People v. Childs

NO. 4-09-0822 Opinion Filed 3/4/11

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
FREDERICK T. CHILDS, ) No. 08CF426
Defendant-Appellant. )
) Honorable
) Charles G. Reynard,
) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the judgment of the court,
with opinion.
Presiding Justice Knecht and Justice McCullough con-
curred in the judgment and opinion.

OPINION

In May 2009, the trial court found defendant, Frederick

T. Childs, guilty of attempt (aggravated criminal sexual assault)

(720 ILCS 5/8-4(a), 12-14(a)(2) (West 2008)) and later sentenced

him to 12 years in prison.

Defendant appeals, arguing that (1) the State's charg-

ing instrument was defective; (2) the trial court erred by

finding that the State was required only to prove beyond a

reasonable doubt that he intended to commit the offense of

criminal sexual assault to convict him of attempt (aggravated

criminal sexual assault); and (3) the McLean County circuit clerk

lacked the authority to impose a (a) $10 drug-court fee and (b)

$15 children's-advocacy-center fee under sections 5-1101(d-5) and

5-1101(f-5), respectively, of the Counties Code (55 ILCS 5/5-

1101(d-5), (f-5) (West 2008)).
 Because we accept the State's concession that the

circuit clerk erred by imposing certain fees, we affirm defen-

dant's conviction and sentence as modified and remand for issu-

ance of an amended sentencing judgment.

I. BACKGROUND

A. The Indictment

In April 2008, a grand jury indicted defendant, alleg-

ing that he committed the following offense:

"Attempted Aggravated Criminal Sexual

Assault[.]

In that the defendant knowingly and with

the intent to commit criminal sexual assault

by the use of force took a substantial step

toward the commission of that offense by

hitting the victim, C.B., about the body,

thereby causing bruising to C.B., and by

ordering C.B. to remove her pants, and by

removing his penis from his pants."

B. The Stipulated Evidence Presented to the Trial Court

At an April 2009 stipulated bench trial, the parties

agreed to the admission of (1) written statements by (a) the

victim, C.B., who was 17 years old at the time of the incident,

and (b) a Bloomington police officer; (2) a police crime lab

report; and (3) several photographs, which showed the following.

On April 4, 2008, C.B. decided to leave a party and

drive home. When C.B. informed her friends that she was leaving,

- 2 -
defendant asked C.B. if she would give him a ride to his apart-

ment. C.B. reluctantly agreed, noting that despite being at

defendant's apartment with her friends on three previous occa-

sions, she only knew defendant by his nickname.

As C.B. drove, defendant repeatedly reached over and

rubbed C.B.'s thigh with his hand. Each time defendant touched

C.B., she pushed him away and told him to stop. When C.B.

arrived at defendant's apartment building, defendant suddenly

grabbed C.B.'s steering wheel and told C.B. that she was (1) "not

going anywhere" and (2) "was going to have sex with him that

night." C.B. cried and shouted that she was not going to have

sex with defendant and that she needed to go home. Defendant

responded, "You're not going anywhere, bitch," adding, "You're

gonna stay here and I'm gonna fuck you, bitch." Defendant then

shifted C.B.'s car into park and removed the ignition key.

Defendant unzipped his trousers, exposed his penis, and

told C.B., "You're gonna suck my dick, bitch." and "I'm gonna get

some head from you." C.B. refused, again yelling that she had to

go home. Defendant then (1) pulled his trousers up, (2) exited

the car, (3) dangled C.B.'s keys in front of her, and (4) taunted

C.B. by saying, "Now where you gonna go bitch?" When C.B.

attempted to make a call on her cellular phone, defendant re-

turned to C.B.'s car to stop her.

During the ensuing struggle, defendant wrestled the

phone from C.B. by repeatedly punching her in the face and body

with such force that it dislodged C.B.'s nose and ear piercings.

- 3 -
With each punch, defendant yelled that C.B. "was going to have

sex with him." C.B. estimated that defendant continued hitting

her for at least four minutes until she relented because she was

in "significant pain" and believed that she had no other choice.

C.B. told defendant that she would comply with his demands

provided he stopped beating her and remained calm.

After defendant told C.B. that she "better do what the

fuck I say bitch," defendant gave C.B. back her keys and told her

to drive to an area near the rear entrance of his apartment

building. After C.B. complied, defendant again removed the car's

ignition key and ordered C.B. into the backseat. C.B. begged

defendant to use a condom that she had supplied, but defendant

responded that he did not need a condom because he intended to

sodomize her. Defendant later agreed to use a condom based on

C.B.'s persistent cries that he do so. As defendant applied the

condom, he told C.B. to remove her pants. C.B. told defendant

that he could not have sex with her because she was menstruating

but eventually complied with defendant's order (1) to remove her

tampon, which she threw out the window, and (2) position herself

on her hands and knees.

Although defendant then attempted to penetrate C.B.'s

vagina and anus, he succeeded only in pushing his flaccid penis

into C.B.'s buttocks and against the back of her thigh. He did

so with such force that he caused C.B. to repeatedly hit her head

against the car window. About 30 seconds later, defendant

stopped and ordered C.B. to put her clothes back on. Defendant

- 4 -
told C.B. that (1) he had never done that before; (2) he "wanted"

her, but he knew C.B. was not "going to give it to [him]" so he

"had to take it"; and (3) she could not tell anyone about this

incident. Defendant then pulled up his trousers, threw the

condom out of the car window, and ran into his apartment. C.B.

then drove home and described defendant's actions to her parents.

The following day, police collected a tampon and a

condom near defendant's apartment. Testing later confirmed that

the deoxyribonucleic acid (DNA) on those items matched C.B.'s and

defendant's respective DNA profiles. Three admitted photographs

depicted (1) two separate bruises located on C.B.'s left cheek

and under her chin; (2) three separate bruises located on C.B.'s

right cheek, right ear, and forehead; and (3) a circular bruise

on C.B.'s thigh. After accepting the parties' stipulation, the

trial court continued the trial until the next month.

C. The Parties' Respective Arguments to the Trial Court

When defendant's stipulated bench trial resumed in May

2009, the parties informed the trial court that their pending

arguments did not concern the stipulated evidence previously

presented but instead, how the law applied to that evidence.

The State argued that the evidence established defen-

dant committed the offense of attempt (aggravated criminal sexual

assault) as alleged in its indictment. In particular, that

defendant intended to commit a criminal sexual assault that was

aggravated by bodily harm, which the State identified as the

bruising defendant had inflicted upon C.B. during his attempt to

- 5 -
sexually assault her. With regard to that bodily harm, the State

asserted that it was not required to prove that defendant in-

tended to inflict bodily harm, but instead, that the bodily harm

was a natural and reasonably foreseeable consequence of the force

defendant used in attempting to commit a criminal sexual assault

on C.B.

In response, defense counsel argued that at the time of

the offense, the evidence established that defendant committed

the offense of attempt (criminal sexual assault) in that defen-

dant intended only to sexually penetrate C.B. by the use of

force. In particular, defense counsel, noting that the elements

of the aggravated-criminal-sexual-assault statute require the (1)

completion of the criminal sexual assault and (2) an accompanying

aggravating factor, contended that the State improperly "ele-

vated" defendant's act of attempt (criminal sexual assault) to

attempt (aggravated criminal sexual assault) by "retrospectively"

using C.B.'s bruises that later appeared, even though he had not

committed an act of sexual penetration. Defense counsel summa-

rized his argument as follows:

"It's my argument, your honor, that at

the time the force was used, it was just

that. It was use of force as described in

the statute defining criminal sexual assault

and therefore[,] since we're talking about an

uncompleted sex act, we are talking about an

attempted criminal sexual assault."

- 6 -
 D. The Trial Court's Findings and Sentence

Following arguments, the trial court made the following

findings:

"It is [the court's] belief and [its]

finding that the intent required by the at-

tempt statute is the intent to commit the

core, or predicate, offense of criminal sex-

ual assault. The intent to perpetrate bodily

harm, the bruises in this case, as an aggra-

vating factor is not a required, specific

intent. ***

The intent to perpetrate, or to inflict

the bruises, the bodily harm, in any event

[the court] think[s] is fairly established

beyond a reasonable doubt by *** the nature

of *** defendant's assaultive conduct and his

own statements. [The court] appreciate[s]

that the premeditative dimension of the spe-

cific intent might well be that [defendant]

wanted to--his intention, his premeditation

was to secure sexual relations, and that he

has not specifically contemplated the inflic-

tion of harm to do so, but his premeditation

[the court believes], based on [defendant's]

conduct and his statements, fairly estab-

lished his contemplation that [the infliction

- 7 -
 of harm] was a possible recourse to which he

would resort, and which he, indeed, resorted

to. ***

*** Defendant's statements belie the

inferences that there was no intent, because

he made statements indicating that he was

going to secure what he wanted that night by

force and by the infliction of injuries,

which were the natural[]and[]probable conse-

quences of the infliction of the force that

[defendant] inflicted. [The court finds]

that the retrospective analysis that [defense

counsel] reflects upon simply is not fore-

closed in these circumstances by virtue of

the fact that this is an attempt offense."

Thereafter, the court found defendant guilty of attempt (aggra-

vated criminal sexual assault).

E. The Trial Court's Sentencing Order and the
Circuit Clerk's Notice to Party

Following a July 9, 2009, sentencing hearing, the trial

court filed a sentencing order that imposed a 12-year prison

sentence with 123 days of sentencing credit for time defendant

spent in pretrial confinement. That same day, the court also

filed a supplemental sentencing order, imposing the following

financial obligations against defendant: (1) a $20 penalty under

section 10(c)(2) of the Violent Crime Victims Assistance Act

(Act) (725 ILCS 240/10(c)(2) (West 2008)), (2) a $200 DNA-analy-

- 8 -
sis fee under section 5-4-3(j) of the Unified Code of Corrections

(Unified Code) (730 ILCS 5/5-4-3(j) (West 2008)), and (3) a $200

sexual-assault fine under section 5-9-1.7(b)(1) of the Unified

Code (730 ILCS 5/5-9-1.7(b)(1) (West 2008)).

On July 10, 2009, the circuit clerk filed a notice to

party, notifying defendant of the fines and court costs that had

been assessed against him. The circuit clerk's notice, which was

not signed by the trial court, included, in pertinent part, a (1)

$10 drug-court fee and (2) $15 children's-advocacy-center fee

pursuant to sections 5-1101(d-5) and 5-1101(f-5), respectively,

of the Counties Code.

On July 14, 2009, the trial court filed an amended

supplemental sentencing order again imposing only (1) a $20 Act

penalty, (2) a $200 DNA-analysis fee, and (3) a $200 sexual-

assault fine. On July 15, 2009, the circuit clerk filed another

notice to party, which was not signed by the trial court, impos-

ing, in pertinent part, (1) a $10 drug-court fee and (2) a $15

children’s-advocacy-center fee against defendant.

This appeal followed.

II. ANALYSIS

Defendant argues that (1) the State's charging instru-

ment was defective; (2) the trial court erred by finding that the

State was required only to prove he intended to commit criminal

sexual assault to convict him of attempt (aggravated criminal

sexual assault); and (3) the circuit clerk lacked the authority

to impose a (a) $10 drug-court fee and (b) $15 children's-

- 9 -
advocacy-center fee under sections 5-1101(d-5) and 5-1101(f-5),

respectively, of the Counties Code. We address defendant's

contentions in turn.

A. Defendant's Claim Regarding the
State's Charging Instrument

Defendant argues that the State's charging instrument

was defective. Specifically, defendant contends that the State's

indictment failed to allege that he had the requisite intent to

commit aggravated criminal sexual assault and as consequence,

failed to apprise him of the offense with sufficient specificity

to prepare his defense. We disagree.

The timing of a challenge to the charging instrument is

significant in determining whether a defendant is entitled to

relief. People v. Davis, 217 Ill. 2d 472, 478, 841 N.E.2d 884,

888 (2005). When a defendant challenges the sufficiency of the

charging instrument for the first time on appeal, "'a reviewing

court need only determine whether the charging instrument ap-

prised the defendant of the precise offense charged with enough

specificity to prepare his or her defense and allow pleading a

resulting conviction as a bar to future prosecution arising out

of the same conduct.'" People v. Burke, 362 Ill. App. 3d 99,

103, 840 N.E.2d 281, 284 (2005) (quoting People v. Maggette, 195

Ill. 2d 336, 347-48, 747 N.E.2d 339, 346 (2001)). In other

words, the question on appeal is whether the defect in the

charging instrument prejudiced the defendant in preparing his

defense. Davis, 217 Ill. 2d at 479, 841 N.E.2d at 888. In

making this determination, a reviewing court may refer to the

- 10 -
record. Maggette, 195 Ill. 2d at 348, 747 N.E.2d at 346.

In support of his contention that the State's indict-

ment prejudiced him, defendant asserts that because the State's

indictment charged, in part, that he "knowingly and with the

intent to commit criminal sexual assault by the use of force"

instead of charging him with "knowingly and with the intent to

commit aggravated criminal sexual assault by the use of force,"

the indictment failed to apprise him of the precise offense

charged with sufficient specificity to prepare his defense.

However, defendant fails to specify how the omission of the word

"aggravated" adversely affected his defense by articulating the

actions his counsel would have otherwise taken if the State's

indictment had included that word. See Davis, 217 Ill. 2d at

479, 841 N.E.2d at 888 (to prevail on a challenge to the charging

instrument for the first time on appeal, a defendant must show

prejudice in the preparation of his defense). Moreover, the

record belies defendant's claim that his counsel was under the

misapprehension that the State "had only charged, and could only

prove that [defendant] had the intent to commit the included

offense of criminal sexual assault."

In this case, the record shows that at the start of

defendant's April 2009 stipulated bench trial, defense counsel

agreed with the State that the sole issue before the trial court

concerned whether the stipulated evidence presented proved

defendant guilty of attempt (aggravated criminal sexual assault),

as the State had alleged in its indictment, or attempt (criminal

- 11 -
sexual assault), as defense counsel advocated. In this regard,

the record also shows that defendant's counsel was not only aware

of the State's position with regard to the offense charged in the

indictment, but also prepared in that he argued zealously in

opposition to that position. Accordingly, we reject defendant's

argument that the State's indictment failed to apprise him of the

offense with sufficient specificity to prepare his defense.

Further, defendant's conviction constitutes a bar to a future

prosecution arising out of the same conduct, and defendant does

not even argue otherwise.

B. Defendant's Claim That the Trial Court Erred

Defendant next argues that the trial court erred by

finding that the State was required to prove beyond a reasonable

doubt only that he intended to commit the offense of criminal

sexual assault to convict him of attempted aggravated criminal

sexual assault. We disagree.

1. The Offense of Attempt

Section 8-4(a) of the Criminal Code of 1961 (Criminal

Code), provides as follows:

"(a) Elements of the Offense.

A person commits an attempt when, with

intent to commit a specific offense, he does

any act which constitutes a substantial step

toward the commission of that offense." 720

ILCS 5/8-4(a) (West 2008).

2. The Offense of Aggravated Criminal Sexual Assault

- 12 -
 Section 12-14(a)(2) of the Criminal Code provides as

follows:

"(a) The accused commits aggravated

criminal sexual assault if he or she commits

criminal sexual assault and any of the fol-

lowing aggravating circumstances existed

during *** the commission of the offense:

***

(2) the accused caused bodily

harm[.]" 720 ILCS 5/12-14(a)(2)

(West 2008).

(A person commits the offense of criminal sexual assault if he

"commits an act of sexual penetration by the use of force or

threat of force." 720 ILCS 5/12-13(a)(1) (West 2008). "'Sexual

penetration' means any contact, however slight, between the sex

organ or anus of one person by an object, the sex organ, mouth[,]

or anus of another person, or any intrusion, however slight, of

any part of the body of one person or *** object into the sex

organ or anus of another person, including but not limited to

cunnilingus, fellatio[,] or anal penetration." 720 ILCS 5/12-12

(f) (West 2008)).

3. The Trial Court's Findings

In support of his argument that the trial court erred,

defendant contends that the offense of attempt (aggravated

criminal sexual assault) required the State to prove that he

intended to commit the offense of aggravated criminal sexual

- 13 -
assault instead of merely proving that he intended to commit

criminal sexual assault. Defendant's contention is misguided.

As previously outlined, the elements of attempt are (1)

an intent to commit the specific offense and (2) an overt act

constituting a substantial step toward the commission of that

offense. People v. Rincon, 387 Ill. App. 3d 708, 723, 900 N.E.2d

1192, 1205 (2008). Again, a person commits aggravated criminal

sexual assault when he commits criminal sexual assault--that is,

sexual penetration by the use of force--accompanied by a statuto-

rily enumerated aggravating factor during the commission of the

criminal sexual assault. 720 ILCS 5/12-14(a) (West 2008).

Because the statutory offense of aggravated criminal sexual

assault does not prescribe a mental state, the mental state of

intent, knowledge, or recklessness must be implied. People v.

Anderson, 325 Ill. App. 3d 624, 633, 759 N.E.2d 83, 91 (2001).

If, during the course of a sexual assault, bodily harm

is caused to the victim, it is unnecessary for the State to prove

that such harm was inflicted knowingly or intentionally. People

v. Russell, 234 Ill. App. 3d 684, 688, 600 N.E.2d 1202, 1205

(1992). "An inadvertent or accidental infliction of simple

bodily harm will nonetheless subject the assailant to conviction

of aggravated criminal sexual assault." Id.

In this case, the trial court noted that the State was

required to prove defendant intended to commit the offense of

aggravated criminal sexual assault. However, the court further

explained that, in accordance with the aggravated-criminal-sexual

- 14 -
assault statute, the State was required to prove beyond a reason-

able doubt that defendant intended to commit the offense of

criminal sexual assault--which defendant admitted to the court he

committed--and that the stipulated evidence presented proved

beyond a reasonable doubt that defendant inflicted bodily harm

during his attempt to sexually assault C.B.

In other words, the trial court first concluded that

the State did not need to prove that defendant intended to

inflict bodily harm upon C.B. to prove attempt (aggravated

criminal sexual assault) as long as the State proved--as it did--

that defendant intended to commit a sexual assault upon C.B. and,

in the process, inflicted bodily harm upon her. We agree and

view this result as consistent with Russell.

Although this analysis is sufficient to decide this

issue, we further note that the trial court also concluded that

if the State did need to prove that defendant intended to inflict

bodily harm upon C.B. to prove attempt (aggravated criminal

sexual assault), the evidence was sufficient to do so. Again, we

agree.

Here, the stipulated evidence showed that defendant

punched C.B. repeatedly until she acquiesced to defendant's

sexual demands. In so doing, he inflicted bodily harm in the

form of bruises on C.B.'s face and thigh. See People v. Evans,

209 Ill. 2d 194, 209, 808 N.E.2d 939, 947 (2004) (a reviewing

court "[w]ill not reverse a conviction unless the evidence is so

unreasonable, improbable[,] or unsatisfactory that it raises a

- 15 -
reasonable doubt of defendant's guilt").

C. Defendant's Claim Regarding the Circuit
Clerk's Imposition of Certain Fees

1. The Imposition of the Drug-Court Fee and
Children's-Advocacy-Center Fee

Defendant also argues that the circuit clerk lacked the

authority to impose a (1) $10 drug-court fee and (2) $15

children's-advocacy-center fee under sections 5-1101(d-5) and 5-

1101(f-5), respectively, of the Counties Code. The State con-

cedes that the circuit clerk erred by imposing the fees and we

accept the State's concession.

Sections 5-1101(d-5) and 5-1101(f-5) of the Unified

Code provide as follows:

"Additional Fees to finance court system. A

county board may enact by ordinance or reso-

lution the following fees:

* * *

(d-5) A $10 fee to be paid by the defen-

dant on a judgment of guilty *** under Sec-

tion 5-9-1 of the [Unified Code] to be placed

in the county general fund and used to fi-

nance the county mental health court, the

county drug court, or both.

* * *

(f-5) In each county in which a Chil-

dren's Advocacy Center provides services, the

county board may adopt a mandatory fee of

- 16 -
 between $5 and $30 to be paid by the defen-

dant on a judgment of guilty *** under Sec-

tion 5-9-1 of the [Unified Code] for a felony

***." 55 ILCS 5/5-1101(d-5), (f-5) (West

2008).

See People v. Williams, No. 1-09-1667, slip op. at 11 (Ill. App.

Dec. 2, 2010), (concluding that the fees imposed under sections

5-1101(d-5) and 5-1101(f-5) are fines because they are "not

intended to specifically reimburse the State for costs it has

incurred in prosecuting a defendant"); see also People v. Folks,

No. 4-09-0579, slip op. at 10-11 (Ill. App. Dec. 28, 2010),

(noting that the McLean County Board enacted the drug-court fee

on September 1, 2006, and the children's-advocacy-center fee on

June 1, 2008, and concluding both assessments are mandatory

fines).

In People v. Swank, 344 Ill. App. 3d 738, 747-48, 800

N.E.2d 864, 871 (2003), this court defined the proper role of

judicial and nonjudicial members in imposing statutory fines as

follows:

"The imposition of a fine is a judicial

act. 'The clerk of the court is a nonjudi-

cial member of the court and, as such, has no

power to impose sentences or levy fines.'

[Citation.] Instead, the circuit clerk has

authority only to collect judicially imposed

fines. [Citation.]"

- 17 -
 In this case, the record reveals that the trial court

did not impose either (1) a $10 drug-court fee or (2) a $15

children's-advocacy-center fee, which later appeared on the

circuit clerk's July 2009 notice to party. Thus, because we have

previously held that the drug-court fee and children's-advocacy-

center fee are both mandatory fines, those assessments cannot be

imposed by the circuit clerk. Accordingly, we (1) vacate the

fines imposed by the circuit clerk and (2) reimpose the $10 drug-

court fee and $15 children's-advocacy-center fee under sections

5-1101(d-5) and 5-1101(f-5), respectively, of the Counties Code.

See Folks, slip op. at 13, (vacating and reimposing a $10 drug-

court fee and $15 children's-advocacy-center fee, concluding that

this court can reimpose mandatory fines).

In addition, we note that because the record shows that

defendant spent 123 days in pretrial confinement on a bailable

offense, he is entitled to receive a total credit of $25 to be

applied to his $10 drug-court fee and $15 children's-advocacy-

center fee pursuant to section 110-14 of the Code of Criminal

Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/110-14

(West 2008)).

2. The Trial Court's Imposition of a
$20 Act Assessment

Section 10(b) of the Act mandates the imposition of an

additional financial penalty when a defendant is convicted of a

felony. 725 ILCS 240/10(b) (West 2008). If the trial court

imposes fines on a defendant convicted of a felony, the addi-

tional Act penalty is calculated at "$4 for each $40, or fraction

- 18 -
thereof, of fine imposed." 725 ILCS 240/10(b) (West 2008). If

no fines are imposed by the court, the additional Act penalty is

$25 for crimes of violence and $20 for any other felony. 725

ILCS 240/10(c) (West 2008). In addition, any Act penalty imposed

is not subject to the $5-per-day credit for incarceration on a

bailable offense under section 110-14 of the Criminal Procedure

Code. 725 ILCS 240/10(c) (West 2008).

Here, because this court imposed a $10 drug-court fee

and $15 children's-advocacy-center fee and the trial court had

previously imposed a $200 sexual-assault fine and $200 DNA-

analysis fee, defendant was assessed $425 in fines. See People

v. Long, 398 Ill. App. 3d 1028, 1034, 924 N.E.2d 511, 516 (2010)

(in which this court--in a matter of first impression--concluded

that the DNA-analysis fee is a fine because it does not reimburse

the State for costs associated with prosecuting a defendant).

Therefore, we vacate the court's imposition of a $20 penalty

under section 10(c) of the Act and impose a $44 penalty under

section 10(b) of the Act ($425 divided by $40 equals 10.6; 10

plus a "fraction thereof" multiplied by $4 equals $44).

III. CONCLUSION

For the reasons stated, we (1) affirm defendant's

conviction and sentence; (2) vacate the circuit clerk's imposi-

tion of fines; (3) impose a $10 drug-court fee and $15

children's-advocacy-center fee under sections 5-1101(d-5) and 5-

1101(f-5), respectively, of the Counties Code, which are offset

by credit for the time defendant served in pretrial custody; (4)

- 19 -
vacate the trial court's imposition of a $20 Act penalty under

section 10(c) of the Act, and (5) impose a $44 Act penalty under

section 10(b) of the Act. We remand for issuance of an amended

sentencing judgment consistent with this opinion. As part of our

judgment, we award the State its $50 statutory assessment against

defendant as costs of this appeal.

Affirmed as modified and remanded with directions.

- 20 -