                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Mendez, 2013 IL App (4th) 110107




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JOE MENDEZ, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-11-0107


Filed                      March 11, 2013


Held                       Defendant’s conviction for the first degree murder of his girlfriend’s son
(Note: This syllabus       was upheld over his contentions that he was guilty of involuntary
constitutes no part of     manslaughter, not first degree murder, that other-crimes evidence was
the opinion of the court   improperly admitted and that mitigating factors were not properly
but has been prepared      considered in imposing the 55-year sentence.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of McLean County, No. 07-CF-416; the
Review                     Hon. Robert L. Freitag, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Arden J. Lang, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           Ronald C. Dozier, State’s Attorney, of Bloomington (Patrick Delfino,
                           Robert J. Biderman, and Amy Sipes Johnson, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE HARRIS delivered the judgment of the court, with opinion.
                           Presiding Justice Steigmann and Justice Pope concurred in the judgment
                           and opinion.




                                            OPINION

¶1          A jury found defendant, Joe Mendez, guilty of first degree murder (720 ILCS 5/9-1(a)(1)
        (West 2006)) and the trial court sentenced him to 55 years in prison. Defendant appeals,
        arguing (1) the evidence was sufficient to prove him guilty of involuntary manslaughter
        rather than first degree murder, (2) the court erred in admitting other-crimes evidence and
        instructing the jury regarding how to consider such evidence, and (3) the court abused its
        discretion in sentencing him by failing to give adequate weight to mitigating factors. We
        affirm.

¶2                                        I. BACKGROUND
¶3          On May 2, 2007, the grand jury indicted defendant on three counts of first degree murder
        (720 ILCS 5/9-1(a)(1), (a)(2) (West 2006)) and one count of aggravated battery to a child
        (720 ILCS 5/12-4.3(a) (West 2006)) in connection with the death of three-year-old Logan
        Bratton. At trial, the State presented the testimony of several individuals, including
        firefighters and emergency medical personnel, police officers, Logan’s medical providers,
        and family members. Defendant testified on his own behalf and also presented the testimony
        of his younger brother and the mother of his biological children. Additionally, both parties
        presented testimony of medical experts in the area of forensic pathology.
¶4          Evidence showed defendant resided in an apartment with his girlfriend, Donetta Ernst,
        and Logan, Donetta’s son. Defendant had four biological children who, at times, would also
        stay in the home. On April 4, 2007, defendant was at home with Logan, three of his own
        children, and his teenaged brother while Donetta was at work. On that date, firefighters and
        emergency medical personnel were dispatched to the home in response to a report that a child
        had fallen. Upon their arrival, they found defendant holding Logan. Logan was unresponsive
        with inadequate breathing. He was taken to the emergency room at BroMenn Hospital in


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     Normal, Illinois, and then airlifted to St. Francis Medical Center in Peoria, Illinois, where,
     ultimately, he was pronounced dead.
¶5       The State’s evidence showed defendant initially reported Logan was injured after falling
     from a bunk bed in the home. However, almost two weeks after the incident on April 16,
     2007, he admitted he hit Logan one time. Defendant testified, on the day of the incident, his
     daughter Alicia and Logan were fighting over a toy. Defendant intervened and spanked
     Alicia. Logan tried to run, but defendant reached out and hit Logan in the head with the back
     of his hand. Defendant testified Logan “just fell on the floor.” He stated Logan struggled like
     he was trying to get up but could not stand on his own. Defendant called 9-1-1. He
     acknowledged he initially lied to police and Donetta about how Logan was injured but stated
     he was scared and did not know what to say.
¶6       As stated, both parties presented the testimony of medical experts who reviewed Logan’s
     medical records, the autopsy report, and autopsy photographs. Each gave contradictory
     opinions regarding the extent and cause of Logan’s injuries and his cause of death. Dr. John
     Denton testified for the State. He identified multiple external and internal injuries to Logan’s
     body, many of which he found to have been recently sustained. Dr. Denton opined Logan’s
     cause of death was “brain injuries due to blunt head trauma.” He also would have diagnosed
     child abuse due to a “repetitive process going on.” He testified Logan had severe brain
     bleeding and swelling and found those injuries were inconsistent with being backhanded one
     time or with a single blow to the head. Dr. Denton described Logan’s injuries “as inflicted
     and non-accidental” and believed Logan sustained “multiple blunt impacts to the head.”
¶7       Dr. Shaku Teas testified on defendant’s behalf. Regarding cause of death, Dr. Teas found
     “Logan had a multitude of things going on.” She determined he had an older abdominal
     injury which may not have been fatal by itself. Dr. Teas stated Logan had developed
     pneumonia and had a “bilateral adrenal gland hemorrhage” which indicated “he had
     septicemia.” Thereafter, Logan had massive brain swelling with a subarachnoid hemorrhage.
     Dr. Teas felt his death “was a combination of everything that was going on” and agreed that
     “trauma may have played a role in the head injury that may have occurred on the day [Logan]
     was taken to the hospital.” She testified that “if Logan developed a septicemia and infection,
     any kind of minor trauma may have triggered massive edema of the brain.” Dr. Teas defined
     edema as swelling and also found evidence that he may have had an infection. Dr. Teas
     testified she did not “find any significant blunt force trauma to [Logan’s] head externally
     anywhere.”
¶8       Additionally, over defendant’s objection, the State presented testimony from family
     members concerning defendant’s past conduct toward Logan. Donetta testified she was in
     a relationship with defendant for approximately one year. During that time frame, she had
     the opportunity to observe defendant’s interactions with his own children and his interactions
     with Logan. She stated there were some days she “felt that Logan was kind of pushed aside.”
     Donetta described a trip she took in December 2006, with defendant, Logan, and two of
     defendant’s children. The family went to visit Donetta’s aunt, Cindy Rister, at her home in
     Arkansas. Both Donetta and Rister described an occasion when defendant became upset or
     angry after Rister bought Logan a new outfit but nothing for defendant’s own two children.


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¶9         Donetta and Rister also testified regarding an incident at a McDonald’s restaurant
       immediately before Donetta, defendant, and the children were to return to Illinois. On that
       occasion, each recalled defendant suggesting that Donetta leave Logan in Arkansas with
       Rister. On cross-examination, Donetta acknowledged that, on two occasions after Logan’s
       death, police questioned her about defendant’s statements during the Arkansas trip and she
       denied hearing defendant say he wanted to leave Logan in Arkansas.
¶ 10       Rister provided testimony regarding two additional incidents. First, she described an
       incident when defendant made Logan remain at the dinner table to finish his food but
       allowed his own two children to leave the table. Second, she observed defendant discipline
       Logan in response to statements defendant’s children made even though Rister had not
       observed Logan do anything wrong.
¶ 11       Angela Ernst, Donetta’s mother and Logan’s grandmother, described an incident on
       March 31, 2007, several days before Logan’s death. On that occasion, she picked Logan up
       from Donetta and defendant’s residence where he had been in defendant’s care to take him
       to a relative’s birthday party. Ernst testified Logan told her he had a bellyache and that
       defendant was “being nice to [him].”
¶ 12       On May 19, 2010, the jury returned its verdict, finding defendant guilty of first degree
       murder (720 ILCS 5/9-1(a)(1) (West 2006)). On June 15, 2010, defendant filed a motion for
       judgment notwithstanding the verdict or for a new trial. On September 23, 2010, the trial
       court denied defendant’s motion and sentenced him to 55 years in prison. On October 21,
       2010, defendant filed a motion to reconsider his sentence, arguing it was excessive and the
       court failed to give proper weight to mitigating factors. On January 7, 2011, the court denied
       defendant’s motion.
¶ 13       This appeal followed.

¶ 14                                      II. ANALYSIS
¶ 15       On appeal, defendant first argues the State’s evidence was insufficient to prove him
       guilty of first degree murder. Instead, he maintains the evidence established only that he
       acted recklessly and was guilty of the lesser offense of involuntary manslaughter.
¶ 16       Where a defendant challenges the sufficiency of the evidence against him, “a reviewing
       court, considering all of the evidence in the light most favorable to the prosecution, must
       determine whether any rational trier of fact could have found beyond a reasonable doubt the
       essential elements of the crime.” People v. Siguenza-Brito, 235 Ill. 2d 213, 224, 920 N.E.2d
       233, 240 (2009). “When considering a challenge to the sufficiency of the evidence, it is not
       the function of a reviewing court to retry the defendant.” Siguenza-Brito, 235 Ill. 2d at 228,
       920 N.E.2d at 242. “[A] reviewing court will not substitute its judgment for that of the trier
       of fact on issues involving the weight of evidence or the credibility of witnesses.” Siguenza-
       Brito, 235 Ill. 2d at 224-25, 920 N.E.2d at 240.
¶ 17       On review, a defendant’s conviction will not be reversed simply because there is
       contradictory evidence or because the defendant claims a witness was not credible. Siguenza-
       Brito, 235 Ill. 2d at 228, 920 N.E.2d at 243. Instead, a criminal conviction will be set aside
       only when “the evidence is so improbable or unsatisfactory as to create a reasonable doubt

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       of the defendant’s guilt.” Siguenza-Brito, 235 Ill. 2d at 225, 920 N.E.2d at 240-41.
¶ 18        Here, defendant was charged with multiple counts of first degree murder. As charged in
       this case, “[a] person who kills an individual without lawful justification commits first
       degree murder if, in performing the acts which cause the death: (1) he either intends to kill
       or do great bodily harm to that individual or another, or knows that such acts will cause death
       *** or (2) he knows that such acts create a strong probability of death or great bodily harm
       to that individual or another.” 720 ILCS 5/9-1(a)(1), (a)(2) (West 2006).
¶ 19        At trial, defendant’s jury was also instructed regarding the offense of involuntary
       manslaughter. “Involuntary manslaughter requires a less culpable mental state than first
       degree murder and is therefore a lesser-included offense of first degree murder.” People v.
       Robinson, 232 Ill. 2d 98, 105, 902 N.E.2d 622, 626 (2008). A person commits involuntary
       manslaughter where he “recklessly” performed acts that were “likely to cause death or great
       bodily harm” and, as a result of those acts, he “unintentionally kills an individual without
       lawful justification.” 720 ILCS 5/9-3(a) (West 2006). A person acts recklessly when he
       “consciously disregards a substantial and unjustifiable risk that circumstances exist or that
       a result will follow, described by the statute defining the offense; and such disregard
       constitutes a gross deviation from the standard of care which a reasonable person would
       exercise in the situation.” 720 ILCS 5/4-6 (West 2006).
¶ 20        Defendant argues evidence at trial showed “a disregard of a substantial risk” rather than
       that he intended to cause death or great bodily harm to Logan or that he knew his acts created
       a strong probability of death or great bodily harm. To support his position, defendant points
       to his own testimony that he only hit Logan one time and contradictory medical evidence
       regarding the condition of Logan’s body and the cause of his death. Also, defendant argues
       the evidence showed he sought help immediately after Logan collapsed by dialing 9-1-1 and
       calling out to his brother who began cardiopulmonary resuscitation (CPR). He argues those
       “ ‘subsequent actions’ offered powerful insight into the unintended nature of the cause of
       death.” As further support for his position, he argues evidence showed he was involved in
       Logan’s daily life as a caretaker, exhibited kindness toward Logan, and expressed remorse
       following Logan’s death.
¶ 21        On appeal, defendant’s position amounts to a request that this court ignore the jury’s
       findings and reweigh the evidence in his favor. However, as stated, it is not the function of
       this court to retry the defendant and, instead, we must view the evidence in the light most
       favorable to the prosecution and determine whether any rational trier of fact could have
       found the defendant guilty beyond a reasonable doubt of the charged offense. Despite the
       presentation of conflicting medical opinions and other evidence, the State presented
       sufficient evidence from which the jury could have found defendant guilty of first degree
       murder.
¶ 22        At trial, evidence showed Logan was injured and died after being in defendant’s care.
       Immediately following the incident and for nearly two weeks thereafter, defendant repeatedly
       lied about the circumstances surrounding Logan’s death and gave false information to
       Logan’s medical providers, Donetta, and the police. Although he ultimately acknowledged
       hitting Logan in the head one time, the State presented medical evidence showing Logan


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       sustained multiple injuries to his head and indicating multiple blunt force impacts.
¶ 23       When Logan was initially taken to the hospital, testing revealed swelling in his brain with
       some bleeding in his head. The impression of the emergency room physician was that Logan
       suffered a significant brain edema secondary to probable head injury. Dr. Girish Deshpande,
       a specialist in pediatric critical care, diagnosed Logan as “brain dead of severe hypoxic
       ischemia brain damage.” He testified Logan’s injuries were inconsistent with someone who
       had been hit one time. The autopsy report showed Logan’s cause of death as “complications
       of blunt head trauma.” Dr. Denton, the State’s expert, agreed with the autopsy findings but
       termed Logan’s cause of death as “brain injuries due to blunt head trauma.” Also, based on
       the older injuries he noted, Dr. Denton would have diagnosed child abuse due to a “repetitive
       process going on.”
¶ 24       Dr. Denton noted several external and internal injuries to Logan’s body, including (1)
       bruises to his forehead, right cheek, right and left side of the back of his head, and left and
       right buttock; (2) separation of the growth plates of the skull due to brain swelling from
       injury along with subdural and subarachnoid brain hemorrhaging; (3) bleeding in the
       diaphragm muscle; (4) a laceration and bleeding in the caudate lobe of Logan’s liver; (5) a
       scar on the back side of the right lobe of Logan’s liver; (6) bleeding around Logan’s kidneys;
       (7) bleeding within the adrenal glands; and (8) severe bleeding in the large intestine. He
       testified bruises to Logan’s forehead, cheek, the right side of his head, left buttock, and one
       of the bruises to his right buttock were blue, violet-purple, or red in color, indicating they
       were recently sustained. Dr. Denton stated the bleeding in Logan’s brain was caused by blunt
       trauma and noted thicker bleeding on the right side of Logan’s head, indicating that area
       sustained the greatest force or blunt trauma. He testified Logan’s internal injuries were
       consistent with blunt trauma. Further, Dr. Denton opined the bleeding in Logan’s diaphragm
       muscle was a recent injury and his kidney injury had features of being both older and newer,
       possibly indicating a newer injury on top of an older injury.
¶ 25       Dr. Denton opined Logan’s injuries of severe brain bleeding and swelling were
       inconsistent with being backhanded one time or with a single blow to the head. He stated a
       single backhand could explain the bruise to Logan’s right cheek but not the other bruises on
       the left side of his head, back of his head, or forehead. Additionally, Dr. Denton described
       Logan’s injuries “as inflicted and non-accidental.” He noted the number of injuries to
       Logan’s head, including the forehead, above the right ear, the right side of the head, and two
       on the left side of the head, and described them as being caused by “multiple blunt impacts
       to the head.”
¶ 26       While defendant accurately points out that he submitted contradictory evidence, the jury
       had the opportunity to hear all of the evidence presented. It also viewed various autopsy
       photographs and videos of defendant talking with police. There was sufficient evidence from
       which the jury could determine Logan sustained multiple injuries and blunt impacts to the
       head inflicted by defendant, and find that defendant acted with either intent to cause death
       or great bodily injury or with knowledge that his acts created a strong probability of death
       or great bodily harm to three-year-old Logan.
¶ 27       On appeal, defendant next argues the trial court erred in admitting other-crimes evidence.


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       He contends the evidence was irrelevant to the issues in the case or, if relevant, the
       prejudicial effect of the evidence outweighed its probative value. Specifically, defendant
       challenges the State’s presentation of other-crimes evidence through the testimony of
       Donetta, Rister, and Ernst, regarding defendant’s comments and actions toward Logan during
       the Arkansas trip and Logan’s statement to Ernst several days before his death that defendant
       was “being nice to [him].”
¶ 28        “ ‘Evidence is “relevant” if it has any tendency to make the existence of a fact that is of
       consequence to the determination of the action more or less probable than it would be
       without the evidence.’ ” People v. McSwain, 2012 IL App (4th) 100619, ¶ 36, 964 N.E.2d
       1174 (quoting People v. Roberson, 401 Ill. App. 3d 758, 771-72, 927 N.E.2d 1277, 1289
       (2010)). Generally, “evidence of other crimes is admissible if relevant for any purpose other
       than to show a defendant’s propensity to commit crimes.” People v. Chapman, 2012 IL
       111896, ¶ 19, 965 N.E.2d 1119. Other-crimes evidence may include both criminal acts and
       acts which may not constitute a criminal offense. McSwain, 2012 IL App (4th) 100619, ¶ 35,
       964 N.E.2d 1174. Permissible purposes for other-crimes evidence include motive, intent,
       identity, lack of mistake, and modus operandi. Chapman, 2012 IL 111896, ¶ 19, 965 N.E.2d
       1119.
¶ 29        However, even where other-crimes evidence is offered for a permissible purpose, it “will
       not be admitted if its prejudicial impact substantially outweighs its probative value.”
       Chapman, 2012 IL 111896, ¶ 19, 965 N.E.2d 1119. Whether to admit such evidence is
       within the trial court’s sound discretion and, on review, “its decision will not be disturbed
       absent a clear abuse of discretion.” Chapman, 2012 IL 111896, ¶ 19, 965 N.E.2d 1119.
¶ 30        During defendant’s trial, the State made an offer of proof regarding the testimony it
       sought to present from Donetta, Rister, and Ernst. The State argued the evidence went to
       defendant’s state of mind, motive, and lack of mistake, and was relevant to its theory that
       defendant favored his own children over Logan. Defendant objected to the evidence, arguing
       it was irrelevant and prejudicial. The record reflects the State presented more evidence in its
       offer of proof than what was ultimately admitted at trial due to the trial court’s determination
       that several portions of the witnesses’ testimony were irrelevant and inadmissible. In ruling
       on the proffered evidence, the court expressly stated it considered the relevancy of the
       evidence and its probative value versus its prejudicial effect. It determined the testimony
       about the Arkansas trip and Logan’s statement to Ernst were admissible, finding the evidence
       relevant to the State’s theory of a pattern of animosity directed toward Logan and showing
       motive, state of mind, or lack of mistake. The court also found the probative value of the
       evidence outweighed its prejudicial effect.
¶ 31        Here, the record shows the trial court fully considered the State’s proffered evidence and
       defendant’s objections. Its analysis in reaching its decision was appropriate and it found
       much of the State’s proffered evidence inadmissible. We find no error in the court’s
       admission of the evidence as it was relevant for the purpose of showing defendant’s motive,
       in that he favored his own children and exhibited animosity toward Logan. Defendant argues
       there was no link between the proffered testimony and the motive for murder. However, the
       evidence at trial showed defendant was intervening in an incident between one of his
       children and Logan at the time Logan was injured. The court did not abuse its discretion.

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¶ 32       Defendant also argues the trial court improperly instructed the jury as to how to consider
       the other-crimes evidence. Specifically, he complains that the court could have given, but
       failed to give, oral limiting instructions to the jury.
¶ 33       Initially, we note defendant failed to raise this issue either at trial or in his posttrial
       motion. As a result, the issue of the trial court’s failure to give limiting oral instructions has
       been forfeited. See People v. Patrick, 233 Ill. 2d 62, 76, 908 N.E.2d 1, 9 (2009) (A defendant
       forfeits a jury instruction claim of error by failing to raise the issue with the trial court.).
       However, defendant’s claim is also without merit. The record reflects the court instructed the
       jury in writing at the close of the trial with the proper instruction. See Illinois Pattern Jury
       Instruction, Criminal, No. 3.14 (4th ed. 2000). Further, while contemporaneous oral
       instructions are advisable, the failure to instruct the jury at the time the other-crimes evidence
       is admitted “ ‘does not mandate reversal.’ ” People v. Butler, 377 Ill. App. 3d 1050, 1067,
       882 N.E.2d 636, 649 (2007) (quoting People v. Heard, 187 Ill. 2d 36, 61, 718 N.E.2d 58, 72
       (1999)). We reiterate that defendant did not ask for contemporaneous oral instructions.
¶ 34       Defendant further points out that, during the jury instruction conference, he objected to
       the lack-of-mistake exception being included in the written jury instructions on the basis that
       he admitted disciplining Logan and really had not “argued any sort of mistake.” The State
       responded that defendant’s “mistake” could be that defendant “hit [Logan] harder than what
       he meant to.” The trial court noted defendant’s objection but included lack of mistake within
       its written instruction, finding the State had shown enough relevance to include the
       exception.
¶ 35       Assuming the trial court included improper exceptions within its instruction, we find no
       error. This court has previously noted that “ ‘[w]hen jurors receive a limiting instruction that
       permits them to consider evidence for a number of reasons, and one of those reasons is
       determined on appeal to be improper, judgment of conviction must be affirmed despite the
       overly broad instruction.’ ” People v. Spyres, 359 Ill. App. 3d 1108, 1115, 835 N.E.2d 974,
       979-80 (2005) (quoting People v. Jones, 156 Ill. 2d 225, 240, 620 N.E.2d 325, 330 (1993)).
       As a result, even when other-crimes evidence is not admissible pursuant to certain
       exceptions, the inclusion in a jury instruction of the proper exception warrants affirming the
       defendant’s conviction. Spyres, 359 Ill. App. 3d at 1115, 835 N.E.2d at 980; see also People
       v. Carter, 362 Ill. App. 3d 1180, 1192-93, 841 N.E.2d 1052, 1062 (2005). Here, the trial
       court’s instruction included the proper exception and reversal is unwarranted.
¶ 36       Finally, on appeal defendant argues the trial court erred in sentencing him to 55 years in
       prison. Defendant contends the court failed to give adequate weight to mitigating evidence.
       Specifically, he argues his sentence was excessive given his strong potential for rehabilitation
       as shown by his minimal criminal history, employment history, and expression of remorse.
       Additionally, defendant notes he is the parent of four children and, after his arrest, engaged
       in positive activities and services.
¶ 37       “The trial court has broad discretionary powers in imposing a sentence, and its sentencing
       decisions are entitled to great deference.” People v. Alexander, 239 Ill. 2d 205, 212, 940
       N.E.2d 1062, 1066 (2010). On review, a defendant’s sentence will not be altered absent an
       abuse of discretion by the trial court. Alexander, 239 Ill. 2d at 212, 940 N.E.2d at 1066. “A


                                                  -8-
       sentence will be deemed an abuse of discretion where the sentence is ‘greatly at variance
       with the spirit and purpose of the law, or manifestly disproportionate to the nature of the
       offense.’ ” Alexander, 239 Ill. 2d at 212, 940 N.E.2d at 1066 (quoting People v. Stacey, 193
       Ill. 2d 203, 210, 737 N.E.2d 626, 629 (2000)).
¶ 38        “We will not substitute our judgment for that of the trial court simply because we would
       have weighed the sentencing factors differently.” People v. Kenton, 377 Ill. App. 3d 239,
       245, 879 N.E.2d 402, 407 (2007). “[I]f mitigating evidence is presented at the sentencing
       hearing, this court presumes that the trial court took that evidence into consideration, absent
       some contrary evidence.” People v. Shaw, 351 Ill. App. 3d 1087, 1093, 815 N.E.2d 469, 474
       (2004). Additionally, “a defendant’s rehabilitative potential and other mitigating factors are
       not entitled to greater weight than the seriousness of the offense.” Shaw, 351 Ill. App. 3d at
       1093-94, 815 N.E.2d at 474.
¶ 39        Here, the record shows the trial court considered and weighed relevant sentencing factors,
       including factors in mitigation. It does not reflect any improper considerations by the court
       and it is not the function of this court to reweigh the evidence. Given the seriousness of the
       offense, we find no abuse of discretion by the trial court.

¶ 40                                   III. CONCLUSION
¶ 41      For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $50 statutory assessment against defendant as costs.

¶ 42      Affirmed.




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