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Docket No. 90364-Agenda 14-May 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. KEVIN McCOY, Appellant.

Opinion filed October 17, 2003.

JUSTICE FITZGERALD delivered the opinion of the court:

Following a bench trial, the circuit court of Cook County founddefendant, Kevin McCoy, guilty of two counts of aggravated criminalsexual assault and not guilty on several other counts, including anunlawful restraint count. The court sentenced defendant to 15 years'imprisonment. Defendant appealed, arguing that his convictions foraggravated criminal sexual assault were legally inconsistent with hisacquittal for unlawful restraint. The appellate court affirmed. No.1-99-3176 (unpublished order under Supreme Court Rule 23). Forthe reasons discussed below, we affirm the judgment of the appellatecourt.

BACKGROUND

On September 11, 1998, L.W., an adult, was sleeping in herbedroom at a home in Riverdale, Illinois, in which she lived with hermother and defendant. She heard a loud noise as her bedroom dooropened and a person put a pillow over her face. The person startedpunching her face through the pillow and told her to "shut up, moveyour legs, move your legs." L.W. recognized the voice as that ofdefendant. L.W. fought defendant and faked an asthma attack, tellingdefendant that she could not breathe and that she was going to die.Eventually, L.W. could not fight any more, and she remained still asdefendant placed his fingers in her vagina and then in her anus. Shefelt something poking her on her left side but could not see the object.When defendant went into the bathroom, L.W. ran from the house. Asdefendant chased L.W. into the street, she began screaming and ran tothe door of a neighbor. The neighbor opened the door and allowedL.W. to come in and call the police. The police took her home andthen to the hospital. She was examined at the hospital, where she wasadministered a rape kit and treated for cuts on her lip and face. Adetective examined the scene the next day and found L.W.'s bedroomin dissarray with bed linens strewn about. He found a screwdriverwrapped up in the bed linen, as well as a pillow with a reddish brownstain.

Defendant later gave a statement to an assistant State's Attorney,stating that he was at home smoking crack and "went into [L.W.'s]bedroom because I wanted to seduce her." In the statement, defendantsaid that L.W. was in her bed and that he got on top of her and put apillow over her head because she was screaming. L.W. struggled andhe punched her through the pillow and cut L.W.'s lip. He inserted hisfinger into her vagina and anus.

The State charged defendant in a 15-count information thatincluded six counts of aggravated criminal sexual assault (720 ILCS5/12-14 (West 1998)). At trial, defendant conceded that he had aphysical altercation with L.W., but denied putting his finger intoL.W.'s vagina or anus. He also denied making a written confession tothe assistant State's Attorney. The trial court found defendant guiltyof two counts of aggravated criminal sexual assault and not guilty ofall of the other charges, including unlawful restraint. Specifically, thecourt convicted defendant on count I, which alleged that defendantcaused bodily harm to the victim by striking her, in violation of section12-14(a)(2) of the Criminal Code of 1961 (720 ILCS 5/12-14(a)(2)(West 1998)) and count III, which alleged that defendant threatenedor endangered the life of the victim by placing a pillow over her face,in violation of section 12-14(a)(3) (720 ILCS 5/12-14(a)(3) (West1998)). After merging the two counts into one offense, the trial courtsentenced defendant to 15 years' imprisonment.

Defendant appealed, arguing that the convictions for aggravatedcriminal sexual assault were legally inconsistent with the acquittal forunlawful restraint and must therefore be vacated. Defendant reliedupon People v. Klingenberg, 172 Ill. 2d 270 (1996), where we heldthat legally inconsistent jury verdicts cannot stand. The appellate courtagreed that the findings were legally inconsistent, but held that legalinconsistency in a bench trial does not contradict our rule inKlingenberg. Rather, the court quoted People v. Rhoden, 299 Ill.App. 3d 951, 960-61 (1998):

" 'While legally inconsistent findings in a criminal trialmay, on occasion, indicate confusion on the part of the trialjudge, there is not the same compelling reason to apply a perse rule in the context of a bench trial as there is in the contextof a jury trial. This is so because a court reviewing a juryverdict generally lacks a sufficient basis to determine if thejury was confused. However, a reviewing court, byexamining the trial record, may often ascertain whether ajudge sitting as finder of fact was confused in making his orher disposition of a charge or charges. Moreover, in a benchtrial, the trial judge is presumed to know the law.' "

The appellate court also noted, following Rhoden, that, in a benchtrial, if there is a rational basis for the court's judgment, and anexamination of the record as a whole indicates that there was noconfusion, legally inconsistent findings by a trial judge may stand. Theappellate court affirmed defendant's convictions after finding therecord did not reveal confusion by the trial judge and that the acquittalof the unlawful restraint charge was rational. No. 1-99-3176(unpublished order under Supreme Court Rule 23). We alloweddefendant's petition for leave to appeal. 177 Ill. 2d R. 315. Becausethe appellate court judgment presents only issues of law, our reviewis de novo. People v. Johnson, 206 Ill. 2d 348, 359 (2002).

ANALYSIS

Defendant argues that the appellate court correctly found the trialcourt's findings to be legally inconsistent, but applied the wrongstandard in reviewing the trial court's findings by following theRhoden standard. Defendant argues that this court should applyKlingenberg to bench trials and reverse and remand this matter forfurther proceedings. Defendant alternatively argues that if this courtis to apply the Rhoden standard, the record demonstrates confusionby the trial court. The State argues that the trial court's findings werenot legally inconsistent. In the alternative, the State argues that if thefindings were legally inconsistent, this court should not applyKlingenberg to bench trials, but should instead adopt the Rhodenstandard. Under Rhoden, the State contends the record reveals arational basis for the court's findings of guilt.

Subsequent to briefing and argument in this matter, wereconsidered and overruled Klingenberg. People v. Jones, No. 93511(May 22, 2003). We held in Jones that criminal "defendants in Illinoiscan no longer challenge convictions on the sole basis that they arelegally inconsistent with acquittals on other charges." Jones, slip op.at 8. Although Jones arose in the context of reviewing a jury trial, italso controls here.

In Jones, we were persuaded by the decision of the United StatesSupreme Court in United States v. Powell, 469 U.S. 57, 83 L. Ed. 2d461, 105 S. Ct. 471 (1984), which "reiterated that consistency in theverdicts is not required as a matter of constitutional law and thatinconsistent verdicts can often be explained as a product of jurorlenity." Jones, slip op. at 5, citing Powell, 469 U.S. at 63, 83 L. Ed.2d at 467, 105 S. Ct. at 475. We also concluded that the views of thedissenters in Klingenberg were correct. Jones, slip op. at 8, citingKlingenberg, 172 Ill. 2d at 285-89 (Miller, J., dissenting, joined byFreeman, J.). We found that the Klingenberg majority mistakenlysearched for a rational explanation of juror lenity. Jones, slip op. at 8.We also agreed with the Klingenberg dissent that Powell was correctin that there was no reason to allow only the defendant to appealbecause one could not assume that the acquittal was the "correct"verdict. Jones, slip op. at 8. We further agreed that the acquittal is justas likely a boon given to a defendant. Jones, slip op. at 8. Thus, werejected the Klingenberg decision's central rationale that legallyinconsistent verdicts are "unreliable" and "suggest confusion ormisunderstanding on the part of the jury." Klingenberg, 172 Ill. 2d at281.

We follow Jones here because the prospect of confusionidentified in Klingenberg on the part of a judge sitting in a bench trialis decidedly diminished from that of a jury. Indeed, we must presumethat a trial judge knows the law. Harris v. Rivera, 454 U.S. 339, 346-47, 70 L. Ed. 2d 530, 536-37, 102 S. Ct. 460, 465 (1981); People v.Woolley, 178 Ill. 2d 175, 200 (1997). In Harris, the United StatesSupreme Court rejected a defendant's challenge to an inconsistentverdict rendered in a bench trial. The Court stated:

"We are not persuaded that an apparent inconsistency in atrial judge's verdict gives rise to an inference of irregularityin his finding of guilt that is sufficiently strong to overcomethe well-established presumption that the judge adhered tobasic rules of procedure.

Other explanations for an apparent inconsistency are farmore likely. Most apparent is the likelihood that the judge'sactual observation of everything that transpired in thecourtroom created some doubt about the guilt of onedefendant that he might or might not be able to articulate ina convincing manner." Harris, 454 U.S. at 346-47, 70 L. Ed.2d at 536-37, 102 S. Ct. at 465.

The Harris court also stated that the federal Constitution does notprohibit state judges from being excessively lenient. Harris, 454 U.S.at 348, 70 L. Ed. 2d at 537, 102 S. Ct. at 465.

Though we do not encourage trial judges to stray from their dutyto follow the law, we do acknowledge, without condoning, the clearreality that trial judges may exercise lenity in what they perceive as theinterests of justice. Thus, we do not reject an inconsistent verdictrendered in a bench trial as unreliable and suggestive of confusion. Wealso find that our other reasons as expressed in Jones for denying adefendant the right to challenge an inconsistent verdict rendered by ajury apply with equal force here. Jones, slip op. at 8. Therefore, it isno longer necessary for reviewing courts to examine the record as awhole to rule out confusion on the part of the trial judge.

We need not reach the issue of whether defendant's convictionson two counts of aggravated criminal sexual assault were inconsistentwith the unlawful restraint acquittal. Even if the verdict wasinconsistent, the trial court's findings of guilt stand. We lastly notethat had defendant been found guilty of unlawful restraint, a Class 4felony (720 ILCS 5/10-3 (West 2002)), the trial judge could havesentenced defendant to a maximum of six years if the trial judge foundaggravating factors to be present. 730 ILCS 5/5-8-2 (West 2002).There is nothing in the record to suggest that the trial judge could nothave run defendant's sentence on the unlawful restraint countconcurrently with his 15-year sentence based on the two counts ofaggravated criminal sexual assault. 730 ILCS 5/5-8-4 (West 2002).Thus, the trial court's findings may also reflect sound judicialmanagement given the repetitive multiple counts of the 15-countinformation.

CONCLUSION

For the foregoing reasons, we affirm the judgment of theappellate court affirming the judgment of the trial court.

Affirmed.

JUSTICE KILBRIDE, specially concurring:

In People v. Jones, No. 93511 (May 22, 2003), this courtreconsidered and overruled Klingenberg. I dissented from the majorityin Jones, in large part, because of the majority's unwarrantedabandonment of the principle of stare decisis and because I believethat the case should have been analyzed on an entirely different basisthat would have avoided a reconsideration of Klingenberg. Today'sdecision follows Jones. While I believe that in Jones this courtunnecessarily and unwisely overruled Klingenberg, Jones is now thelaw and, accordingly, the result in this case is mandated by principlesof stare decisis.

CHIEF JUSTICE McMORROW joins in this specialconcurrence.