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THIRD DIVISION

Nos. 1-98-0382 and 1-98-1588, Consolidated

Defendants Kwame McGlaston and Greylon Brials were indicted for the aggravatedcriminal sexual assault and unlawful restraint of 11-year-old C.B. They were triedsimultaneously, McGlaston in a bench trial and Brials before a jury. Brials was convicted of twocounts of aggravated criminal sexual assault and one count of unlawful restraint and sentencedto two consecutive six-year prison terms. McGlaston was convicted of three counts of aggravatedcriminal sexual assault and one count of unlawful restraint and sentenced to an eight-year prisonterm. We affirm the convictions but remand for resentencing.

Brials appeals the following issues: (1) whether his confession should have beensuppressed because his continued detention was unlawful after probable cause had dissipated; (2)whether his sentences should be concurrent because they were not committed as part of a singlecourse of conduct; and (3) whether one of his sentences should be vacated because the trial court sentencedhim twice on one charge.

In addition, Brials argues that the jury was improperly instructed that an 11-year-old couldnot consent, while McGlaston argues that the State did not prove beyond a reasonable doubt thatC.B. could not give knowing consent. They both argue that their convictions for aggravatedcriminal sexual assault, based on commission during the felony of unlawful restraint, must bereduced to criminal sexual assault because unlawful restraint is a lesser-included offense ofcriminal sexual assault and cannot be used as an aggravating factor.

McGlaston also claims his right to a jury trial was violated where the trial court failed toobtain a knowing waiver in open court.

BACKGROUND

Suppression Hearing

At the hearing on Brials' motion to suppress, Detective Duckhorn testified that C.B. toldofficers that three men assaulted her. She did not give the men's names. She described thesecond man as a black man with a dark complexion, about 20 years old, 5 feet 8 inches tall andweighing 160 pounds. She also identified McGlaston's house and described the interior wherethe assaults occurred.

McGlaston told detectives that he was in the backyard with two friends when C.B. walkedby. He asked her to come inside the house to smoke marijuana and have sex. Inside the house,C.B. refused to have sex with McGlaston, but went upstairs with his friend Emanuel. Brials alsowent upstairs after buying a condom from McGlaston. When Brials came downstairs, he said hehad had sex with C.B. and would return later. McGlaston went upstairs to have sex with C.B.,but she refused again. He invited her to spend the night, but she left the house and he did not seeher again. C.B. identified McGlaston in a lineup.

McGlaston described Brials to the detectives as 17 or 18 years old, 5 feet 10 inches tall,with a medium to dark complexion.

When Detective Duckhorn first questioned Brials, he admitted that he was at the housewith McGlaston and C.B., selling drugs in the backyard. Brials said that C.B. had walked by andthen went inside the house with McGlaston. Brials said that some time later he saw McGlastonand C.B. inside the house when he went in to use the telephone.

Duckhorn questioned Brials a second time in the presence of Assistant State's AttorneyOppenheimer. Brials was confronted with information from McGlaston's statement and thenmade another statement, admitting that he had sexual contact with C.B.

Brials testified that on May 24, 1996, he was taken into custody because McGlaston hadimplicated him in the assault of a girl. The police told him that McGlaston's version of whathappened differed from his. He admitted knowing McGlaston but denied that they were friends.

Brials' motion to suppress his statement was denied.

Trial

At trial C.B. testified that on May 22, 1996, she returned home from school at about 3p.m. About 4 p.m. she left with two of her foster sisters to go to a playground. At the baseballfield C.B. met a friend and went home with her to skip rope. It was still somewhat light out whenshe went to her friend's house. A short time later she went back to the baseball field and headedhome.

At the corner of 121st Street and Yale Avenue, some men in McGlaston's backyard calledto her. She had seen McGlaston before in the neighborhood but did not know his name at thetime. She did know the names of Emanuel and Tiger, who were also in the yard. She went overto the yard, and McGlaston asked her to come to his house, but she refused. He grabbed her bythe arm, told her to "come on," and pulled her onto the back porch and into the kitchen. She didnot cry out when McGlaston grabbed her.

Inside the house C.B. saw a large brown dog with a lot of hair, and in the bedroom nearthe kitchen she saw a photograph of McGlaston and his sister on top of a television set. McGlaston told her to come upstairs. She said she didn't want to go, but he grabbed her arm andtook her to the attic. She saw clothing, a mattress with a pillow and sheet and toys strewn aboutthe room.

McGlaston forced her to lie on the mattress and took off all her clothes except her socks. McGlaston then took his pants off and put his penis in her vagina. She tried to scream but hecovered her mouth with one hand and held her arm down with the other. He told her he wouldkill her if she said anything.

McGlaston went downstairs and another man came upstairs. C.B. did not move from themattress because she was in shock. The second man also held her down and put his penis in hervagina and then threatened to kill her. She recognized his voice as that of one of the men she hadseen downstairs, but could not remember his name.

After the second man left, Emanuel came upstairs. He held her down, threatened her, andput his penis in her mouth and her vagina. She knew his name because he lived across the streetfrom her.

C.B. testified that each of the three men returned and assaulted her again. At one pointall three were in the attic, and she heard McGlaston say that his mother was not home. After themen left she looked out the attic window and saw the second offender in the yard near the alley. He was giving something to a woman in exchange for money. C.B. left the attic in the morning. As she left the house, she saw McGlaston sleeping. She went to the park and stayed there untilabout 8 p.m. on May 23. She was very upset and finally went home and told her mother andgrandmother about the assaults.

At the hospital, C.B. told the doctor she had been raped by three men, but did not tell himthat one had put his penis in her mouth. She told police that she got into a blue four-door car withthree black men at 125th Street and Michigan Avenue because they said they would give her aride home. C.B. testified that she lied about the car because she thought that she would beblamed for walking over to McGlaston's yard.

C.B. identified McGlaston in a lineup. She saw a second lineup in which she recognizedBrials, but did not point him out because she was afraid. She later told her foster grandmother,Bessie Robinson, that Brials was in the lineup. A few days later she spoke to an assistant State'sAttorney and told him that she did not identify the second man who had raped her because shewas afraid he would kill her.

C.B.'s foster mother, Laura Alston, testified that C.B. was a sixth-grader in specialeducation classes. Alston called the police on the night of May 22, 1996, when C.B. did notreturn home. She told police that C.B. had run away four other times and that, before C.B. leftfor the park, they had an argument about personal hygiene.

Bessie Robinson testified that C.B. returned home on May 23, 1996, between 8 and 8:30p.m. She appeared frightened and dazed. Her demeanor was unusual and her answers were notcoherent when Robinson questioned her. C.B. gave her the names Kwame and Emanuel and saidthe men had threatened to kill her. C.B. cried and appeared ashamed. Neither Robinson norAlston noticed blood on C.B.'s clothing when she came home.

Both Alston and Robinson testified that C.B. was nervous during the second lineup. Afterthey arrived home C.B. told them that one of the offenders was in the lineup but she did notidentify him because she was afraid he would kill her.

Dr. Scott Cooper testified that he examined C.B. about 11:30 p.m. on May 23, 1996. C.B.told him she had been raped vaginally by three men but that there had been no oral or analcontact. Dr. Cooper's examination did not show any external tears or lacerations in the vaginalarea, but the area was tender and painful. He could not perform an internal examination with aspeculum because C.B. was so young and in too much pain.

Outside the presence of Brials' jury, Officer Latham testified for the State in the caseagainst McGlaston. Latham testified that, when he first spoke with McGlaston, McGlaston saidthat he did not rape C.B. but that she had consented to sex. McGlaston said that he, Brials,Emanuel and Tiger had vaginal sex with C.B. Latham further testified that C.B. never told himthat McGlaston threatened to kill her.

Detective Duckhorn's testimony at trial was similar to that at Brials' suppression hearing.

Assistant State's Attorney Michael Oppenheimer testified that Brials told him that he wasin the backyard when C.B. walked by the house. Brials said C.B. looked young and "retarded." Brials then admitted that Emanuel went to the attic where C.B. was at 11:14 p.m. He knew whattime it was because he looked at the clock on the microwave. After Emanuel came downstairs,Brials went to the attic and had oral sex with C.B. He then went outside and stayed in the yarduntil 1 a.m.

Assistant State's Attorney Fabio Valentini testified that he met with C.B. on May 28, 1996. C.B. told him that she recognized one of the offenders in the second lineup, but she did notidentify him because he had threatened to kill her. The offender had been the person second fromthe right in the lineup. Detective Duckhorn later told Valentini that Brials was the person secondfrom the right in the lineup. C.B. also admitted to him that she had not been picked up in a carbut had walked to the gate herself. She said she lied because she was afraid to get in trouble. Shealso named "Manuel" and Tiger as participants.

Vernetta McGlaston, defendant McGlaston's mother, testified for both defendants. Shewas a special education teacher and C.B. was one of her students. She testified that her daughterFelicia brought her children to her house every day about 6 a.m. so Mrs. McGlaston could takethem to school. Mrs. McGlaston also brought them home from school and kept them until Feliciapicked them up at 5:30 p.m. The children used the attic to play and do homework.

On May 22, 1996, Mrs. McGlaston left for work about 8:20 a.m. and returned at 3 p.m. McGlaston was home at that time. She left again at 10:30 p.m. for a date and did not return untilabout 3 a.m. on May 23, 1996. She saw McGlaston when she came home, but she saw no oneelse. On the morning of May 23, Felicia brought the children at 6 a.m. Mrs. McGlaston neversaw C.B. in her home or yard that morning, but she did not go into the attic.

Felicia McGlaston testified that when she brought her children to her mother's house onMay 23, they went to the attic to play. She did not see her brother or anyone else in the house.

Brials testified that on the evening of May 22, 1996, he saw C.B. walking down the street. Two of the men in the yard called her over and she spoke with McGlaston through the gate. Emanuel told Brials that C.B. was in grammar school. She came into the yard and sat on the stepsinto the kitchen. He saw her enter the house, but he never saw anyone grab her to take her inside. About an hour later he went inside to use the telephone and saw C.B. and McGlaston in thekitchen. Brials testified that he went back outside and stayed in the yard with Emanuel, sellingdrugs until 1 a.m., when he left. He saw C.B. leave the house. He denied being in the attic orhaving sex with C.B. that night.

ANALYSIS

Brials' Motion to Suppress

Brials argues that, although police had probable cause to arrest him, probable causedissipated after C.B. failed to identify him in a lineup. Brials cites People v. Quarles, 88 Ill. App.3d 340 (1980), to support the argument that his statement, given after the lineup, was a fruit ofhis unlawful continued detention.

The evidence presented at the hearing on the motion to suppress showed that C.B. haddescribed three offenders and the house in which the assaults occurred. Kwame McGlaston hadgiven a statement inculpating himself and Brials, and a search of the house corroborated detailsfrom C.B.'s account. C.B.'s description of one of the offenders matched the description of Brials. Finally, in his first statement Brials admitted being at the scene and seeing C.B. with McGlaston,but denied assaulting C.B. In denying the motion to suppress, the trial court found:

"I believe the arrest at his home was done with more than minimal probablecause, substantial probable cause assuming there was dissipation of that quantumafter the victim did not identify the defendant at a lineup, and even going furtherto say if some reviewing court would conclude that the dissipation obviated theprobable cause, which I don't say, but assuming that possibly to be the case,holding the defendant at the police station for a brief period of time detaining himwas absolutely a minimal intrusion upon his person and I think it reasonable forpolice to advise him of his rights, conduct an interview to finally clarify the wholesituation ***." (Emphasis added.)

Quarles is distinguishable from this case. There, the police arrested the defendant andthen discovered that there was no substance to the charges. A detective then questioned thedefendant about an unrelated burglary, to which the defendant confessed. The court held that theconfession must be suppressed because the defendant was illegally held in custody on a chargethe police knew had no merit. But here, C.B.'s failure to identify Brials in the lineup did notnegate the substantial evidence supporting probable cause. In finding no dissipation, the trialcourt noted, "With a young girl of a tender age, perhaps around eleven, sometimes young ladieslike that, young girls like that can be embarrassed, could be afraid to get involved, could be afraidto point a finger and pursue this kind of a case of a sexual assault case." We agree that becauseBrials put himself at the scene, was implicated in the assaults by his codefendant, and matchedC.B.'s description of the second offender, there was no dissipation of probable cause by C.B.'sfailure to identify Brials in the lineup. The trial court did not err in denying the motion tosuppress.

Brials: Consecutive Sentences

Brials argues that the trial court erred in imposing consecutive sentences for the twoseparate acts of aggravated criminal sexual assault. He claims that the acts were not committedas part of a single course of conduct with no substantial change in the criminal objective and that,even if they were, the trial court made no finding of a single course of conduct.

"Plain errors or defects affecting substantial rights may be noticed although they were notbrought to the attention of the trial court." 134 Ill. 2d R. 615(a). Sentencing issues are exceptedfrom the doctrine of waiver when they affect a defendant's substantial rights. People v. McCleary,278 Ill. App. 3d 498, 501-02 (1996).

Section 5-8-4 of the Unified Code of Corrections (730 ILCS 5/5-8-4 (West 1996)) "plainlyrequires the imposition of consecutive sentences only when the subject offenses are committedin a single course of conduct" (People v. Bole, 155 Ill. 2d 188, 198 (1993)). The statute has sincebeen amended to require consecutive sentences regardless of whether the offenses werecommitted in a single course of conduct. 730 ILCS 5/5-8-4(b) (West 1998). The effective dateof the amendment was July 22, 1997, after the offenses in this case were committed but beforedefendant was sentenced. The State has not raised the issue of whether the amendment appliesto the defendant in this case, so we will apply the law as it existed before the amendment.

The State argues that Brials committed the two acts of aggravated criminal sexual assaultas part of a single course of conduct in which there was no substantial change in the criminalobjective. A single "'course of conduct' *** could include a range of activity and *** is notnecessarily confined to a single incident." Bole, 155 Ill. 2d at 193. "[T]he trial court is presumedto know the law and apply it properly." People v. Howery, 178 Ill. 2d 1, 32 (1997).

The evidence showed that Brials assaulted C.B. twice between late evening on May 22,1996, and early morning of May 23, 1996. Although Brials went outside after the first assault tosell drugs in the backyard, he returned to the attic and assaulted C.B. again. C.B. remained in thesame location between assaults, the assaults occurred within a time span of several hours, andBrials committed the same offense each time. The evidence shows no change in Brials' criminalobjective. The trial court's finding that consecutive sentences were mandatory is supported by theevidence.

Brials: Sentencing Twice on One Charge

Brials next argues that the mittimus shows he was sentenced twice on the same charge,count XIII, in violation of due process. The record shows that Brials was charged with threecounts of aggravated criminal sexual assault, counts V, IX and XIII. Count V was based on theuse of force or threat of force, count IX on the knowledge that C.B. was unable to understand thenature of the act, and count XIII on the knowledge that C.B. was unable to give knowing consent. The evidence at trial showed that Brials had two separate encounters with C.B., and the juryreceived and returned one verdict form for each encounter. They read: "We, the jury, find thedefendant, Greylon Brials, guilty of aggravated criminal sexual assault, Greylon Brials' penis to[C.B.'s] vagina, first incident," and "We, the jury, find the defendant, Greylon Brials, guilty ofaggravated criminal sexual assault, Greylon Brials' penis to [C.B.'s] vagina, second incident." Thejury found him guilty of each act and the trial court clearly sentenced Brials for two counts ofaggravated criminal sexual assault.

"[W]here an indictment contains several counts arising out of a single transaction,and a general verdict is returned, the effect is that the defendant is guilty ascharged in each count, and if the punishment imposed is one which is authorizedto be inflicted for the offense charged in any one or more of the counts, the verdictmust be sustained." People v. Lymore, 25 Ill. 2d 305, 308 (1962).

Here, the verdict forms were general and did not refer to the distinctions between countsV, IX and XIII of the indictment. "[A] court must carefully examine the nature of the particulardefendant's conduct as shown by the evidentiary record and then determine whether that conductcan be broken down into separate parts, i.e., distinct and identifiable 'overt or outwardmanifestations,' that would, by themselves, support multiple convictions." People v. Bowens, 307Ill. App. 3d 484, 489 (1999), quoting People v. King, 66 Ill. 2d 551, 566 (1977). In People v.Partee, 157 Ill. App. 3d 231, 270 (1987), the court found that the defendant's several blows todifferent parts of the victim's body were multiple acts sufficient to support convictions on threecounts of aggravated battery. In this case, Brials assaulted C.B., went downstairs for a period oftime, and then returned and assaulted C.B. again. Each of the two acts was sufficient to supportany of the three counts of aggravated criminal sexual assault charged in the indictment.

Although the mittimus refers only to count XIII, the trial judge never referred specificallyto count XIII in sentencing Brials. We direct the trial court to correct the mittimus to specify theparticular two counts of the indictment under which Brials was sentenced. See People v.Maldonado, 224 Ill. App. 3d 913, 918 (1992).

Consent

Brials argues that the trial court erred in instructing the jury that an 11-year-old could notconsent to an act of sexual penetration. In a related argument, McGlaston claims that the Statefailed to prove that C.B. could not understand the nature of the act or give knowing consent.

The State correctly notes that the trial court only entered judgment against McGlaston oncount IV, which was based on the use of force or threat of force. Counts VIII and XII were basedon McGlaston's knowledge that C.B. was unable to understand the nature of the act and unableto give knowing consent. Because McGlaston was not sentenced on these charges, his argumentis moot. However, we still must address this issue with regard to Brials.

The standard of review is whether, after viewing the evidence in the light most favorableto the prosecution, any rational trier of fact could have found the essential elements of the crimebeyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985); Jackson v. Virginia,443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). "[I]t is the totality of therecord which must be examined with special caution when clandestine sexual acts are charged." People v. Myles, 31 Ill. App. 3d 45, 48 (1975).

The dissent argues that giving the instruction that an 11-year-old cannot consent to an actof sexual penetration was "a grave and fundamental error." Slip op. at 21. We disagree. "'Eventhough error may have been committed in giving or refusing instructions it will not always justifyreversal when the evidence of defendant's guilt is so clear and convincing that the jury could notreasonably have found him not guilty.'" People v. Truelook, 35 Ill. 2d 189, 192 (1966), quotingPeople v. Ward, 32 Ill. 2d 253, 256 (1965). We need not decide whether the trial court erred ininstructing the jury that an 11-year-old can never consent to an act of sexual penetration. Here,the evidence of Brials' guilt was clear and convincing, so that if the trial court erred in giving theinstruction, the error was harmless.

"Knowing consent requires us to examine all of the circumstances to see if defendantknowingly exercised such control over complainant that a trier of fact could find that complainantdid not submit to the sexual advances of defendant voluntarily, intelligently, and by an activeconcurrence." People v. Whitten, 269 Ill. App. 3d 1037, 1044 (1995). In Whitten, the defendantwas convicted of criminal sexual assault of the victim, who was a 32-year-old developmentallydisabled woman with an IQ of 54 and a functional level of 9 years and 9 months. She did notprotest, cry out or physically resist the defendant, who was a staff member at her residentialfacility. The defendant argued on appeal that the State failed to prove that the victim was unableto give knowing consent.

The court disagreed, finding that the "circumstances indicate that defendant knew,intended, and had the capability to take sexual advantage of one who was unable to give knowingconsent because of the disparity not only in IQs but also in defendant's ability to use his positionof power and authority over complainant." Whitten, 269 Ill. App. 3d at 1044.

The evidence in this case showed that McGlaston was 21 and Brials was 17 at the timeof the offenses. C.B. was 11, and the record reveals that she was learning disabled. See Peoplev. Strait, 116 Ill. App. 3d 110, 113 (1983); People v. Riley, 84 Ill. App. 2d 296 (1967) (a seven-year-old is conclusively presumed to be unable to legally consent to a sexual act). C.B. resistedgoing into the house and attic and testified that, when she tried to scream, McGlaston covered hermouth with his hand and held her down on the mattress. All three offenders threatened to kill her. A victim's failure to cry out or resist does not establish consent in sex cases if the victim isthreatened or in fear of being harmed. People v. Stengel, 211 Ill. App. 3d 337 (1991). "Ifcircumstances show resistance to be futile or life-endangering or if the victim is overcome bysuperior strength or fear, useless or foolhardy acts of resistance are not required." In re C.K.M.,135 Ill. App. 3d 145, 151 (1985).

An 11-year-old girl, outnumbered by three men in their late teens or early 20s whothreatened to kill her if she resisted, did not "submit to the sexual advances of defendant[s]voluntarily, intelligently, and by an active concurrence." Whitten, 269 Ill. App. 3d at 1044. TheState proved beyond a reasonable doubt that defendants took sexual advantage of C.B., who wasunable to give knowing consent because of the disparity in age, mental ability and physical sizeand strength.

The dissent cites People v. Mueller, 54 Ill. 2d 189 (1973), and People v. Trinkle, 68 Ill.2d 198 (1977), both of which we find distinguishable from the case before us. Slip op. at 21. InMueller, the supreme court reversed a conviction for deviate sexual assault upon a seven-year-oldfor lack of proof of force or threat of force. The offense at issue here is aggravated criminalsexual assault based upon the inability of the victim to give knowing consent. Force or threat offorce is not an element. We do not find Mueller applicable. See Strait, 116 Ill. App. 3d at 113,citing Riley, 84 Ill. App. 2d at 300.

In Trinkle, both the indictment and the jury instructions stated that defendant could beguilty of attempted murder without a specific intent to kill. The court held that "specific intentis an indispensable element to this crime, and hence the indictment and instructions relating tothis crime were fatally erroneous." Trinkle, 68 Ill. 2d at 199. The court noted that there was noevidence, direct or circumstantial, that the defendant had a specific intent to kill. Here, despitethe instruction, the record reveals substantial evidence from which a rational trier of fact couldhave found beyond a reasonable doubt the element of lack of knowing consent.

Unlawful Restraint as Aggravating Factor

Both defendants argue that their aggravated criminal sexual assault convictions must bereduced to criminal sexual assault because the aggravated criminal sexual assault charges werebased on the commission of criminal sexual assault during the felony of unlawful restraint. Theyargue that unlawful restraint is a lesser-included offense of criminal sexual assault (People v.Allman, 180 Ill. App. 3d 396 (1989)) and cannot be used to enhance criminal sexual assault toaggravated criminal sexual assault (People v. Haron, 85 Ill. 2d 261 (1981) (holding that factorsinherent in an underlying offense cannot be used to enhance that offense)).

A person commits unlawful restraint when he "knowingly without legal authority detainsanother." 720 ILCS 5/10-3 (West 1996). "The gist of unlawful restraint is the detention of aperson by some conduct which prevents him from moving from one place to another." Peoplev. Bowen, 241 Ill. App. 3d 608, 627-28 (1993). Here, C.B. testified that each defendant held herdown during the assaults and threatened to kill her. McGlaston was specifically convicted andsentenced on count IV, aggravated criminal sexual assault by use of force or threat of force. "[A]criminal sexual abuse by the use of force or threat of force will generally first involve a physicalrestraint of the victim." People v. Yeast, 236 Ill. App. 3d 84, 89 (1992). As in Bowen, "thespecific instance of conduct to which the charge was directed was the act of detention occurringduring the criminal sexual assaults." Bowen, 241 Ill. App. 3d at 627. Under these facts, unlawfulrestraint is a factor inherent in the offense of criminal sexual assault.

"Double enhancement occurs when a factor already used to enhance an offense or penaltyis reused to subject a defendant to a further enhanced offense or penalty." People v. Thomas, 171Ill. 2d 207, 223 (1996). Here, the offense of criminal sexual assault was enhanced to aggravatedcriminal sexual assault based on its commission during the felony of unlawful restraint. Becauseunlawful restraint is already a factor inherent in the offense of criminal sexual assault, it cannotbe used a second time as an aggravating factor. The trial court properly vacated defendants'convictions for unlawful restraint as a lesser included offense (see People v. Conerty, 296 Ill.App. 3d 459 (1998)). However, based on Haron, 85 Ill. 2d 261, we must also reduce defendants'convictions for aggravated criminal sexual assault to the lesser offense of criminal sexual assaultand remand this case to the trial court for resentencing on the reduced charges.

McGlaston's Jury Waiver

McGlaston argues that his conviction must be reversed and remanded for a new trialbecause the record does not contain a signed jury waiver (though the September 23, 1997, half-sheet entry says that a jury waiver was signed) and the transcript of the proceedings for that daydoes not contain a reference to a jury waiver.

The report of proceedings on January 22, 1997, shows that defendant McGlaston waspresent when his attorney, Mr. Vargas, told the court, "And I have spoken to my client regardingwhether he wanted a jury or bench. And it [is] his indication even though we haven't signed thejury waiver form that he's anticipating a bench trial." The parties then scheduled trial for March18, 1997. In anticipation of trial, the following colloquy occurred between Brials' attorney, Mr.Willis, McGlaston's attorney, Mr. Vargas, and the court:

"MR. WILLIS: Judge, could you put on the-indicate on the mittimuscivilian clothes on the 18th?

THE COURT: Oh, yes. Civilian clothes.

MR. WILLIS: Thank you, Judge.

MR. VARGAS: Your Honor, even though we have indicated a bench,maybe I should do the same thing.

THE COURT: He can get civilian clothes. That's fine with me. Alwayschange his mind and want a jury and we'll have it."

However, trial was postponed until September 23, 1997. The half-sheet for that dateindicates that McGlaston signed a jury waiver, though no signed jury waiver is in the record onappeal.

The State argues that defendant waived this issue because he failed to raise it in his writtenposttrial motion. Though both an objection at trial and a written posttrial motion are required topreserve an issue for review (People v. Williams, 165 Ill. 2d 51, 60 (1995)), we may review plainerrors affecting substantial rights under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)) evenif those errors were not brought before the trial court. We will address the merits of defendant'sclaim.

Under section 103-6 of the Code of Criminal Procedure of 1963 (Code), a bench trial maybe held if the right to trial by jury is "understandingly waived by defendant in open court." 725ILCS 5/103-6 (West 1998). Section 115-1 of the Code provides: "All prosecutions except on aplea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendantwaives a jury trial in writing." 725 ILCS 5/115-1 (West 1998). But failure to file a written jurywaiver does not require reversal "so long as the defendant's waiver was made understandingly inaccordance with section 103-6 of the Code of Criminal Procedure." People v. Tooles, 177 Ill. 2d462, 468 (1997). Whether a jury waiver was made understandingly turns on the facts andcircumstances of each particular case. People v. Tye, 141 Ill. 2d 1, 24 (1990). An accusedtypically speaks and acts through his attorney, and a jury waiver is valid when "made by defensecounsel in defendant's presence where defendant gave no indication of any objection to the courthearing the case." People v. Frey, 103 Ill. 2d 327, 332 (1984). "We have never found a valid jurywaiver where the defendant was not present in open court when a jury waiver, written orotherwise, was at least discussed." People v. Scott, 186 Ill. 2d 283, 285 (1999). The supremecourt found the facts in Scott distinguishable from those in Frey because, unlike Frey, thedefendant was never present in open court when a jury waiver was discussed. Scott, 186 Ill. 2dat 285. The Scott court also noted that the references to proceeding with a bench trial "arose ina dialogue between defendant's attorney and the trial judge concerning a motion to dismiss. ***[T]he statement was not meant as an affirmative waiver, but instead as an indication to the courtthat defendant would proceed with trial despite the pending motion." Scott, 186 Ill. 2d at 286. The written jury waiver in Scott contained a deadline after which the waiver was irrevocable. Thecourt was unwilling to presume that defendant's silence was an acquiescence, but that it "mayhave been due to his belief that it was too late to revoke his jury waiver."

But in People v. Asselborn, 278 Ill. App. 3d 960, 962 (1996):

"[T]he colloquy between defense counsel and the trial court occurred priorto the onset of opening statements by counsel. Defendant was present during thecolloquy and failed to object. A defendant who permits his counsel in his presenceand without objection to waive his right to a jury trial is deemed to haveacquiesced in, and is bound by, his counsel's actions."

In this case, though the record on appeal does not contain a written jury waiver, the half-sheet does show that McGlaston waived a jury. As in Frey and Asselborn, McGlaston was alsopresent when his attorney told the court that McGlaston waived his right to a jury, but had not yetsigned a written waiver. We note that McGlaston does not contend in his brief that he failed toknowingly waive his right to a jury trial, but only that the record is insufficient to show that he didso. We disagree.

McGlaston was present in court when his attorney told the trial judge that he wanted abench trial. His bench trial was conducted simultaneously with Brials' jury trial. McGlastoncannot fairly argue that he did not know that he also had the right to a jury trial. The dissent (slipop. at 22) cites People v. Williamson, 311 Ill. App. 3d 54, 60 (1999), noting that, as in this case,no written waiver was in the record, though the defense attorney did indicate there would be abench trial. But in Williamson, 311 Ill. App. 3d at 60, we noted that on "the only two dates whenwe know that defendant was in open court neither defendant nor his attorney made any statementregarding jury waiver or proceeding by bench trial," and found these circumstancesdistinguishable from People v. Frey, 103 Ill. 2d at 333, where the defendant was in court beforetrial "when the jury waiver was discussed." The facts of this case more accurately reflect thosein Frey than those in Williamson. We find the record reflects that McGlaston knowingly waivedhis right to a jury trial.

The judgments of the circuit court are affirmed. We remand for resentencing of bothdefendants and correction of defendant Brials' mittimus.

Affirmed and remanded; mittimus corrected.

CERDA, J., concurs.

WOLFSON, J., dissents.

JUSTICE WOLFSON, dissenting:

I respectfully dissent from the decision to affirm the convictions of both defendants.

Brials was convicted of Aggravated Criminal Sexual Assault. It is a crime of force andviolence. People v. Mueller, 54 Ill. 2d 189 (1973). Age of the victim was not an issue. Consent was. A fact issue. The trial judge took the issue away from the jury when heinstructed that an 11-year-old cannot consent to any act of sexual penetration. The instructiondoes not appear in the Illinois Pattern Jury Instructions for a good reason--it doesn't belongthere. The instruction was a grave and fundamental error. We should reverse and remandwithout evaluating the evidence when the jury has not been correctly instructed on an essentialelement of the case. See People v. Trinkle, 68 Ill. 2d 198 (1977).

Whether a defendant has validly waived a jury trial poses a question concerning asubstantial right. People v. Stokes, 281 Ill. App. 3d 972, 976 (1996). A defendant validlywaives his right to a jury trial only if he does so "(1) understandingly; and (2) in open court." People v. Scott, 186 Ill. 2d 283, 285 (1999); 725 ILCS 5/103-6 (West 1992).

There was no valid jury waiver here. Vague references to anticipation of a "bench"trial eight months before trial do not even come close to a valid waiver, especially where thereis no

signed jury waiver in the record.

In Scott, on the day of trial, in the defendant's presence, defense counsel said: "And wewould proceed to the bench trial today." The judge replied: "Okay, we'll proceed to benchtrial,

then?" And he said: "We will then proceed with the bench trial." (Emphasis added.) Scott,186 Ill. 2d at 284. The defendant was not asked for his preference. In Scott, despite thepresence of a signed jury waiver, the court held the defendant did not validly waive his right toa jury trial in open court. The conviction was reversed and the cause remanded.

Recently, in People v. Williamson, 311 Ill. App. 3d 54 (1999), we reversed a murderconviction because the defendant did not understandingly waive his right to a jury trial in open

court. There, as here, no written waiver was in the record. There, as here, before the day oftrial the defense lawyer indicated there would be a bench trial. In fact, he said it threedifferent times. Each time, the defendant was not asked any question by the trial court.

We have not hesitated to reverse convictions where trial judges fail to take the fewminutes necessary to obtain a knowing jury trial waiver from the defendant. See People v.Taylor, 291 Ill. App. 3d 18 (1997); People v. Eyen, 291 Ill. App. 3d 38 (1997); and People v.Roberts, 263 Ill. App. 3d 348 (1994). It is not a difficult thing to do and it should not requirethe constant reminders that have come from the appellate and supreme courts of this state. See People v. Chitwood, 67 Ill. 2d 443, 448-49 (1977), and cases cited in Williamson.

The right to a jury trial is not a technicality. It is at the core of our system of law. Itdoes not depend on the character of the accused or the nature of the crime he may havecommitted. Today, we trivialize that right.