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SECOND DIVISION
MAY 22, 2001

1-99-3893

JUSTICE COUSINS delivered the opinion of the court:

Following a bench trial, defendant Marvin Ware was convictedof aggravated criminal sexual assault and was sentenced tonatural life in prison. On appeal, defendant argues that: (1) hewas denied a fair trial when the trial court improperly admittedprior consistent statements; (2) his convictions should bereduced to criminal sexual assault; and (3) his natural lifesentence was based on an unconstitutional statute under Apprendiv. 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 countsincluded: two counts of aggravated criminal sexual assault, onecount of criminal sexual assault, two counts of kidnaping, onecount of aggravated criminal sexual abuse, and one count ofunlawful 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 stopby Bruegger's Bagel Baker, where she had previously worked, tovisit former coworkers. She entered through the front of thestore and saw one former coworker at the register helpingcustomers. C.K. also saw the defendant putting a new bag on thegarbage can. C.K. and defendant had previously worked togetherabout five times. After saying "hi" to them both, C.K. begantalking to defendant about her new job. As they talked, C.K.began walking down a long hallway toward the back door withdefendant following behind her. She walked past the women'swashroom and said that she was going home. As C.K. stood infront of the men's washroom, the defendant grabbed her arm andpulled her into the men's washroom.

C.K. stated that she was surprised and shocked. Defendantturned off the lights in the bathroom, locked the door, andpinned 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 hermouth or covered her mouth with his hand. C.K. tried to pushdefendant off with her body but failed.

Defendant fondled C.K.'s breasts from outside of herclothing. Defendant said, "Don't worry, I'm not going to come inyou." At this point, C.K. stated that she believed that she "wasbeing raped." Defendant unbuckled C.K.'s pants and pulled herpants and underwear down to her knees. He then unzipped his ownpants and pulled out his penis. C.K. felt defendant insert hispenis inside her vagina and move back and forth. After a coupleof minutes, defendant suddenly pulled back and said, "Oh, shit." Defendant had ejaculated a little bit on the floor, so he turnedon the light, grabbed some toilet paper and finished ejaculatinginto the toilet paper.

Defendant then exited the bathroom. C.K. pulled up herpants and also left the bathroom. She saw the defendant standingwith his back to her holding a mop bucket in his hand. C.K. leftout the back door and went home. C.K. told a houseguest thatsomething was wrong and to call her mother. C.K.'s mother camehome and took C.K. upstairs. C.K. told her mother that she hadbeen raped. Her mother would not let C.K. shower or changeclothes and took her to the emergency room. At the hospital,C.K. completed a sexual assault kit. She testified that she hadnot had sex with anyone within 72 hours of the incident and wasnot sure whether defendant had ejaculated inside of her.

Nurse Delores Armstrong testified that she tended to C.K. onAugust 19, 1998. The physical exam revealed no vaginal trauma. Armstrong indicated it was not unusual that no vaginal traumaoccurred during the rape. The vaginal and oral swabs from thesexual assault kit contained no evidence of semen. Examinationby the Illinois State Police found semen on the crotch area ofC.K.'s panties, though no sperm was detected and no DNA otherthan C.K.'s was found.

Sergeant Bruce Higgins of the Chicago police departmentinterviewed C.K. at the hospital. He stated that C.K. appearedvisibly shaken and upset and had to stop a couple of times as shethrew up in a waste paper basket. She identified the perpetratoras a former coworker and indicated his first name. Higgins thenproceeded to the men's bathroom of the bagel store. He testifiedthat it was spotless, as though it had just been cleaned. Thegarbage can was empty and the floors were clean. Higgins checkedthe women's washroom and found the sink and toilet to befunctioning. The police checked nine bags of garbage andrecovered a large wad of toilet paper which was analyzed andfound to contain no evidence of semen. Higgins obtaineddefendant'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 toldHiggins that he first noticed C.K. in the bagel store when heopened the men's washroom door to clean it. Defendant said toC.K., "You know, why don't you use the women's washroom and getout of here?" He left her to do some other cleaning and when hecame back, he found C.K. still inside the men's washroom. Heyelled 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 fromher houseguest on August 19, 1998, around 6 p.m. D.K. went homeimmediately and found C.K. crying in the living room. Sheobserved that C.K.'s face was red, her eyes were puffy and shewas shaking. D.K. testified that C.K. told her that she had beenraped on her way home from work. D.K. stated that C.K. said itoccurred at Bruegger's Bagels where she used to work and that herattacker was a former coworker named Marvin. D.K. then told C.K.that she should not shower and took her to the hospital.

Defendant was found guilty of two counts of aggravatedcriminal sexual assault predicated on unlawful restraint andkidnaping. The court indicated that while the defendant was alsoguilty of the other charges against him, they merged into thesetwo counts. At the sentencing hearing, the State introducedevidence of defendant's prior conviction for aggravated criminalsexual assault. Accordingly, the court sentenced defendant tonatural life imprisonment.

Defendant appeals. We affirm.

ANALYSIS

I. WITNESS TESTIMONY

Defendant claims that he was denied a fair trial because thetrial court erroneously admitted the hearsay testimony of C.K.'smother. In defendant's view, such admission impermissiblybolstered C.K.'s testimony by identifying the defendant andproviding details of the occurrence. Although defendant concedesthat he failed to object at trial and failed to raise the issuein a posttrial motion, he urges this court to review the claim asplain error.

The plain error doctrine may be invoked in criminal caseswhere: (1) the evidence is closely balanced; or (2) where theerror was of such magnitude that the accused was denied a fairtrial. People v. Nieves, 192 Ill. 2d 487, 502, 737 N.E.2d 150(2000). In our view, the evidence in this case was not soclosely balanced as to warrant plain error review. Evidencesupporting conviction included male semen found in C.K.'sunderwear; C.K.'s prompt reporting of the incident; her upsetdemeanor visible to Sergeant Higgins and her mother; and theopportunity for defendant to mop up and dispose of semen in thebathroom. On the other hand, there was only defendant'sstatement that C.K. was in the men's bathroom of her own accordand exited after defendant yelled at her to leave. We now turnto the merits of defendant's argument to determine whether theerror, if any, was "so severe that it must be remedied topreserve the integrity of the judicial process." Nieves, 192Ill. 2d at 503.

In general, the testimony of a witness may not be bolsteredby showing that she made similar statements out of court;however, a well-established exception exists for sexual assaultcases where the prosecuting witness made a prompt complaint ofthe incident. People v. Evans, 173 Ill. App. 3d 186, 199, 527N.E.2d 448 (1988). Evidence that a complaint was made isadmissible to corroborate the victim's testimony. People v.Damen, 28 Ill. 2d 464, 473-74, 193 N.E.2d 25 (1963). The solepurpose of this exception is to rebut the presumption arisingfrom the complainant's silence. Therefore, only the fact of thecomplaint is admissible; neither the details of the complaint northe identity of the named perpetrator is admissible. Damen, 28Ill. 2d at 473-74. Additionally, any error in the admission ofhearsay testimony is ordinarily considered harmless where thetestimony 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.2d1106 (1994), are instructive. In Evans, the victim, G.B.,testified that she told her friend that defendant "took advantageof [G.B.]" and also testified that she identified defendant toher friend during the conversation. Evans, 173 Ill. App. 3d at202. The reviewing court held that the naming of defendant wasimproper since only the fact of the complaint, and not thedetails or identity of the perpetrator, is admissible. Evans,173 Ill. App. 3d at 202. However, the court found the error to beharmless due to G.B.'s corroborative testimony:

"[I]n light of G.B.'s positive and unwavering testimony thatit was defendant who raped and sexually assaulted her, weconclude that any impropriety in the admission of thistestimony, to which the defendant made no objection, was notso harmful as to constitute plain error." Evans, 173 Ill.App. 3d at 202.

In Brown the court held that the trial court properlyadmitted testimony of the victim's mother that did not containany great detail of the incident. Specifically, the only detailsadmitted were that men with guns took the victim's purse; thatthe victim was fondled and penetrated by a finger; and that a mantried to drag the victim into an alley. Brown, 258 Ill. App. 3dat 550. The court indicated that these were minimal details thatshowed only that the crimes occurred. Additionally, thetestimony did not in fact name the offenders. Thus, theadmission of the conversation between the victim and her motherwas 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 didyou ask her what had happened?

A. Yes. I asked her right away what had happened, andshe said that she had been raped on her way home from workand that she had come home and that *** she needed to talkto me right away.

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

A. I asked her and she said the Bruegger's Bagels, whereshe used to work.

Q. Did she know the individual or was she able toidentify who had done this to her?

A. She said it was somebody she had worked with and Iasked 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 providedmore than "minimal details that show[ed] only that crimesoccurred." Brown, 258 Ill. App. 3d at 550. Thus, the admissionof such testimony was error. However, like Evans, any error inthe admission of hearsay testimony was harmless where thetestimony was supported by other corroborative evidence --namely, C.K.'s positive and unwavering testimony that it wasdefendant 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 trialcourt admitted testimony by three of the State's witnesses whichbolstered the victim's credibility. The victim's boyfriend, anofficer who interviewed the victim, and a nurse who treated thevictim were all permitted to testify that the victim identifiedthe perpetrator as a "black male" and also provided details ofthe offense. Sommerville, 193 Ill. App. 3d at 172-73. Onreview, the court held that the improper admission of the priorconsistent statements constituted reversible error. The courtfound the evidence to be closely balanced and that the testimonyof the three witnesses tended to make the jury believe the victimover 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 andthe evidence was not closely balanced like Sommerville. Additionally, the concerns associated with the jury's reliance onprior consistent statements in Sommerville, coupled with theprosecutor's closing argument highlighting the corroborativeevidence, are not present in a bench trial that did not closewith such a summation. See People v. Gilbert, 68 Ill. 2d 252,258, 369 N.E.2d 849 (1977) (trial judge is presumed to haveconsidered only competent evidence in a bench trial).

Moreover, in rendering its decision, the court did not referto the testimony of C.K.'s mother concerning defendant's identityor the details of incident. The court merely noted that hermother indicated that C.K. appeared visibly upset. Instead, thecourt relied upon the following evidence to convict thedefendant:

"I note that [C.K.] testified clearly and concisely. Inote that Sergeant Higgins said that she was visibly upset. I note that her mother said that she was visibly upset. Inote that even though there was not DNA evidence, that there was evidence of semen found in her pants.

I take into *** some consideration *** that mostbusinesses clean up *** And I note the Defendant's words, 'Iwill not come inside you.' For what reason is that? Obviously, you could infer from that there is an evidentiaryreason. Secondly, 'Oh shit,' when the semen spilled on thefloor."

In our view, defendant was not so prejudiced by the testimony ofC.K.'s mother that it would have affected the outcome of the caseor 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 wasdeficient if it decides that the defendant suffered no prejudicefrom the alleged errors).

II. CONVICTION

Defendant was convicted on two counts of aggravated criminalsexual assault committed during the course of a felony -- onecount based on unlawful restraint (count I), and the other countbased on kidnaping (count II). Defendant argues that hisconvictions should be reduced to criminal sexual assault becauseunlawful 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, theState argues that the offense of kidnaping was not incidental tothe offense of criminal sexual assault and that the convictionfor count II should not be reduced.

Kidnaping occurs when a person knowingly and secretlyconfines another against her will or by force or threat ofimminent force carries another from one place to another withintent to secretly confine her against her will. 720 ILCS 5/10-1(West 1998). To determine whether an asportation or detentionrises to the level of kidnaping as a separate offense, Illinoiscourts have adopted the test announced in People v. Smith, 91Ill. App. 3d 523, 414 N.E.2d 1117 (1980). A court must considerthe following four factors: (1) the duration of the asportationor detention; (2) whether the asportation or detention occurredduring the commission of a separate offense; (3) whether theasportation or detention that occurred is inherent in theseparate offense; and (4) whether the asportation or detentioncreated a significant danger to the victim independent of thatposed by the separate offense. Smith, 91 Ill. App. 3d at 529. "Whether an asportation is sufficient to constitute a kidnappingdepends 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 aninsufficient duration because she was merely taken a few feetfrom the hallway to the bathroom and the whole episode allegedlylasted only a few minutes. However, a kidnaping conviction isnot precluded by the brevity of the asportation or the limiteddistance of the movement. Casiano, 212 Ill. App. 3d at 687(victim forced to walk 1