                                      2018 IL App (1st) 160120

                                            No. 1-16-0120

                                      Opinion filed June 28, 2018 


                                                                           FOURTH DIVISION

                                                IN THE


                                 APPELLATE COURT OF ILLINOIS


                                           FIRST DISTRICT



     THE PEOPLE OF THE STATE OF                     )       Appeal from the Circuit Court
     ILLINOIS,                                      )       of Cook County.
                                                    )
          Plaintiff-Appellee,                       )
                                                    )
          v.                                        )       No. 12 CR 1872603
                                                    )
     PABLO COLON,                                   )       The Honorable
                                                    )       Matthew E. Coghlan
          Defendant-Appellant.                      )       Judge, presiding.



       JUSTICE GORDON delivered the judgment of the court, with opinion.
       Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.


                                             OPINION

¶1             Defendant Pablo Colon was convicted after a jury trial of first degree murder and

       sentenced to 40 years with the Illinois Department of Corrections (IDOC).

¶2             On this appeal, defendant claims (1) that the trial court erred by allowing, as a tacit

       admission by defendant, the testimony of Wayne Kates recounting statements by Marco

       Ramirez and Daniel Guerrero that were made during a gang meeting at which defendant was

       present and that described the murder; (2) that the trial court erred by granting the State’s

       motion to admit proof of gang membership and affiliation, including expert testimony about
     No. 1-16-0120


        gangs and gang identification; (3) that the trial court erred by overruling defendant’s

        objection to the testimony of Mario Gallegos, the only eyewitness, who identified defendant

        as one of two people in a lineup who “kind of look like the people that were there the date it

        had occurred,” on the grounds that the tentative statement did not qualify as an identification

        and was more prejudicial than probative; (4) that the trial court erred by failing to grant

        defendant’s motion to suppress defendant’s statements to the police where the police did not

        inform him that he had a right to stop questioning at any time on the ground that the Illinois

        right to counsel is broader than the federal right and that suspects in Illinois should be

        informed of their right to terminate questioning at any time; (5) that defendant’s sentence of

        40 years was excessive and should be reduced to 20 years where defendant was 20 years old

        at the time of the offense and a minor participant; and (6) that defendant’s 40-year sentence

        was disproportionate to the 30-year sentence received by codefendant Gary Sams.

¶3             For the following reasons we affirm.

¶4                                          BACKGROUND

¶5             In the Analysis of each claim below, we provide a detailed description of the

        evidence relevant to resolve that particular claim.

¶6             In sum, the State’s evidence at trial established that on May 29, 2010, at midnight, a

        group of men, who belonged to the same gang, approached two men on a nearby street

        because one of the two men was wearing a red shirt, which was the color of a rival gang. One

        of the two men, Mario Gallegos, was able to escape, and he testified at trial as the State’s

        sole eyewitness. The other man, Alan Oliva, who was wearing the red shirt, was beaten to

        death. The State’s evidence included a videotaped confession by defendant describing his

        role in the offense, in which he admitted that he was the first person to approach the two


                                                      2

       No. 1-16-0120


          men, that he was the one who demanded to know their gang affiliation, and that he kicked the

          murder victim in the head after the victim was down on the ground. The State’s evidence also

          included testimony by fellow gang member Kates, concerning statements made by two of the

          attackers at a subsequent gang meeting attended by defendant. Defendant’s statement to the

          police and Kates’s testimony varied from each other, in that defendant stated to the police

          that there were six to eight men and that they exited a party to approach the murder victim

          and the victim’s companion, while Kates reported that two of the attackers, Ramirez and

          Guerrero, claimed that they exited a vehicle with defendant and that they were the only three

          men to approach the murder victim and that the victim was alone.

¶7               After listening to all the evidence, arguments and jury instructions, the jury convicted

          defendant of first degree murder, and the trial court sentenced him to 40 years with IDOC.

          Defendant filed a timely notice of appeal, and this appeal followed.

¶8                                              ANALYSIS

¶9                                          I. Kates’s Testimony

¶ 10             Defendant claims that the trial court erred by allowing the testimony of Kates, which

          described statements made by fellow gang members, Ramirez and Guerrero. The statements

          by Ramirez and Guerrero were made during a gang meeting at which defendant was also

          present. The statements included Ramirez’s statement that the three men—Ramirez, Guerrero

          and defendant—exited a vehicle together in order to approach the victim and that “they just

          kept beating the guy until he stopped moving and then at that point, basically, they took off

          before the cops would come.” Since defendant was present at the gang meeting and did not

          object to Ramirez’s and Guerrero’s statements, the trial court admitted the statements as an




                                                      3

       No. 1-16-0120


          “admission by silence” by defendant. See Ill. R. Evid. 801(d)(2) (eff. Oct. 15, 2015).

          Specifically, the trial court ruled:

                       “Court feels it did qualify as an admission by silence. The defendant was present

                  during this conversation. He was implicated, it would have been something that you

                  would expect him to deny. Court will allow it to come in as an exercise of its

                  discretion. Motion in limine denied.”

          For the following reasons, we cannot find that the trial court erred.

¶ 11                                         A. Standard of Review

¶ 12              The admission of evidence is generally within the sound discretion of the trial court,

          and we will not disturb a trial court’s evidentiary rulings absent an abuse of discretion.

          People v. Romanowski, 2016 IL App (1st) 142360, ¶ 21 (citing People v. Morgan, 197 Ill. 2d

          404, 455 (2001)). An abuse of discretion occurs only when the trial court’s decision is

          arbitrary, fanciful, or unreasonable to the degree that no reasonable person would agree with

          it. People v. Lerma, 2016 IL 118496, ¶ 23. However, to the extent that admissibility of

          evidence requires the interpretation of a rule and its intended scope, our review is de novo.

          Romanowski, 2016 IL App (1st) 142360, ¶ 21. De novo consideration means that we perform

          the same analysis that the trial court would perform. People v. Jones, 2018 IL App (1st)

          151307, ¶ 21.

¶ 13              On appeal, defendant claims that he preserved this error for our review by objecting

          both at trial and in a posttrial motion, and the State does not argue otherwise. See People v.

          Sebby, 2017 IL 119445, ¶ 48 (“To preserve a purported error for consideration by a

          reviewing court, a defendant must object to the error at trial and raise the error in a posttrial

          motion.”). Since the issue was preserved for our review, if there was an error, the State would


                                                        4

       No. 1-16-0120


          bear the burden of proving that the error was harmless beyond a reasonable doubt. Lerma,

          2016 IL 118496, ¶ 33. However, for the reasons discussed below, we do not find that an error

          occurred.

¶ 14                                      B. The Tacit Admission Rule

¶ 15              The statements at issue were admitted pursuant to Illinois Rule of Evidence 801 (eff.

          Oct. 15, 2015), which both defines hearsay and specifies that certain statements are not

          considered hearsay. The rule defines “hearsay” as “a statement, other than one made by the

          declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

          matter asserted.” Ill. R. Evid. 801(c) (eff. Oct. 15, 2015). The rule then specifies that certain

          statements are simply “not hearsay.” Ill. R. Evid. 801(d) (eff. Oct. 15, 2015). Thus, these

          statements are not exceptions to the rule against hearsay; rather, they are simply not hearsay

          to begin with. These statements include a “Statement by Party-Opponent.” Ill. R. Evid.

          801(d)(2) (eff. Oct. 15, 2015). A statement by a party opponent includes “a statement of

          which the party has manifested an adoption or belief in its truth.” Ill. R. Evid. 801(d)(2)(B)

          (eff. Oct. 15, 2015).

¶ 16              Adopted statements include what the case law calls a “tacit admission” 1 or, as the

          trial court described it, an “admission by silence.” 2 The “tacit admission rule” is well

          established in our case law. See People v. Donegan, 2012 IL App (1st) 102325, ¶ 67 (“the

          tacit admission rule”); People v. Soto, 342 Ill. App. 3d 1005, 1013 (2003) (“the tacit-

          admission rule”); People v. Campbell, 332 Ill. App. 3d 721, 734 (2002) (a statement is

          admissible as a “tacit admission” “if sufficient evidence supports a finding that, in light of the

              1
                  Before 2015, Rule 801(d)(2) was titled “Admission by Party-Opponent.” Ill. R. Evid. 801(d)(2)
       (eff. Jan. 1, 2011). Thus, courts used the term “tacit admission.”
                2
                  See People v. Goswami, 237 Ill. App. 3d 532, 536 (1992) (using the term “ ‘an admission by
       silence’ ” (quoting People v. Miller, 128 Ill. App. 3d 574, 583 (1984))).
                                                          5

       No. 1-16-0120


          totality of the circumstances, a defendant remained silent when faced with an incriminating

          statement, which, if untrue, would normally call for a denial”); Goswami, 237 Ill. App. 3d at

          535 (discussing “the rule” concerning “a tacit admission”); People v. Childrous, 196 Ill. App.

          3d 38, 53 (1990) (“When a statement is made in the presence and hearing of an accused,

          incriminating in character, and such a statement is not denied, contradicted or objected to by

          him, both the statement and the fact of his failure to deny it are admissible in a criminal trial

          as evidence of his acquiescence in its truth.”).

¶ 17             The tacit admission rule provides, “When a statement that is incriminating in nature is

          made in the presence and hearing of an accused and such statement is not denied,

          contradicted, or objected to by him, both the statement and the fact of his failure to deny it

          are admissible in a criminal trial as evidence of the defendant’s agreement in its truth.” Soto,

          342 Ill. App. 3d at 1013; Donegan, 2012 IL App (1st) 102325, ¶ 67; Campbell, 332 Ill. App.

          3d at 734; Goswami, 237 Ill. App. 3d at 535-36; Childrous, 196 Ill. App. 3d at 53; Miller,

          128 Ill. App. 3d at 583. Our case law has uniformly found that silence can constitute assent.

          Donegan, 2012 IL App (1st) 102325, ¶ 67; Soto, 342 Ill. App. 3d at 1013; Campbell, 332 Ill.

          App. 3d at 734; Goswami, 237 Ill. App. 3d at 535-36; Childrous, 196 Ill. App. 3d at 53

          (“assent may be manifested by silence”); Miller, 128 Ill. App. 3d at 583 (when “silence is an

          admission of guilt, proof of a defendant’s silence is essential to the admission of the

          declaration”).

¶ 18             The necessary elements for admissibility under the tacit admission rule are (1) that

          the statement incriminates the defendant such that the natural reaction of an innocent person

          would be to deny it, (2) that the defendant heard the statement, and (3) that the defendant had

          an opportunity to reply or object and instead remained silent. Donegan, 2012 IL App (1st)


                                                        6

       No. 1-16-0120


          102325, ¶ 67; Soto, 342 Ill. App. 3d at 1013; see also Campbell, 332 Ill. App. 3d at 734;

          Goswami, 237 Ill. App. 3d at 535-36; Childrous, 196 Ill. App. 3d at 53; Miller, 128 Ill. App.

          3d at 583.

¶ 19                   The statement need not be made “in an accusatory tone,” so long as it is “evident

          that defendant was being painted or portrayed as a participant in illegal and prohibited

          activity.” Miller, 128 Ill. App. 3d at 584; Soto, 342 Ill. App. 3d at 1013 (quoting Miller for

          the same point). In Goswami, 237 Ill. App. 3d at 535, the appellate court suggested the need

          for “an accusative statement,” when it stated that “a defendant’s silence following an

          accusative statement may be considered as a tacit admission.” While the statement must be

          “accusative” in that it charges the defendant with participation in an illegal activity, Miller

          and Soto establish that the tone in which the statement was made need not be accusative.

          Miller, 128 Ill. App. 3d at 584; Soto, 342 Ill. App. 3d at 1013.

¶ 20                                        C. Testimony at Issue

¶ 21             We describe here in detail the specific testimony at issue.

¶ 22             Kates testified that, on August 21, 2010, he went with his brother, Walter Mullenix,

          to “a gang meeting” at Bernard Monreal’s house. The assistant state’s attorney (ASA) asked

          who was at Monreal’s house, and Kates identified the people there as (1) himself, (2) Kates’s

          brother, (3) defendant, (4) Ramirez, (5) Guerrero, and (6) Monreal. The topics discussed at

          the meeting were “the transferring of power from Bernard Monreal to [Kates’s] brother,” the

          lack of guns, and the gang’s lack of presence on the street. Kates observed that “there wasn’t

          enough people hanging out, outside.” With respect to the lack of presence, Kates asked “why

          there wasn’t anyone out there [?]” and Marco Ramirez replied that “the area was hot.” At this

          point in Kates’s testimony, the ASA inquired again who was there, specifically asking,


                                                       7

       No. 1-16-0120


          “During this conversation who was present with you?” (Emphasis added.) Kates answered,

          “It was me, my brother Walter, Bernard Monreal, Daniel Guerrero, Marcos Ramirez and

          [defendant].” Thus, there were only 6 people at the meeting and all 6 were present at this

          point in the conversation.

¶ 23             Kates testified that the meeting occurred in Monreal’s living room. The ASA asked,

          “how close were you to each other during the time you had this discussion?” Kates replied a

          “couple [of] feet.” Kates testified that Ramirez then explained why the area was hot. Ramirez

          stated that on May 29, 2010, he was driving in a vehicle with defendant, Daniel Guerrero and

          a man known as “Chucky” when they spotted a man who looked “like a rival gang member

          or a flake.” Ramirez stated that “they pulled into the alley behind a restaurant called a

          barbecue patio and at that point Marcos Ramirez said that [Ramirez], Daniel Guerrero and

          [defendant] exited the vehicle.” Ramirez stated that they wanted to check if the man had any

          gang tattoos or gang affiliation. When Ramirez asked the man what gang he belonged to, he

          responded that he did not belong to a gang and then turned and tried to run away.

¶ 24             Kates testified that Guerrero stated that “he caught up to the guy and he hit him with a

          baseball bat and he fell down.” Then Ramirez stated that “he ran up to him and he started

          stabbing him while he was on the ground.” Ramirez stated that “he was trying to stab him in

          the head.” Ramirez further stated that “they just kept beating the guy until he stopped moving

          and then at that point, basically, they took off before the cops would come.”

¶ 25             Kates testified that Monreal, Guerrero, Ramirez, Mullenix and defendant were all

          members of the Satan Disciples gang that Kates also belonged to.

¶ 26             On cross, Kates testified that the only two people who talked about the murder at the

          meeting were Ramirez and Guerrero and that defendant did not make any statements that he


                                                      8

       No. 1-16-0120


          stabbed anyone or wielded a baseball bat. In addition, Kates testified that, during the

          meeting, defendant never made any statements admitting any activities on the date of the

          murder. Kates testified that he arrived at the meeting at 11 a.m. and he was there an hour.

¶ 27                               D. Elements of Tacit Admission Rule

¶ 28              The first requirement of the tacit admission rule actually has two parts: that the

          statement was incriminating and that the natural reaction of an innocent person would be to

          deny it. E.g. Donegan, 2012 IL App (1st) 102325, ¶ 67; Soto, 342 Ill. App. 3d at 1013.

          Ramirez’s statement that “they just kept beating the guy until he stopped moving” implicated

          defendant in the murder. (Emphasis added.) Ramirez stated that defendant had exited the

          vehicle with Ramirez and Guerrero; thus, all three of them exited together as one unit to

          approach the victim. The fact that they continued to move as one unit was evidenced by

          Ramirez’s subsequent statement that “they drove off before the cops would come.”

          (Emphasis added.) These statements of “they” included defendant since defendant had

          arrived at the scene in the same vehicle and exited it with Ramirez and Guerrero. Ramirez’s

          and Guerrero’s description of their own acts of stabbing and beating were the initial acts in

          one course of conduct that ended with their “beating the guy until he stopped moving.” Thus,

          Ramirez’s and Guerrero’s statements implicated and incriminated defendant.

¶ 29             The natural reaction of an innocent person would have been to deny it or, at least, to

          deny his own involvement. E.g. Donegan, 2012 IL App (1st) 102325, ¶ 67; Soto, 342 Ill.

          App. 3d at 1013. At this point in the meeting, Ramirez was trying to explain to Kates why the

          area was so “hot” with police that the gang could no longer maintain a presence on the street.

          Kates, according to his testimony, was the brother of the person now taking over the “power”

          of the gang. If defendant was not at fault for this turn of events, one would expect him to


                                                       9

       No. 1-16-0120


          protest to the gang leadership—who were demanding an explanation—that he was not one of

          the people who had beaten an innocent man to death, thereby leading to the extreme police

          presence on the street. However, defendant remained silent, thereby indicating his assent to

          Ramirez’s and Guerrero’s statements, including Ramirez’s statement that “they just kept

          beating the guy until he stopped moving.” (Emphasis added.)

¶ 30             The second requirement is that the defendant heard the statement. E.g. Donegan,

          2012 IL App (1st) 102325, ¶ 67; Soto, 342 Ill. App. 3d at 1013. Kates testified that there

          were only six people at the meeting, that the six of them were meeting in a living room, and

          that they were only a couple of feet away from each other. Immediately before Kates testified

          about Ramirez’s and Guerrero’s description of the murder, the ASA asked, “During this

          conversation who was present with you?” (Emphasis added.) Kates answered, “It was me,

          my brother Walter, Bernard Monreal, Daniel Guerrero, Marcos Ramirez and [defendant].”

          Thus, given the small size of the meeting, the physical proximity of the participants to each

          other, the private and confidential nature of the meeting space, and Kates’s testimony about

          who was present for “this conversation,” we cannot find that the trial court erred in

          concluding that defendant heard Ramirez’s and Guerrero’s statements.

¶ 31                   The third requirement is that the defendant had an opportunity to reply or object

          and instead remained silent. E.g. Donegan, 2012 IL App (1st) 102325, ¶ 67; Soto, 342 Ill.

          App. 3d at 1013. In Kates’s testimony, there was no indication that defendant was prevented

          at this meeting of only six people from objecting or replying. In addition, the cross-

          examination established that defendant was silent concerning the murder during the meeting.

          Thus, all three requirements for admission under the tacit admission rule were satisfied, and

          we cannot find that the trial court erred by admitting these statements.


                                                       10 

       No. 1-16-0120


¶ 32                                         II. Gang Evidence

¶ 33             Second, defendant claims that the trial court erred by granting the State’s motion

          in limine and admitting proof of gang membership and affiliation, including expert

          testimony. The State claims that this evidence was relevant to establish motive and common

          design. In response, defendant argues that, aside from Kates’s testimony discussed above,

          there was no evidence that defendant knew of a common gang purpose or motive for the

          murder and that defendant’s statements to the police “contained no hint of a gang motive.”

¶ 34             “Evidentiary rulings regarding gang-related evidence are reviewed for abuse of

          discretion.” People v. Villarreal, 198 Ill. 2d 209, 232 (2001); People v. Johnson, 208 Ill. 2d

          53, 102 (2003); People v. Gonzalez, 142 Ill. 2d 481, 489-90 (1991). Although there is

          “widespread disapproval that exists toward street gangs,” a defendant may not insulate the

          fact finder from the fact of his gang membership, despite prejudice toward it, if that fact is

          relevant to understanding the case. Gonzalez, 142 Ill. 2d at 488-89; People v. Smith, 141 Ill.

          2d 40, 58 (1990) (although “in metropolitan areas, there may be strong prejudice against

          street gangs,” such evidence need not be excluded if relevant). It is left to the discretion of

          the trial court to weigh the probative value and prejudicial effect of this evidence to

          determine whether it should be admitted in any given case. Gonzalez, 142 Ill. 2d at 489. As

          we observed above, an abuse of discretion occurs only when the trial court’s decision is

          arbitrary, fanciful or unreasonable to the degree that no reasonable person would agree with

          it. Lerma, 2016 IL 118496, ¶ 23.

¶ 35             “Gang membership evidence is admissible only when there is sufficient proof that the

          membership is related to the crime charged.” Villarreal, 198 Ill. 2d at 232; Johnson, 208 Ill.

          2d at 102; Smith, 141 Ill. 2d at 58 (admissibility requires “sufficient proof that such


                                                      11 

       No. 1-16-0120


          membership or activity is related to the crime charged”). If the State does establish a

          relationship between membership and the crime charged, it must also show that membership

          is “relevant to an issue in dispute” and that “its probative value is not substantially

          outweighed by its prejudicial effect.” Villarreal, 198 Ill. 2d at 232; Johnson, 208 Ill. 2d at

          102; People v. Johnson, 159 Ill. 2d 97, 118 (1994). “One of the purposes for which gang

          evidence is admissible is to ‘provide a motive for an otherwise inexplicable act.’ ” Villarreal,

          198 Ill. 2d at 233 (quoting Smith, 141 Ill. 2d at 58); see also Smith, 141 Ill. 2d at 58

          (“admissible to show common purpose or design, or to provide a motive for an otherwise

          inexplicable act”).

¶ 36             Defendant’s statement to the police, by itself, established that the murder was gang-

          related and gang-motivated and that, specifically, defendant’s participation in the offense was

          gang-related and gang-motivated.

¶ 37             Before we discuss defendant’s statement, we observe that his statement contained

          jargon and nicknames, and we provide here the definition and explanation for these terms

          given by a fellow gang member, Kates, during Kates’s trial testimony. For example, he

          testified that to “check” someone meant “to see if they have any gang affiliation or gang

          tattoos.” Kates also testified that “Klepto” was the nickname of fellow gang member

          Ramirez.

¶ 38             In part of defendant’s videotaped statement to the police, defendant stated that he

          (defendant) was at a party when “Klepto” (Ramirez) entered the party and stated that he

          (Ramirez) had observed members of “the Counts” at a nearby gas station. Immediately after

          Ramirez’s announcement, six to eight people exited the party. Defendant described how he

          approached the murder victim and “checked” him and what happened next:


                                                      12 

       No. 1-16-0120


                 “Yeah, I’m the one who checked dude. I was like what’s up n***, what y’all is? And

                 right away first n*** took off running and then boy was just stuck right there. Klep

                 hit him in [the] back with the bat. First dude went down, the dude that was right there,

                 I think that might have been the dude that got stabbed. I’m not sure cause I don’t

                 know which one got stabbed. Klep hit him in the back. Boom. F*** the other dude

                 took off across the street, couple of people went chasing after him but he was gone.

                 Came back. Everybody was just like whooping him. I kicked him probably in the

                 face. Yeah I kicked him in the face. That’s when he must’ve got stabbed.”

¶ 39             Later in the statement, defendant stated:

                 “When I checked dude right here, he stands up to me. You know what I’m sayin[g].

                 *** Everybody’s trying to circle around him. *** He’s already like this, looking

                 around. Boom. This guy gets cracked in the back. *** This dude is already on the

                 floor. People are kicking him, punching—there’s just a crowd. That’s why I’m

                 sayin[g] I don’t know who stabbed him really cause there was a crowd. So I turned

                 around, he’s right there. By that time, I kick him, bow, you know what I’m sayin[g]. I

                 might have said a couple of things to him. You know what I mean. By that time, f***,

                 there was just like cars on the street. Cars started beeping. Like started pulling over.

                 You know what I’m sayin[g]. I ran; I was the first one there and I was the first one to

                 run.”

¶ 40             Later in his statement, defendant repeated: “I was the first one to talk to the dude.

          And I checked him, whatever. F***, before the dude even saying anything he was—started

          getting a whopped. You know he got hit by the bat.”




                                                      13 

       No. 1-16-0120


¶ 41             In his statement, defendant emphasized the importance of gang affiliation and colors

          in the murder, stating: “I was the first one, so I seen them. They’re wearing all red. You

          know what I’m saying? That’s the Counts’ colors.” After observing these colors, defendant

          demanded of the murder victim: “ ‘What’s up b***? You know what I’m saying? What the

          f*** you all doing? It’s the wrong side.’ ” After that, “everbody’s punching and kicking him.

          *** I’m not going to lie. Kicked him, Ugh!”

¶ 42             Thus, defendant’s statement establishes that defendant was the first person to

          approach the murder victim and that defendant’s primary purpose in approaching the victim

          was to establish whether the victim was a member of a gang and, if so, which one. While the

          gang testimony may have had a prejudicial, even horrifying, impact on the jury, it would be

          impossible to understand why this group of men would spontaneously exit a party and beat

          an innocent passerby to death without this evidence, in particular, the victim’s wearing of the

          color red, which was the color of a rival gang. As a result, we can find no error here by the

          trial court in granting the State’s motion and admitting gang evidence.

¶ 43                                     III. Gallegos’s Identification

¶ 44             Third, defendant claims that the trial court erred by admitting, over defendant’s

          objection, certain testimony by Mario Gallegos, one of the two victims of the attack and the

          only eyewitness to testify at trial. Gallegos testified that he had selected defendant at a prior

          lineup as being someone who “ kind of look[ed] like the people that were there the date it had

          occurred.” Defendant claims that this testimony was too speculative to be relevant and too

          inconclusive to qualify as an identification. The trial court found that Gallegos’s

          identification was “tentative” but that his tentativeness went to weight not admissibility. For




                                                       14 

       No. 1-16-0120


          the following reasons, we find that the trial court did not abuse its discretion by admitting

          this testimony.

¶ 45             Concerning the lineup that he viewed on September 12, 2012, Gallegos testified on

          direct examination:

                       “[ASA]: Showing you what has been marked as People’s Identification—

                 photograph marked as People’s Exhibit No. 19. Do you recognize what’s depicted in

                 that photograph?

                       GALLEGOS: Yeah, I see the lineup.


                       [ASA]: This is a lineup you viewed?


                       GALLEGOS: Yes.


                       [ASA]: Do you remember seeing that lineup back in 2012?


                       GALLEGOS: Yes, I do. 


                       [ASA]: Is there anybody in that lineup that you told the police officers you


                 recognized?

                       GALLEGOS: I pointed out two of them.

                       [ASA]: Going from left to right on the photograph itself, starting here on the left

                 side, going to the right, which person did you identify in that photograph?

                       GALLEGOS: Two in the middle.

                       [ASA]: Two in the middle?

                       GALLEGOS: Yeah.

                       [ASA]: What did you tell the officers pertaining to your identification of these

                 two individuals at that time?



                                                       15 

       No. 1-16-0120


                       GALLEGOS: They kind of look like the people that were there the date it had

                 occurred.

                       [ASA]: This is going back to the incident when you and Alan were struck with the

                 bat?

                       GALLEGOS: Yes.

                       [ASA]: You told them that they kind of look like the persons?

                       GALLEGOS: Yes.”

¶ 46             Immediately after the above testimony, defense counsel objected to its admission on

          the basis that it was inconclusive. At the ensuing sidebar, the ASA stated that defendant was

          one of the two people whom Gallegos testified “kind of look like the people that were there.”

          The trial court agreed with defense counsel that this identification was “tentative” but ruled

          that the tentativeness of the identification “go[es] towards weight rather than its

          admissibility” and, thus, it was admissible.

¶ 47             After the sidebar, Gallegos further testified:

                       “[ASA]: Again Mr. Gallegos, you told us moments ago I believe that the two

                 individuals in the middle that you say that look—well, tell me again, what do you

                 recognize them as?

                       GALLEGOS: As the guys that were there.

                       [ASA]: You said earlier that guys, you believe they were the guys over there or

                 possibly the guys?

                       GALLEGOS: Possibly.”

¶ 48             On cross, Gallegos testified:



                                                         16 

       No. 1-16-0120


                       “DEFENSE COUNSEL: When you saw this actual, physical lineup in September

                of 2012, you indicated that you made an identification of two people, is that correct?

                       GALLEGOS: Yes.

                       DEFENSE COUNSEL: Number two and number three, is that right?

                       GALLEGOS: Yes.

                       DEFENSE COUNSEL: You’re not—you were unable to positively determine that

                either number two or number three were there, is that correct?

                       GALLEGOS: That’s possible.

                       DEFENSE COUNSEL: Just possible.

                       GALLEGOS: It’s possible.

                       DEFENSE COUNSEL: When you say either two or three could have been there,

                is your testimony that it may have been either of these two people or that possibly

                both of them were there or both of them weren’t there?

                       GALLEGOS: I wasn’t—well, possibly like I said. They were Hispanic.”

¶ 49         On cross, Gallegos further testified:

                       “DEFENSE COUNSEL: Mario, you’re not really certain that [defendant] was

                there on 34th Street, my client, the individual you saw in that lineup in September of

                2013?

                       GALLEGOS: I said possibly.

                       DEFENSE COUNSEL: Possibly. It’s possible he may not, is that correct?

                       GALLEGOS: Possibly, like I said.”




                                                     17 

       No. 1-16-0120


¶ 50             Whether a trial court erred in admitting a statement as a prior statement of

          identification is generally an issue that a reviewing court will reverse only for an abuse of

          discretion. People v. Temple, 2014 IL App (1st) 111653, ¶ 33. As we observed above, an

          abuse of discretion occurs only when the trial court’s decision is arbitrary, fanciful, or

          unreasonable, or where no reasonable person would agree with the position adopted by the

          trial court. Temple, 2014 IL App (1st) 111653, ¶ 33.

¶ 51             As we also observed above, Rule 801 of the Illinois Rules of Evidence defines both

          what statements constitute hearsay and what statements do not constitute hearsay. Ill. R.

          Evid. 801 (eff. Oct. 15, 2015). The rule provides that a statement is not hearsay, if, in a

          criminal case, (1) “the declarant testifies at the trial or hearing,” (2) the declarant is “subject

          to cross-examination concerning the statement,” and (3) the statement is “one of

          identification of a person made after perceiving the person.” Ill. R. Evid. 801(d)(1)(B) (eff.

          Oct. 15, 2015). In the case at bar, Gallegos (1) testified at trial and (2) was subject to cross-

          examination. However, defendant claims that the State failed to establish the third

          requirement because the statement was too inconclusive to qualify as a statement “of

          identification.” Ill. R. Evid. 801(d)(1)(B) (eff. Oct. 15, 2015).

¶ 52             In addition, defendant argues that the statement should have been excluded pursuant

          to Illinois Rule of Evidence 403, which provides, in relevant part, that, “[a]lthough relevant,

          evidence may be excluded if its probative value is substantially outweighed by the danger of

          unfair prejudice, confusion of the issue, or misleading the jury.” Ill. R. Evid. 403 (eff. Jan. 1,

          2011). Defendant argues that the statement was too speculative to qualify as relevant.

¶ 53             People v. Tisdel, 201 Ill. 2d 210 (2002), is instructive. In Tisdel, the defendant argued

          that the trial court erred in admitting, as identification evidence, testimony by State witnesses


                                                        18 

       No. 1-16-0120


          that they had viewed prior lineups containing persons other than defendant and had not made

          an identification. Tisdel, 201 Ill. 2d at 215. The supreme court construed “ ‘statements of

          identification’ to include the entire identification process.” Tisdel, 201 Ill. 2d at 219. In

          reaching this conclusion, the supreme court observed that defense counsel had an opportunity

          to, and did, in fact, cross-examine the witnesses extensively. Tisdel, 201 Ill. 2d at 221; see

          also Ill. R. Evid. 801(d)(1)(B) (eff. Oct. 15, 2015) (for a prior identification to be admissible

          in a criminal case, the declarant must be “subject to cross-examination concerning the

          statement”). Similarly, in our case, the statement was part of the identification process and

          was subject to cross-examination at trial.

¶ 54             In addition, in reaching its finding, the Tisdel court relied on Neil v. Biggers, 409 U.S.

          188 (1972). Tisdel, 201 Ill. 2d at 220. Normally, to assess identification testimony, Illinois

          courts consider the five factors set forth in Biggers, 409 U.S. at 199-200: (1) the witness’s

          opportunity to view the defendant during the offense, (2) the witness’s degree of attention at

          the time of the offense, (3) the accuracy of any prior description by the witness, (4) the

          witness’s level of certainty at the identification, and (5) the length of time between the crime

          and the identification. People v. Slim, 127 Ill. 2d 302, 307-08 (1989). The court takes all five

          factors into consideration, as well as all the circumstances. Biggers, 409 U.S. at 198-200. The

          witness’s level of certainty is only one of the five factors. See People v. Allen, 376 Ill. App.

          3d 511, 524 (2007) (studies show that there are “low correlations between the witness’s

          confidence and the accuracy of her identification”). In sum, we cannot find that the trial court

          abused its discretion by admitting the lineup testimony as a prior statement of identification,

          where defendant’s argument is based on only one of the Biggers factors, where the Illinois

          Supreme Court in Tisdel found that the entire identification process qualifies as a statement


                                                       19 

       No. 1-16-0120


           of identification, and where defendant had an opportunity to, and did, in fact, cross-examine

           the witness extensively concerning the statement and the tentative nature of his identification.

¶ 55               Defendant further argues that the statement’s probative value was outweighed by its

           prejudice and that Gallegos identified defendant only because he was “Hispanic.” Gallegos’s

           “Hispanic” comment was brought out on cross-examination when defense counsel was

           pressing Gallegos to explain what Gallegos meant when he had stated that defendant was

           “possibly” there. Gallegos replied, “I wasn’t—well, possibly like I said. They were

           Hispanic.” A trial witness’s statement about an offender’s ethnicity is admissible as a

           statement of prior identification, which then may be tested and explored on cross-

           examination. See Temple, 2014 IL App (1st) 111653, ¶¶ 30, 41 (a witness’s prior statement

           that she observed “a white male when she looked out her window” was properly admitted as

           a statement of identification, where the declarant was available for cross-examination at

           trial). On appeal, defendant does not argue that the lineup was unduly suggestive. Thus, we

           cannot find the trial court abused its discretion by finding that any prejudicial effect of

           Gallegos’s lineup testimony was outweighed by its probative value.

¶ 56                                           IV. Miranda Warnings

¶ 57               Defendant claims that the trial court erred by denying his pretrial motion to suppress

           his statement to the police, on the ground that the police did not advise him of his right to

           stop the questioning. On appeal, defendant acknowledges that some Illinois courts have

           found that police are not required, as part of their Miranda warnings, to inform a suspect that

           he has the right to halt questioning at any time. 3 However, defendant argues that these cases


               3
                People v. Merrero, 121 Ill. App. 3d 716, 722 (1984) (“although an individual has the right to cut
       off questioning at any time, Miranda does not require that the individual be informed of this right as part
       of the warnings”), overruled on other grounds by People v. Williams, 235 Ill. 2d 286 (2009); People v.
                                                           20 

       No. 1-16-0120


          are decades-old and that “the Miranda rights should include an explicit warning that the

          accused has the right to cut off or terminate questioning at any time.” In addition, defendant

          argues that, even if “the federal Miranda guarantee does not assure such a right,” such a right

          is provided by the Illinois constitution. See People v. McCauley, 163 Ill. 2d 414, 442 (1994)

          (“Authorities must inform suspects that if they cannot afford an attorney, one will be

          provided, and that they may ask for one at any time and upon doing so, the interrogation

          must cease.”).

¶ 58              Both the State and defendant agree that de novo review is appropriate for this

          question, which is solely a question of law. Jones, 2018 IL App (1st) 151307, ¶ 21 (a pure

          question of law is reviewed de novo).

¶ 59              Normally, “when a trial court’s ruling on a motion to suppress evidence involves

          factual determinations and credibility assessments, the ultimate ruling will not be disturbed

          on appeal unless it is manifestly erroneous.” People v. Sorenson, 196 Ill. 2d 425, 430-31

          (2001). “This deferential standard of review is grounded in the reality that the trial court is in

          a superior position to determine and weigh the credibility of witnesses, observe the

          witnesses’ demeanor, and resolve conflicts in the witnesses’ testimony.” Sorenson, 196 Ill.

          2d at 431. However, a court will “review de novo the ultimate question of the defendant’s

          legal challenge to the denial of his motion to suppress.” Sorenson, 196 Ill. 2d at 431. In the

          case at bar, when deciding defendant’s pretrial suppression motion, the trial court did not

          hear any live testimony; rather it reviewed only the relevant portion of defendant’s

          videotaped statement. As a result, the evidence before the trial court and the evidence before


       Hudson, 8 Ill. App. 3d 813, 814 (1972) (Defendant “was not advised that he could have stopped the
       questioning at any time. Such warning, however, is not essential.”); People v. Washington, 115 Ill. App.
       2d 318, 328 (1969) (“[i]t was not necessary that defendant be informed that he could terminate the
       questioning at any period”).
                                                         21 

       No. 1-16-0120


          us is the same. Thus, we agree with the parties that we should conduct a de novo review,

          which means that we perform the same analysis that a trial court would perform. Jones, 2018

          IL App (1st) 151307, ¶ 21.

¶ 60             For this claim, defendant relies primarily on our supreme court’s decision in

          McCauley, where our supreme court stated in dicta: “Authorities must inform suspects that if

          they cannot afford an attorney, one will be provided, and that they may ask for one at any

          time and upon doing so, the interrogation must cease.” McCauley, 163 Ill. 2d at 442. In

          McCauley, our supreme court held that, when an attorney came to the police station where

          the defendant was being interrogated and the police refused either to tell the defendant that

          his attorney was present or to allow the attorney access to his client, the police violated the

          defendant’s right to counsel under the Illinois Constitution. McCauley, 163 Ill. 2d at 423-24;

          see also People v. Pitchford, 314 Ill. App. 3d 72, 78 (2000). Our supreme court held that,

          although the police did not violate defendant’s right to counsel under the United States

          Constitution, they did violate this right under the Illinois Constitution:

                 “Regardless of the United States Supreme Court’s current views on waiver of the

                 right to counsel under the Federal Constitution, the law in Illinois remains that ‘when

                 police, prior to or during custodial interrogation, refuse an attorney appointed or

                 retained to assist a suspect access to the suspect, there can be no knowing waiver of

                 the right to counsel if the suspect has not been informed that the attorney was present

                 and seeking to consult with him.’ ” (Emphasis in original.) McCauley, 163 Ill. 2d at

                 424-25 (quoting People v. Smith, 93 Ill. 2d 179, 189 (1982)); see also Pitchford, 314

                 Ill. App. 3d at 78.

¶ 61             The McCauley court explained:


                                                        22 

       No. 1-16-0120


                 “Our State constitutional guarantees simply do not permit police to delude custodial

                 suspects, exposed to interrogation, into falsely believing they are without immediately

                 available legal counsel and to also prevent that counsel from accessing and assisting

                 their clients during the interrogation.” McCauley, 163 Ill. 2d at 423-24; see also

                 Pitchford, 314 Ill. App. 3d at 78-79.

¶ 62             In the case at bar, defendant does not claim that his attorney was at the police station

          when defendant was being interrogated. Rather, he claims, based on McCauley, that the

          police were required to inform him, prior to questioning and as part of their Miranda

          warnings, that he had the right to terminate questioning at any time. Defendant does not cite a

          single Illinois case, in the almost 25 years since McCauley was decided, that cites McCauley

          for such a proposition or that holds what he asks us to hold based on it. Nor can we find one.

          Thus, we decline his invitation to expand the required Miranda warnings.

¶ 63                                            V. Sentencing

             Defendant’s remaining claims on appeal concern his sentence: (1) that his 40-year

          sentence is excessive and should be reduced to 20 years; (2) that his 40-year sentence is

          disproportionate to the 30-year sentence received by codefendant Gary Sams; and (3) that the

          trial court failed to consider, in mitigation, defendant’s youth at the time of the incident and

          defendant’s prior work record. For the following reasons, we do not find that the trial court

          abused its discretion in determining defendant’s sentence.

¶ 64             The sentencing range was between 20 and 60 years, and the State asked for the

          “fullest” sentence. 730 ILCS 5/5-4.5-20(a) (West 2010) (“Imprisonment shall be for a

          determinate term of (1) not less than 20 years and not more than 60 years ***.”). However,

          defendant received a sentence exactly in the middle of the sentencing range. At sentencing,


                                                         23 

No. 1-16-0120


   the trial court articulated its reasons for selecting 40-year and 30-year sentences for

   defendant and codefendant Sams, which we provide here in full:

                “THE COURT: Well, where do I begin? Certainly I wish that I could offer some

          explanation or answer to families from both sides in this case. Sometimes there are no

          answers. Why does evil exist in the world? Why do innocent people have to suffer? I

          don’t know. It is awful, senseless, and it is a tragedy for both sides. Three lives have

          been lost, and three families are broken and in pain. The [victim’s] family will never

          be able to visit their son except in a cemetery, and [defendant’s] and [codefendant

          Sam’s] families, at least they will be able to visit their sons in the penitentiary, but

          certainly that is not [a] consolation to them.

                The Court has had the opportunity to review the Pre-Sentence Investigations, the

          letters submitted on behalf of all sides, letters in mitigation for [codefendant Sams], I

          have considered the certificates and this addendum for [defendant], certainly the

          victim impact statements are moving and speak greatly of the loss and pain that the

          family and friends of the [victim’s] family are suffering.

                [Codefendant Sams] is 39 years old now. I have reviewed his background. It does

          appear that he had[,] while he was involved actively in the gang when he was

          younger, he had turned his life around to a certain extent. He was working as a

          laborer. There are letters of recommendation, letter of good deeds that he had done

          for his friends and his family. [Codefendant’s counsel] read one of those letters here

          in open court, and now, because of his senseless and stupid act on that night in May,

          he has ruined his life and severely damaged the life of those who love him. All of that




                                                24 

       No. 1-16-0120


                 is now flushed down the toilet for his willingness to participate in the beating of

                 somebody simply because he is wearing the wrong color shirt.

                       With regard to [codefendant] Sams, after considering all the factors in aggravation

                 and mitigation, his rehabilitative potential, judgment is entered on Count 1, and the

                 Court finds an appropriate sentence to be 30 years in the Illinois Department of

                 Corrections.

                       With regard to [defendant], [he] is a younger man. He was on probation at the

                 time that this occurred, which the Court does find aggravating. He was still the Court

                 believes an active member of the gang. I think he is still an active member of the

                 gang. I don’t believe him when he says he is not. The Court heard his statement. The

                 Court believes that he exhibited a certain amount of relish in describing what he did,

                 and he was more active. He was the first one off the porch to beat these guys who he

                 thought were rival gang members.

                       I have considered his statements, all the factors in aggravation and mitigation,

                 including his rehabilitative potential, and judgment is entered on the finding. The

                 Court finds an appropriate sentence to be 40 years in the Illinois Department of

                 Corrections.”

¶ 65             “A reviewing court gives substantial deference to the trial court’s sentencing decision

          because the trial judge, having observed the defendant and the proceedings, is in a much

          better position to consider factors such as the defendant’s credibility, demeanor, moral

          character, mentality, environment, habits, and age.” People v. Snyder, 2011 IL 111382, ¶ 36;

          People v. Alexander, 239 Ill. 2d 205, 212-13 (2010). Thus, a sentence within the appropriate

          sentencing range is usually accorded great deference. People v. Anaya, 2017 IL App (1st)


                                                       25 

       No. 1-16-0120


           150074, ¶ 102. Although Illinois Supreme Court Rule 615(b) grants a reviewing court the

           power to reduce a sentence or the degree of an offense, our supreme court has cautioned that

           this power should be used cautiously and sparingly. Alexander, 239 Ill. 2d at 212. As a result,

           an appellate court “may not alter a defendant’s sentence absent an abuse of discretion.”

           Alexander, 239 Ill. 2d at 212; see also Snyder, 2011 IL 111382, ¶ 36 (“a reviewing court may

           not modify a defendant’s sentence absent an abuse of discretion”). Our supreme court has

           found that, with respect to a sentence, an abuse of discretion occurs when the sentence is

           greatly at variance with the spirit or purpose of the law or manifestly disproportionate to the

           nature of the offense. Snyder, 2011 IL 111382, ¶ 36; Alexander, 239 Ill. 2d at 212. A

           reviewing court must not substitute its judgment for that of the trial court merely because it

           would have weighed various sentencing factors differently. Alexander, 239 Ill. 2d at 213.

¶ 66               First, defendant observes that he obtained his GED in 2007, that he was only 20 years

           old in 2010 when this offense occurred, that between 2010 and 2012 he was employed as a

           forklift operator, and that his stepmother testified at sentencing that he was a good father,

           son, and brother. Although defendant claims that the trial court failed to consider his youth,

           the trial court specifically observed that defendant was “a younger man.” However, the trial

           court then observed that defendant was also on probation at the time of the offense “which

           the Court does find aggravating.” The presentence investigation report reveals that defendant

           was on probation for possession of a stolen vehicle when the current offense occurred. 4 In

           addition, the trial court found that defendant was, and still is, an active gang member. During

           the sentencing hearing, defendant stated to the court: “I am not a gang member anymore, and


               4
                  With respect to defendant’s probation, the ASA argued at sentencing that defendant “was given a
       chance” and “what did he do? He committed murder.” The ASA argued, “The Judge that gave him that
       probation I am sure wishes that he gave him something more now, but no Judge can look in the future and
       tell that then.”
                                                          26 

       No. 1-16-0120


          I have not been for a long time. I had tattoos removed, moved out of the area where they are

          located, tried to better my life, and stopped all contact with them.” However, the trial court

          found, specifically, that it had made a credibility determination and that it did not believe

          defendant when he stated that he was no longer a gang member. After observing defendant’s

          demeanor first-hand, as well as all the evidence at trial, the trial court found “I don’t believe

          him when he says he is” no longer an active gang member. A reviewing court owes great

          deference to a trial court’s credibility determinations. Sorenson, 196 Ill. 2d at 431 (“the trial

          court is in a superior position to determine and weigh the credibility of witnesses, observe the

          witnesses’ demeanor, and resolve conflicts in the witnesses’ testimony”). Thus, we cannot

          find that the trial court abused its discretion when considering defendant’s age, education,

          employment history, and familial roles in light of his probation status and gang membership.

¶ 67              In particular, defendant argues that the trial court failed to consider his young age. In

          support, defendant quotes the United States Supreme Court’s decision in Roper v. Simmons,

          543 U.S. 551, 570 (2005), stating:

                  “The reality that juveniles still struggle to define their identity means it is less

                  supportable to conclude that even a heinous crime committed by a juvenile is

                  evidence of irretrievably depraved character. From a moral standpoint it would be

                  misguided to equate the failings of a minor with those of an adult ***.”

       At the time of the offense, defendant was 20 years old, which is years away from juvenile status.

       “When the legislature draws lines with respect to age, there will always be people who are close

       to the line.” Jones, 2018 IL App (1st) 151307, ¶ 73. Defendant asks us to consider a difference of

       years—not two days or two weeks, but years from juvenile status. “Since there will always be a

       defendant close to the legislative line, the statute at issue provided the judiciary with the ability


                                                        27 

       No. 1-16-0120


       to exercise discretion in fashioning an appropriate sentence within a particular range.” Jones,

       2018 IL App (1st) 151307, ¶ 73. In the case at bar, the trial court utilized that discretion to

       fashion an appropriate sentence.

¶ 68              Defendant also claims that he had a minor role in the offense. While it is true that

          others stabbed or beat the victim with a bat, defendant admitted in his statement to the police

          that he was the first one to approach the murder victim, that he was the one who asked the

          victim for the victim’s gang affiliation, and that he kicked the victim in the head when the

          victim was already down. At sentencing, the trial court considered defendant’s statement to

          the police, observing: “The Court heard his statement. The Court believes that [defendant]

          exhibited a certain amount of relish in describing what he did and he was more active. He

          was the first one off the porch to beat those guys who he thought were rival gang members.”

          Thus, the trial court did not find that defendant’s role in the offense was minor, and on

          appeal, we cannot find that the trial court abused its discretion in making this finding.

¶ 69              Next, defendant claims that his 40-year sentence was disproportionate because his

          codefendant Sams received 30 years. However, as we explained above, the trial court did not

          find defendant’s role as minimal as defendant claims. When defendant moved the trial court

          to reconsider his sentence on the ground that it was disproportionate to codefendant Sam’s

          sentence, the trial court explained that, most “importantly, I feel that [defendant’s]

          involvement in the offense was greater than that of [codefendant Sam’s]” because defendant

          was “leading the charge, so to speak, which the court felt deserved a more severe sentence

          than that of [codefendant Sams].”

¶ 70              In sum, we cannot find that the trial court abused its discretion in sentencing

          defendant.


                                                       28 

       No. 1-16-0120


¶ 71             As a final matter, defendant asks to review his sentence not only for an abuse of

          discretion but also de novo to consider whether the trial court complied with the Illinois

          constitutional provision requiring that “[a]ll penalties shall be determined both according to

          the seriousness of the offense and with the objective of restoring the offender to useful

          citizenship.” Ill. Const. 1970, art. I, § 11. Defendant bases this claim primarily on a recent

          decision in which the Fifth District stated that it “encourage[d] our supreme court” to review

          the issue of whether the standard of review employed in sentencing should be expanded to a

          two-part process. People v. Etherton, 2017 IL App (5th) 140427, ¶ 22. In a two-part process,

          sentences would “be reviewed [de novo] to determine whether the trial court followed the

          constitutional and statutory guidelines in addition to whether the trial court abused its

          discretion.” (Emphasis added.) Etherton, 2017 IL App (5th) 140427, ¶ 22. However, the Fifth

          District concluded:

                       “After careful consideration, we decline to abandon our supreme court’s

                 application of the abuse of discretion standard in reviewing sentences. Our supreme

                 court has extensively considered the propriety of using the abuse of discretion

                 standard in reviewing sentences and has repeatedly upheld the use of this standard. As

                 an appellate court, we are bound to follow the decisions of our supreme court and

                 have no authority to overrule them.” Etherton, 2017 IL App (5th) 140427, ¶ 21.

          Like our sister district, we decline defendant’s invitation to employ a different standard of

          review, and instead employ the standard required by our supreme court.

¶ 72                                          CONCLUSION

¶ 73             For all the foregoing reasons, we affirm defendant’s conviction and sentence.

¶ 74             Affirmed.


                                                     29 

