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June 12, 1995



As Corrected July 6, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Braden delivered the opinion of the court: Campbell, P.j., and Wolfson, J., concur.

The opinion of the court was delivered by: Braden

JUSTICE BRADEN delivered the opinion of the court:

After a bench trial in the circuit court of Cook County, defendant, Charles Jones, was convicted of six counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 1992)), three counts of criminal sexual assault (720 ILCS 5/12-13 (West 1992)), one count of aggravated kidnapping (720 ILCS 5/10-2(a)(3) (West 1992)), one count of kidnapping (720 ILCS 5/10-1 (West 1992)), one count of aggravated unlawful restraint (720 ILCS 5/10-3.1 (West 1992)), and one count of unlawful restraint (720 ILCS 5/10-3 (West 1992).) He was sentenced on six counts of aggravated criminal sexual assault, and on one count of aggravated kidnapping, the other convictions merging. He was sentenced to 15-year terms of imprisonment on each conviction, all terms to be served concurrently.

Defendant appeals contending (1) his convictions must be vacated and the charges dismissed as the State failed to try him within the statutorily mandated period; (2) he was not proved guilty beyond a reasonable doubt as the victim's testimony was unbelievable and as there was no evidence to corroborate her story; (3) the State failed to prove that the victim suffered the requisite bodily harm sufficient to sustain a conviction of aggravated criminal sexual assault; (4) the trial court erroneously admitted the victim's statements about the incident to her sister and to a police officer under the corroborative complaint exception to the hearsay rule and improperly relied on this error to enhance the victim's credibility; (5) his six aggravated criminal sexual assault convictions cannot stand as only three penetrations were proved; and (6) he was improperly convicted of aggravated criminal sexual assault and aggravated kidnapping.

We affirm in part and vacate in part.

On July 8, 1989, the victim and some friends were collecting aluminum cans. As they collected the cans, they were approached by four men. After speaking to the men, one of whom was defendant, the group decided to get something to drink. The victim drank a cup of wine and continued collecting cans. As she walked down an alley away from her friends, she was followed by defendant. Defendant put his arm around her waist and told her he had a gun. She felt a sharp object at her side.

Defendant led the victim through various alleys ultimately forcing her to the second floor of a warehouse. Defendant pushed the victim onto a matress and tore off her clothes. He assaulted her vaginally, orally, and anally. When she attempted to escape defendant struck her on the head with an empty liquor bottle. The victim attempted to scream for help but defendant put a pillow over her face. Defendant told her to shut up and that he had "killed a many bitches like [her] before." She struggled with him to no avail as he kept "flinging" her down onto the mattress. Eventually, she was able to put on her pants, one of her shoes, and a dirty shirt she picked up from the warehouse floor. She ran from the warehouse dressed in her pants, the dirty shirt and one shoe.

The victim arrived at her mother's house and told her that she had been raped. Her mother then called her sister. The victim's sister arrived and took her to the police station. The victim was bleeding, limping, and bruised. At the station she told a police officer what happened. The officer took her to the hospital where she was treated for her injuries. Thereafter, the victim picked defendant out of a group of pictures she was shown by a police detective. She later picked him out of a lineup, again identifying him as the man who assaulted and kidnapped her.

Defendant initially contends that his right to a speedy trial was violated as the State failed to try him within the applicable statutory period. Section 103-5(a) of the Code of Criminal Procedure provides: "Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by defendant * * *." (725 ILCS 5/103-5(a) (West 1992).) If a person is in custody with more than one charge pending against him, he must be tried on one charge within 120 days of his arrest and tried on the remaining charges within 160 days from the entry of judgment on the first charge. 725 ILCS 5/103-5(e) (West 1992).

Section 103-5 must be liberally construed giving effect to the State and Federal constitutional rights to a fair trial and each case is to be decided on its own facts. (Ill. Const. 1970, art. I ยง 8; U.S. Const., amend. VI; People v. Reimolds (1982), 92 Ill. 2d 101, 106, 440 N.E.2d 872, 874, 65 Ill. Dec. 17.) The prosecution has the duty to take affirmative steps to try a defendant who is in custody. (725 ILCS 5/103-5, Committee Comments at 24 (Smith-Hurd 1992).) The defendant has no duty to advise the court if the date set for trial implicates a speedy trial problem.

The 120-day period mandated by section 103-5 may be temporarily suspended for various reasons including delays occasioned by the defendant. ( People v. Brown (1988), 170 Ill. App. 3d 273, 284, 524 N.E.2d 742, 749, 120 Ill. Dec. 712.) "In determining whether delay is occasioned by the defendant, the criterion is whether his acts in fact caused or contributed to the delay." ( People v. Turner (1989), 128 Ill. 2d 540, 550, 539 N.E.2d 1196, 1199, 132 Ill. Dec. 390.) It is the defendant's onus to demonstrate a violation of his right to a speedy trial and delays occasioned by him toll the statutory term. People v. Grayson (1988), 165 Ill. App. 3d 1038, 1041, 520 N.E.2d 901, 903, 117 Ill. Dec. 550.

A court of review must only consider the record made in the trial court in determining the existence of a speedy trial violation. ( People v. Arsberry (1993), 242 Ill. App. 3d 1034, 1040, 611 N.E.2d 1285, 1289, 183 Ill. Dec. 637.) An express agreement to a continuance by the parties is an affirmative act by the defendant contributing to the delay of the proceedings. ( People v. Burchette (1993), 257 Ill. App. 3d 641, 657, 628 N.E.2d 1014, 1026, 195 Ill. Dec. 550.) Delay based upon a silent record cannot be attributed to the defendant. People v. Grant (1982), 104 Ill. App. 3d 183, 432 N.E.2d 1129, 1132, 60 Ill. Dec. 230.

Where the party responsible for the delay is difficult to discern from the record, the trial court's judgment is given substantial deference. ( People v. Reimolds (1982), 92 Ill. 2d 101, 107, 440 N.E.2d 872, 875, 65 Ill. Dec. 17.) Absent a clear abuse of discretion, this court must sustain the trial court's determination as to whom delay is attributed. People v. C.H. (1993), 255 Ill. App. 3d 315, 318, 626 N.E.2d 359, 363, 193 Ill. Dec. 326; see also People v. Cain (1988), 171 Ill. App. 3d 468, 475, 525 N.E.2d 1194, 121 Ill. Dec. 887; People v. Grayson (1988), 165 ...

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