Appeal from the Circuit Court of Kankakee County; the Hon.
Wayne P. Dyer, Judge, presiding.
JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
This is an appeal by the State from an order vacating the conviction of the defendant, Donald Vilt, for deviate sexual assault. The issues raised on appeal concern the following procedural sequence.
The defendant was charged in a four-count indictment with rape, aggravated kidnaping, and two counts of deviate sexual assault. One count of deviate sexual assault charged that the defendant sodomized the victim. The State called as a witness a woman who had previously been assaulted by the defendant in order to prove the defendant's modus operandi. This witness, while testifying as to her experience with the defendant, made no mention of anal intercourse. The victim apparently testified as to the defendant's assault upon her. A part of that assault was anal intercourse.
At the close of the State's case, the defendant orally moved for a directed verdict on the grounds that the State failed to prove venue. In so arguing, counsel for the defendant confused the modus operandi witness with the victim. After the State corrected counsel's misstatement, the trial court denied the motion. The defendant then orally moved for a directed verdict on the count charging deviate sexual assault based on the act of sodomy. The following colloquy occurred:
"THE COURT: That motion will be allowed.
MR. GERTS (The assistant State's Attorney): May I ask why?
THE COURT: Wasn't any evidence of anal sodomy.
MR. GERTS: I think she testified that — Theresa testified of the contact.
THE COURT: Or am I thinking, am I thinking of the other girl?
MR. GERTS: Tami George there was no anal act with.
THE COURT: I am sorry, I am sorry, I am talking, I am thinking of Tami George, that is right.
MR. GERTS: Tami was in the dress.
THE COURT: That motion will ...