¶1dissenting:
¶2I respectfully dissent since I believe that the omission of the element of force in the instruction on aggravated criminal sexual assault was not reversible error given the overwhelming evidence of guilt in this case.
¶3Here, the trial court properly instructed the jury on the definition of aggravated criminal sexual assault in instruction No. 12, but incorrectly instructed on the issues instruction for aggravated criminal sexual assault in that this instruction should have contained the provision that the act was committed by the use of force or the threat of the use of force. See IPI Criminal 2d No. 11.34 (Supp. 1989).
¶4First, it must be noted that I believe the majority properly reviewed this issue under the plain error doctrine. Those errors fundamental to our system of justice, such as the failure to give an instruction on the burden of proof, the presumption of innocence, or the essential elements of the crime charged implicate the plain error doctrine. (See People v. Layhew (1990), 139 Ill. 2d 476, 486; People v. Ogunsola (1981), 87 Ill. 2d 216, 222.) Allowing the jury to convict defendant of aggravated criminal sexual assault even if it believed that defendant never used or threatened force on the victim would have deprived defendant of a fair determination of his guilt or innocence in addition to the fact that it “ ‘deprives the jury of the guidance it must have properly to decide the case.’ ” People v. Holmes, 254 Ill. App. 3d at 278, quoting Ogunsola, 87 Ill. 2d at 223.
¶5Further, I do not believe the jury instructions regarding criminal sexual assault, aggravated criminal sexual assault, and the definition of “force” when taken together are adequate to inform the jury properly of the propositions which must be proved for aggravated criminal sexual assault. The committee notes in the IPI under the definition of aggravated criminal sexual assault specifically state that where, as here, the section (a) definition is used, the trial court must then give the appropriate set of propositions contained in the issues instruction for aggravated criminal sexual assault. This includes the provision regarding the use of force or the threat of the use of force.
¶6However, an error in giving or refusing instructions will not always justify reversal when the evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably have found him not guilty; indeed, if evidence of an element of an offense is overwhelming, then its omission from the jury instructions is harmless error. (Holmes, 254 Ill. App. 3d at 276.) The majority concludes that the evidence in this case is not clear and convincing that the defendant used force or threatened the use of force. I believe the record shows otherwise. The majority states that the complainant’s testimony that he forced her to have intercourse and oral sex and evidence of her bruises are the only evidence of force present in the record. I believe complainant’s testimony, notwithstanding her drug addiction, is otherwise credible under the surrounding circumstances and conclude such evidence overwhelmingly proves force or the threat of force. (See People v. Lopez (1989), 187 Ill. App. 3d 999, 1004.) In fact, the record as a whole is undisputed that defendant used force and threatened the use of force during the hours he assaulted complainant.
¶7The complainant testified that defendant grabbed her from the kitchen area of his house and dragged her into the attic bedroom. He forcibly picked her up and put her onto the bed after she refused to get on the bed herself. He had complainant take her clothes off at gunpoint and threatened to kill her more than once during the morning. Complainant testified that defendant forced her to engage in vaginal intercourse more than once. He held her head down to perform oral sex on him. Complainant testified she sustained bruises to her arms, back, and buttocks, which was substantiated by the pictures submitted as evidence at trial showing severe bruises to both her upper arms. I believe the evidence of defendant’s guilt is so overwhelming that the plain error exception to the waiver rule does not apply. Defendant’s case was not so close factually that fundamental fairness requires reversal. See People v. Jones (1979), 81 Ill. 3d 1, 9; Holmes, 254 Ill. App. 3d 271; People v. Felder (1992), 224 Ill. App. 3d 744, 755-56.
¶8I further take issue with the majority’s conclusion that “apparently the evidence was not overwhelmingly in favor of the defendant’s guilt, as the jury found him guilty on only one of two aggravated criminal sexual assault counts.” (252 Ill. App. 3d at 14.) I disagree with the assumption here that because the jury did not find defendant guilty of one count of aggravated criminal sexual assault, the evidence of the other aggravated criminal sexual assault count on which he was convicted was not overwhelming. An acquittal on one count of a multicount indictment should not affect a simultaneous conviction. (People v. Dawson (1975), 60 Ill. 2d 278.) If the rule were otherwise, “ ‘the Government would be entitled to have the jury warned that an acquittal on some counts might undermine a guilty verdict on others— almost the opposite of the standard instruction.’ ” Dawson, 60 Ill. 2d at 281, quoting United States v. Carbone (2d Cir. 1967), 378 F.2d 420, 422-23.
¶9Clearly, the majority here is not suggesting that dismissal of the one count of aggravated criminal sexual assault renders the conviction of the other count suspect; rather, it concludes that the jury’s failure to find defendant guilty on the one count means we cannot presume that the jury inferred that defendant used force or threatened to use force during these events. While this may be true, I do not believe that the dismissal of one aggravated criminal sexual assault count here allows us to conclude, as does the majority, that the evidence in the other such count was closely balanced so as to require a reversal. The jury found defendant guilty of aggravated criminal sexual assault involving oral penetration but could not reach a verdict on the charge involving vaginal penetration, and this charge was later dismissed. These counts constitute different acts, and the jury could have reached contrasting conclusions on them for any number of reasons. Accordingly, I would affirm the circuit court of Winnebago County.