author: JUSTICE SCOTT PRESIDING JUSTICE HEIPLE,

text:
    JOSEPH CURRIE, Plaintiff-Appellee, v. JOSE LAO, Defendant-Appellant.
    Third District
    No. 3—89—0501
    Opinion filed June 22, 1990.

      HEIPLE, P.J., specially concurring.
    Neil F. Hartigan, Attorney General, of Springfield (Eve Moran, Assistant Attorney General, of Chicago, of counsel), for appellant.
    McKeown Law Office, of Joliet (Timothy J. Rathbun, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Plaintiff, Joseph Currie, age 51, brought this action in the circuit court of Will County against defendant, Jose Lao, a 27-year-old Illinois State trooper, for personal injuries and property damage arising out of an automobile collision. Defendant appeals from an adverse jury verdict, urging that this case is in reality an action against the State of Illinois, hence may only be brought in the Court of Claims. Alternatively, defendant argues that he is protected by the common law doctrine of public official’s immunity. We affirm.

Jose Lao was patrolling Interstate 80 when he received a radio dispatch to proceed to a nondomestic disturbance within the City of Joliet, an intoxicated person pounding on a trailer — something of that nature. He did not feel it to be an emergency. The City of Joliet police would normally have responded. It was dark. Lao was not familiar with local city streets, missed a turn, went the wrong way on a one-way street and collided in or near an intersection with a pickup truck driven by plaintiff. Lao testified that his flashing lights were operating and his siren was on. Currie said he didn’t see or hear Lao’s vehicle until immediately prior to the collision.

The occurrence took place on November 25, 1985, and this action was commenced in September of 1987. An assistant Attorney General entered defendant’s appearance and filed a jury demand in December 1987. At the same time, defendant’s attorney commenced the routine kinds of discovery appropriate for any negligence action. In April 1988, defendant filed an answer denying plaintiff’s allegations of negligence and asserting the affirmative defense that plaintiff failed to yield the right of way to defendant’s emergency vehicle, hence was guilty of contributory fault. Trial was set for October 1988, but reset for March 6, 1989, by agreement of the parties.

In January 1989, defendant’s attorney sought leave to file a motion to dismiss, stating that he had become aware of the case of Oppe v. Missouri (1988), 171 Ill. App. 3d 491, 525 N.E.2d 1189, and that the cause should be dismissed because Jose Lao was immune from suit as a public official engaged in the exercise of a discretionary and uniquely governmental function. Although leave to file was allowed, that motion was denied.

The jury was instructed as to the relevant statutory provisions, sections 11—205 and 11—907 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, pars. 11—205, 11—907), governing any driver of an authorized emergency vehicle responding to an emergency call. The jury was advised that although such a driver may disregard traffic regulations, still he has a duty to drive “with due regard for the safety of all persons”; if the jury decided a party violated that statute, then it could consider that fact in determining whether or not the party was negligent. This instruction was ultimately drafted and tendered by counsel for defendant; plaintiff’s position was that there was never any emergency; hence, there was no need for this instruction.

The jury found in favor of plaintiff and assessed total damages at $28,310, but also that the plaintiff was guilty of contributory fault to the extent of 25%; the net verdict was $21,232.

The Attorney General argues for the first time on appeal that not only does Lao have public official’s immunity but that the maintenance of this action in the circuit court rather than the Court of Claims is inconsistent with section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1987, ch. 37, par. 439.8(d)), which gives that court exclusive jurisdiction to hear claims in tort against the State of Illinois. His position is that there is lack of jurisdiction of the subject matter in the circuit court; hence, this defense may be raised at any time.

It is fundamental that circuit courts have original jurisdiction over all justiciable matters. While the General Assembly may limit the power of a trial court substantively, it may not limit the court’s power procedurally to construe statutory rights. Subject matter jurisdiction is the fundamental power to hear and decide a case; it exists where the court has jurisdiction over the class of cases to which the particular case belongs. (Kemling v. Country Mutual Insurance Co. (1982), 107 Ill. App. 3d 516, 437 N.E.2d 1253; Campbell v. White (1989), 187 Ill. App. 3d 492, 543 N.E.2d 607.) The judgment entered below was not subject to collateral attack. Although we reject the assertion of lack of jurisdiction of the subject matter, still the contention was made in the court below that Lao was performing a uniquely governmental function. Accordingly, we address the argument now made.

The 1970 Illinois Constitution abolished sovereign immunity, “[e]xcept as the General Assembly may provide by law.” (Ill. Const. 1970, art. XIII, §4.) The legislative response to that change is found in section 1 of “An Act in relation to immunity for the State of Illinois” (Ill. Rev. Stat. 1987, ch. 127, par. 801), which provides in relevant part that “the State of Illinois shall not be made a defendant or party in any court.” The first issue then is whether the instant action is, in reality, an action against the State of Illinois.

In order to answer the foregoing inquiry, we are required to examine the issues involved and relief sought. (Healy v. Vaupel (1990) , 133 Ill. 2d 295, 549 N.E.2d 1240.) If the State of Illinois is the party vitally interested in the outcome, then the statutory prohibition above described comes into operation and a suit in the circuit court cannot be maintained. (Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975.) However, the statutory immunity given the State of Illinois affords no protection to an agent or employee of the State who acts in violation of statutory or constitutional law or in excess of his authority. In such circumstances, an action may be brought in the circuit court. (Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 470 N.E.2d 1029; Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 470 N.E.2d 228.) A reading of the majority and dissenting opinions in Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 475 N.E.2d 863, demonstrates that the foregoing principles are more easily stated than applied.

Kaiser v. Emrich (1980), 84 Ill. App. 3d 775, 406 N.E.2d 207, approved a circuit court action where an automobile negligence case was brought against an on-duty Illinois State trooper with the same circumstances as exist in the instant case, except that here, we know Lao was driving to the scene of possible criminal activity, whereas in Kaiser there was a simple intersection collision. The court relied upon a provision of the Civil Administrative Code of Illinois (Ill. Rev. Stat. 1987, ch. 127, par. 63b4(k)), which read as follows:

“ ‘Whenever and to the extent that a State employee operates a motor vehicle or engages in other activity covered by self-insurance under this Section, the State of Illinois shall defend, indemnify and hold harmless such employee against any claim in tort filed against such employee for acts or omissions within the scope of his employment in any proper judicial forum ***.’ [Emphasis added.]” (Kaiser, 84 Ill. App. 3d at 776, quoting Ill. Rev. Stat. 1977, ch. 127, par. 35.9(m)(3).)

The Kaiser court ruled that the word “forum” includes circuit courts; hence, the motion to dismiss was properly denied.

Other appellate court cases involving negligence actions against Illinois State troopers include Bartholomew v. Crockett (1985), 131 Ill. App. 3d 456, 475 N.E.2d 1035, Oppe v. Missouri (1988), 171 Ill. App. 3d 491, 525 N.E.2d 1189, and Campbell v. White (1989), 187 Ill. App. 3d 492, 547 N.E.2d 607.

The Bartholomew opinion (Bartholomew, 131 Ill. App. 3d 456, 475 N.E.2d 1039) follows closely the rationale of Kaiser and emphasizes that the alleged acts of negligence were not incurred solely by virtue of the defendant’s employment but rather arose out of the duty that one automobile driver owes to another.

In Oppe, the plaintiffs encountered a road block made up of a vehicle operated by a local officer and a vehicle operated by a State trooper. Other police officers were involved in a high-speed chase seeking the capture of an escapee from a Missouri correctional institution. The escapee’s vehicle became airborne at the site of the road block and landed on plaintiffs’ vehicle. The vital difference between Oppe and the instant case is that in Oppe there was no negligent operation of a vehicle on a highway by any State trooper. Dismissal of the Oppe complaint might also have been sustained upon the alternative basis that the negligence allegations were mere conclusions, insufficient to state a cause of action. We also note that the action was permitted to proceed against the police officers employed by units of local government.

Campbell involved a high-speed chase at night on an interstate highway by a State trooper in a “covert” operation; plaintiffs’ decedent was the object of the chase. The issue on appeal was whether a default judgment might be set aside. No allegation was made that the trooper was acting beyond the scope of his duties or authority. The cause was remanded to, among other things, determine whether the trooper violated an existing policy of the Department of Law Enforcement concerning high-speed pursuit without oscillating lights.

Since the briefs were filed, the Illinois Supreme Court has decided Healy v. Vaupel (1990), 133 Ill. 2d 295, 549 N.E.2d 1240. In Healy, plaintiff was injured while a member of the Northern Illinois University gymnastics team. Plaintiff asserted that her injury was caused by the negligence of certain athletic directors, a gymnastic’s coach, and a gymnastic’s team trainer (Wayne Vaupel). The trial judge was of the view that the action was against the State of Illinois, but felt bound by Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 372 N.E.2d 1131 (an inmate was allowed to sue his prison physician for malpractice in the circuit court), and certified for interlocutory review the question of whether there should be a dismissal on the ground that only the Court of Claims had jurisdiction. The supreme court discussed the above principles and ruled that exclusive jurisdiction was in the Court of Claims because there was no allegation that any defendant acted outside the scope of his authority or in violation of law. (Healy, 133 Ill. 2d at 311, 549 N.E.2d at 1248.) The court also discussed what appear to be special circumstances for highway negligence actions, remarking as follows:

“We note the existence of an analogous line of cases, in which the appellate court, citing Madden, has allowed actions against State employees for the negligent operation of motor vehicles to proceed in circuit court on the theory that the duty of care owed by a driver exists independently of any employment relationship. (See, e.g., Bartholomew v. Crockett (1985), 131 Ill. App. 3d 456, 462-63[, 475 N.E.2d 1035]; Gocheff v. State Community College (1979), 69 Ill. App. 3d 178, 183-84[, 386 N.E.2d 1141].) ***
*** [W]e decline to extend Madden to the present case. Essential to the court’s holding in Madden was the view that the duty of care owed by the physician arose independently of his status as an employee of the State; that conclusion may be said to rest on the special nature of the doctor-patient relationship. We do not believe that the same conclusion may be reached here. The relationship between the plaintiff and the defendants would not have had a source outside the employment status of the defendants. Whatever duty was owed by the defendants to the plaintiff existed because of the plaintiff’s status as a student and her participation in university-sponsored activities.” Healy v. Vaupel (1990), 133 Ill. 2d 295, 312-13, 549 N.E.2d 1240, 1249.

Chapter 11 of the Illinois Vehicle Code sets out comprehensive rules for the operation of motor vehicles on Illinois highways. Via section 11—205 (Ill. Rev. Stat. 1987, ch. 95½, par. 11—205), that code is made applicable to all drivers, including all vehicles owned or operated by the United States, the State of Illinois or any municipality. Jose Lao, as the operator of an “authorized emergency vehicle,” was still required to drive that vehicle “with due regard for the safety of all persons.” The duty of care owed by Lao to plaintiff arose independently of Lao’s status as an employee of the State of Illinois. Further, the Healy decision does not require an abandonment of the principles set out in Bartholomew.

The State, in its role as an employer, has voluntarily established a self-insurance program. We are unable to say, however, that the State of Illinois is vitally interested in how the jury decided this particular case. See Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975.

The argument of the Attorney General includes an assertion that the recruiting of Illinois State troopers will be hampered by a decision affirming the jury verdict in the instant case. Nothing in the record supports a contention of this nature, nor is any appropriate study or other authority cited.

We next turn to the argument that defendant was performing a uniquely governmental function, and hence, has common law public official’s immunity. At the outset, we make the observation that police officers employed by units of local government have no such immunity even when engaged in a vehicular chase. Arnold v. Village of Chicago Ridge (1989), 181 Ill. App. 3d 778, 537 N.E.2d 823; Oppe v. Missouri (1988), 171 Ill. App. 3d 491, 525 N.E.2d 1189.

The doctrine of public official’s immunity rests on the principle that a public decision maker should be shielded from personal liability where he makes a judgment based on his perception of the public needs. Further, the duty owed is to the public generally, not an individual. (Lusietto v. Kingan (1969), 107 Ill. App. 2d 239, 246 N.E.2d 24.) Additionally, the conduct attributed to an individual defendant must be discretionary rather than ministerial. Admittedly, there may be difficulty in determining whether particular actions were discretionary or ministerial, and at times, the resolution of a particular case becomes a “policy decision.” (Christensen v. City of Bloomington (1986), 147 Ill. App. 3d 702, 498 N.E.2d 259.) Here the duty was owed to Currie, not the public generally. Lao’s conduct was not “discretionary”; he had total control over the operation of his vehicle.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

STOUDER, J., concurs.

PRESIDING JUSTICE HEIPLE,

specially concurring:

The plaintiff, Joseph Currie, sued Jose Lao, an Illinois State trooper, for damages arising out of an automobile accident which occurred while the trooper was dispatched to a nonemergency disturbance in the City of Joliet. At the time of the accident, the trooper was driving the wrong way down a one-way street. The jury found the defendant trooper 75% negligent and awarded the plaintiff $21,232.50, which reflected a 25% reduction for comparative negligence.

On appeal, the defendant asserts for the first time that the doctrine of sovereign immunity and the doctrine of public official’s immunity should bar the plaintiff’s claim. Neither of these doctrines applies to the instant case since the trooper was not performing a uniquely governmental function. It is well settled that the negligent operation of a motor vehicle is not, as a matter of law, a uniquely governmental function. (Lusietto v. Kingan (1969), 107 Ill. App. 2d 239.) Here, the defendant trooper, in response to a radio dispatch that an intoxicated person was pounding on the outside of a trailer, chose to drive to the incident by driving the wrong way down a one-way street. Public officials have a duty, as do all other persons operating motor vehicles on the public highways, not to drive in a negligent manner.

Accordingly, the trooper cannot be immunized from his negligent actions and the jury verdict should stand.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
      In re J.P.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Elizabeth Strode, Respondent-Appellant).
    Third District
    No. 3—89—0232
    Opinion filed May 22, 1990.
    John A. Carter, Assistant Public Defender, of Macomb, for appellant.
    William Poncin, State’s Attorney, of Macomb (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph McRaven, of Macomb, guardian ad litem.

   JUSTICE BARRY

delivered the opinion of the court:

Respondent Elizabeth Strode appeals from orders of the circuit of McDonough County adjudicating her to be an unfit parent and terminating the parental rights to her son, J.P.S.

The record reveals the following information. On May 25, 1987, J.P.S. was born to the respondent. On July 23, 1987, the Department of Children and Family Services (DCFS) received a report alleging child abuse. An investigation into this report eventually resulted in a DCFS determination that the allegation was “unfounded.” However, on August 11, 1987, during the course of the DCFS investigation, the McDonough County State’s Attorney filed a petition alleging J.P.S. to be an abused minor. At a hearing in September 1987, J.P.S. was adjudicated to be abused. On November 18, 1987, J.P.S. was ordered to the custody of the DCFS. Respondent was ordered to undergo counselling and was allowed to visit her son.

On December 2, 1988, the State’s Attorney filed a supplemental petition to terminate respondent’s parental rights on the ground that she was an unfit parent. On February 9 and March 15, 1989, hearings were held on the petition. The court entered orders on March 27 and 28, 1989, finding respondent unfit and terminating her parental rights and appointing the DCFS as guardian with authority to consent to adoption.

Respondent raises three issues on appeal. First, she contends that the trial judge’s finding of unfitness was erroneous as a matter of law. Specifically, respondent alleges that the State’s supplementary petition fails to state a cause of action and that the trial court misapplied the law then in effect.

This issue was not raised at trial. Generally, defects in the pleadings should be raised at trial so that they may be remedied or the defects are waived. (In re Dragoo (1981), 96 Ill. App. 3d 1104, 422 N.E.2d 263; People ex rel. Ryan v. Sempek (1958), 12 Ill. 2d 581, 147 N.E.2d 295.) In this case, however, a substantial question is raised as to whether the supplementary petition states a cause of action. As such, Illinois Supreme Court Rule 366 (107 Ill. 2d R. 366(b)(1)(i)) provides that “[a]ny error of law affecting the judgment or order appealed from may be brought up for review.” We choose to exercise our discretion under this rule to review this significant question.

At the time that this case was tried, the statutory provisions under which the State proceeded did not provide the same adoption opportunity for the abused child as they did for neglected and dependent children. Specifically, section 2 — 29 of the Juvenile Court Act of 1987 authorizes the court to appoint a guardian with authority to consent to a child’s adoption upon a finding “that a non-consenting parent is an unfit person as defined in Section 1 of ‘An Act in relation to the adoption of persons, and to repeal an Act therein named,’ approved July 17, 1959, as amended.” (Ill. Rev. Stat. 1987, ch. 37, par. 802—29(2).) The latter act is contained in chapter 40 of the Illinois Revised Statutes. There, an “unfit person” is defined as one unfit to have a child on any one or more of 16 grounds ranging from abandonment to mental retardation. Ill. Rev. Stat. 1987, ch. 40, par. 1501(D) (as amended by Pub. Act 85—1440, art. II, §2—54, eff. Feb. 1, 1989).

The State’s supplemental petition to terminate parental rights in this case was filed on the ground that J.P.S. had been adjudicated abused and that respondent had failed to make reasonable efforts to correct the conditions which were the basis for the removal of the child or to make reasonable progress toward the return of the child within 12 months. At the time of these proceedings, the statutory ground of unfitness referred to by the State’s petition was “failure by a parent to make reasonable efforts to correct the conditions which were the basis for the removal of the child from such parent, or to make reasonable progress toward the return of the child to such parent within 12 months after an adjudication of neglected minor or dependent minor under the Juvenile Court Act or the Juvenile Court Act of 1987.” (Emphasis added.) (Ill. Rev. Stat., 1988 Supp., ch. 40, par. 1501(D)(m).) Effective September 1, 1989, five months after the court entered its dispositional order here, the legislature amended section 1(D)(m) by adding “abused minor” to the above underscored language. This legislation cannot, however, save the order in this case.

In In re Jankowski (1976), 38 Ill. App. 3d 95, 347 N.E.2d 474, the court considered respondent’s challenge to a finding of unfitness under former section 1(D)(l) of the Adoption Act (Ill. Rev. Stat. 1973, ch. 4, par. 9.1—1), which defined an “unfit person” as one unfit to have a child on the ground, inter alia, of “[fjailure to make reasonable efforts to correct the conditions which were the basis for the removal of the child from his parents or to make reasonable progress toward the return of the child to his parents within twenty-four months after an adjudication of neglect under Section 2 — 4 of the Juvenile Court Act.” (Emphasis added.) The child in Jankowski had been adjudicated dependent, but not neglected. On review, the court reversed the trial court’s order terminating the respondent mother’s parental rights because the statute, by its plain and unambiguous terms, applied only to children adjudicated neglected. The court expressly rejected the State’s argument that “neglect” and “dependency” could be equated to save the order there on appeal. 38 Ill. App. 3d at 100-01, 347 N.E.2d at 478.

In this case, the State similarly argues that the legislature could not have intended abused children to remain in limbo while similarly situated neglected and dependent children become available for adoption under section 1(d)(m). To subscribe to the State’s position we would have to find that “abuse” is subsumed within “neglect” and/or “dependency.” Obviously, the legislature did not intend these concepts to be used interchangeably. The terms are separately defined in sections 2—3 and 2—4 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, pars. 802—3, 802—4). While section 1(D)(m) may have been left unchanged inadvertently when the legislature made substantial revisions in chapters 37 and 40 so as to include abused children within the protections of the Juvenile Court Act, it was clearly the purview of the legislature to amend section 1(D)(m) as well. Unfortunately for J.P.S., the legislature acted too late to validate these proceedings.

Undoubtedly, the State will proceed anew under amended section 1(D)(m); however, that fact alone does not moot the issue before us. We are constrained to hold that the State’s petition failed to state a valid cause for terminating respondent’s parental rights and that the orders of the circuit court finding respondent unfit and terminating her parental rights must be reversed. As such, we deem it unnecessary to rule upon the remaining issues presented in this appeal.

The judgment of the circuit court is reversed.

Reversed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE STOUDER PRESIDING JUSTICE HEIPLE,

text:
    LILLIAN STEBURG et al., Plaintiffs-Appellees, v. RICHARD S. SWANSON, Defendant-Appellant (John A. Steburg, Defendant).
    Third District
    No. 3—89—0367
    Opinion filed June 22, 1990.

      HEIPLE, P.J., dissenting.
    Richard S. Swanson, of Asheville, North Carolina, appellant pro se.

    Edward Stone, of Stone & Thurman, of Geneseo, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff trustee, Central Trust & Savings Bank of Geneseo, filed a petition for directions from the trial court on the final distribution of a trust fund created by John A. Steburg for the care and support of his estranged wife, Lillian, and their daughter, Ruby. Lillian and Ruby had died, leaving no reason for the continuation of the trust. The trial court directed the trustee to distribute the funds to Ruby’s heirs. Defendant Richard S. Swanson, the sole heir of John A. Steburg’s estate, appeals.

The record reveals that on January 28, 1953, John Steburg executed a trust agreement. The agreement stated that he intended to sell his undivided one-half interest in a farm for a sum in excess of $20,000. It also provided for the transfer of $10,000 from the proceeds of that sale to Lillian, in settlement of a maintenance action she had brought against him.

The agreement further provided for the transfer of $10,000 to Central Trust & Savings Bank as trustee with directions that the net income of the trust be used for Ruby’s care and support and for Lillian as long as she continued caring for Ruby. In the event Lillian died before Ruby, or if at any time she failed to care for Ruby, the money was to remain in trust and the net income was to continue to be used for Ruby’s care. If Ruby predeceased Lillian, Lillian was to receive the entire balance of the trust fund and all of the undistributed income. No provision was made for the distribution of the funds in the event Lillian died then Ruby died.

The record further reveals that John and Lillian subsequently divorced, and John remarried. John and his second wife, Mabel, executed joint and mutual wills in which they named John’s second cousin, Richard S. Swanson, as their sole heir. When John and Mabel died, Richard was decreed the sole heir and legatee of their estate.

Lillian Steburg died on March 30, 1982, and Ruby died the following year. On October 18, 1988, the trustee filed a petition for directions from the court regarding the final distribution of the trust funds. In his response to the petition, Richard Swanson alleged that as the sole heir of John Steburg’s estate, any funds remaining in the trust passed to him under the residuary clause of John’s will.

The trial court initially noted that a gap existed in the trust agreement since there were no provisions for the trust funds in the event Ruby died after her mother. The court therefore looked to John’s intent when he created the trust. It found that John had created the trust to provide for the support of his daughter and wife. It also found that John was “purchasing a peace” with Lillian in the maintenance action she had brought against him. The trial court therefore concluded that John had not intended to retain any interest in the trust fund and that the principal along with any accrued income passed to Ruby’s heirs.

On appeal, Richard argues that since the trust agreement was silent as to the distribution of funds in the event Ruby died after her mother, a reversionary interest was thereby created in John’s estate. He further argues that it was not necessary for the trial court to look to John’s intent, since the language of the trust agreement was clear and unambiguous.

Initially, we note that the same rules of construction applying to wills also apply to trusts. (First National Bank v. Canton Council of Campfire Girls (1981), 85 Ill. 2d 507, 426 N.E.2d 1198.) Where the words used in a trust agreement are plain and their meaning is clear, the plain intention will prevail over the presumed intention. (Northern Trust Co. v. Winona Lake School of Theology (1978), 61 Ill. App. 3d 966, 377 N.E.2d 1182.) However, where the trust is silent on a particular question, in the sense that it contains no express answer to the question, then a construction of the trust is necessary. (See Northern Trust Co., 61 Ill. App. 3d at 971, 377 N.E.2d at 1186.) The primary rule of trust construction is to ascertain the intention of the settlor when the instrument was executed and to give effect to that intention as long as it is not contrary to law or public policy. First National Bank, 85 Ill. 2d at 513, 426 N.E.2d at 1201.

The instant trust agreement failed to provide for the final distribution of funds in the event Ruby died after Lillian. Accordingly, the trust contained no express answer to this question and a construction of the trust was necessary. In construing the trust agreement, the trial court concluded that John did not intend to retain any interest in the trust. We agree.

The trust was created for the care and support of Ruby. Lillian was also to receive a portion of the net income of the trust as long as she continued caring for Ruby. More important, however, the agreement provided that if Ruby died before her mother, Lillian would receive the entire balance of the trust fund. It is difficult to imagine that John intended to retain any interest in the trust in light of the fact that he specifically stated that if his daughter predeceased her mother, the entire trust fund would go to his ex-wife. Moreover, the agreement provided that $10,000 was to go to Lillian in settlement of a maintenance action she had brought against him. Thus, the circumstances surrounding the creation of the trust also indicated that John was relinquishing any interest in the trust in compromise of a suit against him.

Therefore, we are unable to find that John intended to retain any interest in the trust when he created it. As such, the trial court did not abuse its discretion in finding that the remaining funds in the trust were to be distributed to Ruby’s heirs at law. See Northern Trust Co. v. Winona Lake School of Theology (1978), 61 Ill. App. 3d 966, 377 N.E.2d 1182.

The judgment of the circuit court of Henry County is affirmed.

Affirmed.

BARRY, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

This suit involves the final distribution of a trust fund created by John A. Steburg for the care and support of his estranged wife, Lillian, and their daughter, Ruby. Lillian died on March 30, 1982, and Ruby died on September 19, 1983. The trust contained no provision for the distribution of the trust funds in the event Lillian died then Ruby died. Both the trial court and a majority of this court find that since the trust is silent on this particular question, a construction of the trust is necessary. In construing the trust agreement, the trial court and majority conclude that John did not intend to retain any interest in the trust and find that the remaining funds in the trust were to be distributed to Ruby’s heirs at law. Since the trust agreement was a complete, unambiguous expression of John’s intent, I dissent.

The relevant portion of the trust provides:

“I, [John A. Steburg], *** hereby convey *** the *** sum of $10,000.00 *** to the Central Trust & Savings Bank of Geneseo, Illinois, as Trustee *** in trust to hold and safely invest the same and pay the net income thereof to the said Lillian Steburg for the use and support of [her] and our daughter, Ruby Steburg, as long as [she] shall care for and support *** Ruby Steburg: and, if [she] shall die before the said Ruby Ste-burg, or, if [she] shall, at any time, fail to care for and support the said Ruby Steburg, then in trust to pay the net income for the use, care and support of the said Ruby Steburg as long as she lives: and if the said Ruby Steburg shall die before the said Lillian Steburg, the entire balance of said trust fund, and all undistributed increase and income therefrom, shall be paid to the said Lillian Steburg as her absolute property.”

The clear language of the trust instrument set forth the following: (1) if Lillian died before Ruby, the trust funds would go for the care of Ruby as long as Ruby lived; and (2) if Ruby died before Lillian, then Lillian would receive a fee simple interest in the entire balance of the trust fund and all of the undistributed income. There is no ambiguity to this trust agreement. Moreover, John’s express intent was fully accomplished. When Lillian died, the trust funds were used for Ruby’s care. Thereafter, when Ruby died the purpose of the trust ceased.

In ascertaining the intent of the trust settlor, the court must first look at the instrument itself, and only if an ambiguity exists must the court consider the surrounding circumstances at the time the instrument was executed in order to determine the settlor’s intent. (Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill. 2d 124.) It is not the function of the court to modify a trust document or create new terms different from those to which the parties have agreed. (In re Estate of Ierulli (1988), 167 Ill. App. 3d 595.) The court is limited to establishing not what the settlor meant to say, but what was meant by what he did say. (Kavanaugh v. Estate of Dobrowolski (1980), 86 Ill. App. 3d 33.) Additionally, the general rule is that where an express trust is created, every interest not embraced in the trust reverts to the settlor of the trust. 90 C.J.S. Trusts, §201 (1955).

Here, the trial court went beyond the clear language of the document and erroneously attempted to fill an imaginary gap in the trust agreement. The majority acquiesces in this spurious exercise. Because the instant trust agreement was unambiguous, the remaining interest in the trust reverts back to the settlor of the trust rather than being distributed to Ruby’s heirs. Accordingly, I dissent.


author: JUSTICE STEIGMANN JUSTICE McCULLOUGH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDALL D. WHITE, Defendant-Appellant.
    Fourth District
    No. 4—88—0954
    Opinion filed June 15, 1990.

      McCULLOUGH, j., specially concurring.
    Daniel D. Yuhas and Gary R. Peterson, both -of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

After a jury trial, defendant, Randall White, was convicted of aggravated criminal sexual assault, residential burglary, and unlawful restraint (Ill. Rev. Stat. 1987, ch. 38, pars. 12—14, 19—3, 10—3). On appeal, defendant contends that the admission of testimony containing certain out-of-court statements by the alleged victim was error. Defendant also argues that if his convictions are affirmed, the case should be remanded for resentencing because the trial court permitted the State to present inadmissible evidence regarding defendant’s alleged criminal behavior as a factor in aggravation.

We affirm.

The four-year-old alleged victim, S.G., did not testify at trial. Instead, five witnesses were permitted by the court to testify as to statements made to them by S.G. Those witnesses were Tony DeVore, S.G.’s baby-sitter; Tammy Grigsby, S.G.’s mother; police officer Terry Lewis; Nurse Cheryl Reents; and Dr. Michael Meinzen. The testimony of each of these witnesses will be discussed in detail, as will the circumstances under which S.G. spoke to each witness.

The events relevant to the offenses charged occurred on April 16, 1988, at 4 a.m. in the home of S.G., while Tony DeVore vzas baby-sitting for S.G. and S.G.’s three-year-old brother, Eric. DeVore, who was 14, was awakened by S.G.’s scream, went to the victim’s bedroom, and saw the defendant exit that room and then the residence.

At trial, DeVore testified that she asked S.G. what happened, and S.G. told her. Defense counsel’s objection to DeVore’s testifying as to what S.G. told her was overruled on the ground that S.G.’s statements were spontaneous declarations and therefore admissible as an exception to the rule against hearsay. DeVore’s testimony continued as follows:

“Q. [By prosecutor:] Okay. What did [S.G.] say at that point?
A. When I went in there she said he put his hand over her mouth. He’d been choking her. And she told me that he was touching her in the wrong places and he also said that if she screamed then he would whip her and then call me up there to whip her.
Q. Okay. Now, as best you recall what did [S.G.] say he or did she identify the person or what?
A. She said — well, first she said his name, Randy.
Q. Okay.
A. And then she went on with he.
Q. Okay. Start off "with Randy?
A. Yeah.
Q. Okay. Now, you said — you testified that she said he touched her in wrong places. How did she phrase that as best you recall?
A. She said — she said, ‘He was touching me.’ And when I asked where she point [sic] to her private places.
Q. Okay. And [I] ask you could you describe where she pointed?
A. To the lower part of her body.
Q. Okay. And — [.]
[The defendant’s continuing hearsay objection was overruled.]
Q. Do you know the name for the portion of the anatomy for what you talked about?
A. Yes, I do.
Q. What was she pointing to?
A. The vaginal area.”

DeVore testified that after she tried to comfort S.G., “she finally calmed down and she quit crying a little bit.”

According to DeVore, Tammy Grigsby, the victim’s mother, arrived home approximately 30 minutes after the incident. DeVore spoke very briefly to Grigsby, who then sat with S.G. and asked her exactly what happened. Defense counsel’s objection to Grigsby’s testifying about what S.G. told her was overruled for the same reason that the objection as to DeVore’s testimony was overruled. Grigsby testified that S.G.’s response to her question was as follows:

“A. She said she woke up and that Randy was in the room. And that he had put his hand on her mouth and told her that if she screamed that he would, you know, whip her, and Tony [DeVore] would whip her too. And then she said that he put his mouth on her front part.
* * *
Q. [By prosecutor:] And did you clarify what she meant by that?
A. What do you mean? I — yeah, I asked her exactly, you know, what he did. And she told me that he had pulled her pants down a little bit and put his mouth down there and — .”

Grigsby described her daughter as appearing scared and a “little hyper.” Grigsby testified that she noticed “bruises or red marks” on S.G.’s neck that were not present when Grigsby left the residence earlier that evening.

Immediately after this short conversation with her daughter, Grigsby called the police. She testified that Officer Terry Lewis of the Georgetown police department arrived “just a few minutes” after she called. Lewis testified that he arrived at S.G.’s home around 4:47 a.m. He asked to speak to S.G. privately, and Grigsby had no objection. Grigsby testified that at the suggestion of Officer Lewis, she checked S.G.’s “front part” (the term Grigsby said S.G. uses for this part of her body), and Grigsby noticed that it was a “little red.”

Lewis questioned S.G. by herself in the kitchen. He first spoke with S.G. about cartoons in order to “[get] hér at ease.” At first she seemed upset and nervous, although she was very cooperative. The officer’s testimony as to what the victim told him was essentially identical to the testimony given by DeVore and Grigsby, with the addition of the following:

“A. She went on and she started talking about her pants being wet.
Q. [By prosecutor:] Okay.
A. And when I referred to them as pants she advised me they were not pants they are underwear. And that they were wet. I asked if she had peed in her pants and she got disgusted with me and said, T don’t pee in my pants, my underwear’ she said.
Q. Uh-huh.
A. And she said Randy done it. So I asked her then I said how did Randy make them wet. And she told me that he had pulled her pants to one side and used his tongue on her private parts, what she called her private parts.”

Defendant objected to all of Lewis’ testimony about what S.G. had told him, but the court overruled that objection, indicating that this testimony was also being admitted as a spontaneous declaration.

Lewis also testified that he noticed a “small cluster of scratches” on the right side of S.G.’s mouth. They appeared to be “very fresh cuts.” He said S.G. also had two long, parallel, fresh scratches on the left side of her neck. She told Lewis that “Randy” had done that to her when he had his hand on her. Lewis took a color Polaroid photograph of S.G. around 6 a.m. Lewis testified that the photograph showed the scratches he testified about. The photograph was admitted into evidence.

Cheryl Reents testified that she was working as an emergency room nurse when she interviewed S.G. shortly after 8 a.m. that same morning, April 16, 1988. Reents testified that she asked questions of S.G. in order to obtain a history to assist herself and the attending emergency room physician in making a diagnosis and providing treatment. When the State asked Reents what S.G. told her after Reents asked S.G. what happened, defense counsel again objected. In response, the State argued that S.G.’s statements to Reents were admissible both as spontaneous declarations as well as statements made for medical purposes under section 115—13 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 115—13). The court overruled the objection, and Reents testified that S.G. told her, inter alia, the following:

“A. Okay. Then I asked if he touched her anywhere else [besides her mouth and neck]. And she said yes. And I asked her where. And she said, ‘On my front part.’ And then for clarification I asked her to point where. And the patient pointed to the mons area.
Q. [By prosecutor:] Okay. And that’s what?
A. That’s the genital, the labia majora and the surrounding tissue in the genital area.
Q. On the female?
A. Yes, on the female. Okay. And I — then I, for more clarification, I asked her what he touched her with. And she stated his mouth. And then I asked her if he touched her with anything else. She said no. Then I asked her if he touched her with his front part and she stated no. I asked her if he touched her back — her back part. And she said no. And then I asked her if he made her touch him. She said no. Then I asked her if he made her put her mouth anywhere. She said no. And then I asked if anything was put inside of her. She said no. And I asked if it had ever happened before and she said yes when it was cold out.
Q. Okay.
A. And then she continued to say that he put his mouth on her, but he didn’t hurt her that time.”

Initially, S.G. would not look at Reents, but instead looked down at her ID bracelet as she twisted the bracelet around her wrist. Later, S.G. was cooperative and answered Reents’ questions. Reents testified that in questioning S.G., Reents phrased her questions “very open ended to just let [S.G.] just say whatever.” Reents also noticed some bruising on the left side of S.G.’s neck.

Dr. Michael Meinzen testified that he was the physician on duty at the hospital emergency room to which S.G. was brought. Meinzen said he spoke with S.G. shortly after 8 a.m. in order to obtain a history from the patient for the purposes of making a diagnosis and treating her medically if that was needed. Meinzen attached great importance to obtaining a history from a patient, noting that, “in medicine we’re taught that 90 percent of our diagnosis is based on the history. You listen to what the person tells you and then decide where to go from there, what areas to focus on.”

Meinzen was asked to testify about what S.G. had told him, and defense counsel objected. The State again urged two separate grounds for the admissibility of this testimony — spontaneous declaration and section 115—13 of the Code — and the court overruled the objection.

Meinzen then testified that after S.G. told him “Randy” awakened her, she told him the following:

“A. *** [W]e asked her to direct attention to what — where was it that she was touched. She said he put his hands over her mouth and on her neck. And asked what else happened. And she said that he put his mouth down there. We tried to get her to be more specific. And asked her to point and touch where exactly he had placed his mouth. And she pointed in the — in the area of her external genitalia.
Q. [By prosecutor:] All right.
A. At that point asked her was she hurt anywhere. And she didn’t state that she was in any pain at that particular time. She was rubbing an area on her neck that initially then we directed her attention elsewhere and she didn’t seem to be holding that area too much more. Specific questions then that we asked was she hurting anywhere in her genital area. And breaking it down you know into children’s terms pointing and asking her specifically where she pee-pee and where she pointed was she hurting anywhere there. And she said no that she wasn’t. We asked had anything put in they’re [sic]. Had he put any finger in or any other things. She said that nothing had been pushed into her. And we encourage her to identify her anatomy a little bit more so we knew what we were talking about.
Q. Okay.
A. Then asked her a lot of these questions were asked very slowly to make sure that she understood what we were talking about. And, you know, case was such she just said that only that he placed his mouth over her external genitalia and just pointed in that general region. We asked whether she had had to touch him anywhere. Whether she had to place her mouth or anything on any of his parts. And she said that she had not.”

The physician described S.G. as “calm and comfortable” when he spoke to her.

As stated earlier, the alleged victim, S.G., did not testify. The entire State’s case consisted essentially of the testimony of the witnesses as described earlier in this opinion. Defendant’s challenge to the admissibility of their testimony concerning what S.G. told them requires us to consider, in turn, three separate evidentiary issues: (1) spontaneous declarations; (2) statements to medical personnel under section 115—13 of the Code; and (3) the claim that these hearsay exceptions are invalid unless the prosecution produces the declarant for cross-examination or demonstrates that the declarant is unavailable.

I. SPONTANEOUS DECLARATIONS AS AN EXCEPTION TO THE HEARSAY RULE

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is admissible as a hearsay exception. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.3, at 550 (4th ed. 1984).) This “spontaneous declaration” exception to the hearsay rule was explained by the Illinois Supreme Court in People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804, where the court stated the following:

“There has emerged, as a recognized exception to the hearsay rule, the principle that, under certain conditions, what have been variously characterized as ‘spontaneous declarations’ or ‘excited utterances’ are properly admissible as an exception to the hearsay rule. Perhaps the classic statement of the reason underlying this exception is that of Wigmore (6 Wigmore, Evidence, 3d ed., sec. 1747):
‘This general principle is based upon the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.’
The rule has been succinctly stated by the Supreme Court of California: ‘When, a declaration is made under the immediate influence of the occurrence to which it relates and so near in time as to negative any probability of fabrication, said declaration is admissible.’ Showalter v. Western Pacific Railroad Co.[,] 16 Cal.2d 460, 106 P.2d 895, 899.
Three factors are necessary to bring a statement within this exception to the hearsay rule: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (6 Wigmore, Evidence, 3d ed. sec. 1950; Cleary, Handbook of Illinois Evidence, sec. 13.28).” Poland, 22 Ill. 2d at 180-81, 174 N.E.2d at 806-07.

The Illinois Supreme Court recently had occasion to consider the spontaneous declaration exception to the hearsay rule in a case similar to this one. In People v. Nevitt (1990), 135 Ill. 2d 423, the supreme court reviewed a case in which the defendant was convicted of aggravated criminal sexual assault upon a three-year-old child, J.B. As stated by the supreme court, one of the issues before it was “whether an interval of as much as five hours between an alleged incident of sexual abuse and a three-year-old child’s out-of-court declaration to his mother concerning the alleged incident precludes the statement’s admission under the excited utterance exception to the hearsay rule despite other indicia of reliability!!]” Nevitt, 135 Ill. 2d at 433.

In Nevitt, J.B.’s mother gave J.B. his customary morning bath before taking him to his day-care and educational center for the day. While bathing J.B., his mother checked him from head to toe, including his genital area, for diseases, scratches, and sores, but found nothing out of the ordinary. His mother testified that on arrival at the day-care center, she escorted her son to his classroom and placed his hand in the hand of the defendant, Nevitt.

When she picked up her son at approximately 3 p.m. that same day, he appeared withdrawn. He did not come up to greet her, nor did he say anything to her on their trip home. After arriving at home, J.B. did not eat his afternoon snack with his usual enthusiasm. His mother asked him what was wrong. J.B. blurted out, “ ‘Teacher Tony bit my dingdong.’ ” (Nevitt, 135 Ill. 2d at 434.) J.B. then demonstrated with an object what had occurred earlier that day.

J.B.’s mother then summoned her mother, who resided in a downstairs apartment. Both women then inspected J.B.’s penis and noted “ ‘a pinkish coloration around the head’ ” about the size of a dime. (Nevitt, 135 Ill. 2d at 434.) When the grandmother touched the boy’s penis, he “hollered ‘ouch’ and ‘it’s sore.’ ” Nevitt, 135 Ill. 2d at 434.

Based upon the testimony of J.B.’s mother concerning what J.B. told her, as well as other evidence presented by the State, including defendant’s written admission to performing the acts in question, Nevitt was convicted. The appellate court reversed his conviction and remanded for a new trial, finding that the prosecution failed to provide a proper foundation for J.B.’s mother’s identification of defendant as “Teacher Tony.” (People v. Nevitt (1988), 174 Ill. App. 3d 326, 528 N.E.2d 307.) Because of this lack of foundation, the appellate court held that J.B.’s out-of-court statement to his mother was inadmissible.

The State appealed that decision and the defendant requested cross-relief from the supreme court. Defendant argued that both the trial and appellate courts erred when they found that J.B.’s out-of-court statement to his mother met the requirements of the excited-utterance exception to the hearsay rule. The supreme court reversed the appellate court and stated the following:

“Defendant argues that the time period between the alleged incident and the child’s statement to his mother demonstrates that the declaration was not spontaneous. Defendant points out that the child said nothing to his mother when she picked him up at [the day-care center], during the drive home and for a time after they arrived. Defendant also notes that the child made the statement in response to his mother’s questioning and that the statement occurred as long as five hours after the alleged incident. Finally, defendant argues that J.B.’s out-of-court statement to his mother is so ambiguous that it cannot be said that the declaration related to the circumstances of the occurrence.
This court has recognized a number of exceptions to the rule prohibiting the admission of hearsay evidence, finding that the statements which fall within the exceptions, and are therefore admissible, demonstrate sufficient guarantees of reliability or trustworthiness despite the inability of an opponent to cross-examine the declarant before the trier of fact. (See, e.g., People v. Clark (1972), 52 Ill. 2d 374, 389.) As defendant notes, one of the factors to consider in determining the admissibility of a hearsay statement under the spontaneous declaration exception is the absence of time to fabricate. See People v. Poland (1961), 22 Ill. 2d 175, 181.
As defendant points out, the time that elapsed between the incident and the declaration here would generally render the statement inadmissible hearsay. However, given the circumstances present in this case, we find that the trial judge’s ruling that three-year-old J.B.’s statement was reliable and within the excited utterance exception to the hearsay rule was not an abuse of discretion. See People v. Shum (1987), 117 Ill. 2d 317, 343 (‘time factor is an elusive element and will vary with the facts of the case’); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.3, at 552 (4th ed. 1984) (‘Lapse of time is but one factor to be considered by the court in reaching an answer [of whether the statement is an excited utterance] in the particular case. Other factors include the nature of the event, the mental and physical condition of the declarant, and the presence or absence of self-interest’).
We believe that the evidence at trial sufficiently demonstrates that the child’s statement was the product of the event, rather than the child’s deliberation. J.B.’s behavior demonstrated the effect the incident had on the child. Although he usually greeted his mother with outward affection, he was on this occasion quiet and withdrawn. He remained uncharacteristically silent during the two-block drive from [the day-care center] and upon his arrival at home. His unusual behavior continued through the afternoon snack. The first time J.B. had an opportunity to relate the incident to anyone away from the environment in which the incident occurred was when his mother picked him up from the center. Although he said nothing about the incident during the drive to his home, his first statement to his mother related to the incident. At that time, according to his mother, the child was still visibly upset and withdrawn. Under the circumstances here, it is not unreasonable to believe that the mother’s question to her three-year-old son, asking him ‘what’s wrong,’ elicited an unreflected and spontaneous declaration concerning an incident that occurred earlier in the day. (Cf. People v. Gacho (1988), 122 Ill. 2d 221, 241 (declaration 6½ hours after occurrence was spontaneous when victim confined in trunk in seriously wounded condition and utterance was given in response to question on first opportunity for victim to speak).) We find no evidence that would explain a motive for the child to fabricate the statement, and the terminology contained in the child’s declaration substantiates its reliability. (See State v. Ryan (1984), 103 Wash. 2d 165, 691 P.2d 197 (whether language of statement was likely to have been used by a child the age of declarant important in determination of statement’s reliability).) That the statement came in response to a question put to him by his mother does not affect its credibility. The question was not suggestive and only prompted J.B. to speak.” Nevitt, 135 Ill. 2d at 443-46.

In the present case, defendant concedes that the statements S.G. made to DeVore, S.G.’s baby-sitter, meet the criteria for admission as spontaneous declarations. Defendant argues, however, that S.G.’s statements to Grigsby (S.G.’s mother) and to Officer Lewis, Nurse Reents, and Dr. Meinzen do not meet those criteria. We will address this argument only with regard to S.G.’s statements to Grigsby and Lewis. Because we find that S.G.’s statements to Reents and Meinzen were properly admitted under section 115—13 of the Code (as discussed in the next section of this opinion), we need not consider whether those statements might also be admissible as spontaneous declarations.

S.G.’s statements to DeVore about the incident occurred literally within moments of DeVore’s seeing defendant flee the scene of the crime he allegedly had just committed. About 30 minutes after S.G.’s statements to DeVore, S.G.’s mother, Grigsby, returned home, and S.G. told Grigsby what had happened. Grigsby then called the police, and Officer Lewis arrived “just a few minutes” after she called. In the kitchen of her home, S.G. spoke to Lewis with no one else present. On this record, it appears that these three separate statements of S.G. were all made within 45 minutes of her being sexually assaulted in her bed.

Defendant argues that S.G.’s statement to Grigsby was not a spontaneous declaration because S.G. had “calmed down” and was no longer reacting to a startling occurrence. Defendant cites other factors as being inconsistent with S.G.’s statements being spontaneous declarations, such as Grigsby’s urging her daughter “to tell me what happened” and that S.G. was initially reluctant to do so. With regard to S.G.’s statements to Lewis, defendant makes these same arguments.

In People v. Harris (1985), 134 Ill. App. 3d 705, 480 N.E.2d 1189, the court discussed the factors which should be considered in deciding whether a statement qualifies as a spontaneous declaration and stated the following:

“Whether a statement was sufficiently spontaneous to qualify for admission and evidence under this exception to the hearsay rule is a preliminary question for determination by the trial court. [Citation.] The court’s ruling will be held an abuse of discretion only if the statements are not so intimately connected with the event as to indicate a lack of premeditation. [Citation.] In deciding whether the declarant acted without thought, the court is required to consider all the circumstances surrounding the making of the statement. [Citation.] The time which elapsed between the occurrence and the declaration and the distance which the declarant travelled from the scene before making the declaration are both material in determining spontaneity. However, neither factor is controlling. [Citation.] Also, the fact that the statement was made in response to a question will not itself deprive an utterance of the requisite spontaneity to establish its admissibility. Thus, statements made in response to general inquiries as to what has occurred may nevertheless be spontaneous.” Harris, 134 Ill. App. 3d at 711, 480 N.E.2d at 1194-95.

We also agree with the following remarks from People v. Bitler (1986), 146 Ill. App. 3d 477, 497 N.E.2d 137, which dealt with out-of-court statements by declarants of tender years who did not testify at trial:

“The trial court must look to the surrounding circumstances to determine whether there was an opportunity for reflection and invention. [Citation.]
Illinois courts have recognized that special circumstances ex-1st concerning the motivations behind the statements of very young children. The reason that their statements are admitted is that it is unlikely that a child of tender years will have any reason to fabricate stories of sexual abuse. (In re Marriage of Theis (1984), 121 Ill. App. 3d 1092, 460 N.E.2d 912; People v. Chatman (1982), 110 Ill. App. 3d 19, 441 N.E.2d 1292.) In Wisconsin, the courts have noted that the stress of a sexual assault upon a child will remain with the child long after it occurred, and that the child’s statements will be unfabricated for three reasons: (1) the child is apt to repress the incident; (2) it is often unlikely the child will discuss such a stressful incident with anyone but the mother; and (3) the characteristics of young children work to produce declarations free of conscious fabrication for a longer period after the incident than adults. State v. Padilla (Wis. App. 1982), 110 Wis. 2d 414, 329 N.W.2d 263.
We agree here, as we did in Theis, with the Padilla court’s analysis; and we find that the victims had neither the time nor the opportunity to fabricate the statements, even assuming, arguendo, that the defendant molested the victims 24 hours prior to the relevant statements.” Bitler, 146 Ill. App. 3d at 481-82, 497 N.E.2d at 139.

Based on the foregoing authority, we find defendant’s arguments to be unpersuasive. The trial court has considerable discretion in determining whether a statement is admissible as a spontaneous declaration, and its decision will not be reversed absent an abuse of that discretion. (Bitler, 146 Ill. App. 3d at 481, 497 N.E.2d at 139.) On the facts in this case, the trial court did not abuse its discretion in deciding that S.G.’s statements to DeVore, Grigsby, and Lewis were all spontaneous declarations and admissible.

II. STATEMENTS UNDER SECTION 115-13 AS AN EXCEPTION TO THE HEARSAY RULE

As noted earlier, the trial court permitted Nurse Reents and Dr. Meinzen to testify as to statements S.G. made to them. When defense counsel objected to their testimony on the grounds that it would be hearsay, the State responded that the testimony was proper on the grounds that the statements of S.G. were (1) spontaneous declarations, and (2) made to medical personnel for purposes of medical diagnosis or treatment, and thus, admissible under section 115—13 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115-13). Section 115-13 of the Code reads as follows:

“In a prosecution for violation of Sections 12—13, 12—14, 12—15 or 12—16 of the ‘Criminal Code of 1961’, statements made by the victim to medical personnel for purposes of medical diagnosis or treatment including descriptions of the cause of symptom, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admitted as an exception to the hearsay rule.”

That section was added to the Code on January 1, 1988, and the only reported decision of which we are aware in which the Illinois Supreme Court or the Illinois Appellate Court construes it is the decision of this court in People v. Rushing (1989), 192 Ill. App. 3d 444, 548 N.E.2d 788.

In Rushing, the defendant argued that the testimony of the physician who examined and spoke with the nine-year-old complainant in that aggravated criminal sexual abuse case improperly included details of the alleged offense that were not relevant to the complainant’s diagnosis and treatment. The physician’s examination occurred approximately one month after the alleged incident of sexual abuse. The physician testified the complainant told the physician that the defendant (whose name the physician mentioned) told complainant not to tell anyone; that if she did tell, he would go to jail, and when he got out, he would kill her mother and father. (Rushing, 192 Ill. App. 3d at 447, 548 N.E.2d at 790.) This court rejected defendant’s argument and stated the following:

“In examining and treating such complaints of a nine-year-old girl suspected of sexual abuse, details of the sexual acts were certainly pertinent. Under the same circumstances, the threat was relevant to D.B.’s [the victim’s] state of mind and emotional condition. All the statements were relevant in determining the approximate time of the alleged act and to the credibility of D.B. These are all matters which would reasonably be considered and relied upon by medical personnel in making any diagnosis or conclusion as to a patient’s condition and proper course of treatment. Thus, the statements were also admissible under section 115—13.” Rushing, 192 Ill. App. 3d at 453, 548 N.E.2d at 793-94.

As this court indicated in Rushing, we hold that section 115—13 of the Code evinces a legislative intent that the phrase “descriptions *** insofar as reasonably pertinent to diagnosis or treatment” should be liberally construed. (Ill. Rev. Stat. 1987, ch. 38, par. 115—13.) The legislature directed that statements containing such descriptions shall be admissible. A crabbed interpretation of that phrase, requiring trial courts to parse statements made by a victim when a medical history is taken, would be inconsistent with legislative intent.

The testimony of Nurse Reents and Dr. Meinzen describing the questions they asked of S.G. and the reasons why those questions were asked makes clear that the statutory prerequisites for this new hearsay exception were met. Meinzen especially emphasized the importance of taking a history from the patient in order to properly make a diagnosis and decide upon further treatment, if any.

Defendant also argues that S.G.’s statements to Meinzen and Reents concerning the details of the incident do not fall within the treating-physician exception to the hearsay rule. Citing People v. Walton (1976), 43 Ill. App. 3d 74, 356 N.E.2d 1131, defendant claims that while a treating physician may testify about a patient’s statements concerning presently existing bodily conditions, the doctor may not relate the patient’s statements which concern details of the alleged offense. We disagree. We conclude that section 115—13 was designed, in part, to sever the artificial restraints heretofore imposed by case law on the ability of a physician to testify about what his or her patient told the physician for purposes of medical diagnosis or treatment.

To the extent that Walton, an opinion of the Second District Appellate Court, is inconsistent with this holding, we decline to follow it. Section 115—13 of the Code was enacted 12 years after Walton, and its enactment implicitly overrules that case.

III. DEFENDANT’S CLAIM THAT THE DECLARANT MUST BE “UNAVAILABLE” OR PRODUCED BEFORE THE DECLARANT’S OUT-OF-COURT STATEMENT MAY BE ADMITTED AS AN EXCEPTION TO THE HEARSAY RULE

Defendant argues that even if the witnesses to whom S.G. spoke could properly testify to what S.G. told them under traditional or statutory exceptions to the hearsay rule, that testimony nonetheless violated his right under the sixth amendment to the United States Constitution to be confronted with the witnesses against him. Citing Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531, defendant argues as follows:

“[E]ven where the evidence falls within a firmly rooted hearsay exception, the prosecution still must either produce the declarant for cross-examination or demonstrate that he is unavailable. *** Since the prosecution neither produced the declarant [S.G.] for cross-examination nor established that she was unavailable, Randall White was denied his Sixth Amendment right to confront the witnesses against him.”

In making this argument, defendant’s counsel on appeal inexplicably fails to cite or discuss United States v. Inadi (1986), 475 U.S. 387, 89 L. Ed. 2d 390, 106 S. Ct. 1121, in which the United States Supreme Court repudiated the interpretation of Roberts upon which defendant relies. Nor does counsel cite or discuss People v. Ingram (1987), 162 Ill. App. 3d 257, 515 N.E.2d 1252, a decision of this court which analyzed both Roberts and Inadi. The Court in Inadi said the following:

“We granted certiorari, [citation], to resolve the question whether the Confrontation Clause requires a showing of unavailability as a condition to admission of the out-of-court statements of a nontestifying co-conspirator, when those statements otherwise satisfy the requirements of Federal Rule of Evidence 801(d)(2)(E) [the coconspirator exception to the hearsay rule]. We now reverse.
The Court of Appeals derived its rule that the Government must demonstrate unavailability from our decision in Roberts. It quoted Roberts as holding that ‘in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case *** the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.’ 448 U.S., at 65[, 65 L. Ed. 2d at 607, 100 S. Ct. at 2538]. The Court of Appeals viewed this language as setting forth a ‘clear constitutional rule’ applicable before any hearsay can be admitted. 748 F.2d at 818. Under this interpretation of Roberts, no out-of-court statement would be admissible without a showing of unavailability.
Roberts, however, does not stand for such a wholesale revision of the law of evidence, nor does it support such a broad interpretation of the Confrontation Clause. Roberts itself disclaimed any intention of proposing a general answer to the many difficult questions arising out of the relationship between the Confrontation Clause and hearsay. *** Roberts should not be read as an abstract answer to questions not presented in that case, but rather as a resolution of the issue the Court said it was examining: ‘the constitutional propriety of the introduction in evidence of the preliminary hearing testimony of a witness not produced at the defendant’s subsequent state criminal trial.’ [Citation.]
The Confrontation Clause analysis in Roberts focuses on those factors that come into play when the prosecution seeks to admit testimony from a prior judicial proceeding in place of live testimony at trial. See Fed. Rule Evid. 804(b)(1). In particular, the Roberts Court examined the requirement, found in a long line of Confrontation Clause cases involving prior testimony, that before such statements can be admitted the government must demonstrate that the declarant is unavailable. [Citations.] All of the cases cited in Roberts for this ‘unavailability rule’ concern prior testimony. ***
Roberts must be read consistently with the question it answered, the authority it cited, and its own facts. *** Roberts cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable.” (Emphasis added.) Inadi, 475 U.S. at 391-94, 89 L. Ed. 2d at 396-98, 106 S. Ct. at 1124-25.

The above-quoted language from Inadi makes clear that the decision in Roberts must be restricted to the factual context in which Roberts arose, i.e., “the constitutional propriety of the introduction in evidence of the preliminary hearing testimony of a witness not produced at the defendant’s subsequent state criminal trial.” (Roberts, 448 U.S. at 58, 65 L. Ed. 2d at 602, 100 S. Ct. at 2535.) The discussion in Roberts of hearsay exceptions unrelated to the particular exception which the State in that case was arguing was wholly unnecessary to the decision reached. Indeed, that discussion may be the “Sistine Chapel” of obiter dicta.

Because of the uncertainty that Roberts caused regarding the application of exceptions to the hearsay rule, it is necessary that we be clear and emphatic in our holding on this point: Whether the out-of-court declarant is unavailable is totally irrelevant to the determination of whether an out-of-court statement of that declarant is admissible under an exception or exemption to the hearsay rule. The only exception to this holding is the factual situation present in Roberts, i.e., the use at trial of the previous testimony of a witness who is no longer available.

We provide the foregoing emphasis because, despite the clear language of Inadi, we conclude the decisions of other courts have not given full effect to Inadi’s repudiation of the dicta in Roberts. For instance, in Nelson v. Farrey (7th Cir. 1989), 874 F.2d 1222, the United States Court of Appeals for the Seventh Circuit had occasion to consider the effect of Inadi upon Roberts and stated the following:

“Six years [after Roberts was decided] the Supreme Court disavowed any suggestion that Roberts had stated a general rule, confined the case to the particular situation presented by it — a prosecutor’s attempt to use the transcript of testimony from a previous judicial proceeding in lieu of live testimony at trial— and allowed the admission of out-of-court statements by a co-conspirator who was available to testify. [Citation.]
At present, then, there is no single authoritative criterion for when the admission of hearsay evidence violates a defendant’s constitutional right to confrontation.” Nelson, 874 F.2d at 1227.

Nelson concerned a prosecution for a sex offense. Judge Flaum wrote a concurring opinion in Nelson in which he specifically disagreed with the majority assertion that the unavailability of the complainant was not a constitutional “sine qua non of allowing her out of court statements to be used in evidence against her father.” (Nelson, 874 F.2d at 1230 (Flaum, J., concurring).) Judge Flaum opined that the confrontation clause required the prosecution to show that the complainant was not available to testify at trial. He concurred because he believed the prosecution had done so. He also made the following observations:

“The general language contained in Roberts prompted many courts to conclude that a demonstration of the declarant’s unavailability was a constitutional pre-condition to the admission of most hearsay statements. [Citation.] The validity of this interpretation of Roberts, however, is suspect in view of [Inadi], *** In the course of the opinion [in Inadi], the Court employed language that could be interpreted as repudiating the unavailability discussion in Roberts.
*** Given its broadest construction, Inadi stands for the proposition that the unavailability of the declarant is a relevant constitutional factor only when the hearsay statements involve testimony given at a preliminary hearing. In my view, however, Inadi does not represent a repudiation of Roberts’ unavailability discussion. Rather, I believe that Inadi merely reaffirms and applies the Roberts principle that a showing of unavailability is not required in all situations.” Nelson, 874 F.2d at 1231 (Flaum, J., concurring).

We cite the foregoing language from Judge Flaum’s concurring opinion because, with all due respect, we emphatically disagree. Our disagreement in part is due to the presence of a dissenting opinion in Inadi by Justice Marshall in which he vigorously condemns the majority opinion for limiting Roberts as we have now found it to be so limited. (Inadi, 475 U.S. at 400-11, 89 L. Ed. 2d at 402-09, 106 S. Ct. at 1129-34 (Marshall, J., dissenting).) We also find significant that Justice Blackmun, the author of Roberts, joined the majority opinion in Inadi, not the dissent of Justice Marshall.

Further, we have difficulty understanding the reasoning behind Judge Flaum’s conclusion that Inadi did not repudiate the broad-based “unavailability” discussion of Roberts. In our judgment, the Supreme Court, in the language we quoted from Inadi, repeatedly repudiates this Roberts dicta. Our question for those who think otherwise is this: If, in fact, the court intended to repudiate the Roberts dieta, what language could it have used to get the job done that was any stronger than the language actually employed?

We also disagree with People v. Rocha (1989), 191 Ill. App. 3d 529, 547 N.E.2d 1335, to the extent that decision holds the “unavailability” doctrine of Roberts to be still valid. In Rocha, the Second District Appellate Court had occasion to construe section 115—10 of the Code in its most recent version, as amended by Public Act 85—837, effective January 1, 1988 (1987 Ill. Laws 3471). (Ill. Rev. Stat. 1987, ch. 38, par. 115—10.) That statute provides that out-of-court statements of the alleged victim under the age of 13 in a prosecution for a sexual act may be admitted under certain circumstances. One of those circumstances is if the child either (1) testifies at the proceeding, or (2) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement. Ill. Rev. Stat. 1987, ch. 38, pars. 115-10(b)(2)(A), (b)(2)(B).

In Rocha, the second district discussed not only this statutory requirement of unavailability, but also the issue of the witness’ unavailability in view of the confrontation clause of the sixth amendment to the United States Constitution. In doing so, it spoke approvingly of the “unavailability” doctrine of Roberts, and it evaluated section 115—10 of the Code to determine whether that section met the criteria discussed in Roberts. The court concluded that the statute did so. Rocha, 191 Ill. App. 3d at 541, 547 N.E.2d at 1343.

The second district in Rocha cited Inadi as being a “recent Supreme Court decision which questions whether the Ohio v. Roberts analysis is even applicable outside of the factual setting of that case.” (Rocha, 191 Ill. App. 3d at 541, 547 N.E.2d at 1343.) The Rocha decision is unclear regarding the continuing validity of the Roberts dicta, but, as before, we emphasize that we disagree with the holding in Rocha to the extent that it concludes Roberts has any application beyond the limited factual circumstances that case addressed.

In reaching its holding in Rocha with regard to Roberts, the second district relied heavily on People v. Bastien (1989), 129 Ill. 2d 64, 541 N.E.2d 670, a case in which the Illinois Supreme Court held unconstitutional a statute authorizing the admissibility of the taped statement of the child-victim in a case involving charges of sexual abuse when the alleged victim was available at trial for cross-examination. We conclude this reliance was in error. In Bastien, the supreme court was dealing with a situation in which the prosecution, as in Roberts, was attempting to use a witness’ prior testimony given by videotape in lieu of that witness being called upon to give her direct examination at trial. As we stated earlier, in these circumstances, Roberts still has validity, but only in these circumstances. In our judgment, the Second District in Rocha gave importance to Roberts beyond its factual context. Bastien lends no support to such an interpretation.

We also note that our position regarding Roberts and Inadi is consistent with the views expressed by the Third District Appellate Court in People v. Unes (1986), 143 Ill. App. 3d 716, 722-23, 493 N.E.2d 681, 685-86.

We agree with the views expressed on this subject in a recent decision of the supreme court of Washington in State v. Palomo (1989), 113 Wash. 2d 789, 783 P.2d 575. In Palomo, a police officer observed two persons struggling in a doorway. When he approached the scene, he observed a man kneeling on top of a woman. The woman was lying on her back. The man’s pants were unbuttoned, unzipped, and fully opened in front. The woman’s pants were undone and down around her knees. The man appeared to be pulling at the woman’s pantyhose. He had one hand on the woman’s waist and the other hand on her pantyhose. The woman was hitting and scratching the man and was screaming for help. The officer separated them and observed what appeared to be fresh scratches on the man’s face. He arrested the man, who was the defendant, Palomo. As the officer did so, he testified that the woman was “ ‘crying, weeping, very upset.’ ” (Palomo, 113 Wash. 2d at 791, 783 P.2d at 576.) He further testified, “ ‘[s]he said he was trying to rape me, get him away from me.’ ” Palamo, 113 Wash. 2d at 791, 783 P.2d at 576.

The defendant was charged with the attempt (rape) of E.S., but for some unexplained reason, E.S. did not testify. The prosecutor presented a case consisting entirely of the testimony of the arresting officer. Defense counsel objected to the admission of the statement as hearsay, but the objection was overruled. The defendant did not testify.

After all of the evidence was presented, the defense argued for dismissal on the ground that the admission of the alleged victim’s hearsay statement violated the defendant’s right to confrontation under the United States Constitution and the Washington State Constitution because her unavailability had not been established. That argument was rejected, and defendant was convicted of attempt (rape) as charged.

On appeal of this conviction, the Washington Court of Appeals, in an unpublished opinion, held that the admission of the out-of-court hearsay statement without the showing of a good-faith effort to produce the witness violated defendant’s right to confrontation.

On review of that decision, the supreme court of Washington noted that the trial court admitted the police officer’s testimony, reciting the alleged victim’s statement, under the “excited utterance” exception to the hearsay rule. The supreme court found the statement properly admitted under that recognized exception and noted that the court of appeals and defendant both relied on Roberts for the broad proposition that the confrontation clause bars admissibility of hearsay statements unless the unavailability of the out-of-court declarant is shown. The Washington Supreme Court then stated the following:

“Roberts considered an Ohio statute that required a showing of unavailability for admission of prior testimony. In the present case, the statement of [E.S.] was admitted under the excited utterance exception to the hearsay rule which does not require unavailability of the declarant. [Citations.]
Furthermore, United States v. Inadi [citation], limited the Roberts requirement of unavailability to cases involving prior testimony. [Citations.] Ohio v. Roberts, supra, is not authority for requiring a showing of unavailability for admission of an excited utterance. [Emphasis added.]
* * *
The ‘excited utterance’ exception to the hearsay rule applies even though the declarant is available as a witness. A showing of unavailability is not required. [Emphasis added.] [Citations.] The theory of this exception which vouches for its reliability is that the stress of the event suppresses the reflective faculties of the declarant with the result that the utterances are sincere and spontaneous. * * *
*** Although statements of co-conspirators are an exemption to the hearsay rule and excited utterances are an exception to the hearsay rule, Inadi noted that the same confrontation clause principles apply to both exemptions and exceptions.” (Emphasis in original unless otherwise noted.) Palomo, 113 Wash. 2d at 795-97, 783 P.2d at 578-79.

The court concluded by noting that defendant was not denied his sixth amendment right to confrontation. “Under the excited utterance exception to the hearsay rule, [E.S.’s] out-of-court statement is admissible without a showing of her unavailability.” Palomo, 113 Wash. 2d at 798, 783 P.2d at 579-80.

In People v. Ingram (1987), 162 Ill. App. 3d 257, 515 N.E.2d 1252, this court was presented with the same argument that is being made in the present case, i.e., that before a spontaneous declaration can be received into evidence, the confrontation clause normally requires a showing that the out-of-court declarant is unavailable. Roberts and Inadi were considered, and this court then rejected this argument, holding as follows:

“In United States v. Inadi [citation], the court held the Roberts requirement of a showing of unavailability was inapplicable to the coconspiracy exception to the hearsay rule. The court noted that Roberts, which addressed the admissibility of prior testimony, should be limited to its facts. It does not stand for the proposition that no out-of-court statement is admissible absent a showing of unavailability.
In Illinois prior to admission of an out-of-court statement under the spontaneous declaration exception to the hearsay rule, the statement must meet three criteria: (1) it must have resulted from an occurrence which is sufficiently startling that it was likely to produce a spontaneous and unreflecting statement; (2) it must have been made before there was time to fabricate the statement; and (3) it must have been related to the occurrence. People v. Lewis [citation]; People v. McNeal [citation]; People v. Fields [citation].
Defendant argues that Roberts modified State law concepts by adding requirements of unavailability and reliability and spontaneous declarations from unknown declarants can never be admitted. He urges this court to overrule McNeal to the extent that it is inconsistent with Roberts. In McNeal, defendant was convicted of aggravated battery arising out of a fight which occurred in a tavern. A witness testified that he heard an unknown declarant advise the defendant not to do it immediately prior to defendant’s shooting the victim. The court held the testimony was admissible regardless of the declarant’s presence at trial because it met the criteria set forth for an excited utterance. [Citations.] ***
Roberts as interpreted by Inadi does not require a modification of McNeal.” Ingram, 162 Ill. App. 3d at 260-61, 515 N.E.2d at 1254.
We reaffirm our holding in Ingram.

IV. SENTENCING ISSUES

Defendant was convicted of aggravated criminal sexual assault, residential burglary, and unlawful restraint, and he was sentenced respectively to 10 years, 6 years, and 2 years in prison. Each of these sentences was ordered to run concurrently with the others. Aggravated criminal sexual assault is a Class X felony (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(c)), meaning it is a nonprobationable offense that carries a possible prison sentence of not less than 6 years nor more than 30 years (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(3)). Residential burglary is a Class 1 felony (Ill. Rev. Stat. 1987, ch. 38, par. 19—3(b)), meaning it carries a possible prison sentence of not less than 4 years and not more than 15 years (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(4)). Unlawful restraint is a Class 4 felony (Ill. Rev. Stat. 1987, ch. 38, par. 10—3(b)), meaning it carries a possible prison sentence of not less than one year nor more than three years (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(7)).

At the sentencing hearing, the court permitted a sheriff’s investigator, over defense counsel’s objection, to testify to a conversation the investigator had with a seven-year-old female. The child said defendant entered her bedroom while she was asleep, took off his pants and underwear, removed the child’s pajama bottoms and undies, and then hurt the child by lying on top of her. She told the investigator that she called for her mother, who eventually entered the room and told the defendant to leave the residence. Citing People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, defendant argues that the admission of this hearsay evidence, in the absence of any corroboration, was error because the evidence was not reliable and improperly prejudiced him in the eyes of the sentencing court.

Upon review of defendant’s record and the circumstances of the offenses he committed, we conclude we need not concern ourselves with whether the testimony of the sheriff’s investigator was properly received in evidence at the sentencing hearing. See People v. Mitchell (1981), 98 Ill. App. 3d 398, 424 N.E.2d 658 (remand for resentencing not necessary where the record does not affirmatively demonstrate that the matter complained of was a factor in the sentence imposed).

At the time of the sentencing hearing in November 1988, defendant was 36 years old. In the six years prior to that date, he had been convicted of four separate felony offenses (burglary, two counts of aggravated battery, and felony criminal damage to property), as well as two Class A misdemeanors (theft and criminal damage to property). Defendant had been sentenced to multiple periods of probation and had received a three-year sentence to the Department of Corrections in December 1984. Despite this miserable record of criminality, defendant received only a 10-year sentence on the most serious of the offenses of which he was convicted, aggravated criminal sexual assault. We note that the sentence imposed is only four years above the statutory minimum, and it is 20 years below the statutory maximum.

As to the defendant’s specific criminal behavior in this case, the record shows that at 4 a.m., defendant surreptitiously entered the home of a former girlfriend (who he had reason to believe would not be home) and sexually assaulted a four-year-old child as she slept in her bed. A remand for resentencing on these facts with this defendant’s criminal history is unnecessary because we can hardly imagine how a sentence of less than 10 years could be imposed. Accordingly, viewing any claimed error in the admission of evidence at the sentencing hearing in a light most favorable to the defendant, we hold any such error could not have been prejudicial.

For the reasons stated, the judgment and sentences imposed are affirmed.

Affirmed.

KNECHT, P.J., concurs.

JUSTICE McCULLOUGH,

specially concurring:

The trial court should be affirmed.

I agree with the majority, the testimony of Grigsby and Lewis falls within the spontaneous declaration exception to the hearsay rule. Also, the testimony of Reents and Meinzen was admissible pursuant to section 115—13 (Ill. Rev. Stat. 1987, ch. 38, par. 115—13).

I do not agree with the necessity, relevance, or reasoning of the extended discussion of unavailability and confrontation. Inadi, as the majority points out, involved the admissibility of a coconspirator’s statements. This is not the case here. Once we determine the evidence is admissible under the spontaneous declaration exception to the hearsay rule, or proper under section 115—13, confrontation or availability is gone. As stated in the Handbook of Illinois Evidence: “Exceptions to the general rule excluding hearsay other than admissions *** are separated into two categories: those exceptions that are not affected by the availability or unavailability of the declarant, §803 infra, and those exceptions that require that the declarant be unavailable before the hearsay statement may be admitted, §804 infra.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.1, at 545 (4th ed. 1984).

Two statements, Grigsby’s and Lewis’, are spontaneous declarations. This hearsay exception is “ ‘firmly *** rooted in our jurisprudence.’ ” (Coy v. Iowa (1988), 487 U.S. 1012, 1021, 101 L. Ed. 2d 857, 867, 108 S. Ct. 2798, 2803, quoting Bourjaily v. United States (1987), 483 U.S. 171, 183, 97 L. Ed. 2d 144, 157, 107 S. Ct. 2775, 2783.) Availability or confrontation is not a needed element or criterion. Ingram, 162 Ill. App. 3d 257, 515 N.E.2d 1252.

The admissibility of the statements made to Reents and Meinzen was proper under section 115—13. Likewise, availability and confrontation are neither elements nor required for admissibility. The statements were made for proper diagnosis or treatment and met the requirements of the statute, as well as the long-standing rule.

Roberts involved a different factual setting concerning availability: preliminary hearing testimony used at trial. Here, the statement from Roberts (488 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539), “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception,” confirmed in Coy, determines the issue.

The statement by the majority, “that we be clear and emphatic in our holding on this point: Whether the out-of-court declarant is unavailable is totally irrelevant to the determination of whether an out-of-court statement of that declarant is admissible under an exception or exemption to the hearsay rule” (198 Ill. App. 3d at 658), is correct as to the issues in this case, spontaneous declaration and medical history, section 115—13. It is not a correct statement as to all hearsay.