delivered the opinion of the court:
Following a bench trial in the circuit court of Boone County, defendant, Alan Wych was convicted of a single count of criminal sexual assault (720 ILCS 5/12 — 13 (West 1992)) and was sentenced to a four-year term of imprisonment. Defendant appeals, contending that the State failed to prove his guilt beyond a reasonable doubt and that the trial court erred in denying his motion to suppress certain statements he made to police after requesting an attorney.
The evidence presented at trial was as follows. On December 7, 1989, M.B. was living with her niece, Brenda Blodgett, and Brenda’s husband, Paul Blodgett, at their house in Belvidere. Also living in the house and present that night were Brenda’s daughter and Mike Richardson, a friend of the Blodgetts who was staying in their finished basement. M.B. testified that, at about 10 p.m. on December 7, she had gone to sleep on the couch in the living room. At about 11:30 p.m. she awoke and found defendant lying on top of her with his penis inside her vagina. Defendant said “f— me” to M.B. M.B. asked defendant “what the hell he [thought] he was doing,” at which point defendant jumped up and ran out a patio door. M.B. got up and saw defendant drive away in a red car. M.B. had known defendant for 10 years or longer, but they had never had any kind of romantic relationship.
That evening, M.B. slept in a flannel gown which came down about six inches below her knees. She testified that when she awoke with defendant on top of her, the gown was pulled up over her stomach and she was exposed from the waist down. Later, during cross-examination, M.B. stated that her clothes were pulled up to her neck. Defendant did not hit M.B. or tear her clothes. M.B. didn’t scream, bite, scratch, or kick defendant M.B. had been drinking earlier that day. During the period from about 3:30 p.m. until she went to- bed, M.B. had about seven beers and three shots. She was relaxed but not intoxicated.
After defendant left, M.B. went to Paul and Brenda’s bedroom and told them that she had been raped, at which point Brenda contacted the police. Paul and Brenda testified that M.B. was crying when she told them that she had been raped. M.B. was later taken to St. Anthony’s Hospital in' Rockford. A nurse who attended to M.B. testified that M.B. appeared very upset and started to cry while being examined. During the examination, a pubic hair was found in M.B.’s vaginal area. The hair was examined at the Illinois State Police Crime Laboratory and was found to be dissimilar to samples taken from M.B. While the hair was found to be consistent with a sample taken from defendant, its origin could not be conclusively determined. No seminal material or spermatozoa was found in the examination of M.B.
Early in the morning of December 8, 1989, defendant was questioned in an attorney room at the Boone County jail by Detectives Royal White and Joseph Gough of the Belvidere police department. Prior to questioning, defendant was advised of his Miranda rights. Defendant indicated that he understood his rights and signed a waiver form. Thereafter, defendant told the detectives that he went to Paul Blodgett’s house to talk to Paul about some money Paul owed him. When he got to the house and could not make contact with Paul, he went downstairs and talked to Michael Richardson. After a short time, he left Richardson and returned upstairs. Upon doing so, he noticed someone on the couch trying to get his attention and motioning for him to come over. Defendant told the detectives that he messed around with the person on the couch a little bit and then left. Asked by the. detectives whether he had intercourse with the person on the couch, defendant stated that he had not and had never taken his pants down.
At that point defendant asked if he could speak to his attorney, and defendant placed a telephone call to an attorney outside of the presence of Detectives White and Gough. After the call was completed, Detective White asked defendant if he had contacted his attorney, and defendant responded that he had. White then asked defendant whether he wanted to continue talking to the detectives, and defendant stated that his attorney told him to keep quiet. White then told defendant that he and Gough would stop asking questions. Defendant replied that he wanted to continue talking but would refuse to answer questions that he thought he should not answer.
After this exchange, defendant told White that there was a lot of drug trafficking going on in the Blodgetts’ residence, and he expressed his desire to make a deal. White responded that he was not in a position to make a deal with the police. White told the defendant he would review the case and would then inform defendant with what offense he would be charged. Detectives Gough and White then left.
White later returned without Detective Gough to serve defendant with the complaint charging criminal sexual assault. According to White, during this encounter, defendant stated that he could not believe M.B. was doing this to him. White again asked defendant if he was sure he did not have sex with M.B., and defendant responded that he did not think so. According to White, defendant further stated, “Royal, if I did this I was more drunk and more fucked up than I thought I was, but I don’t think I did it.” Defendant also indicated that he did not know the person on the couch was M.B. until he was on top of her, at which point he recognized her. Defendant was coherent during his discussions with White and did not appear to White to be under the influence of alcohol.
Paul Blodgett testified that he had known defendant for about 20 years. At one point defendant had worked for Paul in his seamless gutter business before defendant went into business for himself. Paul was also married to defendant’s sister, Tina, at one time. They were divorced in 1976 but had lived together a few times thereafter. On one occasion, Paul struck Tina in defendant’s presence, and defendant responded by striking Paul. According to Paul, there was no ill will between him and defendant as a result of Paul’s divorce from Tina, nor did any conflict arise from competition between them in the seamless gutter business.
According to Paul’s testimony, at around 9 a.m. on December 8, 1989, he received a telephone call from defendant, who asked to speak to M.B. When Paul refused to allow defendant to talk to M.B., defendant asked Paul if he would talk to M.B. for him. Defendant indicated that he wanted to get M.B. an apartment and pay her rent for the first two or three months. Defendant also indicated that he wanted M.B. to drop the charges against him. Defendant repeated several times his desire that M.B. drop the charges against him and his willingness to rent an apartment for M.B. About one-half hour later, defendant called Paul again and mentioned that he had been arraigned and did not have enough money for bond. Defendant again discussed helping M.B. rent an apartment and M.B. dropping the charges. Defendant also discussed selling Paul his car for $1,500 so that he could get out of jail. Paul testified that, during their conversation, defendant stated that he had been drinking the night before and “didn’t remember being there.” Paul asked defendant if he “did it” and defendant responded, “[w]ell, I don’t know why I did it.” Defendant wanted to apologize to M.B. for “doing it.”
Defendant testified that, on the evening of December 7, 1989, he and two friends had gone to two bars in Rockford and Beloit, Wisconsin. After returning to Belvidere, defendant asked one of his friends if he wanted to go to Paul Blodgett’s house to play pool and drink beer. Defendant also wanted to collect some money Paul owed him. They proceeded to the Blodgetts’ residence, and defendant was let into the house while his friend apparently waited in the car. When defendant learned that Paul was sleeping, he went down to the basement and spoke briefly to Mike Richardson. Testifying for the State, Richardson confirmed the conversation. Defendant testified that, when he returned upstairs after his conversation with Richardson, he noticed someone on the couch motioning to him. Defendant could not tell who it was at first. The person on the couch asked if she could have a kiss before defendant left, and defendant thought it was M.B. because she often asked for a kiss. He gave her a kiss, and they started to “fool around a little bit.” When defendant was rubbing M.B.’s leg, she said “what are you doing,” at which point defendant got up and left.
After leaving the Blodgetts’ house, defendant visited a friend and went home at around 2 a.m. When he arrived at home, defendant was informed by his sister that the police were looking for him. Defendant contacted the police and was taken to the police station. Defendant denied telling Detective White that, if he had sex with M.B., he was more fucked up than he thought. Rather, defendant said to White, “you would have to be awful f — ed up to do that.” Defendant confirmed that he had called Paul Blodgett and asked him to talk to M.B. about dropping the charges. Defendant also confirmed offering to sell Paul his car and to get M.B. an apartment and pay the rent for a few months. Defendant testified he offered to help M.B. with an apartment because he felt sorry for her. Defendant denied admitting to Paul that he had done anything wrong.
The defense also presented the testimony of Curt Swanson. Swanson testified that around Thanksgiving 1989 he observed an exchange between M.B. and defendant in a bar where Swanson was employed as a bartender. On this occasion, according to Swanson, M.B. asked defendant for a kiss and a ride home, and defendant refused.
Prior to trial, defendant filed a motion to suppress the statements he made to police, contending that he was not advised of his rights pursuant to Miranda v. Arizona (1966),
Defendant initially contends that the evidence presented by the State was insufficient to prove his guilt beyond a reasonable doubt. At the outset, we note that, while at one time the law in Illinois required that the victim’s testimony must be clear and convincing or substantially corroborated to sustain a conviction for a sex offense, that standard has been rejected. (People v. Schott (1991),
Defendant contends that M.B.’s testimony that she awoke and found defendant on top of her with his penis in her vagina was implausible and contrary to human experience and nature. Defendant argues that it is unreasonable to believe that he could climb on top of M.B., expose her and attempt penetration without waking her. Defendant maintains that M.B. would have awakened before he could have accomplished penetration. We disagree. If defendant made an effort not to wake M.B., it is plausible that she could remain asleep at the beginning of the incident. It is a matter of common experience the individuals sleeping soundly can often be subjected to some physical contact or manipulation without being roused from sleep. In the present case, it has not been suggested that defendant was on top of M.B. or had his penis in her vagina for a lengthy period of time before she awoke. Moreover, while M.B. testified that she was not intoxicated that evening, she had consumed a considerable amount of alcohol which could have contributed to her sleeping soundly.
Defendant also notes the lack of any outcry or resistance by M.B. after she awoke. M.B.’s testimony indicates that defendant fled moments after she awoke and that she had asked him what he was doing. The record discloses that M.B. was disoriented and not fully alert when she awoke to find defendant lying on top of her, which would satisfactorily explain her failure immediately to cry out or offer resistance. After defendant left, M.B. was visibly distressed. M.B. promptly reported the incident to Paul and Brenda Blodgett, who then contacted the police. Additionally, Paul and Brenda Blodgett and a nurse who attended to M.B. at St. Anthony’s Hospital testified that M.B. was crying. M.B.’s prompt complaint and the fact that she was observed crying corroborate her account that she was sexually assaulted. See, e.g., People v. Bock (1993),
In support of his argument that the evidence against him was insufficient to sustain his conviction, defendant cites two cases which are factually dissimilar to the case at bar. In People v. Wright (1986),
In People v. Appleby (1968),
Neither case cited by defendant has much bearing on the determination of the plausibility of M.B.’s testimony in the present case. M.B.’s testimony was not so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. Accordingly, the trial court’s finding will be affirmed.
Defendant next contends that the trial court erred in denying his motion to suppress statements he made to police after telephoning his attorney. Although defendant was permitted to speak to his attorney, he contends that the police improperly resumed questioning and that statements he made without counsel present were inadmissible. The State initially responds that defendant has waived this argument because he did not raise the issue in his original written motion to suppress. The basis for defendant’s written motion to suppress was his contention that he had not been properly advised of his Miranda rights before questioning and that his statements were coerced. Generally, arguments raised for the first time on appeal are deemed waived. (People v. C.H. (1992),
The privilege against self-incrimination is guaranteed by the fifth amendment to the United States Constitution. (See, e.g., People v. Edwards (1991),
Our supreme court has recently outlined the procedures to be followed after Miranda warnings are given:
“If a suspect indicates that he wishes to remain silent, the interrogation must cease. (Miranda,384 U.S. at 474 ,16 L. Ed. 2d at 723 ,86 S. Ct. at 1628 .) If a suspect invokes his right to counsel in response to Miranda warnings, all interrogation must cease until an attorney is present. (Miranda,384 U.S. at 474 ,16 L. Ed. 2d at 723 ,86 S. Ct. at 1628 ; see also Minnick v. Mississippi (1990),498 U.S. 146 ,112 L. Ed. 2d 489 ,111 S. Ct. 486 .) The Court in Miranda thus ‘fashioned *** the rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights.’ Fare v. Michael C. (1979),442 U.S. 707 , 719,61 L. Ed. 2d 197 , 209,99 S. Ct. 2560 , 2569.” People v. Winsett (1992),153 Ill. 2d 335 , 349.
In Edwards v. Arizona (1981),
“[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused *** having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities unless counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." (Emphasis added.)451 U.S. at 484-85 ,68 L. Ed. 2d at 386 ,101 S. Ct. at 1884-85 .
In its recent decision in People v. Winsett (1992),
“Edwards thus created a bright-line rule for deciding whether an accused who has invoked his fifth amendment right to counsel has subsequently waived that right. Any waiver of the right to counsel given in a discussion initiated by the police is presumed invalid, and statements obtained pursuant to such a waiver are inadmissible in the prosecution’s case in chief.” (Emphasis added.)
In Oregon v. Bradshaw (1983),
In the present case, defendant invoked the right to counsel when he asked if he could speak to his lawyer. At that point the principles of Edwards became applicable. While Edwards, by its language, prohibits police-initiated reinterrogation where the accused has “expressed his desire to deal with the police only through counsel” (
When defendant asked to speak with his attorney, the detectives questioning him were required immediately to cease the interrogation. The detectives complied with this requirement and permitted defendant to call his attorney. Having invoked the right to counsel, any waiver of that right in a discussion initiated by police would be presumed invalid, rendering any statements obtained pursuant to such waiver inadmissible. (People v. Winsett (1992),
After defendant completed his telephone call to his attorney, Detectives White and Gough asked him if had contacted his attorney, and defendant responded affirmatively. Detective White then asked defendant if he wanted to continue talking to the detectives. When the defendant responded that his attorney advised him to remain silent, Detective White unequivocally stated that the questioning would end at that point. Clearly, after the defendant completed the call to his attorney, the detectives initiated a conversation or discussion with the defendant in the ordinary sense of those terms. However, for purposes of Edwards, that brief exchange was completed when Detective White stated that no further questions would be asked. At that point, the detectives had obtained all the information they sought from defendant, and White’s final statement invited no further response from defendant. When defendant immediately thereafter stated, without any prompting from the detectives, that he would answer questions as he deemed advisable, he initiated a new conversation pursuant to which he waived the right to have an attorney present. Although defendant’s statement immediately followed Detective White’s, we do not believe the passage of time necessarily controls the question of when one exchange or conversation has ended and another begun. Rather, the limited purpose of the exchange initiated by the detectives and the clarity with which the detectives ended their inquiry convince us that the defendant’s subsequent unsolicited offer to answer additional questions initiated a new discussion. The Edwards rule is designed to prevent the police from badgering a defendant into waiving his previously asserted Miranda rights. (Winsett, 153 Ill . 2d 335.) Where the authorities, without threatening reprisal or suggesting negative repercussions, have unequivocally indicated that questioning would terminate, it would not advance the purpose of the Edwards rule to suppress unsolicited statements made by the defendant.
We find support for our conclusion in the decision in People v. Weathersby (1985),
In support of his argument that his statements should have been suppressed, defendant relies, in part, on this court’s recent decision in People v. Carlson (1992),
“[W]hen the defendant asked the detectives what his ‘options’ were, they did not inform him that he could make an additional phone call or that he had the right to counsel present before speaking with them. [Citation.] Rather, they asked him once again if he would answer their questions. In this context, we find that the detectives’ questioning following the defendant’s request to call his attorney to be ‘further police-initiated interrogation.’ ”224 Ill. App. 3d at 1041 .
Carlson is distinguishable. In the case at bar, defendant actually spoke to his attorney; he was not faced with the decision of how to proceed when counsel appeared to be unavailable, nor were his options in any way misrepresented. Moreover, as previously noted, in the present case, unlike Carlson, the detectives’ unequivocal termination of questioning intervened prior to defendant’s announcement that he would answer certain questions.
We therefore conclude that defendant initiated the communication in which he waived the right to have counsel present during questioning. The remaining inquiry is whether, by defendant’s initiation of a conversation, coupled with the totality of the other circumstances, he knowingly and intelligently waived the right to have counsel present. (People v. Hicks (1989),
A trial court’s ruling on a motion to suppress will not be overturned unless it is manifestly erroneous. (People v. Galvin (1989),
For the foregoing reasons, the judgment of the circuit court is affirmed.
Affirmed.
McLAREN and GEIGER, JJ., concur.