NOS. 4-94-1009, 4-94-1010 cons. IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) McLean County AMASA M. PECK, ) Nos. 94CF95 Defendant-Appellant. ) 93CF1106 ) ) Honorable ) Ronald C. Dozier, ) Judge Presiding. _________________________________________________________________ PRESIDING JUSTICE STEIGMANN delivered the opinion of the court: A jury convicted defendant, Amasa M. Peck, of four counts of aggravated criminal sexual assault, committed upon his two daughters under 13 years of age (720 ILCS 5/12-14(b) (West 1992)). He was sentenced to concurrent 15-year prison terms on three counts, and eight years on the last count, to run consecu- tively to the others. Defendant appeals, arguing the trial court erroneously (1) admitted hearsay testimony in violation of sec- tion 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 1992)); (2) spoke to the jurors after they returned the guilty verdicts and discussed the credibility of certain evidence prior to ruling on the post-trial motion; and (3) admitted an audiotape of an interview with one victim. We reverse and remand for a new trial. I. BACKGROUND The material in this section is not to be published pursuant to Supreme Court Rule 23. Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994. [The following material is not to be published pursuant to Su- preme Court Rule 23.] In December 1993, the State charged defendant with two counts of aggravated criminal sexual assault, alleging penile- vaginal penetration with H.P. (six years old at the time of the offenses and seven years old at trial) sometime between (1) June and July 1993 and (2) September and October 1993. In January 1994, the State charged defendant with three counts of aggravated criminal sexual assault sometime between June and October 1993. Those counts alleged (1) penile-vaginal penetration with J.P. (seven years old at the time of the offenses and eight years old at trial), (2) conduct involving defendant's hand and J.P.'s vagina, and (3) conduct involving defendant's penis and J.P.'s mouth. A. The Section 115-10 Hearing In February 1994, the State filed a notice of intent-- under section 115-10 of the Code--to offer at defendant's trial statements H.P. made to her mother (Annette Peck), her aunt (Sharon Foley), and to Mel Devall, a child protective services investigator for the Illinois Department of Children and Family Services (DCFS). In March 1994, the State filed another such notice of intent to offer statements J.P. made to her mother, Devall, and David Deerwester, a McLean County deputy sheriff. In September 1994, the trial court conducted a section 115-10 hearing, and the following testimony was presented. Devall testified that on October 27, 1993, he interviewed H.P. and J.P. at their home pursuant to abuse reported to DCFS. Dur- ing that interview, J.P. denied that defendant had touched her, but stated that she had seen him touch H.P. with his hand as J.P. watched from a tree. H.P. told Devall that defendant had touched her "in a bad way" twice in her maternal grandmother's kitchen. Devall also stated that he interviewed J.P. and H.P. again on January 25, 1994, at their grade school, and J.P. told him that defendant had penetrated her vagina with his finger and penis. Devall further testified that he and Deerwester inter- viewed J.P. a second time on January 25, 1994, at the sheriff's department. During the interview--which the officers audio- taped--Devall asked more leading questions of J.P. because she was not as responsive as she had been earlier. Deerwester testi- fied that he was present at the interview at the sheriff's de- partment. During that interview, J.P. indicated that defendant had touched her and H.P., as follows: "Q. [Deerwester]: *** Did daddy ever touch you in a bad way? * * * A. [J.P.]: *** [M]e and my sister went into the living room and sat down and watched t.v. and daddy was over on the couch and I was on a chair with my sister. Q. [Devall]: What happened next? A. I forgot. Q. [Devall]: You said daddy touched you in a bad way. What room were you in when daddy touched you *** this was at Grandma's house wasn't it? A. In the living room. * * * Q. [Devall]: That was one of the times. How did daddy touch you in a bad way? Remember what you said earlier, now, you need to tell the truth. [J.P.], how did daddy touch you in a bad way? What part of your body did daddy touch in a bad way? A. The front part. * * * Q. [Deerwester]: *** [W]as this on the outside of your clothing or was this on the inside of your clothing? A. Outside of my clothing. * * * Q. [Devall]: O.k., now daddy touched it on the outside of the clothing. Did he also touch it on the inside of the clothing? A. Yeah. Q. [Deerwester]: *** Did daddy's finger go inside or outside of your private? A. Outside. Q. Did it go inside some? A little bit? A. Yeah. Q. Is that what you said before, that it went inside a little bit? A. Yeah. * * * Q. Did he touch [H.P.] in the same way in the living room at Grandma's house? Do you remember? A. Yeah. Q. How did daddy touch [H.P.]? A. Well, uh *** Q. Did he touch [H.P.] in a bad way? A. Yes. Q. What part of [H.P.'s] body did he touch? Do you remember? He just touched her in a bad way? A. Yeah. * * * Q. O.k. Did you ever see anything come out of your daddy's private? A. White stuff, sticky stuff. Q. White sticky stuff. Q. [Deerwester]: When did you see that honey? A. [H.P.] told me that daddy had white sticky stuff coming out of *** Q. [H.P.] told you? Did you ever see it or she just told you? A. She told me. * * * Q. [Devall]: Did you actually see it happen though with daddy? You saw daddy touching [H.P.]. How did you see daddy touching [H.P.]? Honey, you need to tell the truth. You need to remember. What part of daddy's body touched [H.P.]? A. His hand. * * * Q. [Deerwester]: Did you[r] daddy's private part ever touch your private part? A. I don't know. Q. You don't know if it did or not? Did you ever see daddy's private part touch your sister[']s private part? A. I don't know about that one either. Q. [Devall]: Would you remember some- thing like that if it happened? Do you think it happened or did it not happen? Do you remember what you told us earlier? A. I think it did. Q. Did you see it happen? Use your words honey. Did you see it happen? A. Yeah. * * * Q. Did you see it happen in the kitchen once too? A. Yeah. Q. Did it happen to you in the kitchen once too? A. Yeah. Q. The same thing? Daddy's private touched your private? What happened in there? * * * Q. Which clothes did he take off? Did he take off [H.P.'s] socks? What did he take off? You tell us what he took off. A. Took off the socks, shirt *** * * * Q. How about underpants? A. No. Q. He didn't take his underpants off? He left them on? Where were they when he touched your private on his body? Were they all the way up or were they half way down or were they all the way off? A. All the way off. * * * Q. Who took [H.P.'s] underwear off? A. He did. * * * Q. How many times did you see daddy touch [H.P.] in a bad way? A. Two times. Q. Once in the kitchen and once in the living room? A. Yes. Q. Did you also see him touch her one time when you were up in a tree? A. Yeah." Teresa Smith, H.P. and J.P.'s former school principal, testified that she and a student intern were present when Devall interviewed J.P. and H.P. on January 25, 1994, at school. During the interview, J.P. stated that defendant had touched her "in a bad way," by inserting his finger in her vagina, attempting to touch her with his penis, and attempting to put his penis in her mouth. J.P. also stated that she watched from a tree as defen- dant touched H.P with his penis. H.P. stated that defendant had touched J.P. "in a bad way." Nancy Pochel, H.P. and J.P.'s foster mother, testified that when she asked J.P. (after they had been living with her for six to eight weeks) why she was in foster care, J.P. stated that it was because defendant had touched her "private" with his hand. That day, she asked H.P. the same question, and H.P. stated that she knew why she was there. Pochel then asked if it was because defendant touched her with his hand, and H.P. responded that it was because defendant touched her with his "private." Foley testified that on one occasion, H.P. told her that defendant had caused H.P.'s vagina to become red and sore. On cross-examination, Foley stated that on that same occasion, H.P. also said J.P. was responsible. Peck stated on cross-exami- nation that on that occasion, H.P. told her that J.P. was respon- sible for H.P.'s sore vagina. Peck also stated that H.P. and J.P. knew what a penis looked like because they have a four-year- old brother. The trial court determined that the statements made by H.P. and J.P. to Foley, Peck, Devall, Deerwester, Smith, and Pochel, including the audiotaped statements, were admissible pursuant to section 115-10 of the Code. B. The Trial Testimony At defendant's trial, J.P. initially testified that she did not think that anything "bad" had happened between her and defendant. J.P. then stated that defendant touched her with his private area when they were in her maternal grandmother's living room and bathroom. J.P. further stated that defendant's private area touched the inside of her private area, and that her private area was below her waist and between her legs. J.P. stated that she never saw "anything unusual" come out of defendant's private area. J.P. also stated that she never saw defendant touch H.P. in a bad way. H.P. next took the stand and answered some preliminary questions as to her name and age. However, after several at- tempts at questioning her further failed, the court excused her as a witness. Foley testified that on October 3, 1993, H.P. called her into the bathroom and complained that her vagina was red and sore. Foley asked H.P. how it happened, and H.P. said that her "daddy did it." On cross-examination, Foley stated that H.P.'s vagina becomes red and sore when she drinks too much soda, and after H.P. said "daddy did it," she also said J.P. was responsi- ble for making her vagina sore. Peck testified that she was also present in early Octo- ber 1993 when H.P. complained about her vagina (although she entered the bathroom after Foley). Peck stated that H.P. "was a little red down below," and that she had seen H.P.'s vagina in that condition "several times" before, including after H.P. vis- ited with defendant in July 1993. On cross-examination, Peck stated that H.P.'s vagina becomes red when she drinks too much soda and that H.P. told her that J.P. was responsible for making her vagina sore. Devall testified that he interviewed J.P. and H.P. on October 27, 1993, at their home. J.P. denied that anyone had touched her in a bad way. However, J.P. told him she had seen defendant touch H.P. between the legs one time when J.P. was playing in a tree and defendant and H.P. were near the kitchen door. Devall also stated that, during this interview, H.P. told him defendant had twice touched her in a bad way. H.P. stated that defendant tried to put his "pee pee" inside her "pee pee," and that he did not stop until he "peed." H.P. also stated that defendant tried to put his "pee pee" inside of her "butt." Devall also testified that on January 25, 1994, he interviewed H.P. and J.P. at their grade school. During that interview, H.P. stated that she had seen defendant touch J.P. in their grandmother's kitchen. However, H.P. did not elaborate on that incident. J.P. stated that defendant (1) touched her with his left hand, (2) touched the inside of her vagina with his penis on two occasions and white sticky stuff came out, and (3) tried to put his penis inside her mouth and inside H.P.'s mouth. J.P. further stated that she had seen her father touch H.P. with his penis and "white sticky stuff" come out. Devall also testified that he and Deerwester inter- viewed J.P. again on January 25, 1994, at the sheriff's depart- ment. Devall stated that J.P. was unwilling to answer questions and he asked her leading questions based upon what J.P. stated earlier. Deerwester testified that he and Devall interviewed J.P. at the sheriff's department on January 25, 1994, and that he audiotaped the interview. The State, over defense counsel's "continuing objection on the hearsay aspect" of the recording, played the audiotape of the interview for the jury. Next, the parties stipulated to what the testimony of Dr. J.K. Patel would have been had he testified. Patel, a pedia- trician, examined J.P. and H.P. in October 1993, and January 1994. During both examinations, Patel found the hymen and geni- talia of J.P. and H.P. were normal. These findings are not con- sistent with full penetration; Patel would expect to observe injury or trauma in the event of full penetration and he observed none. These findings are neither consistent nor inconsistent with slight penetration of or rubbing the exterior portions of the victims' vaginas. Smith and Pochel testified substantially the same as they had at the section 115-10 hearing. Defendant testified and denied committing the crimes charged. On this evidence, the jury convicted defendant. [The preceding material is not to be published pursuant to Su- preme Court Rule 23.] II. HEARSAY STATEMENTS ADMITTED PURSUANT TO SECTION 115-10 Defendant argues the trial court erred by admitting out-of-court statements made by J.P. regarding defendant's acts involving H.P. and an out-of-court statement made by H.P. regard- ing defendant's acts involving J.P. We agree. Section 115-10(a)(2) of the Code provides as follows: "(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, ***, the following evidence shall be admitted as an exception to the hearsay rule: *** (2) testimony of an out[-]of[-]court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecu- tion for a sexual act perpetrated upon a child." (Emphasis added.) 725 ILCS 5/115- 10(a)(2) (West 1992). In People v. Embry, 249 Ill. App. 3d 750, 763, 619 N.E.2d 246, 255 (1993), this court construed section 115-10(a)(2) of the Code as "limiting the admission of out-of-court statements to those pertaining to an act, matter, or detail of a sexual offense com- mitted upon the declarant child victim." However, this court also held that an exception exists where statements of a child about defendant's acts involving another child are "components of the contemporaneous and ongoing series of events constituting a matter or detail pertaining to the offense perpetrated against [the declarant] herself." (Emphasis in original.) Embry, 249 Ill. App. 3d at 763, 619 N.E.2d at 255. A. Burden of Establishing Admissibility of Hearsay Statements Pursuant to Section 115-10 Initially, we address the State's argument that the out-of-court statements at issue are admissible even though--the State concedes--it is unclear whether defendant's acts on the other child occurred contemporaneously with the acts perpetrated against the declarant. The State contends defendant bears the burden to show the statements concerned separate occurrences. We disagree. In People v. Zwart, 151 Ill. 2d 37, 43, 600 N.E.2d 1169, 1171 (1992), the supreme court held that the State, as the proponent of statements sought to be admitted pursuant to section 115-10 of the Code, bears the burden of establishing that they were reliable and not the result of adult prompting or manipu- lation. Similarly, we conclude the State, as the proponent of the statements here, bears the burden of establishing that the statements made by a child regarding defendant's acts against another child involve "components of the contemporaneous and ongoing series of events constituting a matter or detail pertain- ing to the offense perpetrated against [the declarant] herself." (Emphasis in original.) See Embry, 249 Ill. App. 3d at 763, 619 N.E.2d at 255. Whether the statement qualifies as such depends on the particular circumstances in a given case. Some relevant considerations are the following: (1) the relationship of the declarant to the child upon whom the witnessed sexual act is perpetrated; (2) the proximity of such act--in time and place--to the act allegedly performed upon the declarant; (3) the similari- ty of the two acts; and (4) the existence of a common perpetra- tor. These considerations may be significant in explaining the declarant's willingness to submit to similar sexual acts, as well as her reluctance to resist, cry out, or complain to others. B. Admissibility of Section 115-10 Hearsay In this case, the trial court conducted a hearing and determined that statements J.P. and H.P. made to their aunt (Fo- ley), their mother (Annette), Smith (the girls' former school principal), Pochel (foster mother), Devall (DCFS investigator), and Deerwester (deputy sheriff), including the audiotaped state- ments of the January 25, 1994, interview of J.P. at the sheriff's department, were admissible. The jury heard, through the audiotape, one statement by J.P. which constituted double hearsay--namely, that H.P. told J.P. that H.P. had seen "white sticky stuff" coming out of defendant's penis. Such double hearsay does not come within the exception set forth in Embry. See Embry, 249 Ill. App. 3d at 763, 619 N.E.2d at 255; see also People v. Petitt, 245 Ill. App. 3d 132, 142, 613 N.E.2d 1358, 1367 (1993). Further, the trial court admitted three hearsay state- ments by J.P. which clearly did not involve a matter or detail pertaining to an act committed contemporaneously against J.P. Devall testified that during his initial interview of H.P. and J.P. in October 1993, J.P. told him she watched from a tree as defendant touched H.P. with his hand. The audiotape contained a substantially similar hearsay statement by J.P. Finally, Smith testified that during Devall's January 25, 1994, interview of H.P. and J.P. at school, J.P. stated that as she watched from a tree, defendant touched H.P. with his penis. The trial court also admitted five hearsay statements by J.P. and one hearsay statement by H.P. which were unclear as to whether they constituted a matter or detail pertaining to an act committed contemporaneously against the declarant child. Devall testified that during the interview at school, J.P. stated she had seen defendant touch H.P. with his penis. The audiotape contained four hearsay statements by J.P. which were similarly unclear: (1) J.P. stated she had seen defendant touch H.P. with his hand, but no other part of his body; (2) she had seen "it" happen to H.P. in her grandmother's living room; (3) she saw defendant's "private" touch H.P.; and (4) she saw defendant's "private" go inside H.P.'s mouth "a little bit." Devall also testified that during the interview at school, H.P. told him she had seen defendant touch J.P. "in a bad way" in her maternal grandmother's kitchen. Under the interpretation of section 115-10 as set forth in Embry (249 Ill. App. 3d at 763, 619 N.E.2d at 255), we con- clude the trial court erred by admitting (1) one double hearsay statement by J.P., (2) three hearsay statements by J.P. which clearly did not involve a detail pertaining to an act committed against J.P., and (3) five hearsay statements by J.P. and one by H.P. which were unclear regarding whether they constituted a matter or detail pertaining to an act committed contemporaneously against the declarant child victim. The State maintains that any error in admitting the hearsay statements at issue was harmless. We disagree. The trial court erred by admitting 10 hearsay statements by J.P. and H.P. through two trial witnesses and the audiotape. The evidence against defendant was not overwhelming. Both Foley and Peck testified that H.P.'s vagina becomes red and sore when H.P. drinks too much soda. Peck also stated that J.P. never has vagi- nal redness. Also, the statements by J.P. and H.P. contained inconsistencies. H.P. blamed both defendant and J.P. for her sore vagina; during the two interviews on January 25, 1994, J.P.'s statements about the incident she watched from the tree were inconsistent as were those regarding whether she saw "white sticky stuff" coming from defendant's penis. (At one point, J.P. stated that H.P. told her about the "white sticky stuff"). In addition, the medical testimony indicated that Dr. Patel's find- ings were inconsistent with full vaginal penetration and incon- clusive as to "slight penetration." Although we reverse, we conclude that the remaining evidence was sufficient to support a finding of guilt beyond a reasonable doubt. Thus, defendant faces no risk of double jeop- ardy on retrial. See People v. Cruz, 162 Ill. 2d 314, 374, 643 N.E.2d 636, 664 (1994). III. ISSUES ON REMAND We now consider issues likely to arise on remand. A. Trial Judge's Post-Verdict Meeting with Jurors Defendant argues the trial court erred when it spoke to jurors after they returned the guilty verdicts and discussed with them the credibility of certain evidence prior to ruling on defendant's post-trial motion challenging the sufficiency of the evidence. We disagree. The law assumes that the trial court, in a bench pro- ceeding, considers only competent evidence and "[t]his assumption will be overcome only if the record affirmatively demonstrates the contrary, as where it is established that the court's finding rests on a private investigation of the evidence, or on other private knowledge about the facts in the case." (Emphasis add- ed.) People v. Tye, 141 Ill. 2d 1, 26, 565 N.E.2d 931, 943 (1990). Thus, the record must affirmatively show that the trial court considered and, in fact, rested its determination on the jurors' comments. In ruling on the post-trial motion, the trial court stated the following: "THE COURT: [T]he *** Court believes that the judgments [it] made *** are in ac- cordance with both the letter and the spirit of [s]ection 115-10; and [it] understands the concern of defense counsel *** in terms of the difficulty of trying to cross[-]exam[ine] those statements [made by J.P. and H.P.]. Nevertheless, the defense counsel is not without recourse in that situation. In fact, in talking to some of the jurors afterwards they thought defense counsel did an excellent job with Mr. Devall and Mr. Deerwester's testimony regarding the tape[-]recorded in- terview in the nature of the leading ques- tions, but *** the jurors[] found the testi- mony of *** Smith[] to be extremely compel- ling; and to a lesser extent, only because it was not very lengthy, the testimony of the foster mother ***." In context, these remarks were directed at defense counsel's concerns about his inability to effectively cross-exam- ine witnesses offering hearsay evidence. We conclude this does not affirmatively show that the court considered or based its de- termination on the jurors' comments in deciding the post-trial motion. It is a common and accepted practice for trial courts to meet with jurors after they have reached a verdict--provided, of course, the jurors' term of service has been entirely complet- ed. The purpose is to assure them that they did a good job and answer questions. Although we do not want to discourage this practice, we note that it is not necessary for the court to in- quire about the jury's analysis of the case--particularly when post-trial motions are to be filed. The post-verdict meeting offers an opportunity for the trial court--not the jurors--to answer questions. Even if the trial court had relied upon the jurors' comments, the relief defendant requests--a new trial--would not follow. Instead, the appropriate remedy would be to vacate the denial of the post-trial motion and remand for consideration anew by a different judge. B. The Admissibility of an Audiotaped Out-of-Court Statement Made by a Child Victim Pursuant to Section 115-10 Defendant argues section 115-10 of the Code does not allow the admission of an audiotaped out-of-court statement of a child victim because it does not specifically provide for the introduction of such evidence. We disagree. Defendant directs us to the decision of the Second District Appellate Court in People v. Mitchell, 225 Ill. App. 3d 708, 717, 588 N.E.2d 1247, 1253 (1992), which so held. However, we are not bound by that court's holding and choose not to follow it. In construing a statute, a court must ascertain and give effect to the legislature's intent in enacting it. Collins v. Board of Trustees of the Firemen's Annuity & Benefit Fund, 155 Ill. 2d 103, 110, 610 N.E.2d 1250, 1253 (1993). Legislative intent is best determined by the language of the statute. People v. Ferrell, 277 Ill. App. 3d 74, 77, 659 N.E.2d 992, 995 (1995). Although this court in Bridgewater (259 Ill. App. 3d at 349, 631 N.E.2d at 782) wrote that "in light of the principles surrounding the admission of a statement as an exception to the hearsay rule, section 115-10 of the Code should be narrowly construed," a stat- ute should nonetheless be read as a whole and its language given its plain meaning (Ferrell, 277 Ill. App. 3d at 77, 659 N.E.2d at 995). A court also must consider the reason and necessity for the law, as well as its objective. Collins, 155 Ill. 2d at 111, 610 N.E.2d at 1253. In addition, a court should give a statute capable of two interpretations the one which is reasonable and which will not produce absurd, unjust, unreasonable, or inconve- nient results the legislature could not have intended. People v. Stanciel, 153 Ill. 2d 218, 233-34, 606 N.E.2d 1201, 1210 (1992). Child sexual abuse cases present special problems that make their prosecution more difficult than cases involving adult victims. The most obvious is that the child victim (usually the sole witness to the offense) may be unable to testify adequately --or at all--regarding what occurred, because of guilt, fear, or intimidation. In response, the legislature enacted the original version of section 115-10 of the Code in 1983 (Pub. Act 82-782, 1, eff. January 1, 1983 (1982 Ill. Laws 220)), which required the child victim to testify at trial and specifically provided for the admission of "testimony by the person to whom the child complained that such complaint was made in order to corroborate the child's testimony." Ill. Rev. Stat. 1983, ch. 38, par. 115- 10. Effective January 1, 1988, section 115-10(a)(2) was amended (Pub. Act 85-837, 1, eff. January 1, 1988 (1987 Ill. Laws 3471)), eliminating the provision that the "person to whom the child complained" (emphasis added) (Ill. Rev. Stat. 1985, ch. 38, par. 115-10(a)(2)) may testify, and rewriting it to provide that "testimony of an out[-]of[-]court statement made by such child describing any complaint" (emphasis added) (Ill. Rev. Stat. 1987, ch. 38, par. 115-10(a)(2)) is admissible, if the provisions of that section are met, including a determination of sufficient safeguards of reliability. Currently, section 115-10 reads, in relevant part, as follows: "(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, ***, the following evidence shall be admitted as an exception to the hearsay rule: *** (2) testimony of an out[-]of[-]court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecu- tion for a sexual act perpetrated upon a child. (b) Such testimony shall only be admit- ted if: (1) The court finds in a hearing con- ducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (2) The child either: (A) Testifies at the proceeding; or (B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement." (Emphasis added.) 725 ILCS 5/115-10 (West 1992). In light of the necessity for section 115-10, and giv- ing the statutory language its plain and reasonable meaning, we conclude "testimony of an out[-]of[-]court statement made by such child describing any complaint" includes an audiotape of an out- of-court statement made by a child victim, provided that it is otherwise admissible under that section and the party offering it lays a proper foundation. 725 ILCS 5/115-10(a)(2) (West 1992). In support of our conclusion, we note that Devall tes- tified verbatim--with the assistance of his notes--regarding the questions asked and the answers given during his initial inter- view with H.P. in October 1993. Allowing the jurors to hear an audiotape of an interview with a child victim (which otherwise meets all statutory requirements) is essentially the same as allowing a witness to testify verbatim regarding the statements made by a child victim during such an interview. Indeed, the audiotape possesses more probative value than a witness' testify- ing verbatim from notes because the audiotape reveals the tone, pauses, certainties, and nuances of the witness statements. To interpret the statute as defendant requests produces an unreason- able result--keeping from the jury the most probative evidence available on a critical issue--that our legislature could not have intended. Defendant also errs by relying on People v. Bastien, 129 Ill. 2d 64, 541 N.E.2d 670 (1989). In Bastien, the supreme court held unconstitutional a statute authorizing the admissibil- ity of the videotaped statement of the child victim in a sexual abuse case when the victim was available at trial for cross-exam- ination. Bastien, 129 Ill. 2d at 79-80, 541 N.E.2d at 677. Unlike this case, the statute in Bastien involved videotaping a child victim's "statement or testimony" for use at trial without --as was done here--first determining whether the circumstances surrounding the videotaping contained sufficient safeguards of reliability. Bastien, 129 Ill. 2d at 68-69, 541 N.E.2d at 672. C. The Trial Court's Decision to Admit the Audiotape Defendant argues that even if the audiotape of the interview of J.P. is admissible pursuant to section 115-10 of the Code, it was error to admit it because it lacked any "particular- ized guarantees of trustworthiness" as required by Idaho v. Wright, 497 U.S. 805, 814-15, 111 L. Ed. 2d 638, 651-52, 110 S. Ct. 3139, 3146 (1990), and thus violated the confrontation clause. In People v. Coleman, 205 Ill. App. 3d 567, 584, 563 N.E.2d 1010, 1021 (1990), this court held the following regarding Wright's impact on section 115-10: "Wright has more particularly indicated what is needed to meet this requirement [of par- ticularized guarantees of trustworthiness]. Accordingly, it is necessary to construe the general language of section 115-10(b)(1) to be in line with the more particular language of Wright. Thus, the required finding [under section 115-10(b)(1)] that the statement pro- vides 'sufficient safeguards of reliability' must be understood to be of a comparable nature with a finding that the circumstances of the statement render the declarant 'par- ticularly worthy of belief'." People v. Barger, 251 Ill. App. 3d 448, 462, 624 N.E.2d 405, 413- 14 (1993), also addressed this issue: "[T]he standards regarding the right to con- frontation provide guidance on how to inter- pret the requirement of section 115-10 *** that the time, content, and circumstances of the hearsay statements provide sufficient safeguards of reliability. In Idaho v. Wright (1990), 497 U.S. 805, 814, 111 L. Ed. 2d 638, 651-52, 110 S. Ct. 3139, 3146, the United States Supreme Court held that incriminating hearsay statements *** must bear adequate 'indicia of reliabili- ty.' Such 'indicia of reliability' can come from the statement's fitting into one of the firmly established hearsay rules or by 'a showing of particularized guarantees of trustworthiness.' Wright, 497 U.S. at 816, 111 L. Ed. 2d at 653, 110 S. Ct. at 3147. *** The Court listed some factors to consider when determining the reliability of such hearsay statements, including, but not limited to, (1) spontaneity and consistent repetition, (2) the mental state of declar- ant, (3) use of terminology unexpected of a child of a similar age, and (4) lack of mo- tive to fabricate. Wright, 497 U.S. at 821- 22, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150." We now clarify Coleman and Barger and expressly hold that section 115-10 incorporates the Wright criteria, with the result that--by definition--if the child victim's statement meets the require- ments of section 115-10, it also meets all requirements of Wright. In so holding, we reject the analysis asserted in the specially concurring opinion that "the confrontation clause per- mits hearsay evidence which does not fall within a firmly rooted hearsay exception only when use of that evidence is necessary, only when the declarant is unavailable to testify in court." Slip op. at 32. The specially concurring opinion quotes a por- tion of Wright (which in turn quoted Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980)) as authority for the assertion that the prosecution must either produce--or demon- strate the unavailability of--the hearsay declarant. However, in White v. Illinois, 502 U.S. 346, 354, 116 L. Ed. 2d 848, 858, 112 S. Ct. 736, 741 (1992), written two years after Wright and 12 years after Roberts, the Supreme Court explicitly overruled Rob- erts on this point, "clarifying" that case as standing "for the proposition that unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenged out-of- court statements were made in the course of a prior judicial proceeding"--which, of course, was the situation in Roberts and decidedly not in either Wright or this case. Thus, White stripped away the sole foundation for the specially concurring opinion's analysis--the obiter dicta unfortunately inserted into Roberts. Further, attempts to limit White's rejection of Roberts' dicta on the ground that White dealt with firmly rooted hearsay exceptions--spontaneous declarations and statements made to medical personnel--are not persuasive because, throughout White's lengthy analysis rejecting Roberts, the Court never once mentions the particular hearsay exceptions at issue in White. Indeed, in a footnote in White, the Court defines the so-called "unavailability rule"--which definition is essentially the same as that asserted in the specially concurring opinion--and then provides several reasons why "there is little benefit, if any, to be accomplished by imposing an 'unavailability rule.'" White, 502 U.S. at 354 & n.6, 116 L. Ed. 2d at 858 & n.6, 112 S. Ct. at 742 & n.6. Section 115-10(b) provides that certain evidence shall be admitted as an exception to the hearsay rule under the follow- ing circumstances: "(1) The court finds in a hearing con- ducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (2) The child either: (A) Testifies at the proceeding; or (B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement." 725 ILCS 5/115-10(b) (West 1992). As we have indicated, the State, as the proponent of these statements, bears the burden of establishing they were reliable and not the result of adult prompting or manipulation, and we will not reverse a trial court's determination unless the court abused its discretion (Zwart, 151 Ill. 2d at 43, 44, 600 N.E.2d at 1171, 1172). Here, Devall and Deerwester interviewed J.P. at the sheriff's office after interviewing her earlier that same day; the second interview contained numerous leading and suggestive questions. Although Devall interjected comments such as "remem- ber what you said earlier," he also frequently refused to accept J.P.'s initial response and suggested answers. As one example, Devall questioned J.P. about how defendant touched her on one occasion: "Q. So, daddy's private touched your private? Was it on the outside of the cloth- ing or the inside of the clothing? A. Outside. Q. O.k., did it touch it on the inside too? How did daddy's private touch your private? Was it a poke or was it a rub or what, what kind of a touch was it? A. Poke. Q. Did daddy's private go inside of your private? I can't hear you honey. A. Yes." As another example, Deerwester and Devall asked J.P. if defendant touched her with his penis: Q. [Deerwester]: Did you[r] daddy's private part ever touch your private part? A. I don't know. Q. You don't know if it did or not? Did you ever see daddy's private part touch your sister[']s private part? A. I don't know about that one either. Q. [Devall]: Would you remember some- thing like that if it happened? Do you think it happened or did it not happen? Do you remember what you told us earlier? A. I think it did. Q. Did you see it happen? Use your words honey. Did you see it happen? A. Yeah." In addition, J.P. did not make any out-of-court state- ments spontaneously. It was only after her mother's then-boy- friend contacted DCFS that J.P. made incriminating statements during questioning by Devall and Deerwester. J.P.'s statements at the sheriff's department also contained inconsistencies: (1) at one point Devall asked J.P. whether she remembered a time that defendant touched H.P. in the kitchen, and J.P. responded that she did not; later, Devall asked J.P., "Did you see it happen in the kitchen once too?," and J.P. responded that she had; (2) Devall asked J.P. if she had ever seen anything come out of defendant's "private," and J.P. answered "[w]hite stuff, sticky stuff"; Deerwester then asked J.P. when she had seen it, and J.P. said that H.P. had told her about it; and (3) Deerwester asked J.P. if defendant's "private" ever touched J.P.'s "private part," and J.P. said she did not know; eight questions later, Devall asked J.P. the same question, and J.P. said no; Devall then said, "[y]ou don't remember that. *** You remembered one time that that happened. Did that happen?," and J.P. responded, "Yeah." Regarding the descriptive terms used by J.P., in re- sponse to all but one question at the sheriff's office, J.P. referred to her vagina as her "private," or private area or part (terms indicative of a young girl not versed in the nomenclature of bodily organs); however, in response to one of Deerwester's questions regarding what she called her part "[d]own below," J.P. responded, "Vagina. Vagina." Viewing the totality of the circumstances surrounding the statements J.P. made at the sheriff's department--in particu- lar, the frequent leading and suggestive questions--we conclude that the State failed to show the statements possessed sufficient "safeguards of reliability" under section 115-10 of the Code. Accordingly, we hold that the trial court abused its discretion by admitting the audiotape, which precludes its admission on remand. We note in passing that the trial court itself did not find statements made by J.P. at the sheriff's department to be reliable. The court stated, "I could find that the leading na- ture of those questions asked at that interview is such to cast doubt on the reliability, but I think the defense would probably want those." Although the court may have believed it was bene- fitting defendant by admitting the audiotape, it should not have done so over defendant's objection. If defendant wanted the jury to hear the audiotape, he could have offered it. IV. CONCLUSION For the reasons stated, we reverse and remand for a new trial consistent with the views expressed herein. Reversed and remanded. KNECHT, J., concurs. COOK, J., specially concurs. JUSTICE COOK, specially concurring: I disagree with the statement in the majority opinion that if a statement "meets the requirements of section 115-10, it also meets all requirements of Wright." Slip op. at 25. In Wright, quoting Roberts, the court noted that the confrontation clause operates in two separate ways to restrict the range of admissible hearsay. "'First, in conformance with the Framers' pre- ference 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 unavaila- bility of, the declarant whose statement it wishes to use against the defendant.' Ibid. (citations omitted). Second, once a witness is shown to be unavailable, 'his statement is admissible only if it bears adequate "in- dicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.'" Wright, 497 U.S. at 814-15, 111 L. Ed. 2d at 651-52, 110 S. Ct. at 3146, quoting Roberts, 448 U.S. at 65, 66, 65 L. Ed. 2d at 607, 608, 100 S. Ct. at 2538, 2539. In my view, the confrontation clause permits hearsay evidence which does not fall within a firmly rooted hearsay ex- ception only when use of that evidence is necessary, only when the declarant is unavailable to testify in court. A declarant is unavailable where the declarant is present but incapable of com- municating with the jury. Wright, 497 U.S. at 816, 111 L. Ed. 2d at 652, 110 S. Ct. at 3147. Section 115-10 of the Code does not contain any corresponding limitation on the use of hearsay evi- dence to cases where there is a necessity for such evidence. Under section 115-10, any number of witnesses may testify to what the child told them out of court even if the child testifies fully and freely in court. See Barger, 251 Ill. App. 3d 448, 624 N.E.2d 405. Accordingly, I disagree that compliance with section 115-10 insures there will be compliance with the confrontation clause. In White, the Court considered whether the confronta- tion clause required that before a trial court admits testimony under the "spontaneous declaration" and "medical examination" exceptions to the hearsay rule the prosecution must either pro- duce the declarant at trial or the trial court must find that the declarant is unavailable. Disclaiming any intent to establish a wholesale revision of the law of evidence under the guise of the confrontation clause, the Court refused to impose any such re- quirement. "[W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied." White, 502 U.S. at 356, 116 L. Ed. 2d at 859, 112 S. Ct. at 743. Spontane- ous declarations and statements made in the course of receiving medical care are made in contexts that provide substantial guar- antees of their trustworthiness. White, 502 U.S. at 355, 116 L. Ed. 2d at 859, 112 S. Ct. at 742. Section 115-10 is not a firmly rooted exception to the hearsay rule, and White accordingly provides no justification for allowing the admission of hearsay statements under section 115-10 when the child declarant testifies fully and freely in court.