. Kalisiak, Assistant Public Defender, of counsel), for appellant.
    Jack O'Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Following a bench trial in juvenile court, defendant M.S. was found delinquent on a charge of criminal sexual abuse. The trial judge adjudicated defendant a ward of the juvenile court of Cook County and placed defendant on two years’ probation with mandatory counseling. Defendant presents three arguments on appeal. First, defendant argues that his fifth amendment rights were violated by the psychologically coercive questioning practices of the police. Second, defendant urges that, in situations where a minor is accused of a crime, a higher standard should be required in custodial situations which absolutely prohibits the minor from making incriminating statements without the advice of and in the presence of an attorney. Finally, defendant asserts that the trial judge committed reversible error when he allowed the victim’s mother to testify as to the victim’s statements to her regarding the alleged sexual abuse.

At the time of the alleged incident, defendant was 12 years old and living with his divorced mother and his 10-year-old younger brother, J.S. On September 28, 1989, at approximately 7:30 p.m., police officers arrived at their house and took defendant and J.S. into custody for the alleged sexual assault of A.H., a three-year-old girl. At first, defendant denied assaulting A.H. Several minutes later, however, defendant made an incriminating statement. Defense counsel filed a motion to suppress defendant’s incriminating statement and a hearing was held on the motion.

HEARING ON THE SUPPRESSION MOTION

Officer James Glynn testified that, on September 28, 1989, he was the Area Two youth officer assigned to the fourth district when defendant and J.S. were brought into the station. According to Glynn, he first informed defendant of the charge against him. He then read defendant his Miranda rights from his FOP handbook. Glynn stated that he read the warnings to defendant one at a time and attempted to explain each one to him. According to Glynn, after each warning was read, defendant indicated that he understood it. Glynn denied using any sort of physical or mental coercion on defendant and asserted that he attempted to contact defendant’s parents within minutes of his and his brother’s arrival at the station. He stated that he called defendant’s mother several times, but received no answer. He also attempted to call defendant’s grandmother, but similarly did not get a response. Defendant did not know his father’s phone number so, according to Glynn, he called 411 but was told that there was no listing. He admitted he did not check the phone book.

Glynn testified that after defendant and J.S. had been at the station approximately Viz hours, Detective Butler and Detective Egan arrived. Butler took defendant to an interview room while Egan spoke with J.S. in another interview room. Glynn estimated that defendant spoke with Butler for approximately 5 or 10 minutes. Glynn stated that, since the boys did not have previous police records, he did not want to leave them in a detention center overnight. He was unable, however, to contact their parents. Glynn asserted that, at approximately 11:30 p.m., he dropped the boys off with their grandmother, who had just returned home.

Detective James Butler testified that he arrived at the station on September 28, 1989, at approximately 9 p.m. to interview defendant about the allegations against him. He stated that prior to speaking with defendant he had seen the victim at St. Margaret’s Hospital. He stated that upon arriving at the station he had defendant accompany him into an interview room. According to Butler, he then read defendant his Miranda rights and defendant verbally responded that he understood those rights. Butler estimated that it took approximately 5 to 10 minutes for him to read defendant his Miranda warnings and for defendant to make his incriminating statement. According to Butler, after defendant had made the statement, he took him back to Glynn and defendant repeated the statement to him. Butler denied forcing or coercing defendant into giving the statement.

On cross-examination, Butler admitted that at first defendant denied assaulting A.H. He also admitted that he “probably” responded to defendant’s denial by telling defendant that he did not believe him. Butler denied telling defendant, however, that he had a medical report or that he had other evidence proving defendant’s guilt. He also denied saying to defendant “if you don’t tell me what I want to hear, you are not going home.” Butler said he was aware that the FOP book suggests that, when interviewing a minor, a parent or guardian should be present. Additionally, he was aware that the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1991, ch. 37, par. 801 — 1) requires that the police “make prompt reasonable efforts to inform the parent, custodian, [or] guardian” that his or her minor child has been taken into custody. He asserted, however, that attempts were made to contact a parent, but those attempts were unsuccessful because no one was home.

J.S. then testified for the defense. He stated that, on September 28, 1989, at approximately 7:45 p.m., he and defendant were home alone when three police officers came to their door. According to J.S., four to six more police officers were outside the house along with three or four police cars and a paddy wagon. He stated that the officers placed them in the paddy wagon and drove them to the fourth district police station. He said that Glynn was doing paperwork and did not speak to them for 40 to 45 minutes. Glynn then asked them questions, but J.S. did not remember what kind of questions. He stated that an officer then took defendant into another room, but he could hear the voices. According to J.S., the officer told defendant that they would “be able to leave the police station if you tell me what I want to hear.”

Michael Sucacin, defendant’s father, testified that he did not receive any phone calls from the police on the night of September 28, 1989. He stated that his number is listed in the phone book as well as in the 411 directory. He testified that, although he was not home between 7 p.m. and 10:30 p.m., his father was there all night and did not receive any phone calls.

Defendant testified that he and J.S. sat in the police station for about 45 minutes before Glynn spoke to them. He stated that when Glynn first spoke to them he asked them for their names, their address, and their ages. According to defendant, Glynn read them their Miranda rights approximately 20 minutes into the questioning. Defendant said that all the rights were read to them at once and not one at a time. Defendant stated that, when Glynn was finished reading them all the rights, he said he understood them. Defendant stated, however, that when Glynn told him he had a right to an attorney, defendant understood him to mean that he had a right to speak with an attorney in court; he did not realize that he had a right to an attorney at that time.

Defendant testified that Butler then arrived and took him into another room to speak to him about the case. Defendant stated that Butler told him he had a medical report and that he knew defendant “had raped the little girl.” According to defendant, he responded that “there was no way because I didn’t take off her bathing suit” and Butler told him he was lying. Defendant stated that Butler then told him that he would not be able to go home unless he told him what he wanted to hear. Defendant testified that at that point he had been at the police station for approximately 2xk hours and was tired and frightened. It was then that he fabricated the incriminating statement in order to go home.

On cross-examination, defendant said that Butler had a file from St. Margaret’s Hospital and that he saw two pictures in the file of A.H.’s stomach. He said he knew that the file was from the hospital because at the top of the file it said “St. Margaret’s Hospital.” Defendant stated that the door remained open throughout the 5- or 10-minute interview.

Throughout the hearing on the motion to suppress, the judge stringently restricted all the witnesses from testifying to the substance of any of defendant’s statements. He repeatedly admonished that the hearing was being held to determine the admissibility of the statements and not the substance of the statements or their truth or falsity. The judge also commented that defendant appeared “rather articulate” and intelligent.

The judge denied defendant’s motion to suppress. He held that, by defendant’s own admission, he was read his Miranda rights and told the officers he understood those rights. He determined that defendant was an articulate and intelligent young man with the capacity to understand the officers. The judge also concluded that there was no physical, psychological, or mental coercion. The judge did not believe that the number of police officers at defendant’s home when he and his brother were taken to the police station or that the manner in which he was transported to the station was coercive. Additionally, the judge stated that, although defendant did not speak to his parents or other responsible guardian, it is not illegal to question a minor without his parents present, especially when a youth officer is present. Further, he said he did not believe that Butler told defendant he could not leave unless defendant told him what he wanted to hear. He also concluded that defendant’s statement was not obtained as the result of confronting defendant with material misrepresentations of fact concerning the medical report.

THE TRIAL

The first witness at trial was Hind Haddad, the mother of A.H., the victim. She testified that, on September 28, 1989, at approximately 6:30 p.m., A.H., who was three years old at the time, was outside playing with her five-year-old brother Tony in front of the house. Hind said she was inside the house with her four-week-old baby and was keeping an eye on Tony and A.H. through the open front door. At approximately 6:45 p.m., Tony came inside to use the bathroom. According to Hind, after Tony came out of the bathroom, she asked him where A.H. was and he said she was in the front playing. Hind and Tony went outside to look for A.H., but she was not in front of the house where they usually play with the other kids. Hind then walked all the way around the block calling for A.H., but received no answer. She returned home and called her brother-in-law to come over and help her search for A.H.

She went outside again to continue searching while she waited for her brother-in-law to arrive. Hind saw A.H. coming out of the side door of a home down the block from her house. According to Hind, A.H. was screaming, crying, and calling “mommy, mommy.” She ran to A.H. and picked her up. Hind testified that A.H.’s face was tear stained, her hair was messed up, and three buttons on the back of her dress were unbuttoned. She stated that A.H. was wearing a white and red dress with a one-piece bathing suit underneath the dress. According to Hind, she had closed those buttons when she put the dress on A.H. that morning and A.H. was incapable of dressing herself in that dress.

When she picked A.H. up, Hind said she asked A.H. what happened. According to Hind, A.H. pointed at the door of the house she had just exited and responded in Arabic that “a big boy had his penis in here and in here” and then she pointed at her vagina and her mouth. Defense counsel objected at this point on the grounds that whatever A.H. allegedly said is hearsay. The trial judge overruled the objection and held that, trader the circumstances of the case, any statement by the three-year-old child would be a spontaneous declaration and, therefore, an exception to the hearsay rule.

According to Hind, she then ran home with her daughter in her arms and called the police. At the house, she asked A.H. again to explain to her what happened. Again, defense counsel objected on the grounds that A.H.’s alleged statement at her home was a narrative and could not be categorized as a spontaneous declaration. The trial judge also overruled this objection and concluded that, in light of A.H.’s age, these statements also were spontaneous declarations. According to Hind, A.H. told her that “the big boy” asked her to come into his house and he would give her some gum. When she went into the house, the big boy and his brother took her to a bedroom, took off her dress and bathing suit and placed her on a bed. Hind testified that A.H. told her that the big boy then tried to kiss her on the face and he put his penis in her vagina and in her mouth. They then dressed A.H. and let her leave. According to Hind’s testimony, when the police arrived A.H. repeated to the officer what had happened.

Later in the day, Hind took A.H. to the emergency room at St. Margaret’s Hospital. Hind testified that, while the doctors were examining A.H., Hind noticed two scratches on the right side of A.H.’s abdomen that were not there when she dressed A.H. that morning.

While defense counsel was conducting cross-examination, the parties stipulated to the content of the medical report. According to the medical report, A.H. initially was playful and smiling, but when the doctor was about to examine her “she got scared and became very uncooperative and [would not] hold still even with two nurses holding her down.” The doctor considered the possibility of examining A.H. after placing her under anesthesia. The medical record indicates that both vaginal and oral swabs were taken and no lacerations or other physical evidence of child molestation was present.

Butler then took the stand and testified to the substance of the statement that defendant gave to him at the police station. Butler stated that he did not have any documents with him when he interviewed defendant. He stated that defendant first denied assaulting A.H., but then gave his version of events that day According to Butler, defendant told him that he was returning from football practice when A.H. began following him home. Defendant told him that she was scratching herself. Butler stated that defendant wanted to discover why she was scratching herself so he took off her clothes. Butler testified that defendant said he became excited and so he took his penis out of his pants and rubbed it on her vagina and then by her mouth, but he did not put it in her mouth because he was afraid she would bite him. He said he then dressed her and she left. Butler testified that, after questioning defendant, he led him out of the interview room and back to youth officer Glynn. He stated that defendant then repeated his incriminating statement to Glynn.

On cross-examination, Butler admitted that he did not speak directly to A.H. at the hospital, but that everything she said had to be translated into English by her mother. Defense counsel also brought out the fact that Butler never included in his report that defendant had placed his penis on A.H.’s lips. In the report, Butler had only written that defendant was going to put his penis in her mouth, but he did not because he was afraid she would bite it. On re-cross-examination, Butler admitted that the fact of whether or not defendant actually touched A.H.’s mouth with his genitals was “very important.”

J.S. testified that on September 28, 1989, at approximately 7 p.m., he saw defendant from the other side of the street walking home from football practice wearing his football uniform. He stated that A.H. was following defendant down the street. He saw defendant walk A.H. back toward her home and then turn and proceed back to their house. A.H. kept following him. When J.S. arrived home, A.H. was in the gangway and he and defendant walked A.H. back toward her house. According to J.S., they returned home and turned on the television. Several minutes later, they heard a knock on the door and discovered it was A.H. According to J.S., A.H. was holding her stomach and complaining that her stomach hurt. J.S. testified that defendant told her he would feel her stomach and see if there was anything wrong. J.S. stated that they then took A.H. to their mother’s room and placed her on the bed. According to J.S., his brother took off A.H.’s dress and felt her stomach for a lump. He did not feel anything and told A.H. to put on her dress and they had her leave. He said that they never removed A.H.’s bathing suit. He said he was with defendant the entire time A.H. was in the house and that defendant never took off his pants or removed his penis from his pants.

Defendant testified that, on September 28, 1989, he was returning home from football practice when he realized A.H. was following him. He stated that he tried to get rid of her several times by walking her back toward her house, but she kept following him. Finally, at approximately 7 p.m., when he thought he had gotten rid of A.H., defendant entered his home. His brother arrived about 20 seconds later and they began to watch television. According to defendant, while they were watching cartoons, they heard a tapping at the door. Defendant stated that J.S. followed him to the door, where they found A.H. moaning that her stomach hurt. Defendant stated that he thought there might be something wrong with her, so he and J.S. took A.H. to their mother’s bedroom. They could see that she was wearing a bathing suit under her dress. According to defendant, he removed her dress in order to check her stomach, but he did not take off her bathing suit. He testified that he did not feel a lump or anything peculiar. He and J.S. then dressed A.H. and let her out the hall door. They did not walk her home. He testified that A.H. was in the house for approximately five minutes. He denied ever taking his pants off or allowing his penis to stick through his pants at anytime.

Defendant testified that the police arrived later that night and took him and J.S. to the police station. He said he told Butler the same story he related in court. According to defendant, Butler told him he was lying and that he had seen punks like him before and was not going to take any crap. Defendant stated that Butler told him he had medical reports proving that he sexually assaulted A.H. Defendant testified that he told Butler “there is no way because I didn’t do nothing.” He said Butler responded by threatening that if he did not tell him what he wanted to hear, he would not be allowed to go home. Defendant testified that at that point he made the incriminating statement up “out of the blue.” He said he had to tell Butler something because otherwise he could not go home. On rebuttal, Butler denied making these statements or ever threatening to keep defendant at the station until he told him what he wanted to hear.

The trial judge held that, although the evidence supported a finding of aggravated criminal sexual assault, due to defendant’s age, he would “give the minor the benefit of finding him delinquent on a charge of criminal sexual abuse.” The judge then adjudicated defendant a ward of the juvenile court of Cook County and sentenced him to two years’ probation with mandatory counseling. Further, the judge ruled that, in the future, if it were deemed appropriate, the second year of probation could be vacated.

Defendant argues that the trial judge committed reversible error when he denied defendant’s motion to suppress and concluded that defendant’s incriminating statement was voluntary. He asserts that the atmosphere surrounding his admission was psychologically coercive and that Butler purposely arranged his interview so he would not be able to consult with an attorney, his parents, or a concerned youth officer. The State, on the other hand, contends that this argument is without merit and maintains that defendant, by his own admission in court, was read his Miranda rights and said he understood them.

When determining whether a statement by a juvenile was voluntarily given to the police, Illinois courts utilize the same “totality of the circumstances” test that they use to determine the voluntariness of an adult’s statement. (People v. Knox (1989), 186 Ill. App. 3d 808, 812, 542 N.E.2d 910, 913.) Any statement to the police, by an adult or a minor, must be given “freely, voluntarily and without compulsion or inducement of any sort” and the defendant’s will must not have been overcome. (People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, 606; People v. Stachelek (1986), 145 Ill. App. 3d 391, 401, 495 N.E.2d 984, 990.) The court must consider “ ‘both the characteristics of the accused and the details of the interrogation.’ ” (People v. Simmons (1975), 60 Ill. 2d 173, 179, 328 N.E.2d 383, 386, quoting Schneckloth v. Bustamonte (1973), 412 U.S. 218, 226, 36 L. Ed. 2d 854, 862, 93 S. Ct. 2041, 2047; Knox, 186 Ill. App. 3d at 812, 542 N.E.2d at 913.) In determining whether a statement was voluntary, the court considers the totality of all the relevant circumstances, including “the existence of any threats, promises, or physical coercions; the length and intensity of the interrogation; and the age, intelligence, experience and physical condition of the defendant.” (Stachelek, 145 Ill. App. 3d at 401, 495 N.E.2d at 990.) WTien a statement is elicited from a minor, whether the minor’s parents were present is another factor to be considered in determining whether the surrounding circumstances were coercive. People v. Brown (1989), 182 Ill. App. 3d 1046, 1053, 538 N.E.2d 909, 913; Stachelek, 145 Ill. App. 3d at 402, 495 N.E.2d at 991.

We recognize that eliciting an incriminating statement from a minor “is a sensitive concern and the greatest care must be taken to ensure that it is voluntary.” (Brown, 182 Ill. App. 3d at 1052, 538 N.E.2d at 912.) In such a case, therefore, the circumstances surrounding the statement must “be scrutinized with special care” (Stachelek, 145 Ill. App. 3d at 401, 495 N.E.2d at 991) in order to guarantee “ ‘not only that [the statement] was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.’ ” (People v. Prude (1977), 66 Ill. 2d 470, 476, 363 N.E.2d 371, 373, quoting Simmons, 60 Ill. 2d at 180, 326 N.E.2d at 386.) Finally, we note that weighing the credibility of witnesses is for the trial court (Brown, 182 Ill. App. 3d at 1051, 538 N.E.2d at 912), and a judge’s finding that a minor’s statement was voluntarily given will not be disturbed on appeal unless it is against the manifest weight of the evidence. People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, 606; Stachelek, 145 Ill. App. 3d at 401, 495 N.E.2d at 990.

Defendant maintains that the totality of all the relevant circumstances clearly shows that he was psychologically coerced into making the incriminating statement. He maintains that his Miranda rights were not sufficiently explained to him and that he did not understand that he had a right to consult an attorney at that moment, but assumed the officers meant at trial. It is clear from the record that defendant was read his Miranda rights several times and he told the officers he understood them. Several times during the trial and at the sentencing hearing, defendant’s use of language and his clear and responsive answers to questions caused both the trial judge and the prosecutor to comment upon defendant’s intelligence. At one point, the trial judge commented that defendant was probably the most intelligent boy he had seen in his courtroom in the 15 months he had been sitting in juvenile court. Although both defendant and J.S. impressed the judge as being intelligent and articulate, however, he stated that he did not find them to be “truthful.” It is the province of the trial judge to determine the credibility of witnesses and weigh conflicting testimony. (People v. Wicks (1992), 236 Ill. App. 3d 97, 107, 603 N.E.2d 594, 600.) Clearly, the judge did not believe defendant when he testified that he did not understand he was entitled to an attorney at that moment and we cannot say that that determination is against the manifest weight of the evidence.

Defendant also argues that Butler misrepresented the medical evidence against him and threatened that defendant would not be allowed to go home unless he confessed to the assault. However, Butler denied ever threatening defendant or telling him that there was medical proof of his guilt. Again, the court chose to believe the officer and defendant does not point to anything in the record which establishes that the officer was lying. The trial judge specifically found defendant’s testimony not to be credible and held that he did not believe that Butler threatened defendant or coerced him into confessing.

Defendant also contends that youth officer Glynn was not concerned with his welfare and that Glynn could have contacted his father if he had merely checked the phone book. The assertion that the youth officer was not concerned with defendant’s welfare is unsupported by the facts or testimony. In fact, if anything, these facts show Glynn to be a concerned officer. After being unable to contact the boys’ mother, father or grandmother, he could have left them in a detention center overnight. Instead, he drove the boys to their grandmother’s home and left them there with her when she arrived home. Moreover, even assuming arguendo that Glynn made no attempt to contact defendant’s father, this fact does not establish conclusively that defendant’s incriminating statement should be suppressed. (Stachelek, 145 Ill. App. 3d at 402, 495 N.E.2d at 991.) The presence or absence of a parent when a minor makes a statement to the police is merely a factor to be considered when determining if the surrounding circumstances were coercive. Stachelek, 145 Ill. App. 3d at 402, 495 N.E.2d at 991.

In this case, we do not believe that the absence of defendant’s father contributed to a coercive atmosphere. When defendant and his brother were brought to the station, they were not converged on by numerous police officers and questioned, but were left with Glynn. Glynn did not interrogate the boys, but asked them for their phone number and for the phone number of their father and grandmother so he could contact a relative. The record shows that neither the boys’ mother nor grandmother was home. Moreover, at trial, the boys did not contradict Glynn’s testimony that they did not know their father’s phone number. Glynn testified he called 411 and was told that no number was listed for defendant’s father. Glynn also allowed defendant to use the bathroom and gave him some water. Defendant testified that he was “terrified,” yet while waiting to be questioned, he fell asleep, hardly an act to be expected from a person who feels trapped in a coercive and frightening environment. Additionally, when Butler arrived and spoke with defendant, he left the door of the interview room open. By all accounts, the interview spanned no more than 5 or 10 minutes. Finally, rather than leaving the boys in a detention center for the night, Glynn drove them to their grandmother’s home.

Only the circumstances surrounding defendant’s arrest tend to show a coercive atmosphere. Apparently, when defendant and J.S. were arrested, four to six police officers were outside their house along with three or four police cars and a paddy wagon. Defendant asserts that sending this “small army” to arrest two children was done intentionally in order to maximize the coercive atmosphere of the subsequent interview. First, the officers could not have known they were arresting two children when they responded to the call and arrived at the scene. Assuming they did know the suspects were children, they could not have known that their mother was not home. It is absurd to argue that the atmosphere surrounding the arrest was intentionally manufactured in order to terrorize two children. Nonetheless, we do not believe that the circumstances surrounding the arrest, standing alone, were so psychologically coercive as to cause defendant to confess several hours later.

Defendant argues that the facts of this case are similar to those in People v. Knox (1989), 186 Ill. App. 3d 808, 542 N.E.2d 910. We believe Knox is distinguishable. In Knox, the minor defendant’s mother was at the police station within an hour of her son’s arrest, but was precluded from seeing him before the officers had elicited a confession. Additionally, defendant was not “afforded the opportunity to confer with a youth officer, an adult interested in his welfare, prior to making any statement.” (Knox, 186 Ill. App. 3d at 814, 542 N.E.2d at 914.) The Knox court reasoned that the conduct of the police was inconsistent with the “great care” required to guarantee that defendant’s statement was voluntary and concluded that the absence of an opportunity to speak with an adult interested in his welfare “contributed to the coercive circumstances surrounding the interview.” Knox, 186 Ill. App. 3d at 814, 542 N.E.2d at 914.

In the instant case, defendant did have an opportunity to speak to a youth officer. Additionally, the officers testified that they attempted to contact defendant’s mother, father, and grandmother. Defendant did not contradict this testimony or show that these relatives were home. In view of all the circumstances surrounding the giving of defendant’s statement, we do not believe that defendant’s failure to speak to a relative prior to being questioned contributed to a coercive environment. Therefore, after a careful review of the record and an analysis of the relevant factors surrounding the making of the incriminating statement under the totality of the circumstances test, we cannot say that the trial judge’s conclusion that defendant’s statement was not coerced is against the manifest weight of the evidence.

Defendant, however, also urges us to adopt a new higher standard for determining whether a confession made by a minor is voluntary. Defendant argues that children are a protected class in Illinois and, in support of his argument, lists numerous laws which protect minors from the inexperience of youth. Among other rules, defendant points out that a contract entered into by a minor is generally voidable and that a minor cannot drink, vote, or drive a car. He argues that a child can have no understanding of how a waiver of his Miranda rights will impact upon him later in court and in his future life and, therefore, maintains that the State should not be allowed to use any statements which were given by a minor without the advice and in the presence of an attorney.

The State, on the other hand, contends that, although the law protects minors from the fraud of others and from their own lack of knowledge, children are still liable for their intentional, malicious, and willful acts. The State argues that to establish a separate standard for juvenile offenders would not only unnecessarily obstruct law enforcement, but would “also make[ ] little sense theoretically.” For several reasons, we must agree with the State.

First, we do not believe it within our authority to alter the established standard for determining the voluntariness of a confession. If the “totality of the circumstances” test is to be abandoned in situations involving statements made by minors and a new rule established, it is for the Illinois Supreme Court to make that decision.

Second, even assuming we had the power to set a new standard for determining the voluntariness of a minor’s confession, we do not believe that the rule proposed by defendant is either needed or fair. In effect, defendant argues that any statement made by an uncounseled minor, as a matter of law, should be considered coerced and involuntary. As stated above, when determining whether a minor suspect’s statement was given voluntarily, Illinois courts scrutinize the statement under the same “totality of the circumstances” standard that they utilize to examine a statement given by an adult. (Prude, 66 Ill. 2d at 475-76, 363 N.E.2d at 373; Knox, 186 Ill. App. 3d at 812, 542 N.E.2d at 913.) This standard takes into account all relevant circumstances surrounding the giving of the statement including, among other things, the age and experience of the defendant. (Stachelek, 145 Ill. App. 3d at 401, 495 N.E.2d at 990.) Additionally, it is understood that special care must be taken to guarantee that a minor’s statement is not coerced (Prude, 66 Ill. 2d at 476, 363 N.E.2d at 373; Stachelek, 145 Ill. App. 3d at 401, 495 N.E.2d at 991), and the presence or absence of the parent is a factor to be considered when determining the coercive nature of the circumstances surrounding the giving of the statement. Brown, 182 Ill. App. 3d at 1053, 538 N.E.2d at 913.

This thoughtful standard incorporates all the relevant factors that may contribute to a coerced confession including giving special regard to a minor’s youth (Knox, 186 Ill. App. 3d at 814, 542 N.E.2d at 914), whereas the “bright line” rule proposed by defendant does not address the question of whether a given statement is voluntary. Under defendant’s proposed rule, a 17-year-old suspect with much experience with the police and a very high intelligence would be protected from any incriminating statements he might make prior to speaking with an attorney whether or not those statements were made voluntarily. An 18-year-old suspect who is borderline retarded and who has never been in trouble with the police, however, will have his statement scrutinized under the totality of the circumstances test.

The fact that a minor may not realize the full ramifications of making a statement does not mean that the statement given was coerced and involuntary. We do not believe that, due to the inexperience of youth, minors should be immune from interrogation and protected from their own incriminating statements if those statements were given voluntarily. Such would be an unfair infringement upon the police department’s right and duty to investigate crime and obtain evidence.

Finally, defendant contends that the trial judge committed reversible error when he allowed A.H.’s mother to testify to A.H.’s statements regarding the alleged sexual abuse. “Spontaneous declarations” are admissible as exceptions to the hearsay rule based upon the principle that any spontaneous and sincere response to a shocking or startling event or occurrence has a reduced probability of fabrication and, in fact, is “particularly trustworthy” because it is a product of the “sense” and not a product of thoughtful, self-interested reflection. (People v. Poland (1961), 22 Ill. 2d 175, 180-81, 174 N.E.2d 804, 807; People v. White (1990), 198 Ill. App. 3d 641, 648-49, 555 N.E.2d 1241, 1246.) A party offering an out-of-court statement as a “spontaneous declaration” must demonstrate that (1) the statement relates to the circumstances of the occurrence; (2) the occurrence was sufficiently startling to produce a spontaneous and unreflecting statement; and (3) there was an absence of time to fabricate the statement. (Poland, 22 Ill. 2d at 181, 174 N.E.2d at 807; People v. Roy (1990), 201 Ill. App. 3d 166, 180, 558 N.E.2d 1208, 1218.) Additionally, in order for such an out-of-court statement to be admissible, there must be at least some other circumstantial evidence besides the “spontaneous declaration” to corroborate the existence of the startling occurrence. People v. Leonard (1980), 83 Ill. 2d 411, 419, 415 N.E.2d 358, 362; Roy, 201 Ill. App. 3d at 181, 558 N.E.2d at 1218.

Defendant concedes that A.H.’s statements satisfy the three factors needed to bring a statement within the “spontaneous declaration” exception to the hearsay rule. Defendant merely argues that A.H.’s statements are inadmissible because, other than her statements and his own coerced confession, there is no other evidence to support A.H.’s assertions of abuse. Curiously, defendant then concludes that, since the victim’s mother should not have been allowed to testify to the victim’s out-of-court statements, he was impermissibly convicted based solely upon his own confession. This argument is meritless.

First, we have already held that defendant’s statement was not coerced. In addition to defendant’s own statement, A.H.’s mother testified that the scratches on A.H.’s abdomen were not there that morning when she dressed her. A.H.’s mother also testified that, when she found her, A.H. was running out of defendant’s building crying and screaming and the buttons on her dress were undone. The medical report shows that A.H. was so scared when the doctors tried to examine her that she would not hold still even with two nurses holding her down and the doctor considered placing A.H. under anesthesia in order to examine her. This other evidence provides sufficient corroborating evidence of the sexual abuse.

Consequently, it is also clear that defendant was not improperly convicted based solely upon his own incriminating statement. It is an established principle of law that a defendant cannot be convicted of a crime based solely upon his own confession. (People v. Lambert (1984), 104 Ill. 2d 375, 378-79, 472 N.E.2d 427, 428.) In this case, however, defendant’s statement was corroborated by A.H.’s spontaneous declarations along with the other circumstantial evidence presented above.

Defendant also contends that A.H.’s statements are not admissible under section 115 — 10 of the Code of Criminal Procedure of 1963, entitled “Sexual acts on child under 13 — Hearsay exception” (Ill. Rev. Stat. 1991, ch. 38, par. 115-10 (now 725 ILCS 5/115-10 (West 1992))), because the State never demonstrated that A.H. was unavailable to testify at trial before presenting her testimony through her mother. Defendant’s argument that A.H.’s statements were inadmissible under section 115 — 10 is correct but irrelevant. Pursuant to the statutory hearsay exception in section 115 — 10, a child sexual abuse victim must be shown to be “unavailable as a witness” before his out-of-court statement is admissible. (People v. Rocha (1989), 191 Ill. App. 3d 529, 536, 547 N.E.2d 1335, 1339.) Unlike under this statutory hearsay exception, however, the “spontaneous declaration” exception does not require a showing that the out-of-court declarant be unavailable. A.H.’s statements, therefore, were admissible as “spontaneous declarations.”

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.