People v. Walton

NO. 4-05-0873 Filed 10/11/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
TYRONE WILLIAM WALTON, ) No. 04CF368
Defendant-Appellant. )
) Honorable
) Scott Drazewski,
) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

In June 2005, a jury convicted defendant, Tyrone

William Walton, of predatory criminal sexual assault (720 ILCS
5/12-14.1(a)(1) (West 2002)). The trial court later sentenced

him to 22 years in prison and imposed a $200 sexual-assault fine

and a $25 fine under the Violent Crime Victims Assistance Act

(725 ILCS 240/10(b) (West 2002)). The court also gave defendant

credit for 182 days served in jail prior to sentencing.
Defendant appeals, arguing that (1) he was denied a

fair trial when (a) the State withheld certain evidence related

to deoxyribonucleic acid (DNA), (b) the State withheld certain

evidence that could have been used to impeach the victim, and (c)

the State made improper comments during rebuttal argument; (2) he

is entitled to one additional day of credit against his sentence

for time served; and (3) his $25 fine imposed under the Act (725

ILCS 240/10(b) (West 2002)) should be reduced to $20. Because we

agree only with defendant's last argument, we affirm his convic-
tion and sentence as modified and remand with instructions that

the trial court amend the sentencing order to reflect a $20 fine

under the Act.

I. BACKGROUND

A. Pretrial Proceedings

In April 2004, the State charged defendant with preda-

tory criminal sexual assault, alleging as follows:

"[D]efendant, being 17 years of age or over,

knowingly committed an act of sexual penetra-

tion with L.F. who was under 13 years of age

when the act was committed, said act involv-

ing the penis of the defendant and vagina of

L.F."

On May 19, 2004, the State filed its discovery compliance,
indicating that all materials pertaining to DNA evidence

discoverable under Supreme Court Rule 417 (188 Ill. 2d R. 417)

were available for inspection or copying or both.

At the conclusion of a late November 2004 hearing,

defense counsel informed the trial court that he and the prosecu-

tor had spoken informally regarding the required production of

DNA-related material under Rule 417. Defense counsel also

requested that the court set a date by which the State had to

comply with defendant's request for such material. The court

ordered that the State provide defendant with the requested

material by December 28, 2004.

At a December 28, 2004, hearing, defense counsel

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informed the trial court that he had received the State's re-

sponse to his request for DNA-related material under Rule 417.

Counsel also indicated that if he needed additional Rule 417

material, he would "try to work with" the prosecutor.

In mid-May 2005, defense counsel sent the prosecutor an

e-mail, requesting (1) a laboratory worksheet for L.F.'s jeans,

including handwritten notes or drawings indicating the areas

where swatches were cut; (2) a physician's report accompanying

the sexual-assault kit; and (3) a curriculum vitae for Kevin

Zeeb, an Illinois State Crime Laboratory technician. That same

day the prosecutor replied via e-mail, indicating that "[a]ll of

their notes" were in the materials the prosecutor gave defense

counsel, in accordance with Rule 417. Later in May 2005, defen-

dant filed a "motion for additional discovery response," seeking,
in pertinent part, (1) a formal supplemental discovery response

identifying Rule 417 materials and (2) the court file in McLean

County case No. 02-JA-76 (in which L.F. was adjudicated a ne-

glected minor), which purportedly included information on a drug

screen performed on L.F. at or near the time of the incident.

Following an in camera review of the juvenile court file, the

trial court denied defendant's request for the court file, upon

determining that the file contained no relevant or material

information.

At an early June 2005 status hearing, the prosecutor

indicated that (1) she had brought to court the "DNA file" that

the crime laboratory had provided the State and (2) defense

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counsel could look at the State's and "compare exhibit by exhibit

and page numbers." Defense counsel stated that he wanted to make

sure that he had everything the State had.

Two days later, defendant filed a motion in limine,

seeking to bar any reference at trial to semen and DNA-related

evidence. The motion alleged, in pertinent part, that a determi-

nation as to the admissibility of such evidence was not possible

without the State's production of the following items: (1) the

curriculum vitae and job descriptions of certain hospital person-

nel and Zeeb; and (2) reports and memoranda made by hospital

staff in conjunction with the sexual-assault kit that was admin-

istered to L.F. That same day, the State filed a supplemental

answer to its discovery compliance, providing, in part, Zeeb's

curriculum vitae.
At a hearing that same day, defense counsel stated that

the State's disclosure of DNA-related material was insufficient.

The prosecutor indicated that the State had disclosed all mate-

rial required under Rule 417. In particular, the prosecutor

stated that material related to Zeeb did not fall under Rule 417

because Zeeb's actions as a forensic technician constituted

"precursor" actions to DNA analyses performed by Illinois State

Police forensic analyst Debra Minton. The trial court determined

that the requirements of Rule 417 applied to both Zeeb and Minton

but not to the hospital personnel. The prosecutor informed the

court that defense counsel "did have the opportunity to go

through our DNA packet [of] compliance[,] and it does match

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counsel's packet of compliance." Defense counsel agreed with the

prosecutor and stated that the State "has exactly what I had and

[I] had some concerns that there might have been a few more pages

of something floating out there and [the State has] represented

that there weren't and I have matched mine page for page." The

court then denied defendant's motion to bar any reference at

trial to semen and DNA-related evidence.

B. Defendant's Trial

Because the parties are familiar with the evidence

presented at defendant's June 2005 jury trial, we discuss it only

to the extent necessary to place defendant's arguments in con-

text.

Matthew Glim testified that in 2003, he was employed as

a foster-care child-welfare specialist by The Baby Fold (a
nonprofit agency that provides services to at-need children and

families). In March 2003, he was the child-welfare specialist

for L.F., who was then 12 years old. On the night of March 20,

2003, Glim received a telephone call informing him that L.F. had

left her foster home earlier that evening without permission.

Later that night, Glim met L.F. at her foster home and noticed

her behaving "very oddly." Glim took her to the hospital, where

L.F. told him that she had had sexual intercourse that evening

with a man (later identified as defendant). Glim asked hospital

personnel to perform a drug screen on L.F., and a physician

informed Glim that the drug screen was "negative."

L.F. testified that on March 20, 2003, she went to The

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Baby Fold to hang out. She met defendant and began talking with

him. L.F. asked defendant if he wanted to meet later that

evening, and he said "yes" and gave her his phone number. Two or

three hours later, L.F. phoned defendant, and they made plans to

meet at a fast-food restaurant in Normal. L.F. met defendant at

the restaurant, and they left in his car. Defendant drove them

to his friend's residence. After 20 or 30 minutes, L.F. and

defendant got in the backseat of his friend's car, and they drove

to Lake Bloomington. The friend parked the car and got out.

L.F. and defendant stayed in the car and began kissing. Defen-

dant took off L.F.'s blue jeans and underwear, put on a condom,

got on top of L.F., and began having sexual intercourse with her.

After about 10 or 15 minutes, defendant got out of the car, took

off the condom, and walked away from the car. After throwing the
condom "somewhere," defendant came back to the car. His friend

then had sexual intercourse with L.F. without using a condom.

After defendant returned L.F. to her foster home, L.F. was taken

to the hospital, where a physician examined her and a nurse

administered a sexual-assault kit.

L.F. also testified that she was currently taking

prescribed medications for depression (Zoloft) and flashbacks

(Resperdal). She denied using illegal drugs "within the month

of" the incident.

McLean County sheriff's department detective Joe

Zoeller testified that on the morning of March 21, 2003, he drove

L.F. to Lake Bloomington. Once there, L.F. eventually identified

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the parking area where the incident took place and directed

Zoeller to the area defendant had walked toward after having

sexual intercourse with her. Zoeller walked into that area and

found a used condom lying in the grass. He collected the condom

as evidence and delivered it to the Illinois State Police crime

laboratory for examination and DNA testing. Zoeller stated that

authorities were unable to identify L.F.'s second assailant.

Zeeb testified that the condom and the sexual-assault

kit were sent to the crime laboratory, where he screened the

collected evidence and turned some specimens over to the DNA

laboratory for further testing.

After Zeeb's direct testimony and outside the jury's

presence, defendant moved to have DNA-related testimony stricken

because the State had not disclosed L.F.'s signed form granting
her consent to release information and evidence to law enforce-

ment. After considering counsel's arguments, the trial court

denied defendant's motion upon determining that although the

material fell within the requirements of Rule 417, the prosecu-

tor's failure to disclose it was not willful.

Zeeb testified on cross-examination that a sexual-

assault kit was normally accompanied by a medical-history report,

which includes a physician's report. (A physician's report

includes (1) the physician's physical findings, (2) the patient's

medical chart and blood-work results, (3) the patient's descrip-

tion of the incident, and (4) release forms.) Such a report

sometimes provides Zeeb with information regarding where to look

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for specimens on collected evidence. He stated that the physi-

cian's report on L.F. should have been included in the copies of

his biology notes that were provided to the State and he had no

idea why the report was not disclosed to the State and then to

the defense. In examining the blue jeans L.F. had been wearing

during the incident, Zeeb made detailed handwritten notes and

drawings which were not disclosed to the State and then to the

defense.

Outside the jury's presence, the trial court directed

the parties to go through Zeeb's file and determine what docu-

ments were relevant to the DNA discovery issue. The parties did

so, producing a 19-page court's exhibit No. 1. Defense counsel

indicated that he had not previously received 14 pages contained

in that exhibit. Those 14 pages included (1) a "medical/forensic
documentation form," which contained L.F.'s description of the

incident and her assailant; (2) the laboratory worksheet, which

included Zeeb's handwritten notes and drawings regarding his

examination of L.F.'s blue jeans; (3) police reports; (4) a

chain-of-custody sheet; and (5) Zeeb's handwritten notes regard-

ing his creation of a blood-standard card for defendant. Counsel

acknowledged that he had previously seen the police reports in

other discovery materials, but he did not know that Zeeb may have

considered those reports in handling evidence. The prosecutor

stated that she also did not know that Zeeb had the police

reports in his file.

Defense counsel then moved to strike all of Zeeb's

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testimony based on the State's failure to disclose DNA-related

material, pursuant to Rule 417. Counsel declined to request a

continuance because the additional discovery material "will lead

to the need to re[]calculate figures, *** to re[]evaluate

chain[-]of[-]custody issues [and] we are in the middle of a trial

here." Counsel also stated that his consulting expert was

located out of state, and he did not know her availability or if

funds were available to pay her for additional consulting. The

prosecutor reiterated to the trial court that (1) the State and

the defense had received the same DNA-related materials generated

by the crime laboratory and (2) the State had not received the

additional discovery materials. After considering counsel's

arguments, the trial court denied defendant's motion to strike

upon determining that although the materials fell within the
requirements of Rule 417, the prosecutor's failure to disclose

them was not willful. Instead, the court ordered that defendant

could recall any State's witness or call any previously non-

disclosed witness on defendant's list and examine that witness

based on the aforementioned material that had not been disclosed

to defendant. In fashioning the remedy, the court stated, in

pertinent part, as follows:

"[I]n evaluating the option[s] available to

the court with reference to documents which

were not produced in discovery, *** there are

a number of options available to the court,

exclusion [of evidence] being one of them,

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but [that being] the most egregious penalty

or sanction to impose upon a discovery viola-

tion[.] [H]ere there is no evidence that the

[S]tate, and by [S]tate I'm referring to the

[S]tate's [A]ttorney in this matter, or any

assistant[,] withheld any such evidence in a

willful manner.

Each counsel [was] surprised, in es-

sence, by the additional documents which the

court has before it in [c]ourt's [e]xhibit

[No. 1] as contained within [Zeeb's] file.

One of the options available to the court,

besides just admitting the evidence as if

there was no discovery *** problem, is in
essence to ignore it and just say

[']tough.[']

That isn't appropriate in this circum-

stance. The court has indicated that another

option is to grant a continuance. [Defense

counsel] has elected not to seek a continu-

ance, the court also has, again, the option

of excluding the evidence, and the court also

has the ability to enter such other orders as

it deems just under the circumstances.

I still feel that the appropriate order

under the circumstances is to allow [defense

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 counsel] to go ahead and either recall any

previously called witness and/or to call any

previously non[]disclosed witness on his list

of witnesses during his case in chief, if it

pertains to information that is contained

within [p]ages 1 through 19 of [c]ourt's

[e]xhibit [No. 1]."

Minton testified that she analyzed DNA found on L.F.'s

underwear, which yielded two DNA fractions, one sperm fraction

and one nonsperm fraction. The sperm fraction contained a mixed

profile of two individuals, one female and one male. Minton

opined that the characteristics of L.F.'s DNA profile and defen-

dant's DNA profile were contained in that mixture. She further

opined that accepting that L.F.'s DNA profile was contained in
the sperm fraction, "this mixed DNA profile would be expected to

be seen in the population in one in 2.5 quadrillion black or one

in 2.4 quintillion white or one in 3.5 quadrillion Hispanic

unrelated individuals." (Defendant is black.) Minton's analysis

of the outside of the condom yielded two DNA fractions, and the

nonsperm fraction was a mixed profile of three individuals. The

characteristics of defendant's DNA profile were contained in that

mixture. Minton opined that approximately 57% of black, 47% of

white, and 58% of Hispanic unrelated persons could not be ex-

cluded as having contributed to the nonsperm fraction mixture.

The sperm fraction revealed a partial profile of a two-person DNA

mixture. That mixed DNA profile was consistent with defendant's

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DNA profile and one other individual, excluding L.F.

Based on the evidence presented, the jury convicted

defendant of predatory criminal sexual assault (720 ILCS 5/12-

14.1(a)(1) (West 2002)).

In early August 2005, the State filed a supplemental

answer to its discovery compliance, which included the results of

a March 21, 2003, drug screen performed on L.F. by hospital

personnel. At a hearing on defendant's motion for a new trial,

which was held a few days later in August 2005, defense counsel

informed the trial court that (1) the State had just disclosed

the results of L.F.'s March 21, 2003, drug screen, which showed

that L.F. tested positive for amphetamines and barbiturates; and

(2) the court's failure to order the State to disclose those

results when defendant requested them in May 2005 resulted in
defendant's being deprived of his right to cross-examine L.F. as

to whether those drugs were consistent with her prescribed

medications. The prosecutor informed the court that the State

had received the drug-screen results one week prior to the August

2005 hearing and three days prior to the filing of its supplemen-

tal answer. After considering counsel's arguments, the court

rejected defendant's claim regarding the drug-screen results,

noting that the State did not receive the results until early

August 2005 and after receiving those results, the State immedi-

ately turned them over to defendant. The court then denied

defendant's motion for a new trial and sentenced him as earlier

stated.

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 This appeal followed.

II. ANALYSIS

A. Defendant's Claims That He Was Denied a Fair Trial

1. Defendant's Claim That the State
Withheld DNA-Related Evidence

Defendant first argues that he was denied a fair trial

when the State withheld the following documents that contained

DNA-related evidence, as required by Supreme Court Rule 417 (188

Ill. 2d R. 417): (1) Zeeb's laboratory worksheet, which con-

tained his handwritten drawings and notes, (2) the physician's

report that accompanied the sexual-assault kit, (3) police

reports that were included in Zeeb's biology report, (4) Zeeb's

handwritten notes regarding his creation of defendant's blood-

standard card, (5) the chain-of-custody sheet, and (6) the
medical/forensic documentation form. Specifically, he contends

that in light of the State's violation of Rule 417, the trial

court should have granted his motion to strike the DNA-related

evidence and testimony thereto. In response, the State argues,

in part, that the complained-of documents do not come within

Supreme Court Rule 417. We need not decide whether the documents

come within the rule because, even assuming that they did and a

discovery violation occurred, we conclude that the court ordered

an appropriate discovery sanction.

Supreme Court Rule 417 requires disclosure of all

relevant materials relating to DNA, including, but not limited

to, "all reports, memoranda, notes, phone logs, contamination

records, and data relating to the testing performed in the case."

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188 Ill. 2d R. 417(b)(i). The purposes of the discovery rules

are to (1) prevent surprise or unfair advantage to either party

and (2) aid in the search for truth. People v. Turner, 367 Ill.

App. 3d 490, 499, 854 N.E.2d 1139, 1147 (2006). Sanctions for

violating a discovery rule are intended to accomplish the pur-

poses of discovery, not to punish the offending party. In

addition, sanctions should be fashioned to meet the particular

circumstances of each case. Turner, 367 Ill. App. 3d at 499, 854

N.E.2d at 1147. The sanction of excluding certain evidence is

appropriate only in the most extreme situations and is disfavored

"because it does not contribute to the goal of truth-seeking."

Turner, 367 Ill. App. 3d at 499, 854 N.E.2d at 1147. In choosing

a sanction, the trial court should consider the following fac-

tors: (1) the strength of the undisclosed evidence, (2) the
likelihood that prior notice could have helped discredit the

evidence, and (3) the willfulness of the State's violation.

People v. Mullen, 313 Ill. App. 3d 718, 736, 730 N.E.2d 545, 560

(2000).

The determination as to an appropriate sanction for a

discovery violation lies with the trial court's sound discretion.

Thus, we will not disturb the trial court's determination absent

an abuse of that discretion. Turner, 367 Ill. App. 3d at 499,

854 N.E.2d at 1147. "'An abuse of discretion will be found only

where the trial court's ruling is arbitrary, fanciful, unreason-

able, or where no reasonable person would take the view adopted

by the trial court.'" People v. Sutherland, 223 Ill. 2d 187,

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272-73, 860 N.E.2d 178, 233 (2006), quoting People v. Hall, 195

Ill. 2d 1, 20, 743 N.E.2d 126, 138 (2000).

The record shows that (1) the evidence of defendant's

guilt was overwhelming, given the DNA evidence and L.F.'s testi-

mony; (2) none of the materials at issue called into question the

strength of either the DNA evidence or L.F.'s testimony that

defendant penetrated her vagina with his penis; (3) the prosecu-

tor opened the State's DNA file to the defense; (4) the State's

DNA file contained the exact same materials that defendant's DNA

file contained, and nothing indicated that more DNA-related

materials existed; and (5) as the trial court found, the State's

failure to disclose the materials was not willful. Accordingly,

reviewing the court's determination as to the appropriate sanc-

tion under the applicable standard of review, we conclude that
the court's ruling was neither arbitrary, fanciful, nor unreason-

able. We thus further conclude that the court's determination

did not constitute an abuse of discretion. In so concluding, we

agree with the trial court that the particular circumstances of

this case did not warrant the extreme sanction of excluding the

DNA-related evidence. We also note that by allowing defense

counsel to examine the DNA file provided to the State by the

crime laboratory, the State appeared to have followed an open-

file policy, which not only is good practice, but particularly

helpful when trying to determine whether the State had been

acting in good faith if a discovery problem arises.

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 2. Defendant's Claim That the State
Withheld Impeachment Evidence

Defendant next argues that he was denied a fair trial

when the State failed to disclose until after trial the results

of L.F.'s March 21, 2003, drug screen, which showed that she

tested positive for amphetamines and barbiturates. Specifically,

he contends that the State's failure to disclose the drug-screen

results constituted a Brady violation (Brady v. Maryland, 373

U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963)). We disagree.

"To establish a Brady violation, the undisclosed

evidence must be both favorable to the accused and material."

People v. Barrow, 195 Ill. 2d 506, 534, 749 N.E.2d 892, 910

(2001). Under Brady, favorable evidence is material "'if there

is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been

different.'" People v. Coleman, 183 Ill. 2d 366, 393, 701 N.E.2d

1063, 1077 (1998), quoting United States v. Bagley, 473 U.S. 667,

682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985). The

materiality determination "turns on whether the '[g]overnment's

evidentiary suppression "undermines confidence in the outcome of

the trial,"'which *** 'is not a sufficiency[-]of[-]the[-]evidence

test.'" Coleman, 183 Ill. 2d at 393, 701 N.E.2d at 1077, quoting

Kyles v. Whitley, 514 U.S. 419, 434, 131 L. Ed. 2d 490, 506, 115

S. Ct. 1555, 1566 (1995), quoting Bagley, 473 U.S. at 678, 87 L.

Ed. 2d at 491, 105 S. Ct. at 3381. The Brady rule has been

codified by Supreme Court Rule 412(c) (134 Ill. 2d R. 412(c)),

which requires the State to "disclose to defense counsel any

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material or information within its possession or control which

tends to negate the guilt of the accused as to the offense

charged."

Initially, we agree with the State that based on (1)

the trial court's June 2005 determination that juvenile case No.

02-JA-76 contained nothing relevant or material to defendant's

case, (2) Glim's trial testimony that the March 21, 2003, drug-

screen results were negative, and (3) L.F.'s trial testimony that

she had not been using illegal drugs on the night of the inci-

dent, no indication existed that L.F.'s drug-screen results could

be used to impeach L.F. Thus, the State was under no duty to use

due diligence to obtain and disclose those drug-screen results.

Moreover, L.F.'s drug-screen results were not material

under Brady. As stated above, evidence will be deemed material
only if a reasonable probability exists that the result of the

proceeding would have been different if the evidence had been

disclosed to the defense. See Barrow, 195 Ill. 2d at 534, 749

N.E.2d at 910 (discussing Brady). In light of the overwhelming

evidence of defendant's guilt, we conclude that no reasonable

probability exists that, even if L.F.'s drug-screen results had

been disclosed to the defense, the result of defendant's trial

would have been different.

3. Defendant's Claim That the State Made
Improper Comments During Rebuttal Closing Argument

Defendant next argues that he was denied a fair trial

when the State made improper comments during rebuttal closing

argument. Specifically, he complains of the following remark

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about defense counsel: "[L]ike a magician, [he] holds up one

hand, keep your eye here, while this is going on here." Citing

People v. Emerson, 97 Ill. 2d 487, 455 N.E.2d 41 (1983), defen-

dant asserts that the comment "exceeded the boundaries of fair-

ness." We disagree.

In rebuttal, the prosecutor made the following perti-

nent comments:

"Ladies and gentlemen, I will respond to

counsel's arguments by telling you that you

will get these written instructions, and one

of the instructions is to consider--to con-

fine your deliberations to the evidence and

to reasonable inferences to be drawn from the

evidence. You are also to consider the evi-
dence, all of the evidence, in the light of

your own observation and experience in life.

Why am I mentioning this? Because as

[defense counsel] stood up here and talked to

you, how many times did he focus on the con-

dom and completely ignore the panties where

we have those astronomical frequencies?

None. Because, like a magician, [he] holds

up one hand, keep your eye here, while this

is going on here."

Defendant objected, and the trial court overruled the objection.

Our supreme court has held that "'[u]nless based on

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some evidence, statements made in closing arguments by the

prosecution which suggest that defense counsel fabricated a

defense theory, attempted to free his client through trickery or

deception, or suborned perjury are improper. [Citations.]'"

(Emphasis in original.) People v. Jackson, 182 Ill. 2d 30, 81,

695 N.E.2d 391, 416 (1998), quoting Emerson, 97 Ill. 2d at 497,

455 N.E.2d at 45. In Emerson, 97 Ill. 2d at 497, 455 N.E.2d at

45, the supreme court concluded that a prosecutor's comments

required reversal where, among other things, the prosecutor

suggested that defense counsel laid down a smokescreen "'composed

of lies and misrepresentations and innuendoes'" and that counsel,

like all defense attorneys, tried to "'dirty up the victim.'"

In this case, the prosecutor's comment, which was

directed toward defense counsel personally, was improper.
Nonetheless, we conclude that the impropriety in the prosecutor's

comment does not require reversal. Improper closing remarks

require reversal only if they substantially prejudice a defen-

dant, taking into account (1) the content and context of the

comment, (2) its relationship to the evidence, and (3) its effect

on the defendant's right to a fair and impartial trial. People

v. Johnson, 208 Ill. 2d 53, 115, 803 N.E.2d 405, 440-41 (2003).

In addition, our supreme court has stated that "[a] reviewing

court will find reversible error only if the defendant demon-

strates that the improper remarks were so prejudicial that real

justice was denied or that the verdict resulted from the error."

People v. Perry, 224 Ill. 2d 312, 347, 864 N.E.2d 196, 218

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(2007).

The prosecutor's comment was brief and isolated and is

thus clearly distinguishable from the pattern of inflammatory and

prejudicial comments that resulted in a new trial for the defen-

dants in Emerson. In addition, the trial court instructed the

jury that closing arguments are not evidence and any closing

comments made by the attorneys that are not based on the evidence

should be disregarded. When viewed in context and in light of

the overwhelming evidence of defendant's guilt, the complained-of

remark was not so prejudicial as to deprive defendant of a fair

trial or change the outcome of the proceeding.

B. Defendant's Claim That He Is Entitled to
One Additional Day of Sentencing Credit

Defendant next argues that he is entitled to one
additional day of credit for time served prior to sentencing.

The State responds that defendant is not entitled to credit for

the day on which he was sentenced and remanded to the Department

of Corrections (DOC). We agree with the State.

Section 5-8-7 of the Unified Code of Corrections

provides, in pertinent part, as follows: "The offender shall be

given credit on the determinate sentence *** for time spent in

custody as a result of the offense for which the sentence was

imposed ***." 730 ILCS 5/5-8-7(b) (West 2004). In addition,

under section 110-14 of the Code of Criminal Procedure of 1963,

offenders are entitled to a $5-per-day credit against imposed

fines for time spent in pretrial custody. 725 ILCS 5/110-14

(West 2004).

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 The record shows that defendant is entitled to 182 days

of credit for time served from April 14, 2004, through April 14,

2004, and February 14, 2005, through August 11, 2005. The trial

court properly declined to credit defendant for August 12, 2005,

the day he was sentenced and remanded to DOC. See People v.

Allen, 371 Ill. App. 3d 279, 284-85, 868 N.E.2d 297, 302 (2007)

(holding that a defendant is not entitled to sentencing credit

for the day he is remanded to DOC); People v. Foreman, 361 Ill.

App. 3d 136, 157, 836 N.E.2d 750, 768 (2005) (same holding).

C. Defendant's Claim That His Violent Crime
Victims Fine Should Be Reduced to $20

Last, defendant argues that his $25 fine imposed under

the Act (725 ILCS 240/10(b) (West 2002)) should be reduced to

$20. The State concedes that defendant's fine should be reduced,
and we accept the State's concession.

Section 10(b) of the Act provides, in pertinent part,

that "there shall be an additional penalty collected from each

defendant upon conviction of any felony *** of $4 for each $40,

or fraction thereof, of fine imposed." 725 ILCS 240/10(b) (West

2002).

In this case, the trial court ordered defendant to pay

a $200 sexual-assault fine. Under section 10(b) of the Act,

defendant was required to pay an additional penalty of $4 for

each $40 of his sexual-assault fine. Thus, the court should have

assessed a $20 fine under the Act, not $25. Accordingly, we

remand with instructions that the court amend the sentencing

order to reflect a $20 fine.

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 III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment as modified and remand with directions. As part of our

judgment, we grant the State's request that defendant be assessed

$50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2004);

see also People v. Smith, 133 Ill. App. 3d 613, 620, 479 N.E.2d

328, 333 (1985), citing People v. Nicholls, 71 Ill. 2d 166, 179,

374 N.E.2d 194, 199 (1978).

Affirmed as modified and cause remanded with direc-

tions.

MYERSCOUGH and COOK, JJ., concur.

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