SECOND DIVISION

							MAY 22, 2001

1-99-3893

THE PEOPLE OF THE STATE OF 		)	Appeal from the

ILLINOIS,						)	Circuit Court

							)	of Cook County

	Plaintiff-Appellee,			)	

							)	No. 98 CR 24643

		v.					)	

							)	

MARVIN WARE,					)	The Honorable

							)	William P. Prendergast,	

	Defendant-Appellant.		)	Judge Presiding.

	JUSTICE COUSINS delivered the opinion of the court:

	Following a bench trial, defendant Marvin Ware was convicted

of aggravated criminal sexual assault and was sentenced to

natural life in prison.  On appeal, defendant argues that: (1) he

was denied a fair trial when the trial court improperly admitted

prior consistent statements; (2) his convictions should be

reduced to criminal sexual assault; and (3) his natural life

sentence was based on an unconstitutional statute under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). 

BACKGROUND

	Defendant was indicted on 10 counts, 3 of which were nol-

prossed by the State before trial.  The remaining counts

included: two counts of aggravated criminal sexual assault, one

count of criminal sexual assault, two counts of kidnaping, one

count of aggravated criminal sexual abuse, and one count of

unlawful restraint. 

	At the bench trial, C.K. testified that on August 19, 1998,

around 5 p.m., she was on her way from work.  She decided to stop by Bruegger's Bagel Baker, where she had previously worked, to visit former coworkers.  She entered through the front of the

store and saw one former coworker at the register helping

customers.  C.K. also saw the defendant putting a new bag on the

garbage can.  C.K. and defendant had previously worked together

about five times.  After saying "hi" to them both, C.K. began

talking to defendant about her new job.  As they talked, C.K.

began walking down a long hallway toward the back door with

defendant following behind her.  She walked past the women's

washroom and said that she was going home.  As C.K. stood in

front of the men's washroom, the defendant grabbed her arm and

pulled her into the men's washroom.

	C.K. stated that she was surprised and shocked.  Defendant

turned off the lights in the bathroom, locked the door, and

pinned C.K. against the wall with her arms behind her back.  C.K.

tried to say "no" and "stop" but defendant had his tongue in her

mouth or covered her mouth with his hand.  C.K. tried to push

defendant off with her body but failed.  

	Defendant fondled C.K.'s breasts from outside of her

clothing.  Defendant said, "Don't worry, I'm not going to come in

you."  At this point, C.K. stated that she believed that she "was

being raped."  Defendant unbuckled C.K.'s pants and pulled her

pants and underwear down to her knees.  He then unzipped his own

pants and pulled out his penis.  C.K. felt defendant insert his

penis inside her vagina and move back and forth.  After a couple of minutes, defendant suddenly pulled back and said, "Oh, shit." 

Defendant had ejaculated a little bit on the floor, so he turned

on the light, grabbed some toilet paper and finished ejaculating

into the toilet paper.  

	Defendant then exited the bathroom.  C.K. pulled up her

pants and also left the bathroom. She saw the defendant standing

with his back to her holding a mop bucket in his hand.  C.K. left

out the back door and went home.  C.K. told a houseguest that

something was wrong and to call her mother.  C.K.'s mother came

home and took C.K. upstairs.  C.K. told her mother that she had

been raped.  Her mother would not let C.K. shower or change

clothes and took her to the emergency room.  At the hospital,

C.K. completed a sexual assault kit.  She testified that she had

not had sex with anyone within 72 hours of the incident and was

not sure whether defendant had ejaculated inside of her.  

	Nurse Delores Armstrong testified that she tended to C.K. on

August 19, 1998.  The physical exam revealed no vaginal trauma. 

Armstrong indicated it was not unusual that no vaginal trauma

occurred during the rape.  The vaginal and oral swabs from the

sexual assault kit contained no evidence of semen.  Examination

by the Illinois State Police found semen on the crotch area of

C.K.'s panties, though no sperm was detected and no DNA other

than C.K.'s was found.  

	Sergeant Bruce Higgins of the Chicago police department

interviewed C.K. at the hospital.  He stated that C.K. appeared visibly shaken and upset and had to stop a couple of times as she

threw up in a waste paper basket.  She identified the perpetrator

as a former coworker and indicated his first name.  Higgins then

proceeded to the men's bathroom of the bagel store.  He testified

that it was spotless, as though it had just been cleaned.  The

garbage can was empty and the floors were clean.  Higgins checked

the women's washroom and found the sink and toilet to be

functioning.  The police checked nine bags of garbage and

recovered a large wad of toilet paper which was analyzed and

found to contain no evidence of semen.  Higgins obtained

defendant's name and address and proceeded to his residence.

	Defendant was arrested on August 20, 1998, around 1:30 a.m. 

Higgins interviewed defendant later that day.  Defendant told

Higgins that he first noticed C.K. in the bagel store when he

opened the men's washroom door to clean it.  Defendant said to

C.K., "You know, why don't you use the women's washroom and get

out of here?"  He left her to do some other cleaning and when he

came back, he found C.K. still inside the men's washroom.  He

yelled at her to leave and C.K. exited through the back door. 

When Higgins asked defendant why C.K. was in the men's washroom,

defendant stated that he did not know.  Following the interview,

C.K. picked defendant out of a lineup at the police station.

	C.K.'s mother, D.K., testified that she received a call from

her houseguest on August 19, 1998, around 6 p.m.  D.K. went home

immediately and found C.K. crying in the living room.  She observed that C.K.'s face was red, her eyes were puffy and she

was shaking.  D.K. testified that C.K. told her that she had been

raped on her way home from work.  Ms. D.K>.ehrein stated that C.K. said it

occurred at Bruegger's Bagels where she used to work and that her

attacker was a former coworker named Marvin.  Ms. KD.K.ehrein  then told C.K.

that she should not shower and took her to the hospital. 

	Defendant was found guilty of two counts of aggravated

criminal sexual assault predicated on unlawful restraint and

kidnaping.  The court indicated that while the defendant was also

guilty of the other charges against him, they merged into these

two counts.  At the sentencing hearing, the State introduced

evidence of defendant's prior conviction for aggravated criminal

sexual assault.  Accordingly, the court sentenced defendant to

natural life imprisonment.

	Defendant appeals.  We affirm.

ANALYSIS

I. WITNESS TESTIMONY

	Defendant claims that he was denied a fair trial because the

trial court erroneously admitted the hearsay testimony of C.K.'s

mother.  In defendant's view, such admission impermissibly

bolstered C.K.'s testimony by identifying the defendant and

providing details of the occurrence.  Although defendant concedes

that he failed to object at trial and failed to raise the issue

in a posttrial motion, he urges this court to review the claim as

plain error.

	The plain error doctrine may be invoked in criminal cases

where: (1) the evidence is closely balanced; or (2) where the

error was of such magnitude that the accused was denied a fair

trial.  People v. Nieves, 192 Ill. 2d 487, 502, 737 N.E.2d 150 (2000).  In our view, the evidence in this case was not so

closely balanced as to warrant plain error review.  Evidence

supporting conviction included male semen found in C.K.'s

underwear; C.K.'s prompt reporting of the incident; her upset

demeanor visible to Sergeant Higgins and her mother; and the

opportunity for defendant to mop up and dispose of semen in the

bathroom.  On the other hand, there was only defendant's

statement that C.K. was in the men's bathroom of her own accord

and exited after defendant yelled at her to leave.  We now turn

to the merits of defendant's argument to determine whether the

error, if any, was "so severe that it must be remedied to

preserve the integrity of the judicial process."  Nieves, 192 Ill. 2d at 503.

	In general, the testimony of a witness may not be bolstered by showing that she made similar statements out of court;

however, a well-established exception exists for sexual assault

cases where the prosecuting witness made a prompt complaint of

the incident.  People v. Evans, 173 Ill. App. 3d 186, 199, 527 N.E.2d 448 (1988).  Evidence that a complaint was made is

admissible to corroborate the victim's testimony.  People v. Damen, 28 Ill. 2d 464, 473-74, 193 N.E.2d 25 (1963).  The sole purpose of this exception is to rebut the presumption arising

from the complainant's silence.  Therefore, only the fact of the

complaint is admissible; neither the details of the complaint nor

the identity of the named perpetrator is admissible.  Damen, 28 Ill. 2d at 473-74.  Additionally, any error in the admission of

hearsay testimony is ordinarily considered harmless where the

testimony is supported by other corroborative evidence.  Evans, 173 Ill. App. 3d at 200.   

	Evans and People v. Brown, 258 Ill. App. 3d 544, 630 N.E.2d 1106 (1994), are instructive.  In Evans, the victim, G.B., testified that she told her friend that defendant "took advantage

of [G.B.]" and also testified that she identified defendant to

her friend during the conversation.  Evans, 173 Ill. App. 3d at 202.  The reviewing court held that the naming of defendant was improper since only the fact of the complaint, and not the

details or identity of the perpetrator, is admissible.  Evans, 173 Ill. App. 3d at 202. However, the court found the error to be

harmless due to G.B.'s corroborative testimony:

	"[I]n light of G.B.'s positive and unwavering testimony that

it was defendant who raped and sexually assaulted her, we

conclude that any impropriety in the admission of this

testimony, to which the defendant made no objection, was not

so harmful as to constitute plain error."  Evans, 173 Ill. App. 3d at 202.    

	In Brown the court held that the trial court properly admitted testimony of the victim's mother that did not contain

any great detail of the incident.  Specifically, the only details

admitted were that men with guns took the victim's purse; that

the victim was fondled and penetrated by a finger; and that a man

tried to drag the victim into an alley.  Brown, 258 Ill. App. 3d at 550.  The court indicated that these were minimal details that

showed only that the crimes occurred.  Additionally, the

testimony did not in fact name the offenders.  Thus, the

admission of the conversation between the victim and her mother

was not error.  Brown, 258 Ill. App. 3d at 550.   

	In the instant case, C.K.'s mother testified as follows:

	   "Q. Not getting into everything that occurred, but did

you ask her what had happened?

	   A. Yes.  I asked her right away what had happened, and

she said that she had been raped on her way home from work

and that she had come home and that *** she needed to talk

to me right away.

	   *** Q. Did she state where she had been raped?

	   A. I asked her and she said the Bruegger's Bagels, where

she used to work.

	   Q. Did she know the individual or was she able to

identify who had done this to her?

	   A. She said it was somebody she had worked with and I

asked her who, who it was, and she said his name was Marvin, she wasn't sure what the last name was."  

Unlike the victim's mother in Brown, C.K.'s mother here provided more than "minimal details that show[ed] only that crimes

occurred."  Brown, 258 Ill. App. 3d at 550.  Thus, the admission of such testimony was error.  However, like Evans, any error in the admission of hearsay testimony was harmless where the

testimony was supported by other corroborative evidence --

namely, C.K.'s positive and unwavering testimony that it was

defendant who raped and sexually assaulted her.

	Defendant also relies upon People v. Sommerville, 193 Ill. App. 3d 161, 549 N.E.2d 1315 (1990).  In Sommerville, the trial court admitted testimony by three of the State's witnesses which

bolstered the victim's credibility.  The victim's boyfriend, an

officer who interviewed the victim, and a nurse who treated the

victim were all permitted to testify that the victim identified

the perpetrator as a "black male" and also provided details of

the offense.  Sommerville, 193 Ill. App. 3d at 172-73.  On review, the court held that the improper admission of the prior

consistent statements constituted reversible error.  The court

found the evidence to be closely balanced and that the testimony

of the three witnesses tended to make the jury believe the victim

over the defendant.  Sommerville, 193 Ill. App. 3d at 176.  

	Sommerville is distinguishable from the instant case.  First, the court found C.K.'s testimony clear and convincing and

the evidence was not closely balanced like Sommerville.   Additionally, the concerns associated with the jury's reliance on

prior consistent statements in Sommerville, coupled with the prosecutor's closing argument highlighting the corroborative

evidence, are not present in a bench trial that did not close with such a summation.  See People v. Gilbert, 68 Ill. 2d 252, 258, 369 N.E.2d 849 (1977) (trial judge is presumed to have

considered only competent evidence in a bench trial).

	Moreover, in rendering its decision, the court did not refer

to the testimony of C.K.'s mother concerning defendant's identity

or the details of incident.  The court merely noted that her

mother indicated that C.K. appeared visibly upset.  Instead, the

court relied upon the following evidence to convict the

defendant:

	   "I note that [C.K.] testified clearly and concisely.  I

note that Sergeant Higgins said that she was visibly upset. 

I note that her mother said that she was visibly upset.  I

note that even though there was not DNA evidence, that there 

was evidence of semen found in her pants.

	   I take into *** some consideration *** that most

businesses clean up *** And I note the Defendant's words, 'I

will not come inside you.'  For what reason is that? 

Obviously, you could infer from that there is an evidentiary

reason.  Secondly, 'Oh shit,' when the semen spilled on the

floor."  

In our view, defendant was not so prejudiced by the testimony of C.K.'s mother that it would have affected the outcome of the case

or that it undermined the fundamental fairness of the trial. 

Since we conclude that defendant suffered no prejudice, his claim

of ineffective assistance of counsel on this point also fails. 

See People v. Foster, 168 Ill. 2d 465, 475, 660 N.E.2d 951 (1995) (a court need not determine whether counsel’s performance was deficient if it decides that the defendant suffered no prejudice

from the alleged errors). 

II. CONVICTION

	Defendant was convicted on two counts of aggravated criminal

sexual assault committed during the course of a felony -- one

count based on unlawful restraint (count I), and the other count

based on kidnaping (count II).  Defendant argues that his

convictions should be reduced to criminal sexual assault because

unlawful restraint and kidnaping are lesser included offenses. 

The State concedes that count I (based on unlawful restraint)

merges with criminal sexual assault and kidnaping.  However, the

State argues that the offense of kidnaping was not incidental to

the offense of criminal sexual assault and that the conviction

for count II should not be reduced.    

	Kidnaping occurs when a person knowingly and secretly

confines another against her will or by force or threat of

imminent force carries another from one place to another with

intent to secretly confine her against her will.  720 ILCS 5/10-1

(West 1998).  To determine whether an asportation or detention rises to the level of kidnaping as a separate offense, Illinois

courts have adopted the test announced in People v. Smith, 91 Ill. App. 3d 523, 414 N.E.2d 1117 (1980).  A court must consider

the following four factors: (1) the duration of the asportation

or detention; (2) whether the asportation or detention occurred

during the commission of a separate offense; (3) whether the

asportation or detention that occurred is inherent in the

separate offense; and (4) whether the asportation or detention

created a significant danger to the victim independent of that

posed by the separate offense.  Smith, 91 Ill. App. 3d at 529.  "Whether an asportation is sufficient to constitute a kidnapping

depends on the particular facts and circumstances of each case." 

People v. Casiano, 212 Ill. App. 3d 680, 687, 571 N.E.2d 742 (1991).

	First, defendant contends that C.K.'s asportation was for an

insufficient duration because she was merely taken a few feet

from the hallway to the bathroom and the whole episode allegedly

lasted only a few minutes.  However, a kidnaping conviction is

not precluded by the brevity of the asportation or the limited

distance of the movement.  Casiano, 212 Ill. App. 3d at 687 (victim forced to walk 1 1⁄2 blocks at knife point to defendant's

apartment was sufficient asportation).  Several cases are

instructive.  In People v. Thomas, 163 Ill. App. 3d 670, 516 N.E.2d 901 (1987), the victim was walking toward her van when two

men forced her into the van and told her to lie down in the back. After the men drove the van for half a block, the victim escaped

out of the back passenger panel door.  Thomas, 163 Ill. App. 3d at 672-73.  The court held that the brevity of the asportation

did not preclude a kidnaping conviction.  Thomas, 163 Ill. App. 3d at 678. 

	People v. Pugh, 162 Ill. App. 3d 1030, 1033, 1035, 516 N.E.2d 396 (1987), similarly held that an asportation/detention

for a short duration did not preclude a kidnaping conviction.  In

Pugh, the victim walked past defendant's car when defendant got out of the car and began to beat the victim.  He then dragged her

into the car and forced her to lie down on the back seat as the

car was driven away.  Within a few minutes, a police car stopped

the vehicle.  Pugh, 162 Ill. App. 3d at 1031-32.  Although the victim was detained very briefly in the car, the court held that

it was sufficient to satisfy the duration factor.  Pugh, 162 Ill. App. 3d at 1035.	

	In People v. Rush, 238 Ill. App. 3d 806, 808, 816-17, 606 N.E.2d 132 (1992), the victim was standing outside the door of a

cocktail lounge.  Defendant grabbed the victim's arm and began to

beat her.  He then dragged her into an alley and forced her into

the basement of an abandoned building before sexually assaulting

her.  Rush, 238 Ill. App. 3d at 808-10.  The court rejected defendant's argument that the victim's asportation lasted an

insufficient duration because she was merely dragged 50 feet and

the incident only lasted five minutes.  Rush, 238 Ill. App. 3d at 816-18.  Similarly, in People v. Lloyd, 277 Ill. App. 3d 154, 164, 660 N.E.2d 43 (1995), the court found that the duration

factor was satisfied where the asportation lasted approximately

one block: the victim was taken by force from the street into an

abandoned building before she was sexually assaulted.

	In contrast, in People v. Lamkey, 240 Ill. App. 3d 435, 608 N.E.2d 406 (1992), the court reversed defendant's conviction for

aggravated kidnaping.  Lamkey involved a 10-year-old girl who was walking toward school when a man jumped out of the doorway of a

building and pulled her into a hallway.  He sexually assaulted

her in the hallway, which was within public view and clearly

visible to anyone walking or driving down the street.  In fact, a

passerby in a car observed the defendant with the victim and

sounded his automobile horn, causing the defendant to release the

victim and run upstairs.  Lamkey, 240 Ill. App. 3d at 436-37.  The passerby estimated that the asportation lasted two minutes. 

Lamkey, 240 Ill. App. 3d at 440. The court found that the victim was not detained for a substantial period of time.  It also found

that the asportation did not pose a more significant danger to

the victim than that already posed by the sexual assault.  The

court concluded that the State failed to prove that sufficient

asportation occurred.  Lamkey, 240 Ill. App. 3d at 440.     

	Here, C.K. was forced from the hallway into the men's

bathroom.  Like the victims in Thomas and Pugh, she was only detained for a few minutes.  Although the victim in Lamkey was also only detained for about two minutes, we find that case

distinguishable.  Unlike the hallway in Lamkey, which was clearly visible to the public and only steps away from a busy city

thoroughfare, the locked bathroom here was concealed from public

view.  We also note that the defendant turned the bathroom light

off, a fact that further hid his presence from a passerby.  Also,

even though the distance C.K. was taken (a few feet) was shorter

than Rush (50 feet), Lloyd (one block), or Thomas (half a block), in our view, the limited distance of the movement did not

preclude the finding of a separate kidnaping offense in the

instant case. 

	Second, C.K.'s asportation occurred prior to, rather than

during, the sexual assault.  Courts have found that kidnaping

constitutes a separate offense when the victim is transferred

from one location to another before she is raped.  See Lloyd, 277 Ill. App. 3d at 164 (victim's asportation from street to

abandoned building occurred prior to sexual assault); Casiano, 212 Ill. App. 3d at 687 (victim was forced from the street into

defendant's apartment before she was raped); People v. Sherrod, 220 Ill. App. 3d 429, 436, 581 N.E.2d 53 (1991) (victim's

asportation from the street to a garage in adjacent alley took

place before the sexual assault).  Similarly, here, C.K. was

forced from the hallway into a locked bathroom before she was

raped. 

	Third, the forced movement of the victim from one place to another is not inherent in the offense of criminal sexual

assault.  720 ILCS 5/12-13 (West 1998); Lloyd, 277 Ill. App. 3d at 164; People v. Gully, 151 Ill. App. 3d 795, 800, 502 N.E.2d 1091 (1986).

	Fourth, the asportation posed a significant danger to C.K.

independent of the danger created by the sexual assault.  The

danger arises from the potential for more serious criminal

activity due to the privacy of the final destination, the locked

bathroom in the instant case.  Sherrod, 220 Ill. App. at 436.  In particular, a significant and independent danger arises where the

victim is forced out of a public area and into a locked bathroom. 

Her signal for help is more difficult to detect and the

likelihood that she would be observed by a passerby is greatly

diminished.  Lloyd, 277 Ill. App. 3d at 164-65; Sherrod, 220 Ill. App. 3d at 435-36.

	In sum, the record indicates that kidnaping was not merely

incidental to the sexual assault and defendant's conviction on

count II was proper.  

III. SENTENCE	

	Lastly, defendant argues that he was sentenced pursuant to

an unconstitutional statute under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  In

Apprendi, the court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."  Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.  

	Defendant was convicted of aggravated criminal sexual

assault committed during the course of a felony.  720 ILCS 5/12-

14(a)(4) (West 1998).  Section 12-14(d)(2) requires a court to

impose a sentence of natural life imprisonment upon a repeat sex

offender as follows:

	   "A person who is convicted of a second or subsequent

offense of aggravated criminal sexual assault *** shall be

sentenced to a term of natural life imprisonment."  720 ILCS

5/12-14(d)(2) (West 1998).

	In the instant case, defendant was previously convicted of

aggravated criminal sexual assault on June 20, 1996, in Illinois

and sentenced to six years of prison.  He was on mandatory

supervised release from the Illinois State Penitentiary when C.K.

was attacked.  Because of his previous conviction for aggravated

criminal sexual assault, the trial court was required to sentence

defendant to a term of natural life.  720 ILCS 5/12-14(d)(2)

(West 1998).  Defendant contends that this recidivist provision

is unconstitutional because he was entitled to a trial by jury to

prove the fact of his previous conviction beyond a reasonable

doubt.  We disagree.

	Under Apprendi, prior convictions are considered an exception to the general rule that facts which increase a penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. 

Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2361-63.  Apprendi indicated that the "fact" of a prior conviction contains procedural safeguards unlike other "facts"

which increase punishment beyond the statutory maximum. 

Apprendi, 530 U.S. at 488, 147 L. Ed. 2d at 454, 120 S. Ct. at 2362.  See also People v. Lathon, 317 Ill. App. 3d 573, 740 N.E.2d 377 (2000) (general rule requiring  a jury determination

of fact issues for sentencing did not apply to recidivist

provision under Apprendi); People v. Roberts, 318 Ill. App. 3d 719, 743 N.E.2d 1025 (2000) (defendant's sentencing as a

recidivist was not subject to Apprendi rule generally requiring any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be proven to a jury beyond a

reasonable doubt); People v. Ramos, 318 Ill. App. 3d 181, 193, 742 N.E.2d 763, 774 (2000) ("Apprendi clearly exempts recidivist statutes"). 

	For the foregoing reasons, the decision of the trial court

is affirmed.

	Affirmed.     

	GordooORDON ANDand McBRIDE, JJ., CONoncuconcur.