NO. 4-01-0106

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellee,			)	Circuit Court of

		v.						)	Macon County

ANDREW L. ANDERSON,					)	No. 00CF571

		Defendant-Appellant.		)

								)	Honorable

								)	Timothy J. Steadman,

								)	Judge Presiding.

	OPINION

		JUSTICE MYERSCOUGH, delivered the opinion of the court:

		In August 2000, a jury convicted defendant, Andrew L.

Anderson, of three counts of aggravated criminal sexual assault. 

720 ILCS 5/12-14(a)(2) (West 2000).  In October 2000, the trial

court sentenced defendant to three consecutive 15-year prison

terms.  In November 2000, defendant filed a motion to reconsider

which the trial court denied after hearing.  Defendant appeals,

arguing that (1) the trial court erred in granting the State's

motion in limine; (2) the evidence failed to show defendant guilty beyond a reasonable doubt of three separate acts of aggravated

criminal sexual assault; (3) reversible error occurred when Officer

Hubbard testified that defendant came to mind after he was given a

description of the suspect; (4) the trial court erred in failing to

give Illinois Pattern Jury Instruction (hereinafter IPI Criminal

4th), Criminal, No. 2.02 (4th ed.

2000) (hereinafter IPI Criminal 4th) prior to the jury commencing

deliberations; (5) the trial court abused its discretion in

sentencing defendant; and (6)(a) section 5-8-4(a) of the Unified

Code of Corrections (Unified Code) (730 ILCS 5/5-8-4(a) (West

2000)) violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11), and (b) the issue

that triggered the mandatory consecutive sentences pursuant to

section 5-8-4(a) of the Unified Code should have been submitted to

the trier of fact and proved beyond a reasonable doubt.  We affirm.

I. BACKGROUND

		In April 2000, the State charged defendant, by informa

tion, with home invasion (cou8ntnt 1) (720 ILCS 5/12-11 (West 2000)

(effective  until June 1, 2001)) (count I)) and three counts of aggravated

criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2000) (counts II through IV))(720 ILCS 5/12-

14(a)(2) (West 2000))  ..  In relevant part, the State alleged that

defendant by the use of force (1) placed his penis against the

victim's (a) vagina (count II), (b) anus (count III), and (3)

placed his fingers in the victim's vagina (count IV).  In June

2000, defendant indicated that he would use the defense of

voluntary intoxication and that he might call Dr. Georgia Cuddeback

as an expert witness.  Cuddeback stated in a letter that it was her

opinion that defendant was unable to form the specific intent to

perform the alleged offense because of the beer and cocaine

defendant consumed on the night of the incident.

		In August 2000, the State moved to dismiss the home

invasion count (count I) and filed a motion in limine seeking to prohibit the defense from introducing any evidence concerning the

defense of voluntary intoxication.  The State argued that aggra

vated criminal sexual assault was a general intent crime, and the

affirmative defense of voluntary intoxication was not available for

general intent crimes.  After hearing argument, the trial court

granted the State's motion.  The trial court then conducted a two-

day jury trial.

		L.J., the victim, testified that she was married to a

pastor with the First General Baptist Church and lived at 1505 West

Decatur.  On the night of the incident, she was home alone and went

to bed at approximately 11:30 p.m.  She fell asleep and was semi-

awakened by two flashes of a lighter in the doorway of her bedroom. 

She did not fully wake up because she assumed it was her husband

returning home from work.  A man came over to the bed and lay down

on the other side.  The man rolled over next to her and began

rubbing her body all over--rubbing up and down her legs and under

her shirt.  At that point, she realized it was not her husband. 

She told the man that he had the wrong house and told him to get

out of the house.  The defendant then got on top of her.  She was

able to see the man and identified defendant as this man.

		While defendant was on top of her, she grabbed the

cordless phone from the nightstand.  Defendant tried to kiss her. 

She turned away, and he began to lick her face and ears and kiss

her neck.  She tried to use the phone, but defendant took and threw

the phone on the floor.  She then tried to knee him in the groin. 

He held her legs down with his legs, and she tried to break his

nose.  She knocked off his glasses so she could poke out his eyes. 

He was holding her down and trying to pull down her sweatpants. 

She tried to wiggle out from under him to get to the phone on the

floor.  He pulled her on top of him, turned her over on top of him,

held onto her, and tried to undo his pants.  He unbuckled his

pants.  The two struggled and fell to the floor.  He kept trying to

pull down her pants.  He pulled her pants down to her knees and

tried to guide his penis into her vagina.  She testified that he

had his penis on her vagina.  She told him that she had acquired immunodeficiency syndrome (AIDS), that no one would have anything

to do with her, and she could not believe he was doing this.  She

testified that these statements stopped him.  He then started

inserting his fingers into her vagina and "was going down like he

was going to perform oral sex on me."  At that point she finally

got the phone, turned it on, and began singing to him "Jesus Loves

Me."  She testified that she began singing "because I didn't know

what else to do, because I thought it was *** going to happen.  I

thought that he was going *** to rape me."

		He stopped, asked her what she was doing, and saw that

she had the phone.  He took the phone and threw it under the bed. 

She then asked if they could get back on the bed.  He pulled her up

on the bed, which enabled her to pull up her sweatpants.  She

yelled, "Fire! Help! There's a fire!"  Defendant started hitting

the victim and told her to shut up.  He hit her on the face and

told her not to yell again.  She yelled again, and he hit her

again.  He tried to pull down her sweatpants again and became angry

and frustrated.  Defendant then took her and turned her over onto

her stomach.  As he turned her over, he pulled her sweatpants and

underwear off and threw them off the bed.  He kept his hand under

her and pulled her up by the buttocks so that she was on her knees

and attempted to insert his penis into her anus.  She felt him

touch her anus with his penis.  At that time, her husband arrived

home.

		She testified that defendant did not have an erection,

but that his penis did come into contact with her vagina and anus. 

She admitted that she spoke with Michael Beck, a detective with the

Decatur police department (department), the following day and told Beck that defendant was "rubbing his penis on [her] bottom."  She

testified, though, that when she used the term "bottom", she was

referring to her anus.

		The victim's husband testified that when he returned

home, he heard noises upstairs.  He ran upstairs and struggled with

the intruder.  During the struggle, the intruder repeatedly stated

that he had the wrong house.  The victim's husband told defendant

to leave.  He identified defendant as the intruder.

		Steve Hagemeyer, a police officer with the Department,

testified that he responded and went to the victim's house and

spoke with the victim and her husband.  He testified that the

victim had swelling on her forehead, on the left side of her face,

and a cut on her hand.

		Frank Hubbard, a detective with the Department, testified

that he has been with the department for 10 1/2 years and assigned

to the detective division for 4 1/2 years.  He testified that he

was working on the night of the incident when he was informed of a

sexual assault in the 1500 block of West Decatur.  Hubbard

testified that he lives in the west end and was familiar with

several individuals from that area.  When given a description of

the suspect, Hubbard immediately thought of defendant.

		The defense objected and, outside the presence of the

jury, moved for a mistrial.  The defense argued that because

Hubbard was a police officer and indicated that he knew the

defendant, Hubbard, in essence, suggested to the jury that

defendant had prior contacts with law enforcement, which was highly

prejudicial to defendant.  The State argued that simply because an

officer might know someone by description does not imply that person has a criminal background.  The trial court denied the

motion, stating:

		"[o]nly thing the witness indicated thus far

was that he resides in this particular area of

Decatur, that he was familiar with others who

reside in the area, that he received this

description, and he believed that the defen

dant fits that description.  There was no

indication whatsoever that this knowledge was

acquired by way of his employment as a police

officer, but rather as a resident of the west

end of Decatur."

The jury returned and Hubbard continued to testify.  He testified

that he went to defendant's home, where he found him.

		Beck testified that he interviewed the victim at the

hospital.  He observed that she had swelling to the left side of

her face and swelling behind her left ear.  She had a slight cut to

the right side of her head and two lacerations to her right hand,

one that required seven stitches.  

		Beck testified further that he also interviewed defen

dant.  Defendant told Beck that he entered the victim's home

believing no one lived there.  He went upstairs, entered the

bedroom, and saw a woman lying on the bed.  He got in bed with the

woman and began kissing her and fondling her breasts.  He believed

that he had sexual intercourse with her; however, he did not

ejaculate.  He believed he performed the sex act "doggy style."  In

addition, defendant gave a written statement indicating that he

went to a sports bar and drank approximately 15 beers.  He left the bar, bought "some crack, and smoked that."  He also stated: 

		"I went inside the house and went upstairs. 

There was a girl laying [sic] on the bed, and I got into bed with her.  We started fighting. 

I tried to have sex with her.  I think I had

sexual intercourse with her. 

			*** [G]irl's *** husband came home.  We

started fighting.  I got up and went home.  

		I know this situation is all my fault.  She

had nothing to do with it.  I hope I didn't

hurt her or her husband.  This was one of

these nights you wish you could have back, and

something like this never happened."

On cross-examination, Beck admitted that defendant never stated

that he had inserted any of his fingers into the victim's vagina or

his penis in her anus.  On redirect, Beck testified that he did not

specifically ask defendant those questions.

		The State rested.  Defendant moved for a directed

verdict, which the trial court denied.  Defendant then took the

stand and testified.  His testimony was generally similar to his

written statement.  Defendant testified that he placed his penis

against the victim's vagina.  He attempted to place it in her

vagina, but he did not have an erection.  He denied that he placed

any of his fingers in her vagina and denied penile contact with her

anus.  The defense rested and moved for a directed verdict at the

close of all the evidence, which the trial court denied.

		The trial court conducted an instructions conference. 

The parties gave closing arguments, and the trial court read the jury instructions.  The jury went to the jury room to deliberate. 

After approximately 10 minutes, the trial court pointed out that

IPI Criminal 4th No. 2.02 had not been given, which reads:

		     	"The charge against the defendant in this

case is contained in a document called the

information.  This document is the formal

method of charging the defendant and placing

the defendant on trial.  It is not any evi

dence against the defendant."

Defense counsel moved for a mistrial.  The trial court denied the

motion, noting that the jury had been in the jury room for only

about 10 minutes, and had not yet received any written copies of the

jury instructions or exhibits.  The trial court called the jury

back to the courtroom.  The court explained to the jurors what had

occurred.  The trial court told the jurors the following:

		"What I'm going to do is read that instruction

to you at this time; and then, we will provide

you with written copies of all the legal

instructions in the case.  Again, you should

not single out a certain instruction and

disregard others."

The trial court then read the instruction.  The jury returned to

the jury room to deliberate.  When the security officer, acting as

a bailiff, took the written jury instructions and the exhibits to

the jury room, the jury informed him that it had reached its

verdict.  The trial court held a conference with the parties,

informed them of this information, and permitted additional

comments on the issue.  The defense informed the court that it was standing on its original motion for a mistrial regarding the jury

instruction, especially in light of the relatively short period of

time that it took the jury to decide after IPI Criminal 4th No.

2.02 was read to it.  The jury returned to the courtroom and found

defendant guilty of all three counts of aggravated criminal sexual

assault.

		In September 2000, defendant filed a posttrial motion

arguing in part that the trial court erred in granting the State's

motion in limine and prohibiting the expert testimony of Dr. Cuddeback.  The trial court denied this motion.  In October 2000,

the probation department filed a presentence report that indicated

that defendant was 34 years old.  His criminal history dated back

to October 1987, when he received a fine for public indecency.  In

August 1993, defendant was fined for driving under the influence of

alcohol.  In November 1995, he received 12 months' probation for

resisting a peace officer.  In June and August 1997, he was fined

for criminal trespass to land.  This report also indicated that

defendant used alcohol, cannabis, and cocaine daily.  Defendant

filed an evaluation from Cuddeback that set forth her opinion that

defendant's alcohol and cocaine consumption on the night of the

incident suspended his power of reason and rendered him incapable

of forming a specific intent to perform the offense.

		The trial court conducted a sentencing hearing.  The

State proffered the victim-impact statement as evidence in

aggravation.  In addition, the State called the victim's husband to

testify.  He testified that, other than an odor of alcohol, he saw

no other indication that defendant was under the influence of

alcohol or drugs.  Defendant's mother and father testified in mitigation.  They stated that defendant was borderline in terms of

intelligence.  Defendant did, however, earn an Aassociate degree

from Richland Community College in sociology and psychology,

although it took him five years to do so.  They were aware of his

alcohol use.  Defendant read his statement in allocution to the

court wherein he expressed his apology to the victim and her family

and hoped for their forgiveness.

		After hearing evidence, arguments of counsel, considering

the presentence report, the victim-impact statement, the circum

stances of the offense, and defendant's statement in allocution,

the trial court sentenced defendant to three consecutive 15-year

prison terms.  The trial court found, in relevant part:

		"[T]hat all three offenses were committed as

part of a single course of conduct during

which there was no substantial change in the

nature of the criminal objective, and all

three charges in this case were violations of

720 ILCS 5/12-14.  So, under Illinois law, the

sentencing shall be served consecutively.

		  	*** Defendant shall serve 85 [%] of his sentence.  

			*** [T]he facts and circumstances of the

case are extremely egregious.  *** [T]his was

a terrible, horrendous, experience that the

victim underwent at the hands of [defendant].

			I believe there reaches a point when the

[c]ourt has a duty to protect the public from

somebody who's capable of this kind of con duct, and I think I would be remiss in my

responsibility if I did not fashion a sentence

that insured that this sort of situation will

never happen again with regard to [defendant].

			*** [Defendant] asks for forgiveness.  I

think that's a good thing that he has shown

some remorse.  ***

			I suppose to some extent, I can provide

mercy if I think it's appropriate, and it's

only because of his expression of remorse,

primarily, that it will not be a maximum

sentence in arriving at the sentence.  I have

considered the fact that 85 [%] of a sentence

will be served, and I've considered the fact

that the defendant is 34 years of age at the

present time."

Defendant filed a motion to reconsider sentence, which the trial

court denied.

		This appeal followed.

II. ANALYSIS

A. Motion In Limine

		Defendant argues that the trial court erred in granting

the State's motion in limine, which prohibited evidence of defendant's intoxication.  Specifically, defendant contends that

the affirmative defense of voluntary intoxication (720 ILCS 5/6-

3(a) (West 2000)) does apply to the offense of aggravated criminal

sexual assault, and the trial court, therefore, erred in granting

the State's motion and prohibiting Cuddeback's testimony as to the affirmative defense.  Evidentiary rulings lie within the trial

court's sound discretion, and this court will not disturb them

unless the trial court abused its discretion.  People v. Ransom, 319 Ill. App. 3d 915, 919, 746 N.E.2d 1262, 1267 (2001).

	Defendant acknowledges that the statutory provision setting

forth the offense of aggravated criminal sexual assault (720 ILCS

5/12-14 (West 2000)) does not provide any specific intent as an

element of the offense.  However, defendant looks to the language

in section 4-3(a) of the Criminal Code of 1961 (Criminal Code) for

direction.  This section states, in part:

			"(a) A person is not guilty of an of

fense, other than an offense which involves

absolute liability, unless, with respect to

each element described by the statute defining

the offense, he acts while having one of the

mental states described in [s]ections 4-4

through 4-7.

			(b)*** If the statute does not prescribe

a particular mental state applicable to an

element of an offense (other than an offense

which involves absolute liability), any mental

state defined in [s]ections 4-4, 4-5[,] or 4-6

is applicable."  720 ILCS 5/4-3(a), (b) (West

2000).

Because no mental state is prescribed in the statute concerning

aggravated criminal sexual assault, defendant contends that the

mental states prescribed in sections 4-4 (intent) and 4-5 (knowl

edge) are applicable to the offense of aggravated criminal sexual assault, and the affirmative defense of voluntary intoxication,

therefore, does apply to the offenses of aggravated criminal sexual

assault.

		This defense is not available to the defendant on the

charges of aggravated criminal sexual assault since it is a general

intent crime.  People v. Roesler, 195 Ill. App. 3d 1007, 1012-13, 552 N.E.2d 1242, 1246 (1990); People v. Bofman, 283 Ill. App. 3d 546, 551, 670 N.E.2d 796, 799 (1996).  However, we recognize that

in People v. Simms, 192 Ill. 2d 348, 375, 736 N.E.2d 1092, 1114 (2000), the sSupreme cCourt of Illinois recently reaffirmed its

holding in People v. Terrell, 132 Ill. 2d 178, 209, 547 N.E.2d 145, 158 (1989).  In Terrell, the supreme court held that since the aggravated criminal sexual assault statute does not prescribe a

mental state applicable to the offense, a mental state of intent,

knowledge or recklessness must be implied.  Terrell, 132 Ill. 2d at 209, 546 N.E.2d at 158; see also People v. Burton, 201 Ill. App. 3d 116, 119-21, 558 N.E.2d 1369, 1372-73 (1990).  These courts,

however, did not address the precise issue before this court--

namely, whether an intoxicated or drugged condition can be raised

as an affirmative defense to aggravated criminal sexual assault. 

We need not answer this precise question because, in light of the

facts in the present case, the affirmative defense is not available

to defendant.

		To assert an intoxication defense, a defendant must show

that his drunkenness was so extreme that it suspended his power of

reason and rendered him incapable of forming a specific intent to

commit the offense.  If the record indicates that defendant acted

with any purpose or rationality, the defense is unavailable.  Roesler, 195 Ill. App. 3d at 1013, 552 N.E.2d at 1246.  In the present case, defendant was not entitled to the affirmative defense

given his recollection of events--the number of beers he consumed,

the time he left the bar, the fact that he went into the victim's

house and had the forethought to use his lighter to produce light

so he could see, the furniture that he saw in the other upstairs

room, the manner in which he thought he had intercourse with the

victim--"doggy style--" the encounter with the victim's husband and

that he remembered doing all these things.  See People v. McCoy, 281 Ill. App. 3d 576, 584, 666 N.E.2d 805, 811 (1996) (a defendant

may not rely on the defense of voluntary intoxication if he admits

remembering the offense).  We conclude, therefore, that the trial

court did not err by granting the State's motion in limine. 

B. Sufficiency of the Evidence

		Defendant argues that the evidence failed to show beyond

a reasonable doubt that he committed three separate acts of

aggravated criminal sexual assault.  Defendant concedes that the

evidence may be sufficient to prove a single count of aggravated

criminal sexual assault; however, he contends that the evidence is

insufficient to prove that three separate assaults took place. 

Specifically, defendant argues that if the only time that his hand

came in contact with the victim's vagina was when he was attempting

to insert his penis into her vagina, then the evidence would not

justify two separate counts of aggravated criminal sexual assault--

one for vaginal contact with the hand and one for vaginal contact

with the penis--because they arose from a single act.

		It is not the function of the reviewing court to retry a

defendant when considering a challenge to the sufficiency of the evidence of his guilt.  People v. Brink, 294 Ill. App. 3d 295, 299- 300, 690 N.E.2d 136, 139 (1998).  Determinations of the credibility

of witnesses, the weight to be given to their testimony, and the

reasonable inferences to be drawn from the evidence are responsi

bilities of the trier of fact.  Brink, 294 Ill. App. 3d at 300, 690 N.E.2d at 139.  In considering a defendant's challenge to the

sufficiency of the evidence, the relevant question is whether,

after viewing all the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.  People v. Oaks, 169 Ill. 2d 409, 457-58, 662 N.E.2d 1328, 1349-50 (1996).  Therefore, a reviewing court will not substitute its judgment for

that of the fact finder on questions involving the weight of the

evidence or the credibility of the witnesses.  Brink, 294 Ill. App. 3d at 300, 690 N.E.2d at 139.  We conclude that the State presented

sufficient evidence to sustain defendant's convictions.

		To prove sexual penetration, it is only necessary to

establish "any contact, however slight."  720 ILCS 5/12-12(f) (West

2000).  We acknowledge that the victim's testimony conflicted with

defendant's testimony.  However, the testimony of a single witness,

if it is positive and the witness credible, is sufficient to

convict, even though it is contradicted by the accused.  People v. Novotny, 41 Ill. 2d 401, 411, 244 N.E.2d 182, 188 (1968); see also Brink, 294 Ill. App. 3d at 300, 690 N.E.2d at 139.  Here, defendant admitted that he had contact with the victim's vagina with his

penis.  The victim testified that the defendant inserted his

fingers in her vagina and had contact her with anus.  The jury is

charged with the responsibility of weighing the credibility of witnesses and resolving any conflicts and inconsistencies in their

testimony.  People v. Wittenmyer, 151 Ill. 2d 175, 194, 601 N.E.2d 735, 744 (1992).  The jury found the victim's testimony credible. 

Because the jury is in a superior position to assess witness

credibility, we will not reverse that decision.  We note that

defendant attempts to cast some doubt on the victim's testimony by

relying on the fact that when she spoke with Beck, she did not say

anything to him about defendant attempting to have anal intercourse

with her.  However, the victim testified that when she spoke with

Beck and used the term "bottom", she was referring to her anus.  

C. Hubbard's Testimony

		Defendant next argues that he was prejudiced by Hubbard's

testimony that when he was informed of the allegation of criminal

sexual assault and was given a description of the suspect,

defendant came to mind.  Specifically, defendant contends that

Hubbard's testimony suggested to the jury that defendant was known

to him from prior police contacts.  Defendant acknowledges that the

purpose of Hubbard's statement may not have been to prove defen

dant's propensity to commit crimes, but the unavoidable inference

was that defendant had a prior criminal history.  The State argues

that the purpose of Hubbard's testimony was to show why defendant

was arrested.  Therefore, no implication arose that defendant had

a criminal record and there was no error.  Alternatively, the State

argues that if error occurred, it was harmless.  We agree with the

State.

		We acknowledge that a police officer's testimony of his

or her prior acquaintance with a defendant should be avoided unless

somehow relevant.  People v. Bryant, 113 Ill. 2d 497, 514, 499 N.E.2d 413, 421 (1986).  Moreover, we agree with defendant's

proposition that erroneous admission of evidence of other crimes

ordinarily calls for reversal.  People v. Pitts, 257 Ill. App. 3d 949, 953, 629 N.E.2d 770, 773 (1994).  However, here, no admission

of any other crimes was made nor did any inference of such arise

from Hubbard's testimony.  

		It is within the trial court's discretion to decide

whether evidence is relevant and admissible, and the trial court's

decision shall not be overturned absent a clear abuse of that

discretion resulting in manifest prejudice to the defendant. 

People v. Jones, 269 Ill. App. 3d 925, 933, 647 N.E.2d 612, 618 (1995), overruled in part on other grounds ,, People v. Smith,  188 Ill. 2d 335, 346, 721 N.E.2d 553, 560 (1999).  In light of the

context in which Hubbard's statement was made, we find nothing

improper in the trial court's admission of Hubbard's statement. 

The record shows that Hubbard's purpose for making that statement

was not to imply prior criminal activity but to explain how it was

defendant came to mind based on the description he received--

namely, that Hubbard knew defendant because they both lived on the

west side of Decatur.

D. Jury Instruction

		Defendant next argues that the trial court erred in

failing to give IPI Criminal 4th No. 2.02 prior to the commencement

of jury deliberations.  Therefore, he was denied a fair trial and

a new trial should be ordered.  The State argues that defendant has

forfeited this issue because he neither tendered the instruction to

the trial court nor objected to the instructions.  Alternatively,

the State contends that the error was harmless.  We agree with the State.

		The burden of preparing criminal jury instructions is

primarily on the parties.  People v. Glass, 239 Ill. App. 3d 916, 925, 606 N.E.2d 655, 662-63 (1992).  The trial court has no

obligation to give instructions not requested by counsel, and no

party may raise on appeal the failure to give any instruction

unless he tendered it to the court.  Glass, 239 Ill. App. 3d at 925, 606 N.E.2d at 663.  We note that in this case, the trial

court, sua sponte, raised the issue that IPI Criminal 4th No. 2.02 had not been tendered.  Generally, failure to object at trial to an

error in jury instructions forfeits the issue for appeal.  Glass, 239 Ill. App. 3d at 925, 606 N.E.2d at, 663.  Therefore, absent of

plain error, the issue is forfeited.  Glass, 239 Ill. App. 3d at 925, 606 N.E.2d at 663.  We have reviewed the record and conclude

that the evidence against defendant was overwhelming and the error

was not so grave or fundamental that defendant was denied a fair

trial.  Therefore, defendant has forfeited the issue for review on

appeal.

		Moreover, if there had been no forfeiture and we were to

consider the issue, we would find that any error was not reversible

error.  Here, the trial court conducted a jury instruction

conference wherein it was decided which instructions were to be

given.  Neither party tendered IPI Criminal 4th No. 2.02 nor

objected because it was not tendered.  Defendant did object,

however, after the trial court sua sponte raised the fact that it was not given.

		Although error, the trial court's failure to give this

written instruction initially does not automatically result in a finding that defendant's constitutionally protected right to a fair

trial has been violated.  A reviewing court must look at all of the

circumstances to determine whether defendant received a fair trial,

including all the instructions to the jury, the arguments of

counsel, whether the weight of the evidence was overwhelming, and

other relevant factors.  People v. Kitchen, 159 Ill. 2d 1, 39, 636 N.E.2d 433, 450 (1994).

		Here, even though the jury was not given the instruction

initially, we find that the trial court cured any error when it

subsequently gave the instruction.  Only a short period of time

passed prior to the court's giving the instruction.  In addition,

the trial court had previously instructed the jurors that the

evidence theyit should consider consisted of only the testimony of

the witnesses and the exhibits thatwhich the court received. 

E. Sentence

1. Excessiveness Claim

		Defendant next argues that the trial court abused its

discretion in sentencing him to 45 years' imprisonment, 15 years

for each count to be served consecutively.  In addition, defendant

argues that the trial court ignored the mitigating factors with the

exception of defendant's remorse.  The State responds that the

trial court properly concluded that the sentences were necessary to

protect the public and that the sentences were within the statutory

range; and, therefore, the trial court properly exercised its

discretion.  We agree with the State.

		The trial court is in the best position to make a

reasoned decision as to the appropriate punishment in each case,

and we will not reverse the trial court unless it has abused its discretion.  People v. Nussbaum, 251 Ill. App. 3d 779, 780-81, 623 N.E.2d 755, 757 (1993).  This court gives great deference and

weight to the sentence the trial court imposes.  Nussbaum, 251 Ill. App. 3d at 781, 623 N.E.2d at 757.  Aggravated criminal sexual

assault is a Class X felony (720 ILCS 5/12-14(d)(1) (West 2000))

that carries a statutory sentence of not less than 6 years and not

more than 30 years (730 ILCS 5/5-8-1(a)(3) (West Supp. 1999)). 

Here, the trial court stated that it considered the factors in

aggravation, as well as in mitigation, and it sentenced defendant

to only 15 years out of a possible 30 years for each offense.  The

trial court's 15-year sentence for each offense is clearly within

statutory limits.  In addition, it is presumed that the trial court

considered the evidence in mitigation absent any contrary indica

tion in the record.  People v. White, 237 Ill. App. 3d 967, 970, 605 N.E.2d 720, 722 (1992).  In light of the seriousness of the

offenses, we conclude that the trial court considered the mitigat

ing factors and did not abuse its discretion in sentencing

defendant.

		Defendant contends, however, that this incident arose out

of a single occurrence--"a single sexual encounter that occurred

over several minutes."  Moreover, defendant contends that "[h]ad

the [d]efendant committed a series of criminal sexual assaults,

each constituting a single count of criminal sexual assault, each

occurring on a separate day and each occurring to a separate

victim, there would have been a much more grievous situation."  We

disagree.

		"To the victim, each rape was 'readily divisi

ble and intensely personal; each offense is an offense against a person.'  [Citation.]  To

permit a defendant to rape an individual

several times over a period of time in the

same place with little or no break between

each act deprecates the heinous and violent

nature of each act and the effect each has

upon the victim."  (Emphasis omitted.)  People v. Segara, 126 Ill. 2d 70, 77, 533 N.E.2d 802, 805 (1988).

		Defendant correctly states that the Illinois Constitution

requires courts to determine penalties according to the seriousness

of the offense and the potential for rehabilitation.  Ill. Const.

1970, art. I, §11.  A proper balance must be struck between the

protection of society and the rehabilitation of the defendant. 

People v. Cox, 82 Ill. 2d 268, 280, 412 N.E.2d 541, 547 (1980).  However, a court is not required to give the defendant's rehabili

tative potential more weight than the seriousness of the offense. 

White, 237 Ill. App. 3d at 969, 605 N.E.2d at 722.  The jury found defendant guilty of three separate offenses of aggravated criminal

sexual assault.  Based upon the record, we conclude that the trial

court adhered to our constitution's mandate and imposed an

appropriate sentence for each account accordingly.

2. Consecutive Sentences

		Defendant also argues that his consecutive sentences

violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  We disagree.  Our supreme court recently

held that "Apprendi concerns are not implicated by consecutive sentencing."  People v. Wagener, No. 88843, slip op. at 14 (June 1, 2001),  196___ Ill. 2d ___269, ___286, ___752 N.E.2d ___430, ___441 (2001); see also People v. Williamson, 319 Ill. App. 3d 891, 903-05, 747 N.E.2d 26, 36-37 (2001) (the rationale in Apprendi does not apply to consecutive sentences).  As we explained in

Williamson, consecutive sentencing does not increase any of defendant's individual sentences for an offense beyond the

statutory maximum, but determines the manner in which those

sentences will be served.  Here, defendant was sentenced well

within the prescribed statutory range.

III. CONCLUSION

		For the foregoing reasons, we affirm the judgment of the

trial court.

		Affirmed.

		KNECHT, J., concurs.

		COOK, J., dissents.

		JUSTICE COOK, dissenting:

		Defendant was given consecutive sentences on three counts

of aggravated criminal sexual assault, alleging that his penis

touched the victim's vagina, 1) that his penis touched the victim's anus,

and 2) the intrusion of his fingers intohis finngers intruded into  the victim's vagina.  Probably every

sexual assault will involve a number of touchings and intrusions,

and the question raised here is the prosecutor's power to multiply

charges, to convert a single aggravated criminal sexual assault

into three such assaults.  See People v. Cox, 53 Ill. 2d 101, 106, 291 N.E.2d 1, 4 (1972) (applying a rule of lenity when the

judiciary is asked "to make each stick in a faggot a single

criminal unit [(Bell v. United States, 349 U.S. 81, 83, 99 L. Ed. 905, 910, 75 S. Ct. 620, 622 (1955))]."   

		In response to defendant's argument that this incident

arose out of a single occurrence, "a single sexual encounter that

occurred over several minutes," the majority cites Segara, where the supreme court upheld two convictions of aggravated criminal

sexual assault (vaginal intercourse and fellatio) apparently

arising out of the same incident, stating that "[t]o the victim,

each rape was 'readily divisible and intensely personal.'" Segara, 126 Ill. 2d at 77, 533 N.E.2d at 805, quoting Pruitt v. State, 269 Ind. 559, 565, 382 N.E.2d 150, 154 (1978).  The supreme court

upheld the vacation of six other convictions of aggravated criminal

sexual assault, however, which may have been more like the

additional charges here.  Segara, 126 Ill. 2d at 77, 533 N.E.2d at 805.  Even as to the two convictions it upheld, the supreme court

stressed that it was dealing with concurrent, not consecutive sentences.  "[T]he sentences can only run concurrently and, as such, there is no enhancement-of-penalty claim and no double

jeopardy claim."  Segara, 126 Ill. 2d at 78, 533 N.E.2d at 806.

		At the time Segara was decided, section 5-8-4 provided a safety valve, avoiding difficult multiplication of charges and

prosecutorial discretion issues:  If defendant were convicted on a

number of charges committed as a part of a single course of

conduct, there could be no consecutive sentence; if defendant were

convicted on a number of charges not committed as a part of a single course of conduct, consecutive sentences were possible in

the discretion of the court.  Ill. Rev. Stat. 1973, ch. 38, par.

1005-8-4(a).  All that has changed.  Effective July 1, 1988,

section 5-8-4 was amended to read that, in the case of certain

offenses committed as a part of a single course of conduct, "the

court shall enter sentences to run consecutively."  (Emphasis added.)  Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-4(a).  The

supreme court recognized this amendment created "something of an

anomaly," mandating consecutive sentences in the least serious

multiple-offense situation.  People v. Bole, 155 Ill. 2d 188, 198, 613 N.E.2d 740, 745 (1993).  The court concluded that it was bound

to follow the statute "[a]lthough this might simply have been an

oversight by the legislature."  Bole, 155 Ill. 2d at 198-99, 613 N.E.2d at 745.  

		In response to Bole, the legislature amended section 5-8- 4(b) in 1997 to eliminate the trial court's discretion to impose

concurrent sentences when the enumerated offenses are committed in

separate courses of conduct.  People ex rel. Waller v. McKoski, 195 Ill. 2d 393, 399, 748 N.E.2d 175, 178 (2001).  Consecutive

sentences are now mandatory whether there is a single course of conduct or separate courses of conduct, if a defendant is convicted

of one of the triggering offenses listed in section 5-8-4(b). 

McKoski, 195 Ill. 2d at 399, 748 N.E.2d at 178-79.  The 1997 amendment eliminated the inconsistency noted in Bole, but did nothing to alleviate concerns regarding multiplication of charges. 

In McKoski, defendant was convicted of three counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1 (West

1998)), a triggering offense under section 5-8-4(b).  McKoski, 195 Ill. 2d at 395, 748 N.E.2d at 176.  The trial court, however,

imposed concurrent sentences.  McKoski, 195 Ill. 2d at 397, 748 N.E.2d at 177.  The supreme court allowed the State's Attorney to

bring an original action in mandamus to correct the error and remanded with directions to impose consecutive sentences.  The

supreme court suggested, however, that the trial court still had

the discretion to determine the length of each sentence.  McKoski, 195 Ill. 2d at 402180, 478 N.E.2d at 402180.  (Three consecutive

sentences of 8 1/3 years would be similar to three concurrent

sentences of 25 years.)  It is important to note that multiplica

tion of charges from a single incident was not an issue in McKoski, that the three convictions "related to three separate incidents,

involving three different minors, which occurred in Lake County

between December 1, 1997, and August 1, 1998."  McKoski, 195 Ill. 2d at 395, 478 N.E.2d at 176.

		The supreme court expressed its concern with multiplica

tion of charges when it adopted the "one act /one crime" analysis in

King.  People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844 (1977).  As originally written, King addressed only concurrent sentences; it was not necessary to address consecutive sentences because the legislature had resolved that problem with the original

version of section 5-8-4.  See People v. Rodriguez, 169 Ill. 2d 183, 192-94, 661 N.E.2d 305, 309-10 (1996) (Heiple, J., specially

concurring).  As the legislature has tampered with section 5-8-4,

however, the supreme court has expanded its analysis in King, applying it even in cases of consecutive sentences.  Rodriguez, 169 Ill. 2d at 186-87, 661 N.E.2d at 307; People v. Priest, 297 Ill. App. 3d 797, 802, 698 N.E.2d 223, 226 (1998).  In a concurrent-

sentence situation, the supreme court has recently reaffirmed its

position "that each separate blow of a mop handle could support a

separate conviction," reversing the additional conviction, however,

because the charges did not differentiate the separate blows (stab

wounds).  People v. Crespo, No. 86556, slip op. at 8 (February 16, 2001), ___ Ill. 2d ___, ___, ___ N.E.2d ___, ___.  "Rather these counts charge defendant with the same conduct

under different theories of criminal culpability."  Crespo, slip op. at 6.

		The double jeopardy clause of the fifth amendment states

that no person shall "be subject for the same offence to be twice

put in jeopardy of life or limb."  U.S. Const., amend. V; see also

Ill. Const. 1970, art. I §11 (all penalties shall be determined

"according to the seriousness of the offense").  The United States

Supreme Court most recently has determined the constitutional rule

on cumulative punishment to be a question of legislative intent. 

Where "a legislature specifically authorizes cumulative punishment

under two statutes, regardless of whether those two statutes

proscribe the 'same' conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and

the trial court or jury may impose cumulative punishment under such statutes in a single trial."  Missouri v. Hunter, 459 U.S. 359, 368-69, 74 L. Ed. 2d 535, 544, 103 S. Ct. 673, 679 (1983); see also

Fitzsimmons v. Norgle, 104 Ill. 2d 369, 374, 472 N.E.2d 802, 805 (1984) ("the law does not permit a double enhancement of a penalty

without a clear indication of a legislative intent to accomplish

that result").  Does section 5-8-4 "specifically authorize"

cumulative punishments in an aggravated criminal sexual assault

case where the victim's body is touched several times or in several

places by different parts of the defendant's body?  "At best, the

operative language of the sentencing statute is muddy."  McKoski, 195 Ill. 2d at 405, 748 N.E.2d at 182 (Kilbride, J., concurring in

part and dissenting in part).  

		Without any limitation imposed by statute, the prosecutor

may choose to charge a single aggravated criminal sexual assault as

2, or 20, aggravated criminal sexual assaults, and obtain a

mandatory consecutive sentence on each one.  The Code identifies

perhaps 14 different ways in which "sexual penetration" can occur. 

720 ILCS 5/12-12(f) (West 2000).  The purpose of that definition is

to provide flexibility in charging, given the variety of ways in

which a sexual assault can occur.  There is no indication, however,

that the listing of each type of sexual penetration was intended to

designate a separate offense.  Nor should a touching with the right

hand, followed by a touching with the left hand, and another

touching by the right hand be considered three separate aggravated

criminal sexual assaults.  Cf. People v. Myers, 85 Ill. 2d 281, 426 N.E.2d 535 (1981) (concurrent sentences where defendant twice moved knife from first victim's neck to threaten a second victim;

although invasions were closely related in time and in the same area of the neck, the acts were not one physical act).            

		As the supreme court pointed out in McKoski, a trial court does have discretion, within the permissible statutory

sentencing range, to determine the length of each sentence. 

McKoski, 195 Ill. 2d at 402, 748 N.E.2d at 180.  Still, a prosecu tor may insure a sentence of, say, 60 years by charging defendant

with 10 counts of aggravated criminal sexual assault.  See 730 ILCS

5/5-8-1(a)(3) (West 2000) (statutorily prescribed Class X sentence

is 6 to 30 years).  We would be very concerned if a trial court

imposed a sentence of 31 years for a Class X felony.  Such a

sentence, which exceeds the statutory maximum, would be void and

subject to attack at any time.  We should be even more concerned

with multiplication of charges, which in this case results in a

sentence of 45 years for a Class X felony.

		The State argues the prosecutor does not have absolute

discretion, that there still is a safety valve here, that the

"aggregate of consecutive sentences for offenses that were

committed as part of a single course of conduct" shall not exceed

the maximum terms authorized for the two most serious felonies

involved.  730 ILCS 5/5-8-4(c)(2) (West 2000).  The State argues

that with a Class X felony the maximum extended term is 60 years

and therefore the maximum aggregate of consecutive terms is 120

years.  See People v. Myrieckes, 315 Ill. App. 3d 478, 482, 734 N.E.2d 188, 192 (2000).  I respectfully suggest that a limit of 120

years on consecutive sentences is no limit at all.

		The legislature could not allow the penalty for a

criminal offense to be whatever the prosecutor might choose. 

Prosecutors are routinely given discretion to decide whether to charge under one of two statutes with similar elements.  Where the

statutes "plainly demarcate the range of penalties that prosecutors

and judges may seek and impose," the power delegated is no broader

than the authority they routinely exercise.  United States v. Batchelder, 442 U.S. 114, 126, 60 L. Ed. 2d 755, 766, 99 S. Ct. 2198, 2205 (1979).  Where the prosecutor actually makes the

sentencing decision, however, as where minimum sentences are

involved, there is more force to the constitutional argument.  W.R.

LaFave & J.H. Israel, Criminal Procedure §13.7(a), at 650 (2d ed.

1992).  A statutory scheme which allows a prosecutor unfettered

discretion to prosecute under one of two statutes which are

identical except for the penalty is highly objectionable.  W.R.

LaFave & J.H. Israel, Criminal Procedure §13.7(a), at 650 (2d ed.

1992).  The same is true here.  Under section 5-8-4 as it presently

exists, and by adopting a narrow definition of what constitutes a

"single act," the prosecutor has absolute power to determine what

sentence a particular defendant will receive, free of any interfer

ence by the court and without any limitation imposed by the

legislature. 

		The majority avoids this question by dividing it into

easily answered subordinate issues: (1) it is up to the jury to

determine the sufficiency of the evidence, including whether there

were "three separate acts" of aggravated criminal sexual assault;

(2) the sentences were within the statutory range, and, therefore,

the trial court properly exercised its discretion, sentencing

defendant to only 15 years out of a possible 30 years for each

offense; and (3) Apprendi concerns are not implicated by consecu tive sentencing, which does not increase any of defendant's individual sentences for an offense beyond the statutory maximum. 

I respectfully suggest that giving a prosecutor unfettered

discretion to multiply charges on which consecutive sentences must

be imposed is inconsistent with the fundamental principles of our

system of justice.