People v. Jackson

ILLINOIS OFFICIAL REPORTS
Appellate Court

People v. Jackson, 2012 IL App (1st) 092833

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

District & No. First District, Second Division
Docket No. 1-09-2833

Filed June 29, 2012

Held Based on the evidence and defendant’s confession, the State proved
(Note: This syllabus beyond a reasonable doubt that defendant committed predatory criminal
constitutes no part of sexual assault by finger-to-anus contact, and the State did not deprive
the opinion of the court defendant of a fair trial by prosecutorial misconduct during closing
but has been prepared argument, regardless of defendant’s contentions that the prosecutor
by the Reporter of misstated the law, relied on facts not in evidence and appealed to the
Decisions for the jury’s emotions.
convenience of the
reader.)

Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-17765; the
Review Hon. Joseph M. Claps, Judge, presiding.

Judgment Affirmed; mittimus corrected.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Nicole Marie Jones, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Yvette Loizon, Assistant State’s Attorneys, of counsel), for the People.

Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Presiding Justice Quinn and Justice Connors concurred in the judgment
and opinion.

OPINION

¶1 This appeal arises from a September 21, 2009 judgment entered by the circuit court of
Cook County which found the defendant-appellant, Jonathan Jackson (Jackson), guilty of
two counts of predatory criminal sexual assault. Jackson was sentenced to 10 years’
imprisonment to be served consecutively for each offense. On appeal, Jackson argues that:
(1) his conviction for predatory criminal sexual assault on the finger-to-anus count should
be reversed because plaintiff-appellee, the People of the State of Illinois (the State), failed
to establish the corpus delicti of digital penetration of the anus; (2) the State deprived
Jackson of a fair trial due to prosecutorial misconduct in the State’s closing argument; and
(3) this court should correct Jackson’s mittimus to reflect three years’ mandatory supervised
release as imposed by the trial court where the Illinois Department of Corrections (IDOC)
modified the term to “3 years to life–to be determined.” For the following reasons, we affirm
the judgment of the circuit court of Cook County. We order Jackson’s mittimus to be
corrected.

¶2 BACKGROUND
¶3 Between June 1, 2005 and July 31, 2007, Jackson lived at 10548 S. Maryland Ave.,
Chicago, Illinois, with his girlfriend Simona Patterson (Simona), Simona’s nephews Kentrail
Patterson (Kentrail) and Jarrell Patterson (Jarrell), and the victim, Simona’s niece, J.P.
During this time, Jackson often cared for the children while Simona was at work. Jackson’s
abuse of J.P. allegedly occurred during 2006 and 2007. At that time, J.P. was eight years old
and Jarrell was 11 years old.
¶4 Jackson was charged with 10 counts of predatory criminal sexual assault, 16 counts of
aggravated criminal sexual assault, and 19 counts of criminal sexual assault for crimes
committed against J.P. The State proceeded to trial on five counts of predatory criminal
sexual assault of a child, alleging: penis-to-anus contact; mouth-to-anus contact; mouth-to-
vagina contact; finger-to-vagina contact; and finger-to-anus contact. Prior to jury

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 deliberations, the State nolle prossed the counts for penis-to-anus contact and mouth-to-
vagina contact.
¶5 On September 22, 2008, the trial court conducted a hearing pursuant to section 115-10
of the Illinois Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2008)). At the
hearing, Jarrell testified that J.P. approached him in April 2006 and told him about Jackson’s
abuse. Jarrell remembered that it was April 2006 because the family had just returned from
a vacation in Champaign, Illinois. J.P. climbed into Jarrell’s bunk bed and woke him up to
tell him that Jackson had done something to her. Jarrell testified that J.P. told him that
Jackson would stand in the bathroom with her as she bathed, and would “check” her to make
sure she was clean. J.P. told Jarrell that after Jackson “checked” her, he blindfolded her and
pulled out his penis. Jarrell testified that during the conversation he was still half asleep and
he told J.P. that he would talk to Simona about it in the morning. The next morning, Jarrell
told Simona about his conversation with J.P. Jarrell testified that he also asked J.P. to tell
him what happened to her again in the morning because he was having trouble remembering
what she said. J.P. refused because she did not want to talk about it again. In June 2007,
Jarrell began to notice that J.P. was sad and was not acting normal. He asked her repeatedly
what was wrong but she refused to tell him. Finally, after the fourth time Jarrell approached
her, she began to speak about Jackson’s abuse. Jarrell testified that every Friday, Jarrell, his
siblings, Simona and Jackson would have “family night” where they would play games.
Jarrell testified that J.P. told him that one time after family night, she was lying on the couch
while wearing a dress and Jackson put his hand under her dress and began feeling her butt.
J.P. also told Jarrell that Jackson started “kissing on her” and put his finger inside her
“private part.”
¶6 Alexandra Levi (Alexandra), forensic interview manager for the Chicago Children’s
Advocacy Center (Child Advocacy Center), testified that she interviewed J.P. on July 6,
2007. After some preliminary questions, Alexandra asked J.P. what happened to her and if
she knew why she was there. J.P. started to become hesitant in answering the questions and
said that she told the police that something happened to her body. Alexandra testified that
J.P. pointed to her butt and said that Jackson had done something to her. J.P. then became
very emotional and Alexandra ended the interview.
¶7 Assistant State’s Attorney Suzanne Sanders (ASA Sanders) testified that she interviewed
J.P. at the Child Advocacy Center on July 25, 2007. J.P. told ASA Sanders that Jackson
touched her when she was eight or nine years old. J.P. said that Jackson would come into the
bathroom while she was bathing and tell her to hurry up and finish. After J.P. was done
bathing, Jackson would take her into Simona’s bedroom. ASA Sanders testified that J.P. told
her that once she was in Simona’s bedroom, Jackson would lay her on the bed, put a towel
over her face and eyes, and lick her butt “where the poop came out.” J.P. also said that
Jackson put his finger inside her butt. J.P. told ASA Sanders that Jackson touched her this
way many times, and on another occasion Jackson put “his stuff” in her butt. When ASA
Sanders asked J.P. what she meant by using the term “stuff,” J.P. pointed to her pelvic area
and responded “it’s here where my girl part is but it’s on the boy.” J.P. was able to recall that
one of the incidents with Jackson occurred right before a family vacation to Champaign,
Illinois. ASA Sanders testified that J.P. also told her about an incident with Jackson one

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 night while she was watching a movie. J.P. pointed between her legs and said that Jackson
licked her “girl part.” J.P. said that Jackson did not touch her in any other way during that
specific incident.
¶8 The court found that the time, content, and circumstances of the statements and
testimonies given by Jarrell and Alexandra during the hearing provided sufficient safeguards
of reliability. However, the court found that the statements and testimony given by ASA
Sanders did not provide sufficient safeguards of reliability. Therefore, the court admitted the
statements from Jarrell and Alexandra, but found that the statement from ASA Sanders was
not admissible.
¶9 On August 4, 2009, a jury trial for this matter commenced in the circuit court of Cook
County. Dr. Jill Glick (Dr. Glick), pediatrician and medical director of the child protection
team at the University of Chicago, testified as an expert in the areas of pediatric medicine
and child sexual abuse. On July 4, 2007, Dr. Glick conducted an examination of J.P. Dr.
Glick testified that J.P. looked dysmorphic, meaning that she had abnormal-looking facial
features. J.P.’s eyes were wide set, her head was abnormally shaped, she was very thin, and
she was communicating at a six-year-old level despite being nine years old at the time of the
examination. Because of these factors, Dr. Glick was concerned that J.P. was
developmentally delayed.
¶ 10 Dr. Glick also performed a gynecological exam of J.P. and found that there was an
absence of hymenal tissue. Dr. Glick testified that she reviewed J.P.’s medical history and
stated that J.P. still should have had a hymen at that age. The lack of hymenal tissue indicated
to Dr. Glick that J.P. had experienced trauma or sexual abuse. During the gynecological
exam, J.P. was extremely cooperative and comfortable, and was able to color in her coloring
book. Dr. Glick stated that this behavior was extremely concerning from a behavioral
neurodevelopmental standpoint because J.P. did not exhibit any resistance to the
examination. Dr. Glick testified that in her expert opinion, J.P.’s vagina had been penetrated
by an object. She stated that the object could have been a penis or finger, among other things.
¶ 11 Dr. Glick also found that J.P. had an anal fissure, which was described as an abrasion or
scratch. Dr. Glick stated that the anal fissure was “nonspecific,” meaning that it was not
necessarily caused by abuse. She was unable to determine the date the fissure developed and
stated that it could be caused by numerous common activities, including defecation. Dr.
Glick testified that based on her entire examination, she could conclude with a reasonable
degree of medical certainty that J.P. was sexually abused.
¶ 12 Assistant State’s Attorney Martha Kross (ASA Kross) testified that on August 3, 2007,
she interviewed Jackson at the Area 2 police station at 727 East 111th Street, Chicago,
Illinois. ASA Kross received a page just before midnight, and once she arrived at the police
station, she learned that Jackson was in custody for predatory criminal sexual assault. ASA
Kross read Jackson his Miranda rights and Jackson agreed to talk to her. Jackson told ASA
Kross that he had been living with J.P. for three years, and in 2006 he began to stand in the
door of the bathroom when she would take a shower. He told ASA Kross that he would then
take J.P. into the bedroom, swipe her vagina and buttocks with his fingers, and then smell
his fingers to see if she was clean. ASA Kross testified that initially Jackson told her that he

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 did this to J.P. only once. However, later in the conversation, Jackson admitted doing this
10 times, and by the end of the conversation he admitted to doing it every time she took a
shower. Jackson also initially said that he only inserted his fingers into J.P.’s anus and not
her vagina, but later said he inserted his fingers into both J.P.’s anus and vagina. ASA Kross
testified that Jackson never admitted to licking or putting his mouth on J.P.’s anus or vagina.
Jackson also denied inserting his penis into any part of J.P.’s body. Jackson said that he told
Simona about what he was doing to J.P. and that she was present on at least one occasion.
Jackson denied touching the boys in the same manner he touched J.P. Jackson stated that he
was willing to receive counseling for his behavior, but refused to give a handwritten
statement memorializing the conversation with ASA Kross. ASA Kross did not take notes
while she was speaking to Jackson, but wrote down a summary of their conversation
immediately after the interview. ASA Kross noted no intellectual deficit by Jackson and that
Jackson was sober during the interview.
¶ 13 At the time of trial, J.P. was 11 years old and testified that she remembered living with
Jackson, Simona, Kentrail and Jarrell at 10548 S. Maryland Ave., Chicago, Illinois. J.P.
testified that there were things about Jackson that she liked, but also things about Jackson
that she did not like. She stated that Jackson was funny when he would put her on top of the
refrigerator, but he also beat the children with an extension cord. J.P. testified that one time
after “family night,” she was sleeping in the dining room. She woke up when she felt Jackson
touch her butt from behind using his tongue. J.P. testified that Jackson used his tongue to
touch the “poo part” of her butt “where the poo comes out.” J.P. testified that Jackson
touched her other times while her brothers were in the room and while her mother was at
work.
¶ 14 J.P. also testified that Jackson came in the bathroom while she was taking a bath. She
said that after she got out of the tub, Jackson touched her “poo part” with his tongue. She
said that he never touched her “poo part” with his finger. J.P. testified that Jackson would
take her into Simona’s room, lay her on the bed, put a towel over her face, and touch her
“poo part” with his tongue. She stated that at the same time, Jackson would touch her front
private part but she could not remember what part of Jackson’s body he used to touch it. J.P.
testified that she told Jarrell what Jackson had done to her, but she could not remember the
date or what grade she was in when she spoke to Jarrell. J.P. said that Jackson would touch
her every time Simona went to work, and that it happened more than two times. J.P. testified
that she never felt anything go into her “poo part” or her front private part, but that it hurt
when Jackson would touch her. She said that she could not remember how old she was or
what grade she was in during family night.
¶ 15 Jarrell testified that in 2006, he lived with Jackson, Simona, Kentrail and J.P. at 10548
S. Maryland Ave., Chicago, Illinois. Jarrell said that on Friday nights, everyone would gather
for family night where they would watch movies and play games. Simona was not always
able to attend due to her work schedule. Jarrell said that Simona worked four days out of the
week from 3 p.m. to 11 p.m. Jarrell testified that one night after family night, Jasmine fell
asleep on the couch. Jarrell also fell asleep and woke up to go to his bedroom. Jarrell said
that there was a hole in his bedroom wall where an internet cord was fed from his bedroom
to the next room. Jarrell could see J.P. asleep on the couch through the hole. Jarrell testified

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 that he could see Jackson sitting on the couch close to J.P.’s thighs with his hands by J.P.’s
butt. Jarrell waited for a while and then went in the room to check on J.P. He then saw
Jackson sitting close to J.P.’s feet. Jarrell stated that he had been interviewed many times
about the incidents between J.P. and Jackson, but that day at trial was the only day where he
mentioned the hole in his bedroom wall.
¶ 16 Jarrell testified that in 2006, the family went to Champaign to visit Jackson’s mom. One
night after they returned from Champaign, J.P. woke up Jarrell to talk to him about Jackson.
The next day, Jarrell asked J.P. to tell him what happened again because he could not
remember what she said. Jarrell testified that J.P. said that Jackson blindfolded her with a
purple towel and pulled out his penis. Jarrell stated that he noticed that Jackson would go in
the bathroom while J.P. was taking a shower, but that Jackson was not acting weird. Jarrell
testified that in 2007 he noticed that J.P. was sad and was acting unusual, so he asked her
what was wrong. She said nothing was wrong but Jarrell asked her again. J.P. said that
Jackson “did it again.” Jarrell stated that he told Simona what J.P. told him.
¶ 17 Jarrell testified that J.P. never described what Jackson did to her; however, he was
reminded of his testimony at a prior hearing. Jarrell then remembered that in the hearing he
said that J.P. told him that Jackson felt her butt and private part. The State asked Jarrell why
he said that J.P. never told him about Jackson touching her and he responded “she did tell
me.” Jarrell testified that he did not remember saying that Jackson put his finger in J.P.’s
private part during the prior hearing. Jarrell testified that he never liked Jackson, but that
Jackson never touched him or Kentrail. Jarrell also stated that he was “a little” scared of
Jackson.
¶ 18 Dr. Jeremy Nicolarsen (Dr. Nicolarsen) testified that on July 3, 2007, he examined J.P.
as an intern physician in pediatrics at the University of Chicago. Dr. Nicolarsen noticed that
J.P.’s eyes were widely spaced due to a condition called hypertelorism, and that she was
short and skinny for her age. Dr. Nicolarsen began asking J.P. questions during his
examination, and J.P. told him that someone touched her private parts and put a sheet over
her head. When Dr. Nicolarsen asked J.P. to point to the area that she was talking about, J.P.
pointed to her vagina. J.P. told Dr. Nicolarsen that she did not know if someone had put his
penis in her private part. J.P. also told Dr. Nicolarsen that there was no anal or oral abuse.
Dr. Nicolarsen testified that he conducted a physical examination but not a gynecological
examination.
¶ 19 The State then entered a nolle prosequi on the predatory criminal sexual assault counts
for penis-to-anus contact and mouth-to-vagina contact. The State then rested. After the State
rested, the defense rested without presenting any evidence. Jackson moved for a directed
finding on the three remaining counts and the trial court denied Jackson’s motion. Both the
State and defense counsel for Jackson presented closing arguments, and the trial court
instructed the jury on the three predatory criminal sexual assault counts of mouth-to-anus
contact, finger-to-vagina contact, and finger-to-anus contact. The jury returned a verdict of
not guilty on the mouth-to-anus count, and returned a verdict of guilty on the finger-to-vagina
and finger-to-anus counts. On September 21, 2009, the trial court sentenced Jackson to two
consecutive terms of 10 years’ imprisonment with 3 years of mandatory supervised release
(MSR). On that same day, Jackson filed a notice of appeal and a motion to reconsider his

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 sentence claiming that: his sentence was excessive; the court improperly considered matters
in aggravation that are implicit in the offense; and the State failed to prove eligibility for an
enhanced penalty or consecutive sentencing. The trial court denied Jackson’s motion to
reconsider.

¶ 20 ANALYSIS
¶ 21 We first examine Jackson’s argument that his conviction on the finger-to-anus count of
predatory criminal sexual assault should be reversed because the State failed to establish the
corpus delicti of digital penetration of the anus. We note that Jackson did not raise this
argument in a posttrial motion. However, error claiming the failure to prove a material
allegation of the indictment cannot be forfeited. People v. Davis, 173 Ill. App. 3d 300, 303,
527 N.E.2d 552, 554 (1988). Thus, the absence of proof of corpus delicti may not be
forfeited. Id. Therefore, we will consider Jackson’s argument.
¶ 22 When considering a challenge to a criminal conviction based on the sufficiency of the
evidence, the relevant question on appeal is whether, after reviewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. People v. Hall, 194 Ill. 2d 305, 329-30,
743 N.E.2d 521, 536 (2000) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A
conviction will only be reversed where the evidence is so improbable or unsatisfactory as to
create a reasonable doubt of the defendant’s guilt. Id.
¶ 23 The supreme court has explained corpus delicti in the following manner:
“ ‘Proof of guilt for a criminal offense may be divided conceptually into proof that
an injury or loss occurred, that the cause of the loss was criminal in nature, and that the
accused was the offender. [Citation.] By common acceptation, the first two
components–the occurrence of the injury or loss, and its causation by criminal
conduct–are termed the corpus delicti; the identity of the accused as the offender, the
ultimate issue, is not considered part of the corpus delicti. [Citations.] The elements of
an offense must, of course, be proved beyond a reasonable doubt.’ ” People v. Nowicki,
385 Ill. App. 3d 53, 76, 894 N.E.2d 896, 919 (2008) (quoting People v. Furby, 138 Ill.
2d 434, 445-46, 563 N.E.2d 421, 425-26 (1990)).
Proof of corpus delicti may not rest on the defendant’s confession alone; rather, the State
must present independent evidence that corroborates the confession. Nowicki, 385 Ill. App.
3d at 76, 894 N.E.2d at 919. The independent evidence does not have to prove that an offense
occurred beyond a reasonable doubt. People v. Phillips, 215 Ill. 2d 554, 576, 831 N.E.2d 574,
587 (2005). “Rather, if the defendant’s confession is corroborated, then the confession and
the corroboration may be considered together to determine whether the crime, and the fact
that the defendant committed it, have been proven beyond a reasonable doubt.” Id. “ ‘It is
enough if the other evidence either tends to show that a crime did in fact occur [citation] or
to corroborate the confession.’ ” People v. Holmes, 67 Ill. 2d 236, 240, 367 N.E.2d 663
(1977) (quoting People v. Norcutt, 44 Ill. 2d 256, 263 (1970)). When a defendant confesses
to multiple offenses, there must be independent evidence tending to show that the defendant
committed each of the offenses for which he was convicted. People v. Sargent, 239 Ill. 2d

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 166, 185, 940 N.E.2d 1045, 1056 (2010).
¶ 24 Jackson argues that the only evidence presented at trial to support either of his
convictions was ASA Kross’s testimony about her interview with Jackson, Jarrell’s
testimony at the pretrial hearing and at trial, J.P.’s trial testimony, Dr. Glick’s trial testimony,
and Dr. Nicolarsen’s trial testimony. Jackson argues that aside from his interview with ASA
Kross, none of the other witnesses provided evidence that Jackson inserted his finger into
J.P.’s anus. A review of the record reveals that the testimony of the witnesses presented the
following evidence: J.P. told Jarrell that Jackson was “kissing on her,” put his finger in her
vagina, felt her buttocks, and blindfolded her and pulled his penis out. On one occasion,
Jarrell saw Jackson “sitting close to J.P. with his hands by her butt”; J.P. stated that Jackson
put a towel over her face, touched her anus with his tongue, and touched her vagina with an
unknown body part; J.P. stated that Jackson never touched her anus with his finger and she
did not remember anything going inside her anus or vagina. Dr. Glick testified that she
performed a gynecological exam of J.P. and found that there was an absence of hymenal
tissue, and that in her expert opinion, J.P.’s vagina had been penetrated by an object; that J.P.
had an anal fissure which Dr. Glick described as an “abrasion” or a “scratch” which was
healing, and Dr. Glick could not tell its origin; that the anal fissure was “not necessarily
caused by abuse”; that J.P. demonstrated behavior during the gynecological exam which was
extremely concerning from a behavioral neurodevelopmental standpoint; and that based on
her entire examination she could conclude with a reasonable degree of medical certainty that
J.P. was sexually abused. ASA Kross testified that Jackson told her, in August of 2007, he
lived with J.P. for three years and beginning in 2006, he “swiped” her vagina and anus with
his fingers to see if she was clean. ASA Kross testified that Jackson initially asserted that he
did so on only one occasion, then admitted doing it 10 times and finally admitted to doing
it every time J.P. took a shower. Jackson told ASA Kross that he told J.P.’s mother, Simona,
about what he was doing to J.P. and that she was present on at least one occasion. Dr.
Nicolarsen testified that J.P. told him that someone put a sheet over her head and touched her
vagina, but there had been no oral or anal abuse. This testimony and evidence certainly
“tend[ ] to show that a crime did in fact occur.” People v. Holmes, 67 Ill. 2d at 240, 367
N.E.2d at 665. The trier of fact could therefore consider Jackson’s confession in drawing
certain inferences regarding Jackson’s activity with regard to J.P. and the alleged abuse.
¶ 25 Nevertheless, in support of his argument, Jackson cites numerous cases in which one of
the defendant’s convictions for sexual assault crimes was reversed due to the State’s failure
to establish the corpus delicti of the crime. In People v. Richmond, 341 Ill. App. 3d 39, 791
N.E.2d 1132 (2003), the defendant was convicted of two counts of predatory criminal sexual
assault for penis-to-anus contact and penis-to-vagina contact. The evidence presented at trial
consisted of: the minor’s testimony that the defendant put his penis inside her anus; medical
testimony stating that the minor’s injuries were consistent with a penis entering the anus; and
the defendant’s statement that he put his penis in her anus and tried to put his penis in her
vagina but was unsuccessful. Richmond, 341 Ill. App. 3d at 43-44, 791 N.E.2d at 1136. The
appellate court reversed the defendant’s predatory criminal sexual assault conviction for the
penis-to-vagina count because the only evidence of contact between the defendant’s penis
and the victim’s vagina came entirely from the defendant’s statement. Id. at 46, 791 N.E.2d

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 at 1138. The court found that the independent evidence only tended to prove anal contact,
and did not corroborate the defendant’s statement as to vaginal contact. Id. The court rejected
the argument that the proximity between the victim’s anus and vagina tended to prove that
the defendant’s penis also came in contact with her vagina. Id.
¶ 26 In People v. Lambert, 104 Ill. 2d 375, 472 N.E.2d 427 (1984) (per curiam), the defendant
was convicted of one count of indecent liberties with a child. The evidence presented at trial
consisted of: testimony from the victim’s mother that the victim and the defendant slept in
the basement together and she noticed weeks later that the victim’s rectum was pink and
swollen; testimony from a police officer with no medical training that examined the victim
and stated that the victim’s rectum was “ ‘light redish’ ”; and testimony from the same police
officer that the defendant admitted to fondling the victim’s penis and buttocks, sucking the
boy’s penis, and rubbing his penis against the boy’s buttocks. Lambert, 104 Ill. 2d at 377-78,
472 N.E.2d at 428. The appellate court reversed the defendant’s conviction and the supreme
court affirmed. Id. at 381, 472 N.E.2d at 430. The court found that there was no medical
evidence establishing the causes for the boy’s rectal injuries, no evidence of complaints by
the boy to his mother, and no evidence outside the defendant’s confession concerning sexual
activity with the boy. Id. at 380, 472 N.E.2d at 429.
¶ 27 In Sargent, the defendant was convicted of predatory criminal sexual assault involving
J.W., one of his minor stepsons. Sargent, 239 Ill. 2d at 181, 940 N.E.2d at 1054. The
defendant was also convicted of three counts of predatory criminal sexual assault and two
counts of aggravated criminal sexual abuse involving his other stepson, M.G. Id. at 169, 940
N.E.2d at 1047. There was ample evidence presented at trial to support the defendant’s
conviction as to J.W. including multiple interviews with J.W. prior to trial, J.W.’s testimony
at trial, and the defendant’s statement prior to trial. See generally Id. at 171-82, 940 N.E.2d
at 1049-54. There was also evidence presented that supported the defendant inserting his
finger into M.G.’s anus. Id. at 184, 940 N.E.2d at 1056. However, there was no evidence
outside the defendant’s statement to support the defendant’s two convictions for aggravated
criminal sexual abuse based on fondling M.G.’s penis. Id. When M.G. was interviewed, he
could only recall one instance in which the defendant put his finger in M.G.’s anus. Id. at
172, 940 N.E.2d 1049. The supreme court reversed the defendant’s two convictions of
aggravated criminal sexual abuse. Id. at 185, 940 N.E.2d at 1056. The court reasoned “[t]here
may be circumstances where criminal activity of one type is so closely related to criminal
activity of another type that corroboration of one may suffice to corroborate the other, but
such circumstances are not present here.” Id. The court found that each separate act gave rise
to a separate charge, and the independent corroborating evidence must relate to the specific
events on which the prosecution is predicated. Id.
¶ 28 The State argues that the previously mentioned cases differ from the case at bar by
highlighting the testimony given by Dr. Glick, Jarrell and J.P. The State argues the cases
cited by Jackson, unlike the instant case, did not contain medical evidence or other testimony
to corroborate the defendants’ confessions. The State claims that although Dr. Glick’s
testimony established that J.P.’s anal fissure could have been caused by many common
activities and was not necessarily caused by abuse, it still corroborates the act of Jackson
inserting his finger into J.P.’s anus.

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¶ 29 In support of this argument, the State relies on People v. Darnell, 94 Ill. App. 3d 830, 419
N.E.2d 384 (1981), in which the defendant’s rape conviction was affirmed even though the
pathologist who examined the victim found no indications of injury to the victim’s genitalia
and had no opinion as to whether or not the victim had been raped. The pathologist stated
that he could not rule out the possibility of rape. Darnell, 94 Ill. App. 3d at 835, 419 N.E.2d
at 387. However, the appellate court’s ruling in that case was based entirely on other
evidence presented at trial. The court found that the two exhibits that corroborated the
defendant’s confession were a photograph of the defendant’s genitalia showing penile
abrasions and a photograph of the body of the victim with her shorts pulled down below her
buttocks. Id. Further, the court stated “[i]n view of the many possible inferences that can be
drawn from the pathologist’s testimony, we cannot say that his testimony was conclusive of
either the occurrence or the nonoccurrence of rape.” Id. Thus, we are not persuaded by the
State’s reliance on Darnell.
¶ 30 Although we are unpersuaded by the State’s reliance on Darnell, we find that this case
differs from the cases cited by Jackson. In Richmond, Lambert, and Sargent, the State was
unable to present any evidence that corroborated the defendants’ confessions for the
convictions that were reversed. However, in this case, Jarrell testified that J.P. told him that
Jackson “felt *** her butt,” Jarrell saw Jackson sitting close to J.P.’s thighs with “his hands
[close to] her butt,” and Dr. Glick testified that J.P. had an anal fissure. Jackson argues that
contact with the buttocks does not constitute contact with the anus. See People v. Nibbio, 180
Ill. App. 3d 513, 517, 536 N.E.2d 113, 117 (1989); People v. Oliver, 38 Ill. App. 3d 166,
170, 347 N.E.2d 865, 868 (1976). While this is generally true, we find that Jarrell’s
testimony tends to support the finding that Jackson committed the act of inserting his finger
into J.P.’s anus, to which he confessed. We acknowledge that when asked if Jackson used
his finger to touch her “poo part,” J.P. responded “no.” However, her trial testimony at times
was unclear, and it is the duty of the trier of fact to resolve inconsistencies, determine the
weight to assign testimony, and draw reasonable inferences therefrom. People v. Vaughn,
2011 IL App (1st) 092834, ¶ 24. Therefore, J.P.’s testimony does not negate Jarrell’s
testimony and that of Dr. Glick. Thus, the inference can be drawn that Jackson had finger-to-
anus contact as required by the statute.
¶ 31 Also, we find that Dr. Glick’s testimony differs from the pathologist’s testimony in
Darnell. The pathologist in Darnell found no injuries to the victim’s genitalia; however, Dr.
Glick found that J.P. had an anal fissure. Although Dr. Glick testified that the anal fissure
was not necessarily caused by abuse, she left open the possibility that it could have been.
Therefore, when considered in concert with Jarrell’s testimony it tends to corroborate
Jackson’s confession that he inserted his finger into J.P.’s anus. While not overwhelming,
Dr. Glick’s testimony and Jarrell’s testimony constitute independent evidence that
corroborates Jackson’s confession. The evidence in the instant case is “consistent with the
purpose for requiring independent evidence that corroborates the defendant’s confession,
which is to ensure that the confession itself is reliable.” People v. Salinas, 347 Ill. App. 3d
867, 883, 807 N.E.2d 1178, 1191 (2004). “[T]he trier of fact is not required to accept any
possible explanation compatible with the defendant’s innocence and elevate it to the status
of reasonable doubt. [Citations.] *** The trial judge, who saw and heard all of the witnesses,

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 *** was in a much better position than are we to determine their credibility and the weight
to be accorded their testimony.” People v. Siguenza-Brito, 235 Ill. 2d 213, 229, 920 N.E.2d
233, 243 (2009). Considering this evidence together with Jackson’s confession, we hold that
the State met its burden of proving that Jackson committed predatory criminal sexual assault
for finger-to-anus contact beyond a reasonable doubt. Therefore, the judgment of the circuit
court of Cook County as to the finger-to-anus count of predatory criminal sexual assault is
affirmed.
¶ 32 We note that the State argues that if Jackson’s conviction for the finger-to-anus count of
predatory criminal sexual assault is reversed, this court should remand his conviction for the
lesser included offense of aggravated criminal sexual assault. However, because we affirm
Jackson’s conviction, we do not need to address this argument.
¶ 33 We next examine Jackson’s argument that his convictions should be reversed because
the State deprived him of a fair trial due to prosecutorial misconduct in the State’s closing
argument. Jackson claims that during its closing argument, the State misstated the law, relied
on facts not in evidence, expressed its own opinions about witness credibility, and made
inflammatory statements solely to appeal to the jury’s emotions. We note, and Jackson
concedes, that he did not object at trial to many of the errors he raises on appeal and did not
include any of these claims in his posttrial motion. In order to preserve an issue for review
on appeal, the defendant must object to the error at trial and include the objection in a
posttrial motion. People v. Basler, 193 Ill. 2d 545, 549, 740 N.E.2d 1, 3 (2000). The State
argues that Jackson has forfeited consideration of these issues on appeal. We agree.
However, Jackson argues that this court should review his arguments as to prosecutorial
misconduct under the plain error doctrine.
¶ 34 The plain error doctrine allows a reviewing court to consider an unpreserved error when
either: “(1) a clear or obvious error occurred and the evidence is so closely balanced that the
error alone threatened to tip the scales of justice against the defendant, regardless of the
seriousness of the error; or (2) a clear or obvious error occurred and that error is so serious
that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial
process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551,
565, 870 N.E.2d 403, 410-11 (2007). The first step in assessing whether the plain error
doctrine applies is to determine whether any error has occurred in the first place. Id., 870
N.E.2d at 411.
¶ 35 We note that we do not find the evidence in this case as to the finger-to-vagina count or
finger-to-anus count of predatory criminal sexual assault to be closely balanced. Jackson’s
confession is supported by: medical evidence from Dr. Glick regarding J.P.’s lack of
hymenal tissue, J.P.’s anal fissure, and her medical opinion that J.P. was sexually abused;
Jarrell’s testimony that J.P. told him that Jackson put his finger in her private part; Jarrell’s
testimony that J.P. told him that Jackson felt her butt; Jarrell’s testimony that he saw Jackson
sitting close to J.P.’s thighs with his hands by her butt; Dr. Nicolarsen’s testimony that J.P.
told him that someone touched her private parts; and J.P.’s testimony that Jackson touched
her private part with an unknown body part. Accordingly, we find that the errors alleged by
Jackson could not, by themselves, tip the scales of justice against him. Therefore, we will
only consider Jackson’s arguments as they apply to the second prong of the plain error

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 doctrine.
¶ 36 We first discuss Jackson’s argument that the State committed reversible error when it
repeatedly misstated the law as to the definition of penetration. Although a prosecutor is
allowed wide latitude during closing argument, a misstatement of law can be grounds for
reversal. People v. Gutirrez, 205 Ill. App. 3d 231, 265, 564 N.E.2d 850, 872 (1990).
However, “[a] misstatement of the law during closing argument does not normally constitute
reversible error if the circuit court properly instructs the jury on the law, as counsel’s
arguments are construed to carry less weight with the jury than do instructions from the
circuit court.” People v. Buckley, 282 Ill. App. 3d 81, 89-90, 668 N.E.2d 1082, 1088 (1996)
(citing People v. Lawler, 142 Ill. 2d 548, 564-65, 568 N.E.2d 895, 903 (1991)). The test to
determine whether the misstatement constituted substantial prejudice to the defendant is
whether the jury would have reached a contrary verdict had the misstatement not been made.
Buckley, 282 Ill. App. 3d at 90, 668 N.E.2d at 1089.
¶ 37 A person commits predatory criminal sexual assault if the accused is over 17 years of age
and commits an act of sexual penetration with a victim who is under 13 years of age. 720
ILCS 5/12-14.1(a)(1) (West 2006) (currently at 720 ILCS 5/11-1.40(a)(1)). 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 of any animal 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 2006) (currently at 720 ILCS 5/11-0.1). During closing argument,
the State defined penetration as follows:
“ASSISTANT STATE’S ATTORNEY [ASA]: The first thing I want to talk to you
about is the definition of sexual penetration and what that means. The law states the term
sexual penetration means any contact, however slight, between the sex organ or anus of
one person and an object or sex organ or mouth of another person, or intrusion, however
slight, of any part of the body of one person into the sex organ or anus of another person.
[ASA]: What does that mean? Well, the defendant admits to rubbing [J.P.’s] vagina
and her anus and sticking his fingers in it. So all we have to prove is that there was
penetration, and all penetration means is that there is contact between either his mouth
and his finger and some sex organ on [J.P.’s] body, and we have certainly proven that.
***
[ASA]: [The State must prove that] the defendant intentionally or knowingly
committed an act of sexual penetration; to wit, an intrusion of the defendant’s finger into
[J.P.’s] vagina ***.
***
[ASA]: We have to prove that there was an intrusion of the defendant’s finger into
[J.P.’s] vagina. Again, penetration means contact, however slight ***.
***
[ASA]: The next instruction you are going to get is almost identical to the one I just
read, except in this case we have to prove that there was sexual penetration; to wit; an

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 intrusion of defendant’s finger into [J.P.’s] anus.”
¶ 38 Jackson argues that the State confused the correct definition of “penetration” by equating
it with the word “contact,” and that this sufficiently confused the jury and induced Jackson’s
conviction. Jackson is correct in that on two occasions, the State incorrectly stated that
“penetration” means “contact” regarding the finger-to-vagina count of predatory criminal
sexual assault. However, we note that the State initially read the correct definition of
“penetration” to the jury. Moreover, the trial court properly instructed the jury on the correct
definition of “penetration” and advised the jury that the attorneys’ statements were not
evidence both before and after closing arguments took place. The trial court also advised the
jury that the law that applied to this case was contained within the court’s instructions and
that the jury must follow those instructions. When determining whether the jury would have
reached a contrary verdict had the improper statements not been made, one factor which a
reviewing court relies on is whether the evidence is closely balanced. Buckley, 282 Ill. App.
3d at 90, 668 N.E.2d at 1089. As previously discussed, we hold that the evidence in this case
is not closely balanced. Because the trial court properly instructed the jury on the correct
definition of “penetration,” we cannot say that the State’s improper comments during closing
argument were so serious that they affected the fairness of Jackson’s trial. Therefore, we hold
that the State’s comments regarding penetration and contact, although erroneous, do not
amount to plain error.
¶ 39 We next examine Jackson’s argument that the State made comments in its closing
argument for the sole purpose of appealing to the jury’s emotions. Attorneys are allowed
wide latitude in making closing arguments. People v. Clark, 335 Ill. App. 3d 758, 764, 781
N.E.2d 1126, 1130 (2002). However, a prosecutor cannot make comments that are calculated
solely to arouse prejudice and inflame the passions of the jury. Id. Jackson attacks the State’s
repeated references to J.P.’s age and developmental disability when referencing her
testimony in closing. In support of his argument, Jackson cites Clark, People v. Liner, 356
Ill. App. 3d 284, 826 N.E.2d 1274 (2005), and People v. Carter, 297 Ill. App. 3d 1028, 697
N.E.2d 895 (1998), to show that references to a victim’s age serve no other purpose than to
inflame the passions of the jury. However, in all of the cases relied upon by Jackson, the
court found reversible error where the age of the victim had no bearing on any issues in the
case and the prosecutor was arguing that the victim was a member of a class that needed
protection. See Clark, 335 Ill. App. 3d at 765, 781 N.E.2d at 1131 (as to armed robbery and
home invasion charges, prosecutor’s statements in closing argument were improper where
prosecutor repeatedly referenced the elderly victim’s age and repeatedly argued that the
elderly were in a class in need of protection); Liner, 356 Ill. App. 3d at 298, 826 N.E.2d at
1287 (prosecutor’s statements that jury should make the whole country safe for victims and
protect every child in every home in the country were improper in armed robbery and home
invasion case); Carter, 297 Ill. App. 3d at 1034, 697 N.E.2d at 899-900 (prosecutor’s
reference to children not being able to have a civilized life was reversible error where there
was no evidence that the defendant possessed or sold drugs anywhere in the vicinity of
children).
¶ 40 In this case, J.P.’s age and developmental disability were relevant to the issues at trial.
J.P.’s age was a component of the offense of predatory criminal sexual assault, and her

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 developmental disability was relevant to her ability to testify and communicate in court.
Moreover, at no time did the State argue that J.P. was part of a class of citizens that needed
extra protection. Thus, the cases relied upon by Jackson are not factually nor analytically
similar to this case. Accordingly, we hold that there was no error in the State’s references to
J.P.’s age or developmental disability in its closing argument.
¶ 41 Jackson also argues that the State infringed upon his right to confrontation when the
prosecutor stated four times that J.P. was “forced” to testify and that Jackson made her do
so. The State argues that these statements were taken out of context and were merely used
to illustrate that J.P. was put in the difficult position of testifying at trial as a result of
Jackson’s abuse. The State points out that it was explaining J.P.’s difficulty in
communicating on the witness stand, not alleging that Jackson was abusing J.P. by exercising
his right to trial. The State’s argument is reasonable within the factual context of this case.
We agree with the State that Jackson’s argument regarding the use of the word “forced,” is
out of context. Because we find that no error occurred in the State’s references to J.P.’s age
and developmental disability or its use of the word “forced,” the plain error doctrine cannot
be applied to Jackson’s argument that the State’s comments were designed solely to inflame
the passions of the jury.
¶ 42 We next examine Jackson’s argument that the State committed reversible error in its
closing argument by asserting facts that were not based on evidence in the record. It is
improper for a prosecutor to argue facts not based upon evidence in the case. People v.
Williams, 333 Ill. App. 3d 204, 214, 775 N.E.2d 104, 113 (2002). As previously stated, a
prosecutor is allowed a great deal of latitude in making a closing argument. People v. Woods,
2011 IL App (1st) 091959, ¶ 42. The prosecutor is allowed to comment on the evidence and
draw all reasonable inferences from the evidence, even if they are unfavorable to the
defendant. Id. The court must review the entire closing argument and view any alleged
erroneous comments in the context they were made. Id. Although a prosecutor’s comments
may be improper, a verdict cannot be disturbed unless the prosecutor’s comments resulted
in substantial prejudice to the accused, such that without the erroneous comments the verdict
would have been different. Id. Improper comments alone will not warrant reversal unless
they are a material factor in convicting the defendant. Id.
¶ 43 Jackson challenges the State’s comments asserting that J.P. could not testify about
vaginal and anal penetration because those incidents were emotionally and physically painful.
Jackson claims that these comments were not reasonable inferences and there was no
evidence presented that demonstrated how J.P.’s physical or emotional pain affected her
ability to testify. In support of this argument, Jackson cites People v. Hayes, 183 Ill. App. 3d
752, 539 N.E.2d 355 (1989), People v. Barraza, 303 Ill. App. 3d 794, 708 N.E.2d 1256
(1999), and People v. Schaefer, 217 Ill. App. 3d 666, 577 N.E.2d 855 (1991). In the cases
cited by Jackson, the court found reversible error where the prosecutors bolstered their
closing arguments with personal anecdotes and opinions about the defendant’s guilt. While
we agree that the State’s comments about J.P.’s ability to testify due to physical and
emotional pain were improper, they were not substantially prejudicial to Jackson and were
not a material factor in his conviction. Thus, although the State’s comments were in error,
they were not so serious as to affect the fairness of Jackson’s trial. Therefore, the State’s

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 comments do not satisfy the second prong of the plain error doctrine.
¶ 44 Jackson also contends that the State’s references to J.P.’s fear of Jackson and the courage
it took for J.P. to testify constitute reversible error. Specifically, Jackson takes issue with the
State’s comment; “it must have felt like Mt. Everest to [J.P.] having to walk through this
courtroom and climb up that witness stand.” Clearly, the statement was hyperbole; however,
it did not amount to prejudice. Thus, the comments in question do not satisfy the second
prong of the plain error doctrine.
¶ 45 Next, Jackson argues that it was improper for the State to characterize him as a “rapist,”
a “child molester,” a “coward,” and “the ultimate villain.” A prosecutor may not characterize
a defendant as an “ ‘evil’ ” person, and cannot influence the jury to make a choice between
“ ‘good and evil.’ ” People v. Nicholas, 218 Ill. 2d 104, 121, 842 N.E.2d 674, 685 (2005).
However, “a prosecutor may comment unfavorably on the evil effects of the crime and urge
the jury to administer the law without fear, when such argument is based upon competent and
pertinent evidence.” Id. at 121-22, 842 N.E.2d at 685. In support of his argument, Jackson
cites Nicholas, People v. Lucas, 132 Ill. 2d 399, 437, 548 N.E.2d 1003, 1019 (1989), People
v. Johnson, 119 Ill. 2d 119, 139, 518 N.E.2d 100, 109-10 (1987), People v. Alexander, 127
Ill. App. 3d 1007, 1014, 470 N.E.2d 1071, 1077 (1984), and People v. Williams, 99 Ill. App.
3d 919, 924, 425 N.E.2d 1321, 1324 (1981). However, in all of the cases cited, the court
found that the prosecutors’ comments regarding the defendants’ “evil” character did not
amount to reversible error. Moreover, we find that the references to Jackson as a “rapist” and
“child molester” are reasonable inferences drawn from specific acts that Jackson committed.
See Nicholas, 218 Ill. 2d at 122, 842 N.E.2d at 685. The remaining statements made within
the context of closing argument are clearly the prosecutor’s opinion and when measured
against the instructions given by the court, those isolated statements cannot be said to be
substantially prejudicial so as to have denied Jackson a fair trial.
¶ 46 We note that a reviewing court may consider the cumulative impact of a prosecutor’s
improper remarks in determining reversible error rather than reviewing each improper remark
in isolation. Clark, 335 Ill. App. 3d at 764, 781 N.E.2d at1130. However, all of the errors that
occurred in this case were minor and did not amount to plain error cumulatively or in
isolation. We hold that the errors alleged by Jackson do not satisfy the plain error doctrine.
¶ 47 Alternatively, Jackson claims that the failure to object to the State’s prosecutorial
misconduct during closing argument constituted ineffective assistance of counsel. In Illinois,
claims of ineffective assistance of counsel are governed by the two-prong test established in
Strickland v. Washington, 466 U.S. 668 (1984). People v. Land, 2011 IL App (1st) 101048,
¶ 114-15. In order to satisfy the two-prong test, the defendant must show: (1) that counsel’s
performance was deficient to the level of being objectively unreasonable under prevailing
professional norms; and (2) that the deficient performance prejudiced the defendant so that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. ¶ 115. Jackson argues that his counsel failed to
object to a majority of the State’s misconduct and failed to include these issues in a posttrial
motion so as to preserve them on appeal. During closing argument, counsel for Jackson
objected numerous times to the State’s comments, including comments referencing Jackson
being characterized as a coward, J.P.’s courage in testifying, and J.P.’s lack of ability to

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 testify about some of the abuse due to the pain she experienced. The evidence in this case
was not closely balanced and the errors that occurred at trial were minor. Thus, we cannot
say that Jackson’s counsel’s performance was objectively unreasonable, or that the results
of the proceeding would have been different but for counsel’s conduct. We hold that Jackson
was not denied effective assistance of counsel. Therefore, Jackson’s convictions for the
finger-to-vagina and finger-to-anus counts of predatory criminal sexual assault are affirmed.
¶ 48 Next, both Jackson and the State assert that the trial court incorrectly credited Jackson
with 778 days of time served in pretrial custody instead of 780 days of time served. The
parties agree that the court miscalculated the amount of pretrial custody credit Jackson was
given, likely because it failed to account for the 2008 leap year and failed to account for the
date that Jackson was arrested. A criminal defendant is entitled to sentencing credit 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 2008). Therefore, we order the mittimus to be corrected to reflect 780 days of
pretrial custody credit pursuant to our authority under Illinois Supreme Court Rule 615(b).
See People v. Mitchell, 234 Ill. App. 3d 912, 921, 601 N.E.2d 916, 922 (1992).
¶ 49 Finally, Jackson argues that this court should correct his mittimus to reflect the sentence
that the trial court orally imposed during the sentencing hearing. On September 21, 2009, the
trial court sentenced Jackson to two consecutive terms of 10 years’ imprisonment with 3
years of mandatory supervised release (MSR). However, the IDOC lists Jackson’s term of
MSR as “3 yrs to life–to be determined.” Jackson argues that the IDOC had no authority to
modify the trial court’s order and the IDOC’s imposition of an indeterminate MSR term is
void. Furthermore, Jackson requests that this court correct his mittimus to accurately reflect
the trial court’s order.
¶ 50 At the time that this appeal was filed, there was a divergence of opinion between the
Second and Fourth Districts of the Illinois Appellate Court as to this exact issue. Jackson
urged this court to apply the Fourth District standard enunciated in People v. Rinehart, 406
Ill. App. 3d 272, 943 N.E.2d 698 (2010), which held that section 5-8-1(d)(4) of the Unified
Code of Corrections (Code) (730 ILCS 5/5-8-1(d)(4) (West 2008)) gives trial courts, not the
IDOC, the exclusive authority to set a determinate MSR term within the range set by the
legislature. On the other hand, the State argues that this court should apply the Second
District standard enunciated in People v. Schneider, 403 Ill. App. 3d 301, 933 N.E.2d 384
(2010), which found the language of section 5-8-1(d)(4) of the Code to be ambiguous and,
through applying the doctrine of in pari materia, held that the intent of the legislature in
sexual assault cases was to require the court to set a minimum of three years’ MSR with a
possible maximum of natural life.
¶ 51 However, during the pendency of this appeal, the Illinois Supreme Court recently
reversed the Fourth District’s decision in Rinehart. The supreme court agreed with the
Second District’s analysis in Schneider and found that the legislature intended that there be
an indeterminate MSR term in sexual assault cases pursuant to section 5-8-1(d)(4) of the
Code. See People v. Rinehart, 2012 IL 111719, ¶¶ 23-30.
¶ 52 Accordingly, the IDOC was correct in listing Jackson’s MSR term as “3 yrs to life–to be
determined.” Pursuant to our authority under Rule 615(b), we order that the mittimus be

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 corrected to reflect an indeterminate MSR term of three years to natural life. See Mitchell,
234 Ill. App. 3d at 921, 601 N.E.2d at 922.
¶ 53 We affirm the judgment of the circuit court of Cook County. The mittimus is corrected
to reflect 780 days of pretrial custody credit and an indeterminate MSR term of 3 years to
natural life.

¶ 54 Affirmed; mittimus corrected.

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