PEOPLE v. EMBRY
619 N.E.2d 246 (1993)
249 Ill. App.3d 750
188 Ill.Dec. 882
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
Clarence E. EMBRY, Defendant-Appellant.
Appellate Court of Illinois, Fourth District.
Argued March 24, 1993.
Decided August 26, 1993.
David W. Butler (Argued), Bloomington, for defendant-appellant.
Charles G. Reynard, State's Atty., Bloomington, Norbert J. Goetten, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Denise M. Ambrose (Argued), Sr. Staff Atty., for plain tiff-appellee.
Presiding Justice STEIGMANN delivered the opinion of the court:
In July 1992, a jury convicted defendant, Clarence E. Embry, of two counts of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse. (Ill.Rev.Stat.1991, ch. 38, pars. 12-14, 12-16.) The court sentenced defendant to two consecutive eight-year terms of imprisonment for the aggravated criminal sexual assault convictions and declined to enter judgments of conviction on the two aggravated criminal sexual abuse charges. Defendant appeals, alleging as error that (1) the court admitted hearsay testimony absent compliance with section 115-10 of the Code of Criminal Procedure of 1963 (Code) (Ill.Rev.Stat.1991, ch. 38, par. 115-10), as well as hearsay testimony which implied an ongoing series of acts; (2) the prosecutor said in his opening statement that the child witnesses would testify about sexual abuse, but neither witness related any of the elements of the offenses charged; (3) the court admitted testimony that the defendant was in the hospital for cannabis use at the time of arrest; (4) the State did not prove him guilty beyond a reasonable doubt; and (5) the court coneluded that consecutive sentences were mandatory.
We affirm.I. BACKGROUND
On the evening of January 2, 1992, defendant baby-sat his next-door neighbor's three daughters—A.P. (age four), H.P. (age six), and E.W. (age nine)—at his trailer. During the evening, E.W. returned home, but her two younger sisters remained overnight at the defendant's trailer. The mother testified at defendant's trial that when the girls returned home the following morning, she smelled semen on A.P. Further, H.P. told her that defendant had pulled his pants down, the girls (A.P. and H.P.) had pulled their pants down, and they all danced around. The mother took all three girls to the Bloomington police department for an interview, but only E.W. and H.P. discussed acts involving A.P. and H.P. None of the girls alleged that defendant had any sexual contact with E.W. The State subsequently charged defendant with two counts of aggravated sexual assault, one count alleging penile-vaginal penetration with A.P. and one count alleging penile-vaginal penetration with H.P., and two counts of aggravated criminal sexual abuse, one count alleging conduct involving defendant's penis and A.P.'s hand and one count alleging conduct involving defendant's penis and H.P.'s leg.
In April 1992, the State filed a notice of intent under section 115-10 of the Code that the State intended to offer statements made by H.P. to her mother and Officers Fazio and Harris of the Bloomington police at defendant's trial. In June 1992, the trial court conducted a section 115-10 hearing at which Fazio testified that H.P. told him that defendant pulled his pants down, she and A.P. pulled their pants down, and A.P. then sat on the defendant's head. H.P. also told him that they were all lying on the floor together, and A.P. had to squeeze the defendant's "peter," after which the defendant "went to the bathroom." Fazio asked H.P. what color came out when defendant went to the bathroom, and H.P. said that sometimes it was white when A.P. sat on
the defendant and sometimes was yellow when he went to the bathroom.
H.P. then demonstrated with two stuffed mice how she and A.P. straddled defendant when he was lying on the floor on his back and told Fazio that neither she nor A.P. were wearing pants when they did so. H.P. also told Fazio that A.P. had to lick the defendant's "peter." At that point, defendant objected to admission of anything H.P. told Fazio regarding acts committed on anyone other than herself. The court overruled the objection, finding that section 115-10 of the Code did not require the out-of-court statements to be limited to acts performed upon the child declarant.