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04/01/96 PEOPLE STATE ILLINOIS v. TYREESE TOOLES

April 1, 1996

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TYREESE TOOLES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 21st Judicial Circuit, Kankakee County, Illinois. No. 92-CF-831. Honorable John Michela, Judge, Presiding.

Released for Publication May 9, 1996. As Corrected July 1, 1996. As Corrected July 17, 1996.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey. Holdridge, P.j., dissenting in part, concurring in part, and McCUSKEY, J., specially concurring.

The opinion of the court was delivered by: Lytton

The Honorable Justice LYTTON delivered the opinion of the court:

Following a bench trial, defendant Tyreese Tooles was convicted of criminal sexual assault and sentenced to a term of forty-eight months incarceration in the Department of Corrections. Defendant filed this appeal, claiming that the absence of a written jury waiver requires a reversal of his conviction. We reverse and remand for further proceedings.

I. FACTS

Tyreese Tooles was charged by indictment with two counts of criminal sexual assault and one count of aggravated criminal sexual assault. Defendant pleaded not guilty and demanded a jury trial. Tooles then orally waived his right to a jury trial, but no written waiver was executed.

At defendant's bench trial, Rosalind Johnson testified that she was staying at her cousin's apartment when two men came to the door and demanded to be let in. Johnson testified that one of the men, defendant Tyreese Tooles, forced her to undress and engage in oral and vaginal sex. The other man, later identified as Terry Carr, then forced Johnson to engage in intercourse. At the time of this incident, Johnson was fifteen years old.

Johnson's cousin, Mary Dunbar, testified that when she arrived at her apartment, Rosalind Johnson was crying and said that she had been raped. Dunbar said that the defendant, who was still naked, said that Johnson "wanted it."

Terry Carr testified that Johnson had consented to the sexual acts. On cross-examination, however, Carr admitted that he had already pleaded guilty to the sexual assault and acknowledged that Tooles had forced Johnson into the bedroom and threatened to kill her if she said anything. Carr claimed that he lied when he made this statements under oath.

Defendant Tyreese Tooles testified on his own behalf, and claimed that Rosalind Johnson consented to the events.

The trial judge found the defendant guilty of aggravated criminal sexual assault and one count of criminal sexual assault, and not guilty on the other count of criminal sexual assault. Judgment was entered only on the criminal sexual assault conviction, and the defendant was sentenced to a forty-eight month term of incarceration. Defendant then filed this appeal.

II. ANALYSIS

Defendant asserts that his conviction and sentence must be reversed because the case proceeded to bench trial without the filing of a written jury waiver. In support of his position, the defendant ...


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