Appeal from the Circuit Court of Cook County. No. 93-CR-23609. Honorable Ralph Reyna, Judge Presiding.
Released for Publication May 12, 1997.
The Honorable Justice Theis delivered the opinion of the court. Greiman, P.j., and Zwick, J., concur.
The opinion of the court was delivered by: Theis
JUSTICE THEIS delivered the opinion of the court:
Following a bench trial, defendant was found guilty of six counts of criminal sexual assault. The trial court sentenced defendant to two consecutive terms of eight years imprisonment. On appeal, defendant initially argues that double jeopardy barred prosecution of three counts where the State nolled those counts, and then attempted to reinstate them. We agree and vacate defendant's conviction for counts 6, 7, and 8, and remand for resentencing.
The State charged defendant with two counts of aggravated criminal sexual assault, six counts of criminal sexual assault, four counts of aggravated criminal sexual abuse, and two counts of unlawful restraint. The charges arose out of two attacks against a minor on August 9, 1993. The victim, a 13-year-old girl with a learning disability, attended a family party where the defendant was present. Defendant knew the victim for approximately five years prior to the attack. Both the victim and the defendant spent the night at the hostess's home. The victim shared a bed with the hostess's four-year- old grandchild. The victim claimed that she awoke in the middle of the night to discover her hands tied behind her head, and the defendant on top of her. Defendant removed his pants and warned the victim not to tell anyone about the attack. Defendant raped the victim.
The victim awoke the hostess's niece, Janet Eason, and told her that the defendant was "messing with me." Unaware of the severity of the situation, Eason told the victim to tell the defendant to stop messing with her. The victim returned to her bedroom to find that the defendant had left. Later in the evening, however, the defendant returned to the victim's room and repeated the assault. The victim again ran to Eason, who awoke the hostess, Ruby Woods. Eason and Woods asked the victim if the defendant had sex with her, and the victim replied that he did not.
Approximately one month later, the victim informed family friend Daniella Adams that the defendant had raped her and warned her not to tell anyone. Adams informed the victim's mother, who brought the victim to the hospital. Dr. Vera Davis examined the victim and found that she had been penetrated and had sustained vaginal trauma. The defendant turned himself into police but denied raping the victim.
The State called Eason, Adams, and the victim's mother to testify. In addition, the parties stipulated to the findings of Dr. Davis. Following this stipulation, the State rested. On the Friday prior to the defendant's presentation of its case, the assistant State's Attorney went through the charges in open court to determine whether any duplicate charges should be nolled.
The assistant State's Attorney initially stated that counts 1 and 2 were identical. The State nolled count 2, despite the trial court's interjection that, because defendant allegedly committed two acts, perhaps counts 1 and 2 could remain. In addition, the assistant State's Attorney nolled all of the aggravated criminal sex abuse charges, and one count of unlawful restraint. The trial court surmised that only counts 1, 3-8, and 13 remained. The parties then addressed the six counts of criminal sexual assault contained in counts 3, 4, 5, 6, 7, and 8. The following colloquy occurred:
"[ASSISTANT PUBLIC DEFENDER]: I see [counts] three and six are the same.
[ASSISTANT STATE'S ATTORNEY]: Judge, I think that with respect to Count 3 --
THE COURT: Three and six are the same, right?
[ASSISTANT STATE'S ATTORNEY]: Yeah, I think 3, 4, 5, 6, 7 and 8 are probably going to be ...