concurring in part and dissenting in part:
I concur with my colleagues that the testimony of the two other incidents should not have been admitted. The trial court was told by defendant’s counsel before trial that the defense would be “consent.” Therefore, the only real issue at trial was that of the credibility of the parties. The evidence of other crimes, generally inadmissible, could not be appropriately admitted here under the modus operandi exception to resolve that credibility issue.
My colleagues determined that this improperly admitted evidence was reversible error. This was a bench trial. I have read the remarks of the trial court (i) when it initially decided to admit the erroneous evidence, (ii) at the conclusion of the trial, and (iii) when it resolved the post-trial motion. At page 1002 of the majority opinion is quoted a portion of the trial court’s remarks upon the finding of defendant’s guilt. It is helpful to consider as well those comments of the court which immediately followed that quoted material:
“ ‘First, a word about the modus operandi evidence offered by the State and countered by the defense. The sole relevant purpose in adducing such evidence was to negate some such proposition as “regardless of the evidence, it is unthinkable that a defendant of the caliber of this defendant would ever commit such acts.”
“It was for that limited purpose that it was admitted, and was not considered probative by the Court on the issue of whether the version of facts recounted by the Defendant or by the State’s witnesses were closer to the truth." (Emphasis added.)
In my opinion, the record satisfactorily demonstrates that the erroneous evidence was not considered by the trial court in its resolution of the central issue of the case: the question of credibility of the complainant’s and defendant’s testimony in relation to the consent issue. The trial court satisfactorily indicated that the erroneous evidence was “received as evidence of defendant’s modus operandi." I cannot interpret anything said by the trial court, as trier of fact, which suggests any confusion or uncertainty on its part through the use of this modus operandi evidence to resolve the credibility issue.
In this bench trial, I find the evidence of defendant’s guilt overwhelming. It shows beyond a reasonable doubt that defendant was guilty of the offenses charged in the indictment. I do not find any prejudice to defendant which would require reversal. The record demonstrates the defendant received a fair trial. I would therefore affirm the conviction. Cf. People v. Armstrong (1961), 22 Ill. 2d 420,424,176 N.E.2d 755; People v. Martin (1979), 80 Ill. App. 3d 281, 294, 399 N.E.2d 265, appeal denied (1979), 79 Ill. 2d 623.
In reaching my conclusion, I have taken into consideration the entire record in the trial court and the rights of the defendant, as well as the not insignificant interests of the complainant and of society. In weighing all of these factors, it is my opinion that the administration of justice does not require a new trial.